HKSAR v. LI BIJUAN

CAC C 432/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 432 OF 2012

(ON APPEAL FROM DCCC NO. 804 OF 2012)

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1. The applicant (Li Bijuan) together with Liu Mingqiang (Liu) appeared before Deputy Judge Longely (the judge) in the District Court on an indictment consisting of six counts of conspiracy to defraud (the 1^st to 6^th charges) and one count of conspiracy to possess false instruments (the 7^th charge).

2. The 1^st, 2^nd and 3^rd charges were directed at the applicant alone, the 4^th charge was directed at Liu and the 5^th, 6^th and 7^th charges were directed at both of them.

3. The applicant pleaded guilty to all 6 charges and the judge sentenced her to the following terms after reducing the starting point by the customary one-third for the guilty pleas:

  Charge 1:  20 months’ imprisonment

  Charge 2:  3 years’ imprisonment

  Charge 3:  20 months’ imprisonment

  Charge 5:  20 months’ imprisonment

  Charge 6:  32 months’ imprisonment

  Charge 7:  20 months’ imprisonment

4. Apart from 9 months on the sentences on each of charges 3 and 6, the judge ordered the other sentences to run concurrently.  The total sentence on the applicant was 4½ years’ imprisonment.  Represented by Ms Monica Chow, the applicant sought leave to appeal against sentence.  At the end of the hearing on 7 May 2013, we dismissed her application and indicated we would hand down our reasons in due course and this we now do.

The Facts

On the 1st and the 2nd Charges

5. The applicant, using a forged identity card and a forged two-way permit in the name of Zhang Jinlan, but bearing her photograph, successfully opened an account (Account 1) with DBS Bank (Hong Kong) Limited by falsely representing to DBS Bank that she was Zhang Jinlan. (The 1^st charge)

6. Zhang Jinlan was the registered owners of Flat G, 17/F, Yat Tien Mansion, Taikoo Shing (Property 1).

7. On 28 September 2011, the applicant, pretending to be Zhang Jinlan and as the registered owner of Property 1, applied to Lei Shing Hong Credit Ltd for a mortgage loan of $5 million to be secured by Property 1.  The applicant produced forged documents, including a Sale and Purchase Agreement and the Assignment in respect of Property 1 to the handling solicitors, Messrs Gloria Chan and Co and successfully obtained a loan in the net sum of $4,936,315 which sum was deposited into Account 1. (The 2^nd charge)

8. Within a period of about two months, over $4.8 million was withdrawn from Account 1 and up to 28 May 2012, just over $350,000 had been repaid to Lei Shing Hong Credit Ltd.

On the 3rd Charge

9. On 11 January 2012, the applicant, again impersonating Zhang Jinlan and as the registered owner of Property 1, applied for another mortgage loan of $1.2 million from Freeway Finance Co Ltd to be secured also by Property 1.  The applicant produced and executed documents in the name of Zhang Jinlan and successfully obtained the sum of $1.2 million, which sum was paid into Account 1.

10. Between 12 January and 13 February 2012, a total of $1,274,571.20 was withdrawn from Account 1 and up to 11 May 2012, only $14,000 had been repaid to Freeway Finance Co Ltd.

On the 5th and 6th Charges

11. On 16 April 2012, Liu, accompanied by the applicant and using a forged identity card and a passport in the name of Wang Yong, but bearing Liu’s photograph, successfully opened an account (Account 2) with DBS Bank by falsely representing to DBS Bank that Liu was Wang Yong. (The 5^th charge)

12. Wang Yong was the registered owner of Flat E, 24/F, Heng Tien Mansion, Taikoo Shing (Property 2).

13. On 4 May 2012, the applicant introduced Liu to Lei Shing Hong Credit Limited.  Liu, pretending to be Wang Yong and as the registered owner of Property 2, applied to Lei Shing Hong Credit Limited for a mortgage loan of $4.5 million to be secured by Property 2.  Liu produced forged documents, including a Sale and Purchase Agreement and an Assignment in respect of Property 2 to Messrs Gloria Chan and Co in order to obtain the loan. (The 6^th charge)

14. Lei Shing Hong Credit Limited was alerted to mortgage frauds encountered by other money lending institutions and enquiries were made.  Discrepancies were discovered in the Sale and Purchase Agreement and the Assignment produced by the applicant and Liu and a report was made to the police.

