HKSAR v. LIN KWOK TING AND OTHERS

DCCC 738/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 738 OF 2012

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Reasons for Sentence

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Charges

1.  D1 pleads guilty to 2 single charges and 3 joint charges with D2.  D2 pleads guilty to 8 single charges and the 3 said joint charges.  The charges are as follows:

Charge	Vs	Offence (conduct)	Things involved
1	D2	Fraud (false representation as genuine holder of I/C of PW2)	Opening bank a/c, getting passbook in PW2’s name
2	D2	Fraud (false representation as genuine holder of I/C of PW4)	Opening bank a/c, getting cheque book in PW4's name
3	D2	Obtaining property by deception (false representation of having transferred payment into bank a/c of PW6)	Getting PW6's commemorative banknotes of $13,600 without payment
4	D2	Obtaining property by deception (false representation of having transferred payment into bank a/c of PW7)	Getting PW7's commemorative banknotes of $9,500 without payment
5	D2	Fraud (false representation as genuine holder of I/C of PW2)	Opening bank a/c, getting cheque book in PW2’s name
6	D1	Fraud (false representation as genuine holder of I/C of PW9)	Opening bank a/c, getting cheque book in PW9’s name
7	D2	Obtaining property by deception (false representation of having transferred payment into bank a/c of PW12)	Getting PW12's commemorative banknotes of $120,000 without payment
8	D2	Obtaining property by deception (false representation of having transferred payment into bank a/c of PW14)	Getting PW14's commemorative banknotes of $75,000 without payment
9	D2	Obtaining property by deception (false representation of job recruitment for PW15, PW16, PW17 and PW18)	Getting PW15 – 18's I/Cs and PW17's MPF Statement
10	D1&D2	Theft (using PW17's I/C to withdraw money from PW PW17's bank a/cs	$990.80
11	D1&D2	Theft (using PW18's I/C to withdraw money from PW18’s bank a/c)	$5,000
12	D1&D2	Attempted theft (using PW18's I/C to withdraw money from PW18's bank a/c)	$4,000
13	D1	Handling stolen goods (by retention)	5 I/Cs of PW1, PW10, PW16, PW17, PW18 and 3 pages of PW17's MPF Statement

1^st Charge, vs D2: Fraud

2.  On 26 January 2012, PW1 and PW2 phoned a Mr. Chan in response to a job advertisement on the internet. 

3.  On 27 January 2012, at the appointed meeting in Mong Kok, WP1 brought them to see WP2 in a café.  WP1 left.  WP2 asked for their I/Cs and passport photos on the pretext of photocopying to make a record of employees.  WP2 disappeared with the I/Cs and photos.  The victims made a report to the police. 

4.  On 21 February 2012, D2 impersonated PW2 and produced PW2’s lost I/C to the staff of Bank of China at the Kwai Chung branch.  He opened a savings account and got a passbook in PW2’s name. 

2^nd Charge, vs D2: Fraud

5.  On about 12 February 2012, PW4 found his I/C missing. 

6.  On 6 March 2012, D2 impersonated PW4 and produced PW4’s lost I/C to the staff of Bank of China at the Wong Tai Sin branch.  He opened a current account and got a book of 10 cheques in PW4’s name. 

3^rd Charge, vs D2: Obtaining property by deception

7.  On 6 March 2012, PW6 met up with D2 at the Hung Hom MTR Station.  D2 claimed to be the purchaser who had agreed on the auction website to buy 4 Bank of China Commemorative Banknotes from PW6 at the price of $13,600.  D2 was to transfer money into PW6’s bank account.  D2 used the ATM inside the concourse and came back with a cheque deposit record.  PW6 handed over the banknotes to D2.  PW6 later checked with the bank and learned that the cheque had bounced.

4^th Charge, vs D2: Obtaining property by deception

8.  On 6 March 2012, PW7 met up with D2 at the Kwun Tong MTR Station.  D2 claimed to be the purchaser who had agreed on the auction website to buy 4 Bank of China Commemorative Banknotes from PW7 at the price of $9,500.  D2 was to transfer money into PW7’s bank account.  D2 used the ATM inside the concourse and came back with a cheque deposit record.  PW7 therefore handed over the banknotes to D2.  PW7 later checked with the bank and learned that the cheque had bounced.

9.  D2’s activities at the MTR station at the material time were captured by the CCTV.   

5^th Charge, vs D2: Fraud

10.  On 15 March 2012, D2 impersonated PW2 and produced PW2’s lost I/C to the staff of Bank of China at the Kwun Tong branch.  He opened a current account and got a book of 10 cheques in PW2’s name. 

