HKSAR v. SO KWOK HO

DCCC850/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 850 OF 2009

----------------------

----------------------

--------------------------------

Reasons for Sentence

--------------------------------

1.  Defendant, you have pleaded guilty to five charges before this court.

2.  The 1st charge is that of theft, contrary to section 9 of the Theft Ordinance. You have admitted that on an unknown day in March 2009, you stole a Hong Kong Identity Card in the name of Wong Siu-chun, the property of Wong Siu-chun.

3.  The 2nd charge, a charge of attempted fraud, contrary to section 16A of the Theft Ordinance and section 159G of the Crimes Ordinance, you have admitted that on 2 April 2009 by deceit, namely by falsely representing that you were the genuine holder of the Hong Kong Identity Card of Wong Siu-chun and that the bank statement purportedly issued by Hang Seng Bank dated 23 March was genuine and accurate in all respects, and with intent to defraud, attempted to induce Ku Hiu-chung of ‘3’ Hong Kong to open an account with ‘3’ Hong Kong under the name of Wong Siu-chun and to provide mobile phone services to you which would result in benefit to you or prejudice or a substantial risk of prejudice to the said ‘3’ Hong Kong.

4.  Charge 3, an offence of obtaining a pecuniary advantage by deception contrary to section 18(1) of the Theft Ordinance, you have admitted that on 3 April 2009 in Hong Kong by deception, you falsely represented that you were the genuine cardholder of Wong Siu-chun’s ID card and that you submitted documents to Cheung Chui-shan, Jennifer, of the Public Finance Limited were accurate and genuine in all respects, that being an employment letter purportedly issued by Acestar International Trading Company Limited and a further two bank statements of the bank account of Hang Seng Bank dated 23 February 2009 and 23 March 2009, by producing these documents you dishonestly obtained for yourself or another a pecuniary advantage, namely, a credit arrangement in the sum of HK$180,000.

5.  The 4th charge is a charge of attempted fraud, contrary to section 16A of the Theft Ordinance. You have admitted on 3 April 2009 you again by deceit and falsely represented that you were the genuine Hong Kong ID Card holder of Wong Siu-chun, and that the bank statements submitted were genuine and accurate, dated 23 February 2009 and 23 March 2009, with intent to defraud United Asia Finance to provide you a credit arrangement in the sum of HK$200,000.

6.  And the 5th charge being possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, whereby you have admitted on 3 April 2009 you had in your possession 1.04 grammes of a mixture containing 0.01 gramme of estazolam.

7.  The facts can be simply stated as follows. On 17 March 2009, the genuine identity card holder Wong Siu-chun lost his ID card. On an unknown day in March 2009, you stole his ID card.

8.  On 25 March 2009 an unknown Chinese male used this false ID card to open a bank account, together with a false Towngas bill, to open a savings account at HSB. An account was opened under the name of Wong Siu-chun and an ATM card was given to that unknown Chinese male.

9.  On 2 April you then attended the 3 Shop to apply for mobile phone services. You produced the stolen ID card and a false bank account dated 23 March as proof of your address (Charge 2).

10.  On the following day, on 3 April, you attended the office of Public Finance Limited and claimed to be Wong Siu-chun (Charge 3). You claimed to be Wong when you produced the original ID card of Wong and a false employment letter issued by Acestar International Trading Company Limited and a salary tax return issued by the Inland Revenue to Wong dated 14 August 2009 and two false bank statements dated 23 March and 23 February 2009. Your application for a loan was granted and you subsequently received four cheques, one in favour of Standard Chartered Bank in the sum of $18,000-odd; the Diners’ Club in the sum of $850; and two cash cheques in the name of Wong Siu-chun, one in the sum of $58,000-odd and the other in the sum of $100,000. You cashed the two cash cheques amounting to approximately $160,000.

11.  On the same day you went to UA Finance and applied for another loan. You produced the same documents as you did in Charge 3. However, Mr Cheung, the staff of the UA Finance, found that the male depicted in the photograph of the Hong Kong ID card was substantially different from the appearance of yourself. He therefore asked his staff to make a report to the police without your knowledge. Soon afterwards, police officers arrived at the office of UA. You attempted to flee but you were intercepted by the officers. On arrest, several pills were found in your right sock, and thus you were charged under the 5th charge.

