HKSAR v. LAI MEI TAN, JENNY AND ANOTHER

DCCC 1083/2021

[2023] HKDC 763

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1083 OF 2021

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REASONS FOR SENTENCE

D1 faces 3 charges of "Fraud" (Charges 1, 3 and 4). D2 faces a charge of "Conspiracy to defraud" (Charge 2). They both pleaded not guilty to the respective charges.

2.  After trial, only D1 was found guilty of Charges 3 and 4.  D2 was found not guilty of Charge 2; and D1, not guilty of Charge 1.

3.  I have summarized the evidence in my Reasons for Verdict and need not repeat them here.  In short, D1 made false representation about her employment and salary in 2 loan applications.

4.  During the offence period, D2 was the sole shareholder and director of Wenxin.Xinyangmaojian Investment (HK)  Limited ("WXI").

5.  On 13 June 2017, D1 applied to be a member of Promise (Hong Kong)  Co., Limited ("Promise"). Based on the information provided by D1, Promise granted her 2 loans respectively in June 2017 and March 2018.

6.  Upon D1's request, D2 signed a letter dated 13 April 2018 which bears the letterhead of Xenin.Xinyangmaojian Investment (HK)  Limited ("XXI")  stating that D1 had been employed by XXI as a sales manager with a monthly salary of $50,000 since 1 June 2016[1].

7.  On 25 April 2018, Madam Lau (PW4), a Loan Officer of Promise, contacted D1 to promote the latest loan offer.  D1 indicated to PW4 that she would like to borrow $300,000.  On the same day, D1 attended a Promise branch to meet with PW4.  D1 informed PW4 that there was no change in her employment status, income or other relevant information.  She also presented to PW4 the XXI letter signed by D2 dated 13 April 2018 and other supporting documents[2].  This is Charge 3.

8.  On 28 May 2018, D1 applied for a personal loan in the sum of $450,000 from Easy One Finance Limited ("Easy One").  Her application was handled by Mr. Chung (PW6), a Senior Loan Processing Officer of Easy One [3]. In this loan application, D1 made representation to Easy One that she had been employed by WXI as a sales manager earning a monthly income of $50,000 since June 2016[4].  This is Charge 4.

9.  Both loans in relation to Charges 3 and 4 have been repaid in full before D1 was arrested by the ICAC[5].

10.  D2 has reported to her Mandatory Provident Fund ("MPF")  service provider that D1 was employed by WXI from June 2016 to December 2017 with a monthly income of $50,000[6]. The respective monthly contributions by employer and employee were duly made[7].

11.  On the other hand, there is cogent and convincing evidence that WXI had ceased to operate in December 2017[8]. As a juror, I found that D1 was not and could not have been employed by WXI with a monthly income of $50,000 in April or May 2018[9]. In other words, her loan applications to Promise and Easy One contained material false representations.

Mitigation & sentence

12.  D1 is 56 and has a clear record.  Her counsel Mr. Chan informed me that D1 is divorced with a son (aged 22).  She is a mainland trained nurse.  At present, D1 works as a part-time care worker in an elderly home earning $6,000 per month; she is also studying Chinese medicine.

13.  In mitigation, Mr. Chan submitted that both loans in Charges 3 and 4 have been fully repaid before D1 was arrested.  The finance companies suffered no loss.  D1 has been suffering from much stress in the past 2 years.

14.  In view of D1's background and clear record, I called for a Community Service Report.  The comments in the report are positive.  She has a stable job and is keeping herself up to date with the relevant skills and knowledge by taking courses.  The Probation Officer indicated that D1 has expressed her remorse and is willing to shoulder the legal responsibility for the offences she committed.

15.  I note that both loans were fully repaid in April and January 2019 respectively.  D1 was arrested by the ICAC in July 2020.  This case first reached the District Court on 14 December 2021.  After 2 mention hearings in February and May 2022, on 9 June 2022, the trial dates at the end of March 2023 were fixed.  Whilst Mr. Chan made no complaints of undue delay, I cannot overlook the fact that both offences were committed respectively in April and May 2018, which were 5 years ago.  Furthermore, I have found that D1 was possibly employed by WXI from June 2016 to December 2017 with a monthly income of $50,000.  She committed both offences just a few months after December 2017 and the finance companies suffered no loss.

16.  In my view, D1 is not a typical criminal.  Her background and the circumstances of this case afford her a chance of a non-custodial sentence.  I consider a Community Service Order to be an appropriate and just punishment for her.

[Requirements of Community Service Order explained. D1 understood and is willing to comply.]

I sentence D1 to 160 hours of Community Service each for Charges 3 and 4.