6^th Charge, vs D1: Fraud

11.  On 11 March 2012, PW9 and PW10 attended a meeting at KC City, Mong Kok with WP3 and WP4, who were allegedly sent by an employment agent.  WP3 asked for their I/Cs on the pretext of photocopying at a nearby shop to make a record of employees. WP3 disappeared with the I/Cs.  WP4 left on the pretext of going to the washroom.  PW9 and PW10 made a report to the police. 

12.  On 15 March 2012, D1 impersonated PW9 and produced PW9’s lost I/C to the staff of Bank of China at the Kwun Tong branch.  He opened a current account and got a cheque book in PW9’s name. 

13.  D1’s activities at the bank at the material time were captured by the CCTV.   

7^th Charge, vs D2: Obtaining property by deception

14.  On 22 March 2012, PW12 and PW13 met up with D2 at the Causeway Bay MTR Station.  D2 claimed to be the purchaser who had agreed on the auction website to buy 30 Bank of China Commemorative Banknotes from PW12 at the price of $120,000.  D2 was to transfer money into PW12’s bank account.  D2 used the ATM inside the concourse and came back with a cheque deposit record.  PW12 handed over the banknotes to D2.  PW12 later checked with the bank and learned that the cheque had bounced.

15.  D2’s activities at the MTR station at the material time were captured by the CCTV.   

8^th Charge, vs D2: Obtaining property by deception

16.  On 27 March 2012, PW14 met up with D2 at the Kwai Fong MTR Station.  D2 claimed to be the purchaser who had agreed on the auction website to buy 30 Bank of China Commemorative Banknotes from PW14 at the price of $75,000.  D2 was to transfer money into PW14’s bank account.  D2 used the ATM inside the concourse and came back with a cheque deposit record.  PW14 handed over the banknotes to D2.  PW14 later checked with the bank and learned that the cheque had bounced.

9^th Charge, vs D2: Obtaining property by deception

17.  PW15, PW16, PW17 and PW18 separately phoned a Miss Apple in response to a job advertisement on the internet.  On 3 April 2012, at the appointed meeting in Mongkok, a female led them to see D2 in the Starbucks Café.   D2 asked for their I/Cs on the pretext of photocopying at a nearby shop to make a record of employees. PW17 also gave D2 his MPF Statement.  D2 disappeared with the I/Cs and the MPF Statement.  The female left on a pretext.  The victims made a report to the police. 

10^th Charge, vs D1 and D2: Theft

18.  On 27 April 2012, together with D2, D1 produced PW17’s I/C to cancel, and withdraw a total of $990.80 from, PW17’s various accounts at Hang Seng Bank, Ngau Tau Kok. 

11^th Charge, vs D1 and D2: Theft

19.  On 27 April 2012, together with D2, D1 produced PW18’s I/C and withdrew a total of $5,000 from PW18’s account at Hang Seng Bank, Wong Tai Sin. 

12^th Charge, vs D1and D2: Attempted theft

20.  On 27 April 2012, together with D2, D1 produced PW18’s I/C and requested, a bank teller, to process a withdrawal of $4,000 from PW18’s account at Hang Seng Bank, Wong Tai Sin.  Feeling suspicious, the bank teller made a report to the police. 

13^th Charge, vs D1: Handling stolen goods

21.  At a later time on 27 April 2012, the police arrested D1 whilst still at the bank.  D1’s handbag contained the 5 lost I/Cs of PW1, PW10, PW16, PW17, PW18 and 3 pages of PW17’s MPF Statement. 

Personal background and mitigation

22.  D1 is now aged 20.  He has a clear record.  He was educated up to the equivalent of F. 5.  His parents divorced when he was 6 years old.  At the secondary school, he had engaged in various voluntary services as seen by the certificates submitted to this Court.  In their mitigating letters, his father and stepmother, with whom he lives, have shown great care towards him.  He had been employed, in various unskilled jobs, until one month before the present offences.  

23.  His solicitor asks me to call for Training Centre, Detention Centre and Rehabilitation Centre Report. 

24.  D2 is now aged 23.  He has previous records for assault and possession of dangerous drugs.  He was educated up to F. 1.  He lived with his girl-friend, who had borne him a son now 4 months old, and his father.  His mother had passed away.

Relevant considerations in sentencing

25.  No general principles for fraud can be derived from the authorities.  The core factors have to be the degree of planning, sophistication and impact on the victim or community. 

26.  The guidelines for breach of trust sentences propounded in HKSAR v. Cheung Mee Kiu [2006] 4 HKLRD 776 were adopted in the assessment of the sentence where a bank was being defrauded in HKSAR v. Chong Yui CACC 161/2008.  The applicant was the director and majority shareholder of a company.  He defrauded several banks by providing them with false documents in order to get loans and credit facilities.  The Court of Appeal stated that defrauding a bank is as serious as breach of trust[1] so that the same guidelines can be used. 