12.  You admitted under caution that you had committed these five offences. Wong Siu-chun confirmed that he had lost his ID card on 17 March and that he did not attend the 3 Shop to apply for any phone service and that he had not applied for any loans from UA and PF Finance. He also confirmed that the employment letter produced by you to the company from Acestar was false. Wong confirmed that he and his niece were the shareholders of Acestar Company, however, he was not employed by the company and he also confirmed that the stamp chop of the company stamped on the letter was false and the contents were also false.

13.  Wong confirmed that the salary tax return supplied by you to the Public Finance was a genuine duplicate from the Inland Revenue, he did not apply for that duplicate but somebody else had applied for it. It has been confirmed in court that you downloaded this form from the internet website of the Inland Revenue Department.

14.  The representatives of the HSB confirmed that the two bank statements dated 23 February and 23 March 2009 were false as the account purported to be opened under the name of Wong was only opened on 25 March 2009. The statements also contained false particulars and transactions.

15.  Ms Lam, solicitor, has mitigated on your behalf today and I have taken into account all that she has had to say.

16.  You are 35 years of age and have 7 previous convictions. Most of them are for possession of dangerous drugs, but you have one similar of theft and one possession of an identity card relating to another. Your last conviction was in 2005 for possession of dangerous drugs for which you were sentenced to 3 months’ imprisonment.

17.  At the time of the offence you were unemployed, and I am informed that prior to this you had set up a garment business but that was unsuccessful and thereafter you and your family were harassed by debt collectors. As you had a wife and son to support and parents who are retired, you committed these offences. I take into account of course your plea of guilty and the fact that you admitted these offences immediately upon your arrest.

18.  The greatest mitigating factor in this case is of course your plea of guilty. It is rightly said by Ms Lee, there are no tariff guideline sentences in this type of cases. Your counsel, Ms Lam, has referred me to a case involving deceptions of credit cards.

19.  In this type of case you had deceived finance companies as well as phone companies to provide services or to provide loan or cash to you by using a genuine ID card, you purporting to be the holder of that ID card. You had actually cashed $160,000 from the cheques issued to you. Soon after you stole this ID card, you commenced a fraudulent spree using this genuine ID card. From the time you picked up the identity card to the time of the last offence it was approximately over a period of 10 days. You played an active and key role in the deception.

20.  There was elaborate planning. The bank account statements were false in all material particulars and references to ATM withdrawals, deposits of salary from Acestar, ATM transfers and even payments by PPS. The employment letter although perhaps not very sophisticated, nevertheless, had a stamp from Acestar International Trading Company Limited. You had gone to the extent of obtaining the genuine tax return duplicate from the website of the Inland Revenue Department.

21.  In this case I consider this to be a very serious matter. This was a well planned and deliberate deception by you. I consider in these five offences that the sentences should be partly concurrent and party consecutive. I must of course consider the principle of totality. For these five offences had I convicted you after trial, I would have taken a starting point of 6 years’ imprisonment. However, giving you full credit for your plea of guilty, I would have reduced that sentence to one of 4 years’ imprisonment.

22.  Given that 4 years’ imprisonment is the eventual sentence, I must now break down the sentence on each charge to which I find appropriate. On Charge 1, that is the stolen ID card which you have a similar offence of possession of identity card relating to another in 2003, I would have taken a starting point of 18 months’ imprisonment and given you full credit for your plea, reduced that to 12 months’ imprisonment.

23.  On Charge 2, a starting point of 3 years’ imprisonment, reduced to one of 2 years’ imprisonment.

24.  On Charge 3, a starting point of 5 years’ imprisonment, reduced to 3 years and 4 months’ imprisonment.

25.  On Charge 4, a starting point of 4 years’ imprisonment, reduced to 2 years and 8 months’ imprisonment.

26.  On Charge 5, a starting point of 3 months’ imprisonment, reduced to that of 2 months’ imprisonment.

27.  Noting that you have many previous convictions relating to possession of dangerous drugs, I order 6 months of Charge 4 to run consecutive to that of Charge 3 and the remaining terms to be concurrent, making a total term of 4 years’ imprisonment.

Court adjourns – 11.41 am

16 September 2009

 

16 September 2009

Court resumes – 11.14 am

Defendant present. Appearances as before.

(Clarification of Sentence by Court to Counsel. It is ordered that 8 months of Charge 4 to run consecutive to that of Charge 3 and the remaining terms to be concurrent.)

28.  But the total, as I said throughout my reasons for sentence, was 4 years.