HKSAR v. YIP SHU WAI, WALTER

DCCC 202/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 202 OF 2001

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HKSAR
v
YIP Shu-wai, Walter (D1)
____________

Before : H.H. Judge G. Lam

Date : 22 November 2013

Present : Mr. Albert POON, counsel on fiat, for HKSAR.
Mr. Patrick TSANG instructed by M/s Leung Kin & Co., assigned by the Director of Legal Aid, for the defendant.

Offences : (1) Conspiracy to defraud(串謀詐騙)
(2) Failing to surrender to custody without reasonable cause(無合理因由而沒有按照法庭的指定歸押)

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of “Conspiracy to defraud” (Charge 1) and a charge of “Failing to surrender to custody withoutreasonable cause” (Charge 2).


Summary of Facts

Charge 1

2. The Police received complaints from a number of ex-employees (who were the victims of this fraud) of Link Legend Enterprise Limited(“Link Legend”). The whole set up of this company was a sham orchestrated to defraud the victims of their money on the false pretenceof investing in Loco London Silver (“LLS”).

3. Link Legend targeted people with no real skills and with poor educational background by placing advertisements in local newspapersfor office cleaners, office assistants, junior clerks and warehouse attendants. The job applicants filled in application forms andwere each offered a job with the company after a brief interview. Thereafter, they were kept isolated from each other and were giventhe task of copying some LLS transactions which were said to be records of clients of the company.

4. None of those recruited were assigned actual work relating to the job for which they had applied. Instead, one of the members ofthe conspiracy would be assigned to work alongside a newly recruited “employee” in order to show him/her how to perform allegedlyLLS trading calculations. The conspirators boasted that there were good profits to be made on the LLS trading market.

5. Despite their failure to understand how LLS trading really worked, the new “employees” (who would soon become victims) were persuadedto invest comparatively large sums of money in LLS according to their financial ability. Shortly after they had done so, the victimswere told that they had incurred “losses” from their trading. They would be asked to raise funds to cover these losses. If theywere unable to do so, they were asked to leave the company and were told that their wages would be taken by the company as compensation. Some of the victims were warned not to report the matter to the Police or the company would sue them for the outstanding debt.

6. Between May and July 1999, a total of 10 victims complained to the Police. They suffered financial losses of about HK$2 millionin aggregate. Their individual losses ranged from HK$20,000 to HK$510,000.

7. At an identification parade held at Tsuen Wan Police Station on 9 August 1999, 2 victims (Mr. LO and Madam LI) identified PW1 as”Ah Sam” who taught them how to do the LLS trading calculations and gave them trading instructions. Mr. LO had given a total ofHK$510,000 to Link Legend; whereas Madam LI, HK$195,000.

Charge 2

8. The trial of D1 to D12 was scheduled to commence in the District Court on 3 October 2001. At the Pre-trial Review on 24 August2001, the presiding judge granted bail to D1 until the first day of trial.

9. On 3 October 2001, D1 did not attend the District Court and failed to surrender to custody.

10. On 14 August 2013, D1 surrendered to Tsuen Wan Police Station. He did not provide any reasonable excuse for failing to surrenderto custody on 3 October 2001.

Mitigation & Sentence

11. D1 is now 40. He has 3 conviction records involving a total of 5 offences, 2 of which are “Blackmail” and “Theft”. I note thathe was last sentenced to a total of 6 months’ imprisonment on 29 May 2001 (in DCCC 1022/2000). He was then granted bail in the presentcase on 24 August 2001. Defence counsel Mr. TSANG submitted that D1 is very remorseful and has decided to surrender himself after12 years. At the time of Charge 1, D1 was only in his mid-20s. Mr. TSANG further submitted that D1 has learned and grown up overthe years; he now wants to live a new life.

12. Mr. TSANG stressed that despite being a wanted person, D1 did not commit any crime during the absconding period. He was all alongin Hong Kong. He did not work and had to rely on his family for financial support. Letters from D1’s 2 younger brothers were placedbefore me; their contents are duly noted.

13. The Court of Appeal has already dealt with the appeals against sentence lodged by D2 to D12 (CACC 515/2001 dated 5 December 2002and CACC 515/2001 & 521/2002 dated 15 July 2003). I have had the benefit of reading both judgments. I need not repeat the reasonshere; suffice it to say that the Court of Appeal held that a starting point of 4 years’ imprisonment was proper for all defendantsin this case. It was also held that D12 should only be entitled to a 25% discount (instead of the usual one-third) for her lateplea of guilty (as a result of absconding from bail).

14. I simply see no reasons why I should not follow the decisions of the Court of Appeal. Hence, for Charge 1, I will adopt a startingof 4 years’ imprisonment. A 25% discount is given for the late plea of guilty, reducing the sentence to 3 years. Apart from this,I see no other mitigating factors which warrant any further discount. D1 is sentenced to 3 years’ imprisonment for Charge 1.

15. For Charge 2, the maximum sentence for conviction upon indictment is a fine of any amount and 12 months’ imprisonment[1]. D1 has absconded for 12 years, which is a long time by any standard. In HKSAR v WONG Chi Hung CACC 300/2010 (Chinese judgment), the Court of Appeal upheld that a starting point of 3 months’ imprisonment for a person who hasabsconded for 28 days. I will adopt a starting point 6 months’ imprisonment; reduce it by one-third to 4 months, which shall bethe sentence for Charge 2.

16. D1 has no one but himself to blame for being wanted for 12 years. The matter could have been resolved long time ago had he beenresponsible enough to come to court to stand trial. Now he must face the consequences of his own absconding. Charges 1 and 2 areseparate and distinct. Having considered the totality principle, I order 1 month in Charge 2 to run concurrent with the sentencefor Charge 1. Thus, the total prison term for both charges is 3 years and 3 months.

(G. Lam)
District Judge


[1] See section 9L(3) of Cap.221.