HKSAR v. LEE KA KIT AND OTHERS

DCCC139 & 193/2011 (CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 139 & 193 OF 2011 (CONS)

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Reasons for Sentence

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1.  The 2nd through to the 8th defendants have pleaded guilty to charges of conspiracy to use a false instrument, and Defendants 2 through to 6 inclusive each pleaded guilty to one charge. 7th defendant pleaded guilty to four charges, and the 8th defendant pleaded guilty to five charges. They all accepted the Summary of Facts and I convicted each of them in respect of those charges.

2.  The offences took place between 5 April and 4 August 2008 and involved applications for personal loans by the 2nd through to 6th defendants who were involved in five personal loan applications made to Citibank Limited.  I am in fact concerned with six loan applications in this case.  Four of those loans were approved, and amounts in the region of fifteen to eighteen thousand dollars were obtained by way of loan.

3.  An investigation by Citibank showed that the applications used similar proofs of address and income in the loan applications.  2nd through to the 6th defendants were the loan applicants.  The 7th and 8th defendants provided the supporting documents which were false.  They would sometimes accompany the other defendants to Citibank in Tuen Mun for them, those defendants, to make the loan application.

4.  Each charge relates to a separate loan application.  In the 1st charge, the 7th and 8th defendants were involved with a defendant not before court today in providing false documentation to support a loan obtained of $18,000. 

5.  In the 2nd charge, the 2nd defendant obtained a loan of 15,100 -- I think it is $150 with documentation provided by the 8th defendant. 

6.  In the 3rd charge, the 3rd defendant obtained $17,878 with false documentation provided by the 7th and 8th defendants. 

7.  In the 4th charge, the 4th defendant obtained a loan of $15,000 with false documentation provided by the 7th defendant.

8.  In the 5th charge, the 5th defendant applied for a loan of $28,000 with false documentation provided by the 7th and 8th defendants.  The application was unsuccessful.

9.  In the 6th charge, the 6th defendant applied for a loan of $30,000 with false documentation provided by the 8th defendant.  Again this was not successful.

10.  In total, about $67,000 was obtained through this series of conspiracies to defraud, now the aggravating features in this case being the use of false documentation in a commercial transaction for applications for loans.  The case involves an element of syndication in respect of the false documentation that was used.  This clearly applies more forcefully to the 7th and 8th defendants who were involved individually in a number of transactions and therefore must have been more cognisant to the wider scope of these conspiracies. 

11.  It appears the 2nd through to the 6th defendants were only involved in individual transactions.  Common sense suggests they must have realised that a broader fraud was taking place, but they themselves had no involvement beyond their individual charges.

12.  Now I turn to the salient features of mitigation received in the antecedents and mitigation offered by counsel.  The 2nd defendant is a person with a criminal record.  The two relevant cases related to two ‑‑ they were committed in 2006, were sentenced in 2006.  He was sentenced on 16 June 2006 to a 4 months’ sentence of imprisonment suspended for 2 years.  And the commission by him of the 2nd charge on 30 April 2008 puts him in breach of that suspended sentence, and he admits he is in breach of that suspended sentence.  I will deal with that later. 

13.  I am told that he has substantial family responsibilities, and due to illness and disability, he has become the sole breadwinner in his family.  He has employment available to him should he be in a position to take it after today, and this defendant’s involvement in criminality is restricted to 2006 and clearly not been involved in anything save this offence in 2008, since then.  He has made a sum of compensation of $15,150 available for the court should it be needed.

14.  The 3rd defendant is aged 23 years, so she is a young woman.  She has a clear record.  She has of late been subject to distressing personal circumstances in that she has been diagnosed and treated for level 3 ovarian cancer.  Clearly, in her case, there exist strong humanitarian factors to be considered.

15.  The 4th defendant has a criminal record relating to the consumption of drugs and Part I poisons.  That led his sentencing in 2008 and 2009 to drug addiction treatment centre.  He has been released from the centre and cleared and would have been under observation by them for at least a year afterwards.  There are no further complaints or recall.  I am told that he is presently drug-free.  He is in employment and working.

