HKSAR v. Hung Fan Ming

DCCC993/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 993 OF 2009

----------------------

----------------------

-----------------------------

Reasons for Sentence

-----------------------------

1.The defendant has pleaded guilty to one offence of fraud, contrary to section 16A of the Theft Ordinance. He has admitted the facts presented by the prosecution and I have convicted him of that offence.

2.The fraud consists of the defendant representing him to be authorised to collect a cashier’s order in the sum of $6.38 million.

3.The Summary of Facts disclosed that the offence arose out of a Miss Au of the Chinacorp International Consultants Limited telling investment agents that she was interested in purchasing the controlling stake of a listed company in Hong Kong, and a Mr Wong told her that an interested company was available but that a cashier’s order in the sum of $6.38 million had to be granted to the law firm, K M Cheung & Co., as earner’s money. A cashier’s order was drawn up in the sum of $6.38 million, payable to K M Cheung & Co. This was handed to an investment agent, Mr Wong. Mr Wong arranged a meeting with what he thought was a representative of K M Cheung & Co. at the office of another solicitor.

4.At that meeting that occurred on 1 September, the defendant referred to himself as a Mr Cheung Kam-min, Mickey, as a solicitor with K M Cheung & Co., and said he was authorised by the seller to deal with the sale of the shares.

5.On the next day, the defendant again went to collect the cashier order, and they did this outside the office of K M Cheung & Co. at Jardine House, and the defendant showed an authorisation letter saying he was the lawful attorney of the seller, a Miss Chu, and he received the cashier’s order.

6.Eventually, Miss Au felt suspicious and told Mr Wong to recover the cashier’s order and instructed the bank to cancel it.

7.Of course, the case was that the defendant was not a solicitor with K M Cheung & Co., K M Cheung & Co. knew nothing about this sale of shares, and there was no such sale of shares.

8.The defendant accepted those facts and I convicted him.

9.As far as his antecedents are concerned, the defendant is currently serving a sentence of imprisonment which was imposed on 12 January this year for conspiracy to defraud and sentenced to 34 months’ imprisonment. I am also informed that that involved fraud in the region of about $1 million.

10.The defendant is currently 32 years of age. He has worked as a clerk in a logistics company and currently obviously serving a sentence of imprisonment, and he is single.

11.In mitigation, I received a helpful written submission. It tells me that the defendant’s parents divorced and he was brought up with his father in a public housing estate in Tuen Mun. His mother is aged 51 and living in Japan.

12.The mitigation is the defendant was the sole author of the fraud in question. He was told about a buyer who was interested in acquiring the listing of a local stock. He was given the name and contact of the middleman involved and the firm of solicitors’ name of well and, of course, on 1 September he represented to the parties that he was the solicitor and the lawful attorney of the seller of the shares and thereby collected the cashier’s order for HK$6.38 million.

13.The defence point out two things. Firstly, the cashier’s order was drawn in favour of K M Cheung & Co. and the cashier’s order had never been presented for payment and no loss had been suffered by the buyer. Also, as pointed out, the defendant has taken courses in prison, eager to rehabilitate himself, and obviously the defendant has shown remorse by his plea of guilty.

14.I think it is settled that there is no actual tariff sentence for the offence of fraud under section 16A and the sentences will vary depending on factors, such as the sophistication of the fraud, the period over which it has been carried on, the amount of money that has been obtained as a result of the fraud, and also the amount of money that may well have been obtained if the fraud had been successful. These are just some of the factors that one could take into account.

15.I have been referred to the case of HKSAR v Wan Kwong Chiu, where in a theft of a chequebook a starting point of 3 years’ imprisonment was said to be appropriate where that was charged as fraud, and they took the view that in the case of a cheque it was less serious than cases of credit card fraud, both in nature and in detriment to the community.

16.So far as the sophistication and planning is concerned, the defendant obviously appears to have played the only role in obtaining the cashier’s order. It was a period of about two days that the fraud was in operation and the cashier’s order was not in his name and was never presented by him and there is nothing in the Facts to suggest how the cashier’s order made out to the solicitors’ firm could have been taken or drawn in favour of the defendant.

17.However, perhaps the most serious aggravating factor is the size of the cheque, $6.38 million. It is a very substantial sum of money and if a scheme had been devised for taking that money, it would have been a very serious offence indeed. Obviously it is a factor that must be considered in determining the starting point for sentence.

18.I consider that the overall starting point for sentence in this case should be 4 years’ imprisonment. The defendant has pleaded guilty, he is entitled to the one-third discount. That reduces the sentence to 32 months’ imprisonment.

19.I cannot look at this case completely in isolation from his existing sentence. It is obviously a separate identifiable offence committed on a different occasion and could be served completely consecutively, but the defendant is at present serving that sentence and has been doing so since earlier this year and I must consider the overall totality of sentence in regards to the overall totality of criminality that the defendant has pleaded guilty to.

20.Having regard to that, I consider it would be incorrect to order the defendant to serve the entirety of his sentence consecutively to his existing sentence.

21.What I shall order is that of the existing sentence of 32 months’ imprisonment, 22 months of those will be served consecutively to his existing sentence and 10 months concurrently.