HKSAR v. HO LAI PING, MICHELLE (ALSO KNOWN AS HO LAI PING)

DCCC 678/2017

[2018] HKDC 703

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 678 OF 2017

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

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

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

REASONS FOR SENTENCE

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

1.  The defendant pleaded guilty to 3 counts of “Fraud”, contrary to section 16A of the Theft Ordinance, Cap. 210 (charges 1 to 3) and not guilty to one count of “Using copies of false instruments”, contrary to section 74 of the Crimes Ordinance, Cap. 200 (charge 4). Upon the prosecution’s application, charge 4 is left on court file and not to be proceeded with without the court’s leave.

2.  At all material times, Flat 11C, Bellevue Place, No. 8 U Lam Terrace (“the Property”) was co-owned by the defendant and her ex-boyfriend.  It was subject to a first mortgage at the Standard Chartered Bank.

3.  On 2 July 2014, the defendant obtained a HK$2 million mortgage by pledging her 50% holdings in the Property with Success International Finance Limited. 

4.  Shortly after obtaining a second mortgage from Success International Finance Limited, the defendant approached 3 other finance companies and successfully obtained mortgage loans from these companies by pledging her 50% holding of the Property and by falsely confirming that the Property was not subject to any loan agreement and/or second/third mortgage with other institutions/person except the mortgage with the Standard Chartered Bank.  On each occasion, she confirmed she understood the terms of the loan agreement and the declaration.  All the finance companies confirmed that they would not approve the defendant’s mortgage loan application had they known the defendant made false representations.

5.  In respect of charge 1, the defendant was able to obtain a loan of HK$1.7 million from Guangdong Finance Limited.  In respect of charges 2 and 3, she was able to obtain a loan of HK$900,000 from Forever Property Finance Company Limited and a loan of HK$200,000 from Global International Credit Limited respectively.

6.  When the offences came to light in 2014, the defendant could not be located.  She was put on watch list and was arrested on 8 March 2017.

7.  In subsequent cautioned interview, the defendant admitted taking out 4 loan applications concerning the Property for second mortgage in July 2014.  She confirmed her signature in the declaration in respect of the loan from Guangdong Finance Limited but denied having read the terms in the declaration.

8.  As a result, the defendant deceived loans of HK$2.8 million.  No repayment was made.

Mitigation

9.  The defendant is aged 67 and single.  She is currently working as a shopkeeper earning HK$6,800 per month.  She has 4 previous conviction records, 3 relate to theft and 1 relates to fraud.  The conviction for fraud was on 27.7.2017, which is after her commission of the present offences.

10.  In mitigation, it was stated that the defendant came to Hong Kong in 1982 and came to know the co-owner of the Property in 1991.  The Property was bought in 1999 and the defendant contributed HK$400,000 for payment of stamp duty and renovation.  The Property was rented out all the time and the rent was used to settle the mortgage loan.  The defendant never lived in the Property and did not receive any benefit from the Property.  She later broke up with the co-owner after she found out that the co-owner was married with a wife and two children.

11.  At some stage, the defendant owned a clothing shop.  Because of failure of business, the defendant became homeless.  As a result, she committed the three theft offences, all involved theft of food.  In 2009, the defendant had a traffic accident and subsequently she was referred to apply for CSSA.  However, due to her failure to declare her ownership of the Property, she was prosecuted resulting in the conviction for fraud in 2017.  The defendant had another traffic accident in 2014 causing serious injury to her right leg and she could not walk.  As the co-owner refused to sell the Property, the defendant was in great financial difficulty.  She then received cold call from financial intermediary and was taken to different finance companies to make application for loans and hence the present offences.  In the end, she only received a total of HK$200,000 from the loans.  The defendant is still currently living in sub-divided flat.

12.  Mitigation letters from the defendant’s current employer and friends confirmed that the defendant is a responsible and honest employee and that she does voluntary work for the elderly despite her financial difficulty. It was submitted that the defendant’s share in the Property is sufficient to compensate the finance companies for the loss given the rise in property market.  However, the co-owner refused to sell the Property despite request made by the defendant’s solicitors.  Civil action in respect of this matter is ongoing.  The court was urged to impose a lenient sentence on the defendant given her guilty plea and that she was used by the intermediary.   

Sentence

13.  There is no sentencing guideline in respect of this offence. Each case has to be decided on its own facts.

14.  Taking into consideration the facts of the case, in particular, the loss caused to the financial institutions was substantial, no repayment has been made and that the defendant was used by intermediary in getting these loans and she only received a sum of less than 10% of the total loan amount, I consider the proper starting point for each charge is 18 months’ imprisonment.  Mitigation letters reveal that the defendant does engage in volunteer work despite her financial difficulty and health condition.  For this, I am prepared to grant her a reduction of 1.5 months from the starting point.  Given the defendant’s guilty plea, the sentence for each charge is reduced to 11 months’ imprisonment.  Apart from the above, there is no other mitigating factor justifying further reduction of the sentence.  Having considered the totality principle, I am satisfied that a total sentence of 13 months’ imprisonment is sufficient to reflect the defendant’s criminality.  I order 1 month of the sentences for charges 2 and 3 to run consecutive to the sentence for charge 1, making a total sentence of 13 months.  I hereby sentence the defendant to a total sentence of 13 months’ imprisonment.