HKSAR v. Wong Wai Tat

DCCC 408/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 408 OF 2015

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Reasons for Sentence

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1.This is a case of cheque fraud. The defendant set up a company sometime in September 1993 purporting to carry on garment business and opened a company’s bank account a month later.

2.Initially the defendant’s company made orders with certain suppliers.  On these occasions goods were delivered, payments were duly settled by way of the company’s cheques.  However, in the following months between mid-December and January, the defendant company placed 17 orders for a variety of goods such as fax machines, plastic materials, zippers, spandex materials etc, with seven different suppliers.  Some of which the defendant’s company had dealt with in the month before without any payment problem.

3.This time goods were delivered as usual. Payments were made by way of post-dated cheques of the company.  About two to three weeks later, when the cheques were presented for payment on the date written or thereafter, they were all bounced due to insufficient funds in the company’s account.  The matter was reported to the police. 

4.Defendant left Hong Kong on 27 January 1994 and returned some 21 years later when he was stopped by the authority at the checkpoint when he returned on 22 January 2015.

5.Today the defendant pleaded guilty before me to 17 offences of evasion of liability by deception, contrary to section 18B(1)(b) of the Theft Ordinance.

6.The total value of the goods he had defrauded came close to 1.3 million; none were recovered. 

7.The defendant, aged 56, has a clear record.

8.In mitigation, the defendant through his counsel expressed regret and apology to the victims in the case.  In fact, there is not much put forward by way of mitigation.  No explanations were offered as to why he committed the crimes, nothing about his life in the mainland. 

9.Defence counsel said the defendant left Hong Kong for the mainland and lived in the mainland and now returned freely to face the music and accepted all his responsibilities.  Counsel asked the court to accept this was a voluntary surrender. 

10.When probed by the court as to what he actually did at the checkpoint, it is clear from what the court was told this was not the case the defendant took the initiative to tell the officer at the checkpoint that he had committed crimes in the 90s and now is surrendering himself to the authorities. 

11.In Lo Shiu Wah CACC 399/1999 the appellate court approved a one-quarter discount for the applicant’s guilty plea who had absconded for 5 years.  It said in the judgment in paragraph 3:

“Whilst awaiting trial in 1994, the applicant absconded and was re-arrested in March this year as he sought re-entry to Hong Kong at the Lo Wu Border Crossing.”

12.In paragraph 10:

“Mr Tong, counsel for the applicant, whilst not arguing that this was a voluntary surrender, argues that credit should be given to the applicant because this was a voluntary return to Hong Kong. With this, we do not necessarily agree.”

13.In paragraph 11, the Court of Appeal went on to say:

“In the circumstances, it is significant that a considerable period of time had passed, and it is our view that in the absence of any other act by the applicant to indicate that he was surrendering, the inference to be drawn from the circumstances was that he was attempting to re-enter Hong Kong to continue his life and avoid the consequences of his previous acts.”

14.In the instant case, all the defendant did was no more than present himself at the checkpoint and seek entry to Hong Kong. After a considerable lapse of time, 21 years later, he came back.  In the absence of any other act by the defendant to indicate he was surrendering, I am not prepared to accept this was a voluntary surrender.  In other words, I will not give him the usual one-third discount for his plea but one quarter instead. 

15.Now turning to the facts of the instant case. This was an outright fraud right from the beginning, carefully planned and craftily executed.  The company was set up not for real business but for the purpose of cheating others.  The crimes netted the defendant a handsome loot, about 1.3 million worth of goods, within a short period of time, bearing in mind 1.3 million then in 1994 is worth a lot more in terms of purchasing power than the same amount of money nowadays.

16.Clearly, what the defendant did was to achieve by craft and guile what he could not manage by honest means.  That is sheer greed.

17.Taking into account all the mitigation put forward and the facts of the case, I am taking a global approach to the matter.  I would think a 3-year term would adequately reflect the overall criminality of the defendant in the case.  I take 16 months for each of the offence as starting point.

18.As far as mitigation is concerned, apart from his guilty plea, there is no mitigation of substance.  As I said before, I would only give him discount of one-quarter.  So each term, for each of the offence, is reduced to 12 months’ imprisonment.

19.And I order that the term of Charge 1 be consecutive to 2 months of Charge 2, to 2 months of Charge 5, to 2 months of Charge 8, to 3 months of Charge 10, to 3 months of Charge 14 and to 3 months of Charge 15, and the rest are to run concurrently.  The total term is one of 27 months’ imprisonment.