HKSAR v. PUN TUNG YING

HCMA1031/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1031 OF 2004

(ON APPEAL FROM FLCC 1521 OF 2004)

______________________

______________________

_________________________________

R E A S O N S  F O R  J U D G M E N T

_________________________________

1. The appellant was convicted after trial of 11 charges of “procuring the making of an entry in a record of a bank by deception”, contrary to section 18D of the Theft Ordinance, Cap.210.  She was sentenced to 12 months imprisonment for each charge to be served concurrently.  She now appeals against both conviction and sentence.

The prosecution’s case

2. Put simply, the prosecution alleged that when the appellant applied for Comprehensive Social Security Allowance, she falsely represented to the Social Welfare Department that she had only one bank account where, in fact, she had a number of these accounts the total balance of which would disqualify her from the application.  These representations were in the form of half-yearly declarations made over a period of two years.  They enabled the appellant to obtain a total of 25 monthly CSSA allowances 11 of which were selected to form the charges.  The amount defrauded under the charges was $38,700.00.

The defence case

3. The defendant’s case was that though failing to disclose other bank accounts holding an extra $100,000.00 or more, the monies belonged to her son, her sister and her brother-in-law.  Her failure was, therefore, rooted in ignorance and the honest belief that she did not have to disclose those accounts.

The magistrate’s findings

4. Because of how the defence was run, the bulk of the prosecution evidence was admitted.  However, the magistrate rejected the appellant’s explanation and found all the charges proved beyond reasonable doubt.  Her reasons as found in the statement of findings were as follows :

“27.     It is not in dispute that she was asked to produce all the bank books in her name and was asked to inform the SWD of all the bank accounts in her name.  The request was clear and simple.  The request made was unequivocal.  The request was not made in ambiguous terms.  Despite her minimum education status, I am satisfied she clearly understood the request made of her.

28.      The fact that she did not declare the other bank accounts in her name was a deliberate attempt to conceal them from the SWD.  I do not accept her explanation that she interpreted the request as only declaring bank accounts which contained money that belonged to her.  This was an assessment to establish if the defendant was eligible for CSSA it was paramount for the applicant to disclose to the SWD all assets held in her name.  It is evident that had the defendant disclosed all the other bank accounts to the SWD her eligibility for CSSA was questionable.

29.      It is plain that any money held in a bank account must prima facie belong to the account holder.  If it does not, then it is for that person to show that to be so.  If she were straightforward and honest with the SWD she would have declared all the bank accounts held in her name to them and told them that the monies therein did not belong to her.  This she did not do.  I am satisfied that by not disclosing them she was deliberately concealing them from the SWD.  I am satisfied that she falsely represented to them the existence of only one bank account and that she did this dishonestly.

30.      I do not believe and nor do I accept that she did not do so because she thought the money did not belong to her.

31.      As to her claim that the money did not belong to her but to her relatives.  I find her account on that to be wholly unreliable and unworthy of belief.  The accounts were in her sole name.  She was the only person able to operate the accounts.  It was her case that her brother-in-law and sister deposited the money in Hong Kong as Hong Kong had a higher interest rate than that as given in China banks.  They therefore gave the money to the defendant to deposit into a Hong Kong bank account in her name.  It was clear from the defendant’s evidence that the interest gained from these accounts did not even benefit the sister or brother-in-law.  The defendant herself used the interest gained therein.  It was her evidence that when she was in need she was able to draw monies from the accounts.  She had in fact made various withdrawals from some of these accounts for her own use.  The monies in these accounts therefore formed part of her assets.

32.      The defendant held $100,000.00 in a fixed deposit account in her name since 14 October 1997.  This $100,000.00 was deposited into three separate banks over a period of three years.  The fixed deposit of $100,000.00 was withdrawn from the Bank of China account on 19 October 1999 and was deposited into a Dao Heng Bank fixed deposited on the same day.  This $100,000.00 the defendant said belonged to her brother-in-law.  She said she withdrew it from the Bank of China account as the brother-in-law needed the money urgently as he was in the process of building his house in China.  However after withdrawing the money from the Bank of China she was unable to get the money to him.  Her reason was that she was unable to go to China and no one was able to take it to China for him.  As no one was able to take the money to China she immediately deposited it into the Dao Heng Bank in Cheung Wah Estate which was in her neighbourhood.

33.      Her evidence as to the various deposits of money made into her other bank accounts over the years was that she received the money from her brother-in-law or sister through drips and drabs from relatives or friends who came to Hong Kong to give it to her or when she went to back to China and brought it back to Hong Kong.

34.      Given the frequent comings and goings of relatives and herself from China to Hong Kong on previous occasions to deposit money into Hong Kong bank accounts, I find it inconceivable that when money is in such an urgent need that there would not be somebody to take it over or even have it transferred to the brother-in-law in China for over a period of seven months.  Further no explanation was offered by the defendant as to why she even withdrew the money from the Bank of China account if at that time of her withdrawal there was no one who could take the money to China.

35.      Despite the brother-in-law requiring the money urgently the money remained in the Dao Heng account until she withdrew it on 25 May 2000 some seven months after his urgent plea for the return of the money was made.  The delay in getting the money to China clearly shows that her trumped up account of urgency is wholly implausible.

36.      Further her reply to PW4 when first questioned about the Dao Heng account containing $100,000.00 that she ‘did not recall if she had such an account’ is a blatant lie.  That was quite a large amount of money.  She had the money for over 3 years, she had been transferring it from one fixed deposit account to another.  The last account traceable was that of Dao Heng Bank to which she had withdrawn the amount in May 2000.  It is far-fetched to believe that she could not recall such an account.  I reject the defendant’s defence in its entirety.”

The appeal against conviction

5. Largely uncontested, the case against the appellant was overwhelming.  The reasons the magistrate gave for rejecting the appellant’s claim were compelling.  On appeal, the appellant does no more than regurgitate her defence at first instance.  The only thing of interest is that her sister had, before the trial, come to Hong Kong to give a statement to the police claiming ownership of part or whole of the extra money.  Yet, this same sister had, for the difficulty in obtaining another permit, never returned to testify.  Either way, I am not troubled by this revelation, as the account given by the appellant was completely implausible.  I do not see how her sister, even if she had given hundred percent corroborative evidence, could have changed the situation.  The appeal against conviction is dismissed.

The appeal against sentence

6. The appellant is 46, divorced and has a 12 year-old son.  She had not previous been found guilty of any criminal offence.  Just before she was sentenced, she started repaying the defrauded money to the SWD at $388 a month.  She does so out of the $4,500 monthly maintenance that she receives from her ex-husband.

7. In passing sentence, the magistrate referred to the case of HKSAR v. Chan Ming Kuen, HCMA1244/2000 where, citing other decisions, 12 months after plea was considered appropriate for a 13-charge CSSA fraud of about $30,000.00.  She remarked that the instant case fell nearly on all fours with the mitigating factors in the Chan case except that Chan pleaded guilty and had repaid half of the defrauded money at the time of sentence.  In her reasons for sentence, the magistrate expressed the view that she might have been overly concerned with the plight of the appellant’s son and was too generous with the discount that she gave.

8. In my judgment, the sentence is indeed a lenient one.  The magistrate had taken into account everything that could be said on the appellant’s behalf and more.  There is no new material before me that was not before the magistrate.  The appellant’s claim before me that she could not live without her son is neither here nor there.  The appeal against sentence is dismissed.