On the 7th Charge

15. On 29 May 2012, the applicant and Liu went to the office of Messrs Gloria Chan and Co in connection with the mortgage of Property 2 and they were arrested.  Police recovered a forged identity card and a forged passport in the name of Wang Yong, but bearing the photographs of Liu.

16. Zhang Jinlan and Wang Yong said they did not know the applicant or Liu.  They confirmed that they did not authorize and had not authorized the mortgages of their respective properties.  They also confirmed that their purported signatures on the relevant documents were forged.

17. When interviewed by the police under caution, the applicant made the following admissions:

(a)  In around July or August 2011, “Ah Kwai” in Guangzhou offered the applicant a reward of $80,000 for agreeing to impersonate owners of properties and to apply for property loans and to open bank accounts in Hong Kong to deal with the moneys obtained;

(b)  On 7 September 2011, at a meeting with “Ah Kwai” and “Toi Shan Chai” in Hong Kong, the applicant was given a specimen signature of Zhang Jinlan and the two forged identity documents in the name of Zhang Jinlan, but bearing the applicant’ photograph;

(c)  When the applicant was in Hong Kong, she stayed at Propeprty 1 which she understood was rented by “Toi Shan Chai”;

(d)  The applicant was accompanied by “Toi Shan Chai” when she applied to open Account 1;

(e)  As instructed by “Ah Kwai”, the applicant had signed 6 to 7 blank cheques drawn on Account 1;

(f)  As instructed by “Ah Kwai”, the applicant came to Hong Kong again on 27 September 2011 to obtain the forged identity documents in the name of Zhang Jinlan in order to apply for the mortgage loan from Lei Shing Hong Credit Ltd on 28 September 2011;

(g)  The signature of Zhang Jinlan on the title document of Property 1 submitted to Messrs Gloria Chan and Co in connection with the mortgage loan application was forged by the applicant;

(h)  The applicant had obtained the reward of $80,000;

(i)  Around January 2012, “Ah Kwai” offered the applicant another reward of $50,000 for agreeing to impersonate Zhang Jinlan again and to apply for another mortgage loan;

(j)  On 11 January 2012, the applicant impersonated Zhang Jinlan in the application for a mortgage loan from Freeway Finance Co Ltd;

(k)  The applicant had not yet received the reward of $50,000;

(l)  The applicant did not know that partial repayments of the mortgage loans had been made to Lei Shing Hong Credit Ltd and Freeway Finance Co Ltd;

(m)  Sometime in early 2012, the applicant introduced Liu to “Ah Kwai” at his request;

(n)  The applicant asked Liu to provide her photograph for “Ah Kwai” to make forged identity documents in the name of Wang Yong;

(o)  The applicant accompanied Liu to open Account 2 on 16 April 2012;

(p)  The applicant accompanied Liu to apply for the mortgage loan in respect of Property 2 from Lei Shing Hong Credit Ltd on 4 May 2012;

(q)  Before going to the office of Messrs Gloria Chan and Co on 29 May 2012, the applicant and Liu met “Ah Kwai” and they were given the forged identity documents in the name of Wang Yong but bearing Liu’s photograph; and

(r)  “Ah Kwai” asked the applicant and Liu to memorize the personal particulars of Zhang Jinlan and Wang Yong for the purpose of passing themselves off and Zhang Jinlan and Wang Yong respectively. They were also given false business cards of Zhang Jinlan and Wang Yong to use.

The Judge’s Reasons for Sentence

18. The judge pointed out that the offences were part of a sophisticated operation and that they involved carefully planned attempts to obtain very substantial sums of money from finance companies with the use of forged identity documents and documents of title.

19. The judge emphasized that the applicant had successfully obtained two loans of $5 million and $1.2 million and that if the police had not been notified, Lei Shing Hong Credit Company would have suffered a further loss of $4.5 million.

20. The judge accepted that the applicant was not the mastermind and had only received a modest reward, but nevertheless had played a central role in the offences.  The judge also accepted that the loans obtained were withdrawn by others and that the applicant had not previously committed any offence both in Hong Kong and in the Mainland.