27.  In HKSAR v. Wan Kwong Chiu CACC 349/2003, the applicant posed himself as the representative of an existing company when he went to a business management centre to register an office purportedly for that company.  Either he or the office had actually no relationship with that company.   Using the address and the protection of a courier service, he obtained a book of 50 cheques from the bank for that company.  Equating his act with those involving the use of forged credit cards, the judge sentenced him to 4 ½ years. 

28.  On appeal, the applicant’s counsel submitted that the seriousness and sentence here should have been less than that of credit card fraud.  The Court of Appeal agreed with this submission, though pointed out that to determine the criminality it had been correct for the judge to rely on the relevant factors listed by Yang CJ in R v. Chan Sui-to [1996] HKCLR 128, which included:

(1) The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards;

(2) The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent;

(3) Whether there is an international dimension;

(4) Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or keeper;

(5) Whether there is a plea of guilty.

29.  The sentence of 4 ½ years was reduced to 3 years.

30.  Using another person’s identity card twice to apply for phone service, from a CSL shop, had resulted in concurrent sentences of 12 months in HKSAR v. Kwok Siu Fai HCMA 153/2011.  The starting point of 18 months for each charge and the eventual sentence of 12 months, on the guilty pleas, were affirmed on appeal. 

31.  Bounced cheques were used in The Queen v. Wong Shu Kan CAAR13/1993.  The respondent had used cheques, which bounced later, to pay for rent and purchase price to 3 victims in the total sum of $685,000 within 2 years.  The Court of Appeal regarded the concurrent sentences of 6 months too lenient and substituted them by an overall sentence of 18 months on the prosecution’s review of sentence. 

32.  In The Queen v. Lee Sing Wai CACC 72/1997, the applicant faced the following sets of charges:

(1) PNG, obtaining property by deception, 18 months;

(2) PNG, attempting to obtain property by deception, each 12 months;

(3) PNG, using a false instrument, 12 months and 18 months;

(4) PNG, resisting arrest, 2 months;

(5) PG, possession of a Hong Kong identity card relating to another person, 10 months (8^th Charge).

33.  Adopting a regime of overlapping sentences, the eventual sentence was 3 ½ years.  The applicant only appealed the sentence of the 8^th Charge.       

34.  The events occurred within 2 years.  The fraud charges related to the applicant placing a purchase order beforehand to each seller.  He then showed up to collect the computers upon presentation of a business card in the purported name of the purchaser and a cheque as payment to the seller.  The cheque later bounced as the bank account had been closed for long.  He reaped computers worth over $170,000 in total.  He resisted arrest when the police set upon him as he attempted to collect a batch of computers.

35.  The Court of Appeal considered that the identity card in the 8^th Charge was not necessarily connected with any further deception, though clearly not for an innocent purpose.  The PG sentence of 10 months was reduced to 6 months.   The overall sentence was reduced to 3 years and 2 months accordingly. 

36.  In HKSAR v. Chan Chun Yeung & Anor CACC 45/2006, the 1^st applicant conspired with others to defraud the sellers of goods in 4 instances by a forged Fortis Bank cheque bearing the same cheque number.  Each time they would give the seller a forged cheque for payment.  In the first instance, the 1^st applicant gave a forged cheque of $12,000 to the seller of a computer.  The seller would not release the computer until the cheque was cleared.  The cheque bounced.  The 1^st applicant failed to get the computer.  In each of the second and third instances, the 1^st applicant signed a false name on the invoice prepared by the seller after presenting him a forged cheque.  The 2 cheques, of $1,780 and $3,680 respectively, bounced after he had obtained the goods.  In the fourth instance, the seller copied the 1^st applicant’s own identity card when receiving the forged cheque of $3,320.  Soon a co-conspirator called up the seller to pay cash instead, obviously to bail out the 1^st applicant as his real identity had been exposed. 

37.  The trial judge had adopted a starting point of 48 months and passed a sentence of 44 months, apparently after taking into account his young age and his clear record.  The Court of Appeal reduced the eventual sentence to 18 months.     

Sentencing present defendants

D1’s sentence

38.  Applying the Chan Sui-to list for sentencing fraud, it can be seen that:

(1) There were 6 lost I/Cs, 3 pages of MPF Statement relating to 1 victim, such items having the potential for a multiplicity of fraud schemes, and 1 bank account involved;

(2) There was some, but not sophisticated, planning;

(3) There was no international element;

(4) D1 was to deal with the bank staff and retain the I/Cs and MPF Statement.

39.  The 2 victims in the theft charges lost $5,990.80. 

40.  I do not think the gravity of the offences can be addressed by the institutional options as requested by D1’s solicitor. 

41.  I take the following starting points:

(1) Fraud (6^th Charge), 18 months;

(2) Theft (10^th Charge), 9 months;

(3) Theft (11^th Charge), 9 months;

(4) Attempted theft (12^th Charge), 9 months;

(5) Handling stolen goods (13^th Charge), 18 months.

