HKSAR v. TANG BIK WAN

CACC 268/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 268 OF 2014

(ON APPEAL FROM DCCC NOS. 1086 OF 2013 AND 395 OF 2014)

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JUDGMENT

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Introduction

1.  The applicant (D2) faced a total of ten charges before HH Judge Johnny Chan.  She was charged alone with six counts of “Attempted Fraud” (Charges 8, 11, 12, 14, 15, 17) and one count of “Fraud” (Charge 13).  She was further jointly charged together with D1 with three counts of “Fraud” (Charges 7, 9, 10).  She pleaded guilty to all ten charges.  On 24 July 2014, the applicant was sentenced to a total term of 46 months’ imprisonment.  She now seeks leave to appeal against her sentence.

The facts

2.  False remittance forms or cheques purportedly signed by the account holders were presented by the applicant or D1 to bank staff at various banks so as to induce the banks to remit funds to local remittance agents.  These remittance agents had earlier received instructions from the defendants to remit the sums to the Mainland and, upon receipt of the funds, the remittance agents did as instructed.  In respect of all the charges against the applicant (including the joint charges with D1), the CCTV system of the banks concerned had captured the applicant presenting the false documents to their respective bank staff.  On various occasions, forged identity documents were produced by the applicant or D1 to the bank staff during submission of the false remittance forms or cheques.

3.  The total sum involved in the fraud/attempted fraud charges against the applicant was HK$11,687,000.

4.  The particulars of the 10 charges against the applicant may be summarised as follows:

5.  D1 was arrested on 15 January 2014 at Lo Wu Immigration Check Point, upon his return to Hong Kong.  The applicant was arrested on 22 February 2013, when she was caught red-handed committing the offence in Charge 17.

6.  In respect of the transaction concerned in Charge 17, the applicant stated, under caution upon arrest, that she had been instructed by “Ah Shing” to submit the form to the bank, in return for which she would receive HK$2,000.  Regarding the transactions concerned in Charges 7, 9 and 10, the applicant stated, again under caution, that she owed a debt to a man who lived in Shenzhen.  That person had asked her to tender some remittance forms to various banks, in return for which she would receive a reward of around HK$1,000 each time.

Mitigation

7.  It was submitted in mitigation that the applicant was not the mastermind but one of “the pawn exposed on the very frontline”.[1]  She had a clear record and had pleaded guilty to all of the charges.  It was said, on her behalf, that the applicant had no knowledge of any non-prejudicial statement given by D1, and hence her pleas had nothing to do with the statements he had given.[2]

Reasons for sentence

8.  In sentencing, the judge considered that all of the offences committed by the applicant were serious and premeditated.  Large amounts of money had been defrauded from the banks by the applicant and D1 and, had it not been for the astuteness of certain bank officers and the insufficiency of funds in some of the victims’ accounts, they would have succeeded in swindling a much larger sum.[3]  Forged identity documents were used on several occasions and the frauds took place over an extended period of time and were carefully executed.  Monies obtained by fraudulent means were quickly siphoned out of Hong Kong and remitted to bank accounts in the Mainland.  The spiriting of funds across the border made it much more difficult for the police to trace and recover the proceeds.  The judge considered that the applicant and D1 were not the masterminds of the enterprise but each had nevertheless played a pivotal role in the scheme to defraud.  He also accepted on the materials before him that the applicant was less culpable than D1.[4]

9.  The applicant had successfully defrauded the bank of HK$900,000 by herself (Charge 13).  She had further attempted, but failed, to swindle another HK$7,680,000 (Charges 8, 11, 12, 14, 15 and 17).  She had used two forged HKID cards on five separate occasions (Charges 8, 12, 14, 15 and 17).  In addition, the applicant and D1 had jointly defrauded the banks of HK$3,107,000 (Charges 7, 9 and 10).[5]

10.  In respect of the charges committed jointly with D1 (Charges 7, 9 and 10), involving respectively $920,000, $969,000 and $1,218,000, the judge found the applicant less culpable than her co-accused.  He adopted a starting point of 33 months’ imprisonment in respect of each of the offences and reduced it to 22 months’ imprisonment for the applicant’s guilty plea.[6]

11.  In respect of Charges 8, 12 and 15, involving the failed attempts to defraud $970,000, $980,000 and $975,000 respectively by means of forged HKID cards, the judge adopted a starting point of 30 months’ imprisonment for each of the offences, which he reduced it to 20 months’ imprisonment for plea[7].

