HKSAR v. WONG LAI YEE

DCCC 737/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 737 OF 2015

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to 4 charges of "Fraud" (Charges 1 to 4), 1 charge of "Attempted Fraud" (Charge 5) and 1 charge of "Possession of an identity card relating to another person" (Charge 6). In Charges 1 to 4, she fraudulently obtained bank loans (in a net total sum of about $920,000) in the names of her family members. In Charge 5, she tried to obtain a bank loan (in the sum of $372,000) in her mother's name.

Summary of Facts

Background

2.  Mr. W.K. WONG (PW1), Mr. W.Y. WONG (PW2), Madam KWOK (PW3) and Madam CHAN (PW4) are respectively the defendant's father, brother, sister-in-law and mother.  PWs 1 to 4 resided together. The defendant had her own residence.

3.  Between August and November 2014, PWs 1 to 3 received correspondence and phone calls from Standard Chartered Bank ("the Bank") regarding their bank accounts and loans, which they did not open or applied for.  PWs 1 to 3 investigated the matter and discovered that someone did so without their authorization.  They alerted the Police.

Charge 1

4.  Respectively on 24 and 27 December 2013, a bank account and a loan in the sum of $249,000 were open and applied for in PW1's name using his personal particulars (including residential address, employment and annual salary).  A photocopy of PW1's HKID card was submitted to the Bank.  A loan in the sum of $239,662.50 (after deduction of the handling fee) was deposited into PW1's bank account on 30 December.

Charge 3

5.  Respectively on 28 August and 1 September 2014, a bank account and a loan in the sum of $180,000 were open and applied for in PW2's name using his personal particulars.  Photocopies of PW2's HKID card were submitted to the Bank.  A loan in the sum of $173,250 (after deduction of the handling fee) was deposited into PW2's bank account on 2 September.

Charge 2

6.  On 9 July 2014, a bank account and a loan in the sum of $400,000 were open and applied for in PW3's name using her personal particulars (including residential address, employment and annual salary).  A photocopy of PW3's HKID card was submitted to the Bank. A loan in the sum of $389,000 was granted and a sum of $374,412.50 (after deduction of the handling fee) was deposited into PW3's bank account on 11 July.

7.  On 13 October 2014, a loan in the sum of $200,000 was applied for in PW3's name using her personal particulars.  A photocopy of PW3's HKID card was submitted to the Bank.  A loan in the sum of $137,000 was granted and a sum of $131,862.50 was deposited into PW3's bank account on 15 October.

Charges 5 and 6

8.  On 4 May 2015, PW4 found her HKID card missing.  On 5 May, PW4 received a phone call from TransUnion indicating that she had applied for a loan in the sum of $372,000 from the Bank.  The loan application was made without PW4's authorization.  This is Charge 5. 

9.  Suspecting that the defendant might have taken her HKID card, PW4 questioned the defendant on 7 May.  The defendant confessed that she had taken PW4's HKID card.  This is Charge 6.

10.  The defendant surrendered to the Police on the same day.  Under caution, she admitted taking her mother's HKID card to make a loan application.  But she claimed that she had cancelled the loan application.  Documents provided by the Bank revealed that on 4 May 2015, a bank account was open in PW4's name using her personal particulars (including residential address, employment and annual salary).  A photocopy of PW4's HKID card was submitted to the Bank.

Admissions

11.  In her video recorded interviews, the defendant claimed that in December 2013, she met someone named "Tak Chai".  Tak Chai found out that the defendant was in financial difficulty.  He offered to obtain loans using photocopies of HKID cards of her family members; and asked for 20% of the loans obtained as his reward.

12.  The defendant had keys to her maiden home.  She went there and took away photocopies of PWs 1 to 3's HKID cards.  She then passed them to Tak Chai and signed on blank application forms for loans and bank accounts.  The defendant claimed that she did not fill out the forms and did not know who did so.  She gave 20% of the loans to Tak Chai by depositing the respective sums into his Hong Kong Jockey Club account or mainland bank accounts.

13.  PW4 visited the defendant's home on 29 April 2015.  The defendant took PW4's HKID card from PW4's purse and made photocopies of it.  She gave them to Tak Chai on 1 May.  Tak Chai gave her a blank form to sign.  On 5 May, Tak Chai informed her that a loan in the sum of about $300,000 had been approved by the Bank; and asked for his 20% reward. Feeling remorseful, she asked Tak Chai to cancel the loan on 6 May.  When questioned by PW4 on 7 May, she returned the HKID card to PW4.

Mitigation & Sentence

14.  The defendant is 36 and has a clear record.  Defence counsel Ms. FUNG informed me that the defendant resides with her boyfriend, boyfriend's mother and 3 daughters (aged 8 months to 4 years).  The defendant's parents currently help looking after her daughters.

15.  In mitigation, Ms. FUNG submitted that the defendant worked as a supervisor at Jardine Air Cargo earning $30,000 per month.  In mid-2013, she used her savings to start a fashion business with a friend, but still kept her full-time job. Unfortunately, the first 6 months did not go well; the defendant had to keep injecting money into her business.  Worse still, she was fired by Jardine just when she was pregnant with her 3^rd child.

16.  Ms. FUNG further submitted that the defendant's parents have forgiven her.  The defendant surrendered to the Police, which saved much time and resources on investigating the case.  Mr. HUI for the prosecution confirmed that the Police had not yet identified any suspect before the defendant made her confession.  Letters written by the defendant and her father were placed before me; their contents are duly noted.

17.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  The defendant foolishly resorted to illegal means to solve her financial problems, and such plans were doomed to failure.  There must have been proper ways for her seek help, for example, her family members or Individual Voluntary Arrangement.

18.  Mr. HUI confirmed that PWs 1 to 3 need not repay the loans; the Bank would absorb the loss.  According to the Amended Summary of Facts, the defendant has only repaid the Bank slightly less than $37,000[1]. Ms. FUNG submitted that the defendant has repaid another $20,000 to the debt collection company sent by the Bank.  Mr. HUI, however, was unable to verify.  In any event, the amount of repayment made is only a drop in the bucket.  The Bank is no doubt the most innocent party.  It suffered a monetary loss and the defendant does not have the means to repay in full.

19.  The true victim in the present case is the Bank rather than the defendant's family members.  But even if they feel being cheated by the defendant, this case does not involve the Barrick type of breach of trust.  Hence, the guidelines set out in HKSAR v NG Kwok Wing [2008] 4 HKLRD 1017 are not strictly applicable.

20.  For Charges 1 to 5, based on the sums involved and the amount of repayment made, I consider a starting point of 15 months' imprisonment to be appropriate for each charge.  With the guilty plea, the sentence is reduced to 10 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 10 months' imprisonment for each charge.

21.  For Charge 6, the sentence after plea (for mere possession[2]) should be 12 months' imprisonment[3]. I sentence the defendant to 12 months' imprisonment for this charge.

22.  Bearing in mind the totality principle, I consider a global starting point of 2.5 years to be appropriate for all 6 charges.  With the guilty pleas, the overall sentence becomes 20 months.  Since the evidence against the defendant came primarily from her admissions, I grant her an additional discount of 2 months[4], reducing the overall sentence to 18 months.  Hence, I make the following order :-

(i) Charges 5 and 6 to run currently;

(ii) 1 month in Charge 4 consecutive to Charges 5 and 6;

(iii) 2 months in Charge 3 consecutive to Charges 4 to 6;

(iv) 1 month in Charge 2 consecutive to Charge 3 to 6; and

(v) 2 months in Charge 1 consecutive to Charges 2 to 6.

Thus, the total prison term shall be 18 months.