HKSAR v. PAULINE ELLEN COUSINS

HKSAR

v.

Pauline Ellen Cousins

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

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

Reasons for Sentence

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

1.  The defendant was convicted after trial of four counts of furnishing false information, contrary to section 19(1)(b) of the Theft Ordinance.

2.  The defendant between year 2002 and 2006, on four occasions, produced to PW2, Mr Lindsay James Miller, four false portfolio valuation summaries. 

3.  They were produced purportedly to show to PW2 that his lump sum investment had been put into one Collective Investment Bond, an investment link assurance scheme run by Royal Skandia.  The amount of the lump sum investment was at least HK$1.755 million. 

4.  Instead of investing PW2’s money into this bond, the defendant decided to put PW2’s lump sum money into shares of one hi-tech company, Microsulis Asia Limited.

5.  During the four occasions in question, the defendant used portfolio valuation summaries that belonged to other clients of her to mislead PW2. 

6.  The present case differs slightly from the usual theft and false accounting case we normally encounter in the District Court in that the sum of money was not intended to be taken away permanently.  As I have stated in my Reasons for Verdict, it was the defendant’s intention to pocket the difference, given her faith in Microsulis’ potential growth and her belief that PW2’s investment would not be encashed for a long period of time. 

7.  I presume this was the reason why the defendant was not charged for theft.  I come to such conclusion because one can see from figures presented in those portfolio valuation summaries that they were always in the positive albeit at a slightly reduced amount of the original sum.

8.  It was unfortunate that the investment in Microsulis turned out to be a total disaster.  Microsulis had since been put into administration. 

9.  Having said that, it cannot be denied that because of the misuse of the funds by the defendant, PW2 had suffered a huge loss.  The defendant subjected PW2’s money into unreasonable and unacceptable risks.  The share certificate becomes no more than a piece of worthless paper.

10.  There are aggravating features in this case. 

11.  Not only portfolio valuation summaries of other clients but also false documents, letters with PW2’s signatures either forged or copied, were used.  They were used to prove authority being given.  I am actually surprised that the defendant has not been charged for more serious offences. 

12.  The defendant was PW2’s financial adviser.  She owed PW2 a fiduciary duty.  The defendant acted in serious breach of that duty and the trust imposed on her.  The deception lasted over a period of 3 to 4 years, that is discounting 1999 to 2002.  They were not isolated incidents.  The deception involved degrees of planning.

13.  Mr Richmond has put forward essentially three main points in his mitigation.  These three main points are: (i) the ill health of the defendant and her husband; (ii) the delay in prosecution; and (iii) the defendant’s good character.

14.  Ill health of a defendant has never been held as a mitigating factor.  It is considered as an act of mercy in exceptional circumstances. 

15.  In Yip Kai Foon v HKSAR [2003] 3 HKCFAR 31, Li, CJ, said:

“Under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence of crimes of gravity.”

16.  In R v Chan Kui Sheung [1996] 3 HKC 279, Yang, CJ, said the following:

“An accused’s serious medical condition might enable a court, as an act of mercy,…… to impose a lesser sentence than would otherwise be appropriate.”

17.  I have the opportunity in reading all the medical reports produced by the defence.  Having perused those reports, I do not think the defendant’s suffering of a major depressive order is such that allows this court to exercise an act of mercy.  I of course understand the hardships, whether financially or psychologically, a criminal prosecution may bring upon a defendant.  However, as Mr. Justice Patrick Chan, pointed out in R v Souyave CACC568/1996:

“These conditions and predicaments are largely due to the defendant’s own making.”

18.  Insofar as delay is concerned, I do not think this case is one that merits any reduction. 

19.  The defendant was arrested by the police in November 2006.  She was given police bail.  In May 2007 she was charged on holding charges.  These holding charges were replaced by substantive charges in May 2008.  The case was then transferred to the District Court. 

20.  The defendant first appeared before Chief District Judge Li on 3 June 2008.  The date for pre-trial review was fixed in six weeks’ time.