42.  For his pleas of guilty, I reduce his sentences by one-third.  For his voluntary service, I further reduce his sentences each by 1 month in the fraud (6^th Charge) and handling (13^th Charge), and by 2 weeks in the other charges.  His sentences are as follows:

(1) Fraud (6^th Charge), 11 months;

(2) Theft (10^th Charge), 5 months and 2 weeks;

(3) Theft (11^th Charge), 5 months and 2 weeks;

(4) Attempted theft (12^th Charge), 5 months and 2 weeks;

(5) Handling stolen goods (13^th Charge), 11 months.

43. By totality, I make the following adjustment:

(1) Fraud (6^th Charge), 11 months, all consecutive to other charges;

(2) Handling stolen goods (13^th Charge), 11 months, all consecutive to other charges;

(3) Theft (10^th Charge), 5 months and 2 weeks, 3 months consecutive to 6^th and 13^th Charges but the rest concurrent with all other charges;

(4) Theft (11^th Charge), 5 months and 2 weeks, all concurrent with other charges;

(5) Attempted theft (12^th Charge), 5 months and 2 weeks, all concurrent with other charges.

44.  D1’s eventual sentence is 25 months. 

D2’s sentence

45.  Applying the Chan Sui-to list for sentencing fraud, it can be seen that:

(1) There were 6 lost I/Cs, such items having immense potential for a multiplicity of fraud schemes, and 3 bank accounts involved;

(2) The recruitment scam was well-planned with all the pretexts and division of labour acted out with 2 WPs;

(3) There was no international element;

(4) D2 was to deal with the bank staff, the unsuspecting banknotes sellers and job seekers in the recruitment scam.

46.  The banknotes sellers in the deception charges lost $218,100 in total.  The 2 victims in the theft charges lost $5,990.80. 

47.  I take the following starting points:

(1) Fraud (1^st Charge), 9 months;

(2) Fraud (2^nd Charge), 18 months;

(3) Obtaining property by deception (3^rd Charge), 9 months;

(4) Obtaining property by deception (4^th Charge), 9 months;

(5) Fraud (5^th Charge), 18 months;

(6) Obtaining property by deception (7^th Charge), 15 months;

(7) Obtaining property by deception (8^th Charge), 12 months;

(8) Obtaining property by deception (9^th Charge), 18 months;

(9) Theft (10^th Charge), 9 months;

(10) Theft (11^th Charge), 9 months;

(11) Attempted theft (12^th Charge), 9 months.

48.  With no mitigating factors except for his pleas of guilty, which reduce his sentences by one-third, the sentences are as follows:

(1) Fraud (1^st Charge), 6 months;

(2) Fraud (2^nd Charge), 12 months;

(3) Obtaining property by deception (3^rd Charge), 6 months;

(4) Obtaining property by deception (4^th Charge), 6 months;

(5) Fraud (5^th Charge), 12 months;

(6) Obtaining property by deception (7^th Charge), 10 months;

(7) Obtaining property by deception (8^th Charge), 8 months;

(8) Obtaining property by deception (9^th Charge), 12 months;

(9) Theft (10^th Charge), 6 months;

(10) Theft (11^th Charge), 6 months;

(11) Attempted theft (12^th Charge), 6 months.

49. By totality, I make the following adjustment:

(1) Fraud (2^nd Charge), 12 months, all consecutive to other charges;

(2) Fraud (5^th Charge), 12 months, all concurrent with other charges;

(3) Fraud (1^st Charge), 6 months, all concurrent with other charges;

(4) Obtaining property by deception in the recruitment scam (9^th Charge), 12 months, all consecutive to other charges;

(5) Obtaining property by deception of $120,000 (7^th Charge), 10 months, all consecutive to other charges;

(6) Obtaining property by deception (3^rd Charge), 6 months, all concurrent with other charges;

(7) Obtaining property by deception (4^th Charge), 6 months, all concurrent with other charges;

(8) Obtaining property by deception (8^th Charge), 8 months, all concurrent with other charges;

(9) Theft (10^th Charge), 6 months, 3 months consecutive to 2^nd, 7^th and 9^th Charges but the rest concurrent with other charges;

(10) Theft (11^th Charge), 6 months, all concurrent with other charges;

(11) Attempted theft (12^th Charge), 6 months, all concurrent with other charges.

50.  His eventual sentence is 37 months.      

51.  Before I leave this case, it has to be noted that but for the inadequate preparation on the part of D1’s solicitor for the hearing, there would not have been an adjournment practically forced upon this Court.  Ironically the Legal Aid would have to pay him for an extra refresher out of taxpayers’ money because of his inadequacy.  This must be a situation to avoid in future.