HKSAR v. Lee Kwai Keung

DCCC1181/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1181 OF 2000

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Before:   H H Judge S. D'Almada Remedios

Date: 15 January 2009 at 3.32 pm

Offence:  Attempting to obtain property by deception, etc. (企圖以欺騙手段取得財產等罪項)

Reasons for Sentence

1. Defendant, you have pleaded guilty to one charge of failing to surrender to custody without reasonable excuse, contrary to section 11(1) and (3) of the Criminal Procedure Ordinance.  You have admitted that on 10 April 2001, you were a person admitted to bail, and without reasonable excuse, failed to surrender to custody as should have been appointed by a court.

2. The facts of the case are as follows.  On 5 January 2001, you appeared in the District Court in a case for a charge of obtaining property by deception, and the case was adjourned to 12 January 2001 for mention, and you were granted bail.  On 12 January, you appeared before the District Court again for mention and indicated a plea of not guilty.  A trial date was given for 10 April 2001.  Your bail was extended on the same terms.  On 23 March 2001, you again appeared before the District Court for mention in relation to matters concerning legal representation.  On the trial date on 10 April 2001, you were due to appear with the two co-accused and you failed to turn up for trial and/or surrender to custody.  The other two defendants pleaded guilty to the charges against them.  A warrant was issued for your arrest and you were put on the wanted list by the police.

3. On 20 November 2008, at about 11.20 pm, you returned to Hong Kong from Malaysia and were intercepted at the Hong Kong International Airport.  The following day, you were brought back to District Court and were remanded in custody.  You now appear before me.  There were originally two charges against you.  That was the original charge of attempting to obtain property by deception in 2001 and a further charge of failing to surrender to custody to which you have pleaded guilty.

4. Today, before this court, although as indicated previously in the plea court, the prosecution intended not to proceed with the original charge against you, the prosecution now after reviewing the evidence found there to be insufficient evidence against you and therefore that charge the prosecution offered no evidence against you today.  That charge was dismissed and you were then acquitted and discharged.  Therefore, the only charge I am left to deal with, as I mentioned, is the failing to surrender to custody.

5. Mr Raymond Yu, your counsel, has put forward very full and thorough mitigation on your behalf.  I have taken all that he has said on your behalf into account.  I have also taken into account the contents of a letter to which you have written to the court.  I have also taken into account and had regard to the cases to which Mr Yu has put before me in respect of cases decided in sentencing for the charge of failing to surrender.  As I mentioned to Mr Yu during his mitigation that much of those cases dealt with very short terms of absconding of months rather than years.  In your case, they were years.

6. I myself therefore referred Mr Yu to the case of CACC27 of 2007, HKSAR v Lam Kin Chung, which is more like your case whereby the defendant in that case had absconded for nine years and four months.

7. You are 40 years of age and single, and the main reason, I am informed, for you leaving Hong Kong was because the two co-accused originally charged with you had threatened you that if you did not give them $80,000, they would frame you up, saying that you knew what they were doing.  It was to your knowledge at that time that the case against you was not strong and at the time you felt that your co-accused were joking, but you soon realised they were serious and they pestered you with phone calls and threatened to beat you up if you did not give them money.  You realised that you should not offer them money as this would worsen your case, and on the other hand, you had no money to pay them.  You stupidly did not take advice or go to the police or tell any of your family members and jumped bail and went to Malaysia to avoid this.

8. I see from your letter that you have not been happy in your eight-odd years of fugitive life in Malaysia, and as a result, you have then since come to realise that you should return to Hong Kong and surrender.  You have learnt a good lesson from what has happened and you have promised to be a good citizen in the future.

9. I accept Mr Yu’s submission that your case is not as serious or does not have the aggravating factors to which the case of Lam Kin Chung has.  In that case, Lunn J has said that the defendant in that case had also jumped bail because he had a suspended sentence hanging over his head, and that factual background was a highly relevant consideration of the culpability of the applicant in the commission of the offence.  In that case too, the applicant failed to surrender to custody when he returned to Hong Kong but he was re-arrested in the street. 

10. As I mentioned, in that case, the applicant had absconded for nine years and four months, and a starting point of 9 months’ imprisonment was taken.  In this case, you had absconded for seven years, 2001 to 2008, and you yourself had surrendered to the authorities in Hong Kong.  You had notified your solicitors that you would be coming back to Hong Kong and they were waiting for you at the airport when you arrived, knowing that you would be arrested.  You are of course of clear record, this being your first offence.

11. In all the circumstances, I therefore think an appropriate starting point for this offence is one of 6 months' imprisonment.  I give you full credit for your plea of guilty and reduce that term to 4 months’ imprisonment, to which you are so sentenced.