HKSAR v. FUNG KING YEE

DCCC 1100/2020

[2021] HKDC 1410

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1100 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant faces a charge of "Forgery" (Charge 1)  and an alternative charge of "Possessing a false instrument" (Charge 2). She pleaded not guilty to Charge 1 but guilty to Charge 2, which was accepted by the prosecution.

Summary of Facts

2.  On 27 September 2016, the defendant and male Pang Hung-wai were arrested by the Police in Room C, 9/F, Wah Tat Building, 28 Hoi Pa Street, Tsuen Wan ("the Flat").

3.  A white notebook computer was found in the Flat ("the Computer").  A Hang Seng Bank credit card statement (the "HSB Statement")  was found between the screen and the keyboard of the Computer.  A Citibank statement in the name of WONG HO WU (Account No.63381412)  (the "Citibank Statement")  was printed on the back of the HSB Statement.

4.  An electronic image of the Citibank Statement was found in the mobile phone seized from the defendant.

5.  In her video recorded interviews, the defendant admitted that she met Pang through a friend "Ah Shum".  Ah Shum brought her to the Flat.  The defendant owed PANG money.  Pang gave her a Citibank statement of CHAN CHUNG WAI and asked her to change the name of the account holder to WONG HO WU.  The defendant did so using her mobile phone and the Computer (which belonged to Pang).  Pang printed out the altered statement at the Flat.  The defendant claimed that she did not know the use of the altered statement.

6.  A fingerprint was lifted from the Computer.  It belonged to the defendant's right thumb.

7.  Madam Tsang, a staff member of Citibank, confirmed that the account number 63381412 never existed.  The Citibank Statement is therefore a false instrument.

8.  The defendant now admits that on 27 September 2016, she, without lawful authority or excuse, had in her custody or under her control an electronic version of the Citibank Statement, which she knew or believed to be false.

Mitigation & Sentence

9. The defendant is 32 and has a clear record. Defence counsel Mr. Cheung informed me that the defendant is single but has a stable boyfriend. She used to work as a part-time clerk earning about $4,000 per month. She stopped working in 2018 owing to her suffering from depression and stress. She was afraid of seeking full time employment, not knowing if she would be charged and whether or not she would be sentenced to imprisonment. Her boyfriend has since been supporting her financially.

10. In mitigation, Mr. Cheung submitted that the defendant was gullible. Since she owed Pang some money, she felt compelled to help him alter the bank statement, believing that it was for Pang's own use. She did not appreciate what consequences the forged statement could bring. She received no benefit or reward for doing so.

11. Finally, Mr. Cheung submitted there is undue delay in charging the defendant. She was arrested in September 2016 but was not charged until November 2020, some 4 years later. Mr. Cheung stated that the stress arising from the uncertainty of this case caused the defendant to suffer from mixed anxiety and depressive disorder[1]. She started to seek medical treatment in 2019. Without the support of medical opinion, Mr. Cheung submitted that the abnormal increase of the defendant's body weight since her arrest is attributable to her anxiety disorder.

12. I will deal with the issue of "delay" first. Prosecuting counsel Ms. Lau has helpfully prepared a Chronology of Events for my reference. I need not go into the details, suffice it to say that it took the Police 3 years to investigate this case and to submit the case file to the Department of Justice for legal advice; then another 13 months to issue initial legal advice, conduct further investigation and finalize the legal advice. Ms. Lau explained that this case is related to a fraud syndicate, which involved 6 banks, 18 fraudulent credit card applications, overseas merchants and numerous victims who have immigrated to other countries. Furthermore, this case has a drug aspect which resulted in charging other arrested persons in both the High Court and magistrates' courts.

13. In my view, 3 years to investigate this case were excessive. I appreciate the complexity described by Ms. Lau, but flexibility is often necessary. Of course it is easier said than done with the benefit of hindsight, a major investigation could perhaps be truncated into a number of sub-investigations, so that some arrested persons could be triaged and dealt with first as and when the sub-investigations were completed. As far as the defendant is concerned, there is undue delay in bringing criminal prosecution against her. I should, for the sake of completeness, mention that this case reached the District Court on 7 January 2021.

14. On 15 April 2021, the trial dates for this case were fixed (8 to 10 November 2021). At that time, the Charge Sheet contained Charge 1 only. It was not until 12 October 2021 (the earliest)  that the prosecution had indicated its intention in writing to both defence and court to amend Charge 1 and to add Charge 2 (as an alternative to Charge 1). On 3 November 2021, Mr. Cheung wrote to court mentioning the plea negotiation agreement reached with the prosecution. To cut a long story short, Mr. Cheung asked for the full one-third discount be given to the defendant; and Ms. Lau, with her usual fairness, did not object.

15. What the defendant did was perhaps minor and quick (altering the contents of a bank statement with the aid of technology), the consequences of her acts could be serious and she possessed the ability to contemplate those consequences. I, however, would not speculate on or take into consideration the magnitude of the fraud syndicate behind. I would sentence the defendant based on the scope of the Summary of Facts admitted by her.

16. Based on all relevant matters, I consider a starting point of 9 months' imprisonment appropriate and just. Although the indication of her guilty plea was made after the trial dates were fixed, I would grant the defendant the full one-third discount for reasons I have given at paragraph 14 above, reducing the sentence to 6 months. The undue delay and the defendant's background justify a suspended sentence. I order her sentence be suspended for 18 months.