HKSAR v. JING YUELI

DCCC 1123/2018

[2019] HKDC 1197

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1123 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 charges of conspiracy to steal (Charges 1 and 2), contrary to section 9 of the Theft Ordinance, Cap 210 and sections 159A and 159C of the Crimes Ordinance, Cap 200. Charge 3 on the charge sheet was ordered to be kept on file, not to be proceeded with without the leave of court.

Summary of facts

2.  Prosecution witness Ms Chang discovered that her Hong Kong identity card had gone missing in the afternoon of 11 January 2018.  She last saw it 5 days ago on 6^th January.

Charge 1

3.  At around 10:16 am on 10^th January, the defendant presented Ms Chang’s lost identity card at the HSBC branch at 71-85 Hennessy Road in Wanchai and requested to withdraw $90,000 from the bank account held in Ms Chang’s name.

4.  Believing the defendant to be Ms Chang, the teller arranged for the withdrawal as instructed and handed over $90,000 in cash.

5.  The defendant then inquired about the balance of the account, whereupon she was asked to sign a Balance Request Form.  The defendant refused to do so and the inquiry was not processed.  The defendant left the branch with the $90,000.

6.  At around noon the same day, the defendant presented Ms Chang’s lost identity card at the HSBC branch at 306-316 King’s Road in North Point.  There she signed a Balance Request Form and made enquiries about Ms Chang’s account balance.

7.  Believing the defendant to be Ms Chang, the teller gave a computer printout of the balance to the defendant, who then left the branch.

8.  A few hours later at around 3:35pm the same day, the defendant presented Ms Chang’s lost identity card at the HSBC branch at 306-316 Shau Kei Wan Road in Shau Kei Wan.  There the defendant made inquiries about the account balance again.

9.  Believing the defendant to be Ms Chang, the teller showed the defendant on a tablet the balance of Ms Chang’s account.  The defendant then left the branch.

Charge 2

10.  At around 11:24 am the following day, 11^th January, the defendant presented Ms Chang’s identity card at the HSBC branch at 71 Hoi Yuen Road in Kwun Tong and requested to withdraw $90,000 from Ms Chang’s account.

11.  Believing that the defendant was Ms Chang the account holder, the teller arranged for the withdrawal as instructed and handed over $90,000 in cash to the defendant who then left the branch.

Arrest and caution

12.  The defendant was arrested on 13 March 2018. Under caution, she claimed that she was ‘forced’ to withdraw $180,000 for a person known as ‘Taxi Kei’ because she owed him a lot of gambling debts.

13.  In a subsequent cautioned video recorded interview, the defendant claimed that she came to know Taxi Kei at a mahjong parlour in Shamshuipo and that his full name was Chan Wing Kei.

14.  She claimed that the identity card was given to her by Chan while they were having a meal together with two unknown males.  Chan also showed her a signature.  That night, the defendant stayed in a hostel which was paid for by Chan.  In her background report, the defendant said she practiced signing the signature during her stay.

15.  The defendant tried to withdraw money from an account the following morning at an HSBC branch in Kwun Tong but was unsuccessful.  The defendant said one of the unknown males was furious.  The defendant agreed to withdraw money from the account again later.

16.  On the next day, the defendant went to the Revenue Tower in Wanchai where she impersonated someone to obtain a tax return so that it can be used as a proof of address.

17.  The defendant then went to an HSBC branch in Wanchai and successfully withdrew $90,000 from the account.  She handed over the money to the unknown male who was furious with her.

18.  A small amount of money was then deposited into the account to test if it was still operative.  Having ascertained that it was, the defendant claimed that she was then told to withdraw another $90,000, which she did. 

19.  It is not disputed that the defendant was on police bail for a different matter when she committed the present offences.

Previous convictions

20.  The defendant has 6 convictions from 4 court appearances.

21.  Her latest conviction was on 3 April 2018, when she was sentenced to 10 months’ imprisonment for the offence of ‘Using an Identity Card relating to another person’.

22.  Brief facts of that case were called for and they show how the defendant entered the Yau Ma Tei branch of Bank of China with a scarf covering the lower half of her face and tried to use the identity card of another person to open a new bank account.

23.  The bank staff got suspicious and the Police was called.  When questioned by the Police, the defendant told them that she had picked up the card in a bar a month earlier and had kept it since her own identity card had been taken away by her creditors.  The defendant told the Police that she wanted to open a new account so that her relatives can send her some money to repay her debts and get her card back. 

24.  It is not disputed that the defendant committed the present offences whilst on bail for that case.  Nor is it disputed that this is an aggravating factor and must be taken into consideration when sentencing.

Mitigation

25.  The defendant is 55 and twice divorced.  She came to Hong Kong from mainland China to re-unite with her family in 2005 and lived in Kai Tin Estate.

26.  The defendant has 3 elder brothers.  The eldest is 69 but they have not kept in touch.  The other two brothers are 65 and 63 years old and are both retired.  A fourth brother had passed away in 2005 at the age of 43.

27.  The defendant has a 32 year old son from her first marriage and he lives in the mainland and works in a hotel.

28.  The defendant married her second ex-husband, Mr Lau, in 2000 and was divorced in 2014.  They have a 15 year old son who has been diagnosed with Attention Deficit Hyperactivity Disorder.

29.  The defendant worked as a part-time cleaning worker from 2016 to early 2017 earning about $15,000 per month.  She had since been unemployed and relied on her friends’ financial support.

30.  It was submitted in mitigation that the defendant was a heavy gambler and had racked up substantial gambling debts.  She was promised a $3,000 reward by Taxi Kei for agreeing to make the withdrawals.  The $180,000 that was withdrawn had been handed over to Taxi Kei.