16.  The 5th defendant is also a man of clear record.  In his case, there was no loss to the company.  He also is in employment, earning between six to eight thousand dollars per month.

17.  The 6th defendant has convictions as a young person or juvenile, for which he was placed on probation, and then a 2 months’ suspended sentence for theft in 2010.  Of course, he is not in breach of that suspended sentence by his conviction today.  In his case, there was no loss to the company.  I am told he is in employment.

18.  The 7th defendant was of a clear record at the time of the offence although she subsequently had been convicted of common assault in the year 2008.  And at the time when the offence was committed, I was told she was of clear record and had forged a relationship with the 8th defendant, and she attributed before me her involvement in these offences to her relationship with him.  She has since then parted from him, and she now lives in the home of her new fiancé’s family.  She has offered to make payment of compensation.  I am told the loan obtained in the 1st count has been repaid in full.  She is currently in employment as a saleslady, and there are encouraging letters from people who work with her and employ her.  Again in her case, she would say that the offences were some time ago and her life has changed considerably since the commission of these offences.  

19.  The 8th defendant has a total of 16 recorded previous sentences.  He has a criminal record dating back to 1989.  He has been involved in a number of offences involving dishonesty, such as theft, involving the use of violence to rob such as robbery and assault.  He has been sentenced in the years 1994 and 1995 to drug addiction treatment centre.  He has been sentenced previously to imprisonment for offences of attempting to obtain property by deception where he received 8 months’ imprisonment; and most recently, in the year 2009, he was sentenced for possession of pipe and equipment used for smoking and inhaling dangerous drugs and also for breach of a suspended sentence, and obtained sentences of 4 months and 2 months’ imprisonment.  So, as I say, he has a poor criminal record.  He is aged 34. Actually, he has suffered from unfortunate circumstances in that his mother died of ovarian cancer. 

20.  In terms of general sentencing, all the defendants have participated in what must have obviously been a fraud relating to falsely obtained and generated documentation, a fraud perpetrated on commercial institutions, and in all but the 5th and 6th defendants’ cases, money was obtained by way of these loans.  

21.  Now, it is my view that such offences would involve and do involve the imposition of a sentence of imprisonment even on a defendant who commits this for the first time.  Now, I bear in mind that considering this court in particular that the sums of money that are involved in these offences are not large, and I consider that each of these individual offences would warrant a starting point of 6 months’ imprisonment. 

22.  Now, in respect of the 2nd through to the 6th defendants, certain additional mitigating factors were put forward; firstly, that they have all pleaded guilty early; that they have all been co-operative and it is clear from the admitted facts that substantial admissions were made; that the offences relate to the year 2008, and that is relevant in that in the years that go by, people change their lives.  In respect of all these defendants, they were only involved in one offence. 

23.  Also in mitigating factors in these cases is the 3rd and 5th defendants are of clear record.  The 2nd defendant has made steps to ensure compensation is paid; money is put into an account.  And the 4th and 6th defendants have employment available to them.

24.  Now, in respect of the 3rd and 5th defendants, clearly, the imposition of a community service order should be considered in their cases as an alternative to a sentence of imprisonment.  Firstly, in respect of the 3rd defendant, she has suffered from ovarian cancer and has been treated by surgery.  She clearly would not be in a position to engage in the labour required of a community service order. And as far as the 5th defendant, his responsibilities in relation to work and suchlike make it difficult for that to be an option to be considered in respect of him.  And I said in relation to the other defendants, they have employment to go to.

25.  I have decided that in respect of these defendants, which is the 2nd, 3rd, 4th, 5th and 6th defendants, I will impose a commonality of sentence on them, same sentence.  I will take a starting point of 6 months’ imprisonment on their offences and reduce that to 4 months’ imprisonment for their pleas of guilty.  In respect of all these defendants, I take into account the mitigation put forward for them, and I consider that in their individual cases, grounds exist for suspending the sentence of imprisonment, and I shall order the sentence of imprisonment will be suspended for 2 years in each of their cases.

26.  Additionally, in respect of the 2nd defendant, I will impose a compensation order of $15,150; and in respect of the 4th defendant, I will impose a compensation order of $5,000.  I have heard that he would have difficulty in making such a payment, but I am prepared to be generous in respect of the time allocated for the payment to be made. 

