HKSAR v. Nakamura Keita

DCCC337/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 337 OF 2009

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to four charges, the 1st charge is of fraud, contrary to section 16A of the Theft Ordinance, it was committed on 8 September 2008; the 2nd charge also of fraud, on 9 October 2008; and the 3rd charge, of fraud, but on 27 October 2008; and the 4th charge of theft, on 21 November, of cash of $150,000.

2.Despite your plea of guilty, a Newton Inquiry was conducted as I was required to determine whether you had committed these offences because your boss instructed you to do so and whether the money you admitted that you deceived and stole was in fact given to your boss or pocketed by yourself.

3.After a hearing of six days, calling your boss and his assistant and you giving evidence and having computer expert evidence involved, I found that your boss, PW1, did not instruct you to deceive the company and did not receive any of the monies you deceived or stole. I found that you had in fact pocketed all the money yourself. I found that this was a scheme hatched up by yourself and connived. You planned these dishonest crimes to facilitate your deception and thieving. I gave full reasons for my ruling on the Newton Inquiry today.

4.As stated in the amended Summary of Facts which you admitted, you had falsely represented that an iron plate was to be replaced when it need not in Charge 1. You falsely represented in Charges 2 and 3 that an employee was injured at work and compensation was payable to her. The amounts deceived in the first three charges amount to HK$805,283.08 and the theft in Charge 4 of $150,000 makes a total amount of money in these four charges to $955,283.08.

5.In my findings, as is given in my reasons, I found that you withdrew all these monies for yourself and pocketed them. You used this bank account as your own personal funds as and when you pleased.

6.You are 30 years of age of clear record. You are Japanese and have worked in the hotel and restaurant business for some 10 years and have held managerial positions, sometimes being in charge of over 50 staff. You are not a naïve and simple man that you make yourself out to be. You are a deceitful, dishonest young man.

7.Despite your plea of guilty, a Newton Inquiry had to be held and it took six days to resolve this matter. Although on the face of it you admitted much of the prosecution case, it was challenged to the utmost by you. You have in fact, I have found, saved little time and costs by your plea of guilty.

8.As I have said in my ruling that I found that the account put forward by you was a wholly incredulous, outrageous story spun by you. On the day of your mitigation, it was the first time you brought out an email allegedly that PW1 and PW2 had written. The prosecution had to look for expert evidence to rebut this email. Fortunately, they were able to do so in very, very efficient time, in a weekend.

9.Despite your counsel, Mr Poots’ vehement objection to the court holding a Newton Inquiry, I held one. As I said, it was important that I find out whether the money was received by PW1 as it would make a difference in the sentence you will receive.

10.Mr Poots made very full and thorough mitigation for you. And I think it goes for me to say now the only mitigation for you so far is of course your clear record and your indirect plea of guilty. I say indirect as I said I still had to hold a trial which lasted six days dealing with very crucial important issues. Of course I accept here, most importantly, that you admitted your dishonesty and your deception. But you failed in your attempt to say that you were led to do this by your employer and his assistant.

11.This is of course a breach of trust case. You were the general manager of a shop in Hong Kong and were taking monies from the company you were working for. In the case of HKSAR v Ng Kwok Wing [2008] 4 HKLRD at page 1018, for breach of trusts, the sentence for the amounts involving $250,000 to $1 million, the range is between 2 to 3 years imprisonment. The amount involvedin these four charges are $955,283.08. I therefore take a starting point had I convicted you after trial of 3 years’ imprisonment.

12.I am of the view that you are not entitled to your one-third discount, as is usually the case after a plea of guilty.

13.I take a global sentence of 3-years as a starting point on each charge and reduce the term to 30 months. I order each term to run concurrent to each other.

14.That is 2 years and 6 months’ imprisonment to which you are so sentenced.