HKSAR v. HO YUNG YIN

CACC 417/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 417 OF 2012

(ON APPEAL FROM DCCC NO 424 OF 2012)

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J U D G M E N T

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1.  The applicant seeks leave to appeal against sentences of 32 months’ imprisonment imposed in respect of three charges by Deputy District Court Judge Adriana Tse on 25 September 2012 following his pleas of guilty on 12 September 2012.

2.  All the applicant says in support of his application is that the sentences were “overly heavy”.

3.  The three charges concerned conduct of a similar nature of fraud, contrary to section 16A of the Theft Ordinance, Cap 210.  They involved the obtaining of loans from banks by the false representation to those banks that the applicant was employed as a warehouse and logistics administrator at a salary of $12,000 per month by FAD Design Workshop.

4.  The offences occurred on 8, 13 and 18 October 2010.  The amount of money involved in the respective cases was $70,000, $20,000 and $36,000.  None of those moneys have been recovered.

5.  In sentencing the applicant, the judge noted that the false documentation put forward by the applicant included:

(i) an employment contract between FAD and the applicant;

(ii) three salary statements purportedly issued by FAD stating that the applicant had received salary for three consecutive months; and

(iii) a copy of the applicant’s bank passbook showing salary deposit of $12,000 on 6 October 2010.

6.  The judge noted that the applicant’s explanation in his record of interview was in the following terms:

“(i) He came to know D1 in March 2009 at a bar.

(ii) D1 was in need of money and asked him to help borrow money from financial institutions. D1 gave D3 some employment proofs for borrowing money.

(iii)The applicant - that is, D3 - gave his bank card to D1 and D1 said that he would deposit money into the bank account to show that the applicant had received salary, but the sum would be withdrawn by D1 later.”

7.  The applicant successfully borrowed money on three occasions - they were the subject of the charges - and all the loans obtained were handed over to D1.  The applicant did not receive any part of the loan.

8.  Of the circumstances of the applicant, the judge said that he was 21 years of age, educated to Form 3, and lived with his parents.  She noted that he had one previous conviction which also related to dishonesty and false instruments. That was a reference to a sentence on 26 February 2010 for possession and use of false instruments with intent, for which he had been sent to rehabilitation centre.  She noted that he was now detained for a drug-related matter.

9.  In sentencing the applicant, the judge noted, quoting from paragraph 74 onwards:

“The amount involved is $126,000. He committed the offences within the space of days. Apart from his guilty plea and his promise to assist the prosecution, there is really no mitigation.”

Later, she added:

“All three offences are part of the same fraudulent scheme.”

The judge stated that she took a starting point of 4½ years’ imprisonment for each of the charges.  She said that she gave him credit for his “promised” assistance to the prosecution, and reduced it to 4 years’ imprisonment.  For his plea of guilty, she reduced the sentences for each of the charges to 32 months’ imprisonment.

10.  In my judgment, it is reasonably arguable that the starting point taken by the judge was excessive in all the circumstances of the commission of this offence.

11.  I note that counsel for the prosecution does not seek to contradict the applicant’s assertion that he did not receive any of the moneys that were obtained.  Having said that, there appears to be no proper reason why the applicant was afforded a discount of 6 months’ imprisonment for “prospective assistance” to the prosecution.

12.  That is wrong in principle.  Nevertheless, in my view, it remains reasonably arguable that the resulting sentence of 32 months’ imprisonment is excessive in all the circumstances.

13.  Accordingly, I grant leave to appeal against sentence.