21.  On 14 July 2008, Mr McCoy SC, appeared for the defendant in the PTR before His Honour Judge Browne.  Mr McCoy was of the view that some documents had not been produced/disclosed by the police, another PTR was scheduled on 23 September 2008.  The case was however set down for trial on 17 November 2008 for 10 days. 

22.  On the next PTR day, 23 September 2008, Mr Egan appeared for the defendant.  This PTR was held before His Honour Judge Stanley Chan.  According to Mr Egan, the defence was not ready for trial because of late instruction.  In fact, by looking at the records of the court file, the defence was not even in a position to conduct any PTR.  The case was adjourned to 22 October 2008 for another PTR. 

23.  On 22 October 2008, Mr Egan appeared before Deputy Judge Glass and asked the court to vacate the trial date as the estimate of the length of trial by Mr McCoy was too optimistic.  According to Mr Egan, the trial would last 15 to 20 days.  As a result, trial date was vacated.  The trial was re-fixed to 30 March 2009 for 20 days.  The case was again adjourned to 5 January 2009 for another pre-trial review.

24.  On 5 January 2009, the defendant appeared in person without any legal representation.  It was the first time before me.  In view of all the complications and the history of the case, I was of the view that this case should be handled by one single judge.  I then seized the matter and have been dealing with this case since.  During the meantime the defendant was advised to apply for legal aid.  Unfortunately, her application was refused. 

25.  On 30 March 2009, the first day of the trial, Mr Egan re-appeared and asked for another adjournment.  To cut the matter short, the trial eventually commenced on 28 September 2009 and with Mr Egan’s assistance, Mr Richmond and Miss J Ma appeared to represent the defendant.

26.  If there is any delay in this case, it seems to me it is certainly not caused by the prosecution.  The only delay that can possibly attribute to the prosecution is the time lapse between November 2006 and June 2008, a period of one and a half years. 

27.  Delay, however, has to be viewed in the context of the size of the investigation that the police have to conduct.  Although this is not a complicated court case, it is a complicated police case.  Mutual legal assistance was required from overseas jurisdictions.  Investigation had been carried out in the United Kingdom as well as the Channel Islands.  Documents had been retrieved and received from overseas law enforcement agencies. 

28.  Coming to the third point, the defendant’s good character.  The defendant is 66.  She has more than a clear record.  She has worked industriously and achieved a great deal in life.  She was well respected by her peers, friends and some of her clients.  They speak highly of her. 

29.  Unfortunately, on this occasion, I have no doubt that she did wrong.  Life is not simply black and white.  We are often tested in the grey areas. 

30.  Although the defendant has an impeccable past, in order to claim further reduction she must demonstrate to the court that she has positive good character.  I have not seen any evidence demonstrating such so far. 

31.  Sentencing is never an easy task.  I am of course mindful of the far-reaching consequence my decision has on the defendant as well as her family. 

32.  In sentencing a defendant, it is not just the defendant’s interest that I need to consider.  There are the victim’s interest and the community’s interest as a whole that I must take into account.  Wrongdoer must be punished. 

33.  There is no sentencing guideline for this particular offence.  Each case must judge on its own.

34.  Having considered all the circumstances of this case, mitigation put forward by Mr Richmond and past authorities, I am of the view that the appropriate starting point for each offence is one of 18 months’ imprisonment. 

35.  Given the length of the commission of these offences, the overall criminality, the totality principle, I am of the decision that 2 months each of Charge 4, 6 and 7 should be served consecutively to the 18 months imposed on Charge 1.  That makes a total of 2 years’ imprisonment.

36.  This, however, is not the end of the matter.  The defendant has since returned $297,900 to PW2.  This demonstrates some degree of remorse.  In view of that, I deduct 3 months from the 2 years imposed.

37.  Mrs Cousins, please stand.  For all the charges the defendant stands convicted, she is sentenced to 21 months’ imprisonment.