HKSAR v. Cheung Yiu Ming

DCCC320/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 320 OF 2011

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Reasons for Sentence

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1.The defendant has been convicted of one offence of fraud in relation to claims made for payment in respect of a tenancy agreement and expenses for a company which he was seconded to as technical director from a period from March 2008 up to June 2009. The claim being made by him in respect of his company Azonic(?) Solutions. The details of the offence have been outlined in my earlier judgment and I do not propose to rehearse it.

2.The commission of the offence or the conviction of the offence is on the basis of dishonest and deceptive means being used, in this case, to enable the continuation of payments to his company at a particular rate as a claim for services.  On the evidence I did find it was not possible to determine beyond reasonable doubt the actual correct rate which the parties agree the charges should be made but it was dishonest to use forged documents to support such claim in any event.  The difficulty of this, of course, poses is in relation to sentencing.  It is not possible to determine to a criminal standard what gain, other than the continuation of being able to obtain payment at a certain rate, the defendant would have obtained from this particular fraud.

3.Now, if the defendant had not used this deceptive and dishonest means he may well have been entitled to make such a claim.  The gravamen of such an offence in this case is the continuation of and the opportunity to charge such a rate.  In this case to use - and as it would turn out - not to expose the grey area from which the defendant and his company could profit. 

4.This is an unusual set of circumstances and, in my view, takes the case out of the normal sentencing environment for such offences.  It can be said the total expenses paid were in the region of some quarter of a million of dollars or in excess of that.  However, the defendant’s actual gain from that is not assessable except in the manner that I have already outlined. 

5.The defendant himself is in his early 40s and has a clear record.  He is a well educated man with a first class honours degree in computing.  He is a married man who has no children.  And, as I understand he was involved in the running of a number of technical companies that provide technical assistance both here and on the Mainland. 

6.The case cannot, for reasons I’ve already outlined in my judgment, be seen as a typical breach of trust case as the defendant was never, on my findings, an employee, merely a service provider and as such was not in a relationship of trust, although he was in a situation where he could be placed in a conflict of interest but that is a different matter entirely. 

7.I find that overall such an offence given the period over which it took place and the means used by the defendant and PW5 clearly warrants a sentence of imprisonment.  However the unusual extra facts or surrounding facts in this case, namely the lack of certainties, the actual gain to the defendant, means that such a sentence need not be served immediately. Although I did not agree that this was a technical breach as argued or impliedly argued I think by the defence, there is, of course, less culpability than in a situation where false means were used to obtain an unjustified or a clearly unjustified benefit or advantage.

8.I consider, that given the overall circumstances of this case, the correct sentence will be one of 12 months’ imprisonment, however that will be suspended for two years. 

9.Defendant you will not go to prison immediately but if you commit any further offence punishable by imprisonment in the next two years, you will be liable to serve that 12 months’ imprisonment.  Do you understand this?

DEFENDANT: Yes, I understand.