21. The judge considered a 4½-year starting point appropriate for the 2^nd charge which involved $5 million and a 2½-year starting point appropriate for the 3^rd charge which involved 1.2 million.  The judge also considered a 4-year starting point appropriate for the 6^th charge for an unsuccessful attempt to obtain 4.5 million.

22. The judge reduced the starting points by one-third on account of the guilty plea and sentenced the applicant, in respect of charges 2, 3 and 6 to the respective terms of 3 years, 20 months and 32 months’ imprisonment.  The judge sentenced the applicant to concurrent sentences of 20 months’ imprisonment on each of the 1^st, 5^th and 7^th charges.

23. The judge ordered 9 months of each of the sentences on the 3^rd and 6^th charges to run consecutively to the 3-year sentence on the 2^nd charges, making a total sentence of 4½ years’ imprisonment.

Grounds of Appeal

24. Ms Chow suggested that the starting points adopted by the judge for the 2^nd and 6^th charges were manifestly excessive.  Ms Chow also suggested that consecutive terms of 9 months on each of the 3^rd and 6^th charges, resulting in a total sentence of 4½ years’ imprisonment (representing a starting point of 6 years and 9 months’ imprisonment), for a mortgage fraud involving $6.2 million were manifestly excessive.

25. Ms Chow’s argument rested principally on HKSAR v Kong Hon Yui, Kevin (unreported CACC 473/2009) in which a solicitor, having been convicted of two charges of conspiracy to defraud (also mortgage fraud involving $11 million), was sentenced to a total sentence of 6 years’ imprisonment.

26. Ms Chow pointed out that there were two other defendants (J Ng and WC Liu) in Kong Hon Yui (supra) who played similar roles as the applicant in mortgage frauds and that they were only sentenced to the respective terms of 42 months and 44 months’ imprisonment.

27. Ms Chow suggested that the applicant’s global sentence, representing a starting point of 6 years and 9 months, which was very close to the maximum sentence that could be imposed in the District Court, was manifestly excessive.

Discussion

28. On the sentences imposed on the respective defendants in Kong Hon Yui (supra), we have the following observations to make:

1.  The Court took the view that the total sentence of 6 years imposed on Kong (the solicitor) was a lenient sentence;

2.  J Ng and WC Liu each pleaded guilty to only one count of conspiracy to defraud.  J Ng was only involved in the opening of a bank account for the purpose of dealing with the proceeds of the mortgage fraud and WC Liu was recruited to impersonate the purported vendor of one mortgaged property.  They each received $50,000 for the roles they played.

29. The applicant was involved in the fraudulent openings of two bank accounts for the purpose of dealing with proceeds of the mortgage fraud and she also pretended to be the owners of two separate properties in obtaining mortgage loans from different financial institutions.

30. The applicant, on three occasions, defrauded or attempted to defraud finance companies.  She successfully defrauded two finance companies of $5 million and $1.2 million respectively and intended to further defraud one of them of another of $4.5 million.  The total amount involved exceeds $11 million.

31. The applicant is a Mainlander who came to Hong Kong for the main if not the sole purpose of perpetrating the conspiracies in question.  If she had not been caught in her 3^rd attempt to fraudulently mortgage a property, it would almost be impossible for the police to arrest her.

32. In our view, the applicant’s culpability far exceeded those of J Ng and WC Liu in Kong Hon Yui (supra).  There was an additional aggravating factor against the applicant when she visited Hong Kong to commit the offences as conceded by Ms Chow.

33. It was simply not appropriate to compare the applicant’s sentences with those of J Ng and WC Liu in Kong Hon Yui (supra). Ms Chow’s principal ground of appeal had no merit.

34. The offences in question are very serious offences indeed.  Mortgages of properties are common in Hong Kong and they involve substantial sums of money.  The offences committed by the applicant were very well-planned, and carefully and skilfully executed.

35. The applicant, together with others, was able to defraud lawyers and financial institutions and had obtained very large sums of money.  The money defrauded was not and is unlikely to be recovered.

36. The crimes committed by the applicant must be deterred.  We were not persuaded that the individual sentences or the total sentence imposed on the applicant was manifestly excessive.  The application for leave to appeal against sentence was therefore dismissed.