HKSAR v. Fong Chi Wing

DCCC 481 &484/2005 (A)
(consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 481 & 484 OF 2005 (A)

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REASONS FOR SENTENCE

1.Fong Chi Wing you have pleaded guilty to one charge of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Chapter 200 (charge 1) and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L of the Criminal Procedure Ordinance, Chapter 221 (charge 2).

2.In summary between June and November 2001 you conspired together with Wong Ka Wah, Yu Yan Wa, Ip Wai Lin, Lam Ka Chun, Yip Lok Yuen and Hung Kwok Tuen to defraud banks and financial companies resulting in a loss to the banks and financial companies of approximately $364,000.

3.You were arrested in June 2004 after which you were granted court bail.  You failed to attend court on the 12 May 2005 and were only re-arrested, over 9½ years later, on the 8 January this year.  The trial against the other accused commenced before me on the 3 April 2006.  Ip Wai Lin (D7), Lam Ka Chun (D8) and Hung Kwok Tuen (D12) pleaded guilty whereas Wong Ka Wah (D1), Yu Yan Wa (D3) and Yip Lok Yuen (D10) were convicted after trial on the 8 June 2006.  I sentenced all defendants on the 29 June 2006.

4.The conspiracy was charge 2 at trial.  In summary between June and November 2001 together with the other defendants you conspired to defraud banks and financial companies to lend money and issue credit cards from which cash advances were withdrawn. 

5.On the 30 July 2001 you applied to the Business Registration Office for registration of Gold Seal System Engineers Company.  Gold Seal was a bogus company there being no actual business carried out by Gold Seal. 

6.The next day you opened a bank account for Gold Seal with the Liu Chong Hing Bank to facilitate what purported to be salary payments to various bogus employees.  The bogus employees (D7, D8 and D12) opened bank accounts in their own names using bogus residential addresses which had been rented by D3 and D10 for collection of the correspondence from the banks. 

7.Between 17 August and 24 October 2001 you instructed the Liu Chong Hing Bank to transfer various sums to the bogus employees so as to show a pattern of monthly salary payments.  With the false employment records created the bogus employees obtained from various banks and financial institutions loans and credit card cash advances totalling $364,000.  After the loans had been released and the maximum cash withdrawals made you all became untraceable.

8.In passing sentence I have carefully considered everything said on your behalf by Mr Lee, including the difficult life you have led during the past 10 years.  I take into account you have only one previous conviction for fighting in a public place over 30 years ago. 

9.In passing sentence in 2006 I took starting points of 4 years imprisonment in respect of D1 and 2 years and 6 months imprisonment in respect of all other defendants. These sentences were the subject of appeal in HKSAR v Wong Ka Wah & others CACC 261/2006.

10.All appellants advanced as a ground of appeal that I had refused to accord a discount on account of the delay in bringing the proceedings to court.  The Court of Appeal held that some credit ought to have been accorded for delay however as the starting point of 2 years and 6 months imprisonment was decidedly low this did not result in a reduction of sentence.  

11.In respect of D1 the Court of Appeal held that there was no justification for imposing a sentence greater than the sentence imposed on the other defendants and that there was an unjustifiable disparity between the sentence of D1 and the other defendants.  In these circumstances the Court of Appeal allowed the appeal against sentence by D1 and substituted a sentence of 2 years and 6 months imprisonment.

12.In the circumstances I accept the submission of Mr Lee that I should adopt the same starting point for you.  I am satisfied a starting point of 2 years and 6 months imprisonment is appropriate.  You are entitled to credit for pleading guilty however your plea is not a timely plea having been re-arrested over 9½ years after you failed to surrender to court. 

13.Mr Lee explains that on the 8 January this year the police went to the home of your brother and left a message for you to contact them.  You telephoned the police who invited you to surrender.  You then went to the police station where you were re-arrested.  The prosecution accept this is how you came to be re-arrested. 

14.Although finally you did surrender this is after 9½ years.  Your plea not being a timely plea you are not entitled to the full credit for pleading guilty.  As Stock JA observed in HKSAR v Chow Tak-fuk, CACC 428/2004:

“…“Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”

15.Taking into account you have absconded for over 9½ years and that you did finally surrender I am satisfied on account of the lateness of your guilty plea a discount of 6 months is appropriate, which is equivalent to 20% discount.  You are convicted and sentenced to 2 years imprisonment.  

Failing to surrender

16.In HKSAR v Ko Chun Hung CACC 71/2007 the Court of Appeal in rejecting the submission that the appellant had been punished twice for absconding stated that by absconding he had committed a fresh offence and had to be punished separately.  

17.In HKSAR v Lam Kin Chung CACC 27/2007 the Court of Appeal upheld a starting point of 9 months imprisonment where the appellant was re-arrested over nine years after failing to surrender to court.  I am satisfied a 9 months starting point is also appropriate in your case you also having been re-arrested over 9 years after failing to attend court.  Giving you full credit for your plea of guilty you are convicted and sentenced to 6 months imprisonment. 

18.In Ko Chun Hung the Court of Appeal upheld a wholly consecutive sentence for failing to surrender.  I am satisfied that a wholly consecutive sentence is appropriate and that a total sentence of 2 years and 6 months imprisonment properly reflects your culpability on the charges.