Court File and Parties

COURT FILE NO.: 141/13

DATE: 2019-02-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KATHLEEN CHUNG, KENNETH CHUNG, JUN CHUL CHUNG, JUNG HO PARK, INGKO 2075 LTD., INGKO 101 TRUST, INGKO LIMITED, 1657777 ONTARIO INC., HI OK CHUNG IN TRUST and INGKO 101 TRUST

Respondents

COUNSEL:

David King, for the Crown

Jacqueline An, for Jun Chul Chung Jill Presser for Kathleen Chung Susan von Achten for Kenneth Chung Christopher Thiesenhausen for Jung Ho Park

HEARD: December 3, 2018

REASONS FOR JUDGMENT

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[1] What is now before me is an application by the Crown for restitution orders, forfeiture orders, and fines in lieu of forfeiture, all arising out of the convictions I registered on April 9, 2018. Subsequently, I sentenced each accused to custodial terms arising out of the particular counts on which I found each accused guilty.

[2] Subsequent to the Crown’s application for the orders now sought, counsel for Jun Chul Chung and Kathleen Chung brought an application attacking the constitutional validity of the minimum terms of imprisonment set out in s.462.37(4) of the Criminal Code. On November 5, 2018, I dismissed that application.

[3] On December 3, 2018, I held a hearing to determine the application by the Crown. Also heard at that hearing was an application by Jun Ho Park, the husband of Kathleen Chung, for an order under s.462.42 of the Code, claiming an interest in the proceeds of sale of 3421 Lakeshore Boulevard, Oakville, being the home in which he and Kathleen Chung resided, and that was purchased, at least in part, with funds obtained from the fraudulently-obtained lottery ticket. Kenneth Chung also claimed an interest in some of the seized funds.

[4] The Crown seeks a restitution order in favour of the Ontario Lottery and Gaming Corporation, pursuant to s.738 of the Code, in the amount of $14,850,819.73, being the amount of the lottery prize, including the amount paid in interest to Daniel Campbell, to whom the equivalent amount of the prize was paid. The actual amount of the lottery prize was $12.5 million. The Crown seeks the restitution order as against Jun Chul Chung and Kathleen Chung, since they were directly involved in committing the fraud that resulted in the payment of $12.5 million to Kathleen Chung.

[5] Counsel for Jun Chul Chung and Kathleen Chung submit that only the amount of $12.5 million should potentially be the subject of a restitution order, and that there is no authority to award the payment of interest. Furthermore, both Jun Chul Chung and Kathleen Chung submit that any restitution order should be made only against Jun Chul Chung, and no order should be made against Kathleen Chung. They submit that any order made should not be joint and several. If any order is to be made against Kathleen Chung, it should reflect her degree of involvement only.

[6] As far as forfeiture and fines in lieu of forfeiture are concerned, the Crown has prepared a helpful chart, which indicates what amounts have been seized since the charges were laid; the amounts to which there is no objection to forfeiture; and the amounts that are in dispute. The chart is attached to these Reasons as an Appendix.

[7] The Crown seeks forfeiture of $7,661,450.29, being the amounts that have been seized and, according to the Crown, are subject to seizure. As to the balance of the stolen prize money, that now cannot be the subject of a forfeiture order,