31.  Mr Lau wrote in mitigation on the defendant’s behalf.  He tells the court in his letter that the defendant was influenced by her own elder brother into becoming a gambler, coaching her and introducing her to dubious people.

32.  Despite their divorce in 2014, the defendant continued to look after their son, which was very important to the ex-husband because he suffers from depression and requires regular follow-up outpatient treatment.

33.  Mr Lau stressed that the defendant had done very well looking after their son, that she has a good heart and that he honestly believes that the defendant can be rehabilitated.

34.  According to the probation officer’s report, despite what Mr Lau had told the court, prior to the second divorce, the defendant spent most of her time at work and stayed away from home after work because of her gambling, and had limited interaction with the son, leading to a distant mother-son relationship.

35.  The defendant also wrote in mitigation, saying that gambling had wrecked her marriage.  She also claimed that Taxi Kei was the person who told her that she will be able to earn a lot of money by making the withdrawals.  She committed the present offences because of her gambling and promised not to re-offend.

36.  The defendant had also made a non-prejudicial statement to the Police about a certain ‘four eyed guy’ who was supposed to be involved in the present case.  The defendant was however unable to provide any more information other than that and it is obvious that nothing had come from this so called assistance to the police.

37.  It is trite law that such open ended information which failed to lead anywhere is not sufficient ground for a discount in sentence, and there will be no such discount on that basis.

Sentencing considerations

38.  The maximum sentence for conspiracy to steal on conviction upon indictment is imprisonment for 10 years.

39.  It is noted that the maximum sentence for using an identity card relating to another person under s 7A(1A)(a) is a fine at level 6 and imprisonment for 10 years.

40.  In cases where the defendant has been charged under s 7A(1A) and where the use of the identity card was for the obtaining of employment in Hong Kong of the otherwise unemployable, the usual sentence is that of 15 months’ imprisonment after plea.  I find that this can serve as a baseline when considering the appropriate sentence in the present case.

41.  I find that 3 people conspiring to use the identity card of another to steal that person’s money from his or her bank account a more serious criminal act than using the card to obtain employment.

42.  The obtaining of employment at least involved some honest effort on the part of the defendant for him or her to obtain the money by way of reimbursement for the work done, whereas what the defendant had conspired to do did not.

43.  They simply agreed to use Ms Chang’s stolen identity card to steal Ms Chang’s money by falsely representing to the bank that the defendant was Ms Chang. It was an entirely dishonest operation that they had agreed to put into action.

44.  Their conspiracies involved quite a bit of planning.  The defendant was even dispatched to obtain proof of address first before visiting the bank to make the withdrawals.

45.  The execution of the conspiracies involved the defendant going to different branches and making inquiries as to the balance in Ms Chang’s bank account, no doubt to allow them to be able to withdraw the largest amount without going over the limit and thus alerting the bank staff.

46.  A background report and a psychologist’s report were ordered to be prepared on the defendant in order to allow the court to have better insights into the defendant’s character and how much she might have been influenced by Taxi Kei and the unknown males in her commission of the offences.

47.  According to Clinical Psychologist Kung, the defendant is considered as having mild severity gambling disorder.  She is found to have weak consequential thinking and law-abiding sense.  She engaged in criminal activities out of her urge to make easy money.  She is found to be less capable of dealing with cognitive demands and is “suggestible to others”, and that her risk of re-offending would be moderate to high should her gambling problems remain unchanged.  Psychological service targeting her gambling problems, stress coping and mood management skills is deemed necessary and beneficial.  The defendant has expressed her willingness to receive psychotherapy.

48.  Similar to the psychologist’s findings, it is also the probation officer’s view that the defendant’s gambling had brought her into all sorts of trouble.  In view of the defendant’s lack of insight into her problem and her prolonged indulgence in gambling, the officer finds that her determination to start anew is doubtful.  The Social Welfare Department will render welfare assistance to the defendant’s family if required.

49.  Despite my sympathy with the defendant’s situation, I find that it is clear that the defendant knew what she was getting into when she conspired with the two others to commit the offences.  The defendant just wanted to make some quick money, and this is confirmed by Ms Lai when she told the court that the defendant was promised a reward of $3,000 for taking part in the conspiracies.

50.  As such, I find that there should not be any discount granted on the basis of the defendant's gambling condition.

51.  It must be pointed out that $90,000 ($180,000 in total for the two charges) is a significant amount of money.  The defendant had conspired with at least 2 others to commit each of the two offences for a reward.

52.  Although the defendant was not the mastermind, the withdrawals would not have been possible without her participation since she was the only woman co-conspirator who might be able to pass as Ms. Chang.

53.  For the above reasons, I find that an appropriate starting point for each of the two charges is that of 18 months’ imprisonment.

54.  For the serious aggravating factor of the defendant committing the offences whilst having been remanded on bail not even one month after the earlier arrest for doing basically the same acts, I will enhance each of the two sentences by 3 months, bringing them to 21 months’ imprisonment.

55.  The defendant is granted the full one-third discount for her timely pleas of guilty and sentenced to 14 months’ imprisonment on each of charge 1 and 2.

Totality

56.  The execution of the two conspiracies took place on consecutive days at two different branches of HSBC.  There are links between the two conspiracies but I find that they cannot be regarded as just one transaction.  The defendant could have chosen to not commit the second offence even after she had agreed to commit the first one.

57.  Taking a step back, I will order 10 months of the sentence in charge 2 be served consecutively to the sentence in charge 1, the balance concurrently.

58.  The final sentence for the two charges are, therefore, 24 months’ imprisonment after plea.