27.  So my sentence will be as follows.  On Charge 2 against the 2nd defendant, Charge 3 against the 3rd defendant, Charge 4 against the 4th defendant, Charge 5 against the 5th defendant, Charge 6 against the 6th defendant, it will be a sentence of 4 months’ imprisonment suspended for 2 years.  This means that in respect of each defendant, they will not go to prison immediately.  If they commit any further offence punishable by imprisonment in the course of the next two years, they will be liable to serve that term of imprisonment in whole or in part.  Can I ask each of the defendants if they understand that?

INTERPRETER: D2 understands. D3 understands. D4 understands. D5 understands. D6 understands.

28.  All right.  Thank you.  You can sit down.

29.  I deal with the sentencing of the 7th and 8th defendants. They are clearly involved in a more serious and comprehensive way in the commission of these offences than the other defendants in that they both had access to and used the false documentation.  Now, I do take into account the 7th defendant had a clear record at the time of these offences, and she clearly has taken steps to reform herself in the interim.  Nevertheless, they are both involved, as I said, in a more serious way.  And in their case, I do believe that their involvement means that any sentence of imprisonment could not be suspended.

30.  I find based on what I have heard that the 7th defendant, although involved in four offences, played a lesser role and was influenced to a large extent by the involvement of the 8th defendant in these offences.  

31.  In respect of the 7th and 8th defendants, I have decided to sentence as follows.  The 7th defendant faces the 1st, 3rd, 4th and 5th charges.  I will impose a sentence of 4 months’ imprisonment on each charge.  Now, to achieve what I believe to be the correct overall totality, I will order the sentence to be served as follows: The 1st and 3rd charges will be served concurrently to each other; the 4th and 5th charges will be served concurrently to each other; however, the 4th and 5th charges will also be served consecutively to the 1st and 3rd charges.  This leads to a total overall sentence of 8 months’ imprisonment which is presupposed on an overall starting point of 12 months’ imprisonment, and the sentence will be one of 8 months’ imprisonment.

32.  In respect of the 8th defendant, again after deduction for plea of guilty from the 6 months’ imprisonment, I will impose a sentence of 4 months’ imprisonment in respect of each charge.  That is the 1st, 2nd, 3rd, 5th and 6th charges.  The 1st and 2nd charges will be served concurrently to one another; the 3rd charge will be served consecutively to the 1st and 2nd; the 5th charge will be served consecutively to the 1st, 2nd and 3rd charges; the 6th charge will be served 2 months concurrently to the 1st, 2nd, 3rd and 5th charges, and 2 months consecutively to those charges.  This gives an overall total of 14 months’ imprisonment which again is presupposed on an overall starting point of 21 months’ imprisonment.  The sentence on the 8th defendant will be one of 14 months’ imprisonment.

(Discussion re suspended sentence on the 2nd defendant)

33.  In imposing my sentence on the 2nd defendant, I have borne in mind the suspended sentence of imprisonment that was imposed in 2006.  However, I consider that given the time that has elapsed both in the length of the suspension and also the times elapsed subsequently, it is not in the interests of justice for that sentence to be activated.  So I decline to activate the suspended sentence on the 2nd defendant.

(Discussion re exhibit list and compensation order)

COURT: Yes, Mr McNamara, we have to, I think, make some orders in respect of the compensation orders.

MR McNAMARA: Yes, your Honour, the 15,150 is with my solicitors.

COURT: Yes.

MR McNAMARA: And I’ll do whatever your Honour tells me to with it.

COURT: Well, it’s paid to Citibank, isn’t it?

MR McNAMARA: Yes, I think so.

COURT: That’s the victim.

MR OMAR: Yes, I think it’s Citibank, yes.

MR McNAMARA: Yes.

(Discussion re compensation order)

34.  Through the court shroff within...

(Discussion re time for payment)

35.  All right, I will make it 7 days then.

(Discussion re compensation order for D4)

36.  I compute that $500 per month payable on or before - well, the trouble of making it the last day of the month is it is often a Sunday, isn’t it? - on or before the last Friday of the month.  The first payment will be 29 July 2011.