12.  In respect of Charge 11, involving a failed attempt to defraud $980,000 from the bank, the judge adopted a starting point of 27 months’ imprisonment, which he reduced to 18 months’ imprisonment for plea.[8]

13.  In respect of Charge 13, involving $900,000, the judge adopted a starting point of 33 months’ imprisonment, reducing it to 22 months’ imprisonment for the applicant’s guilty plea[9]; while in respect of Charges 14 and 17, involving failed attempts to defraud $1,900,000 and $1,875,000 respectively with the use of forged HKID cards, the judge adopted a starting point of 39 months’ imprisonment, which he reduced to 26 months’ imprisonment for plea.[10]

14.  The judge considered an overall term of 46 months’ imprisonment, which represented a global starting point of 5 years and 9 months’ imprisonment, to be appropriate for the applicant’s criminality.  To achieve this, the judge ordered

(1) the sentences on Charges 13 to 15 and 17 to run concurrently with each other;

(2) the sentences on Charges 7 to 9 to run concurrently with each other, 10 months of which were to run consecutively to the sentences on Charges 13 to 15;

(3) the sentences on Charges 10 to 12 to run concurrently to each other, 10 months of which were to run consecutively to the sentences on Charges 7 to 9, 13 to 15 and 17[11].

Grounds of appeal

15.  The applicant has filed a handwritten submission with the Court on 27 January 2015.  The grounds of her appeal may be summarised as follows:

(1)   The applicant only received ‘primary one’ education and uttered the false documents at the bank on the instruction of the “mastermind” for a reward of HK$1,000 on each occasion.  Had she known that the documents were false, she would not have done so;

(2)   She suffers from hypertension and rheumatoid arthritis;

(3)   She was not provided with any further discount for having provided a “non-prejudicial statement” (“NPS”) and, what she describes as, some “clues”;

(4)   She is the sole income-earner at home.  She needs to support all living expenditure of her daughter and her six-year-old grandson.  She is afraid that her daughter, who has emotional illness, would hurt her grandson.  She has today told me that her daughter has not visited her over the course of one whole year; and

(5)   Her old age.

The applicant has expanded on these submissions before me this morning.

Respondent’s submission

16.  It is submitted by Ms Jennifer Fok, for the respondent, that it was admitted that the applicant had used two forged HKID cards bearing her photograph on five separate occasions when tendering the documents to the banks.  She admitted under caution that she would receive a reward each time she submitted the documents each time.  Clearly, therefore, the applicant knew the falsity of the documents used at the time of the offence.

17.  Ms Fok further relies upon HKSAR v Lkhaijav Bayanmunkh (unrep., CACC 320/2011) and HKSAR v Lau Yuk Huen (unrep., CACC 37/2008) for the contention that old age or ill health will rarely afford a mitigating factor which a court can properly take into account when sentencing.  Similarly, family circumstances are normally not a factor to be given any weight in sentencing: see HKSAR v Chan Kin Chung & Anor [2002] 4 HKC 314[12].

18.  In respect of the supposed information given to police by way of NPS, it was submitted that no such information or assistance had been provided to the police by the applicant.  She pointed out that this issue was never raised before the sentencing judge.

19.  The respondent further submits that there are no tariff or sentencing guidelines for the present offences.  However, Ms Fok cited the case of HKSAR v Cheng King Lung (unrep., CACC 67/2002) to support her argument that the sentence imposed in the present case was on the lenient side.

Consideration

20.  The applicant had on her own successfully swindled HK$900,000 on one occasion and attempted to defraud a total of HK$7,680,000 from various banks on six further occasions.  Forged identity cards were used on five of these occasions.  The applicant and D1 had also jointly defrauded HK$3,107,000 from banks on three other occasions. Although the present case does not involve the offence of money laundering, the total sum involved in the applicant’s case was much greater than the facts revealed in Cheng King Lung. Moreover, the charges spanned a three month period.  There was a cross-border element to the offences as the monies defrauded would be channelled out of Hong Kong to bank accounts in the Mainland, which made the tracing and recovery of funds much more difficult.  The offences were clearly premeditated, sophisticated and obviously the product of a syndicated scheme.  In those circumstances, the global starting point of 5 years 9 months’ imprisonment adopted by the judge cannot be said to be manifestly excessive.

21.  As for the assistance allegedly given to the police, it is clear to me, having questioned Ms Fok in some detail about it, that it did not amount to anything which could have provided any real assistance to the authorities.

22.  Accordingly, the resultant sentence of 46 months’ imprisonment has not been shown to be manifestly excessive or wrong in principle.  The application for leave to appeal against sentence is therefore refused.

23.  The applicant is duly advised of her right to renew her application for leave to appeal against sentence to the Court of Appeal, and the consequences of so doing, which may include a direction for the loss of any time spent in custody pending her appeal, if the Court of Appeal comes to the conclusion that there was no justification for the renewal of the application.