HKSAR v. Kagoda George William

DCCC 788/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 788 OF 2013

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REASONS FOR SENTENCE

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1.Defendant, you pleaded guilty before me this morning to a single charge of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210.

2.The subject matter of the deception was that you purportedly sold 6 kilograms of gold to one Japanese merchant, Mr Yamashita (PW1) in Hong Kong for the sum of US$228,000, which turned out to be only metal solids which is commonly known as brass.

The Facts

3.According to the Summary of Facts which you have just admitted in court, you met PW1 via a friend in Ghana.  At that time you used a false name, Ben Oduro, and after discussion with PW1, the two of you signed a memorandum of understanding on 10 January this year whereby you agreed to bring 20 kilograms of gold dust to Hong Kong and then will sell them to PW1 at US$38,000 per kilogram.

4.You subsequently came to Hong Kong together with PW1 on the same flight on 19 January this year.

5.Before and after coming to Hong Kong, PW1 had actually twice tested the genuineness of the gold dust and he was satisfied that the gold dust was genuine.  However, PW1 did not have sufficient funds to complete the purchase and he delayed the purchase to 25 January and on that day he decided to buy 6 kilograms of the gold dust first, and as a result, he paid you US$228,000 in cash as agreed, and after which you issued two receipts.

6.PW1 then asked his friend to send the gold dust for examination but before the result was available, you told PW1 that you wanted to leave first.  PW1 trusted you as he had tested the gold dust twice before and he let you leave.

7.However, after the examination result was known, it turned out that what he had purchased from you was only brass metal and not gold and when PW1 later called you back, you sounded surprised on the phone and promised to him that you would settle the matter later with him.

8.However, you did not return any call and since then you were out of contact.  In fact, you took the evening flight on the same date and left Hong Kong.  A report was made to the Police.

9.Later on you returned to Hong Kong on April 2 this year, carrying yourself another two bags of metal and you were arrested. 

10.One bag was consisting of about 10 kilograms of brass metal and another was 1 kilogram of gold.

The background and the criminal record of the defendant

11.You have one previous record in Hong Kong which is a spent conviction involving breach of condition of stay.  For this reason, I shall treat you as a person of clear record in Hong Kong.

12.You are 38 years of age and you were born in Uganda.  You were raised in Ghana and both your parents already passed away.  You are married.  Your wife is a housewife and you have a daughter who is now 13 years of age and also a young baby son who is now only 7 months old.

13.Your occupation, according to Mr. Morley, your solicitor, was a trader of clothing and shoes in China and then buying them in China and then selling them back in Ghana.

14.In mitigation, Mr. Morley informed the court that there is no guideline or tariff for this type of offence.  He however referred the court to Cheung Mee Kiu [2006] 4 HKLRD 776 in which the Court of Appeal had laid down tariff guidelines for breach of trust case.

Sentencing considerations

15.This is of course a deliberate fraud practised by you on a gullible victim.  It is also a planned and to some extent sophisticated kind of trick in that you have substituted some gold metal with some worthless metal which is brass.  In order to enhance the confidence of PW1, you had twice offered him genuine gold dust for examination and therefore won the confidence and trust of the victim.

16.The money involved is also substantial, involving as it were, approximately equivalent to HK$1.7 million, and there is no restitution of any kind so the loss of the victim is substantial.

17.In sentencing, I take into account the fact that you are a foreigner and you deliberately came to Hong Kong to commit an offence which is a relevant consideration.

18.In the case of Cheung Mee Kiu (supra), a guideline tariff was laid down by the Court of Appeal which was later amended in the case of Ng Kwok Wing [2008] 4 HKLRD 101.  According to the case, for an offence involving HK$1 million to HK$3 million, the starting point should be 3 to 5 years, and therefore for a sum involving close to 2 million, the starting point should be 4 years.

19.Of course I do accept that the tariff only applied to breach of trust case which was not present in this case.  However, this is still a very serious fraud case, and for this reason I came to the view that 3 years is the appropriate starting point.

20.You pleaded guilty which is the only mitigating factor which is effective.

21.I shall give you the full one-third discount on account of your plea and your sentence is reduced to 2 years’ imprisonment.