HKSAR v. TAM KIM WING

DCCC 280/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 280 OF 2017

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REASONS FOR SENTENCE

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1.  In these proceedings, the defendant Miss Tam Kim Wing faces a total of 23 dishonesty-related charges.  She is convicted of 22 charges upon her pleas and admission of facts.  In respect of the one she pleaded not guilty to, the prosecution applies for the charge to be left on the court file and not to proceed without the court’s leave.  It is so ordered.

2.  In all, there are seven charges of “theft”, contrary to section 9 of the Theft Ordinance, Cap 210, and 15 charges of “using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap 200. 

3.  The offences have been committed over a span of 10 years.  On seven occasions the defendant stole the chequebooks belonging to seven different victims.  On 15 occasions, she forged signatures of the account-holders of the stolen cheques to obtain advantages from various shops including two instances in which the stolen cheques have used to settle guesthouse bills.  In seven instances, the owner of the cheques could be traced.

4.  The defendant forged signatures of the account-holders and used the same in purported payments for transactions from which the defendant found ways to benefit.  None of the cheques was honoured and the deliveries of the goods had been halted in time.

5.  For each instance of theft, it was followed by at least one charge of using a false instrument, forming a common nexus.  For the sake of convenience, I will put each instance and the related using false instrument charges in one group, in order to access the defendant’s culpability.

Group 1: Charges 2 and 9

6.  On 17 August 2007 the defendant went to a curtain shop in North Point and, while the shopkeeper was busy with his tasks, stole a chequebook belonging to the latter (Charge 2). 

7.  On 2 September 2007, after staying in a guesthouse for 16 days, the defendant forged the account-holder’s signature on one of the stolen cheques to settle the bill.  The guesthouse lost a total of $4,600 for the room charges (Charge 9).

Group 2: Charges 3 and 10

8.  Some time around 20 June 2008 the defendant stole a chequebook belonging to the shopkeeper of the furniture shop in Kwai Chung (Charge 3).  The shopkeeper knew of the theft only after he was advised by the bank that attempts had been made to use several of his cheques.  The paying bank did not accept the signatures on the cheques and refused to honour them (Charge 3).

9.  On 6 July 2008, after using one of the stolen cheques in purported payment of a purchase of $17,400, the defendant indicated that she would like to cancel some of the items ordered and asked for a cash refund of $640.  The shop owner agreed and suffered a loss of $640 (Charge 10).

Group 3: Charges 4 and 11

10.  On 29 July 2008 the defendant stole a chequebook containing 40 cheques from a home decoration shop in Castle Peak Road (Charge 4).

11.  On 7 August 2008 the defendant went to a music shop in Sai Ying Pun, purportedly making a purchase in the total sum of $15,867.  For payment she presented one of the stolen cheques made out to the sum of $16,000 and she asked the shop owner to give her the difference in cash.  The shop owner agreed and lost $124 (Charge 11).

Group 4: Charges 5, 13 and 14

12.  In early March 2013 the defendant stole the chequebooks posted by a bank to its account-holders (Charge 5). 

13.  On 15 May 2014 the defendant went to a shop in Tai Wai, purportedly making a purchase of hydrotherapy products.  The total sum was $537,200.  For payment she deposited one of the stolen cheques made out to the sum of $539,000 into the shop’s bank account.  She then asked the shop owner to pay her the difference in cash.  The shop owner agreed and lost $1,800 (Charge 13).

14.  On 3 March 2015 the defendant placed an order of furniture purportedly on behalf of YWCA in the total sum of $77,360.  After depositing one of the stolen cheques in the like amount into the shop’s account, she asked the shop owner for a loan of $1,200.  The shop owner acceded to the request and lost $1,200 after the cheque was dishonoured.  YWCA confirmed that it had never authorised any such acquisition (Charge 14).

Group 5: Charges 6, 18, 19 and 20

15.  Some time in March 2016 the defendant stole the chequebook posted by the bank to one of its account-holders (Charge 6).  On 10 April, upon being advised that the cheques had been used without his knowledge, the account-holder made a report to the police (Charge 6).

16.  On 6 June 2016, as guarantee for a loan of $4,000 from the staff of the guesthouse in which the defendant was staying, the defendant deposited one of the stolen cheques made out to the sum of $38,000 into the bank account of the guesthouse staff.  The staff suffered a loss of $4,000 when the cheque was dishonoured (Charge 18).

17.  On 18 July 2016 the defendant went to a shop in Wong Tai Sin, purportedly making a purchase of furniture in the total sum of $57,388.  For payment she deposited one of the stolen cheques made out to the sum of $58,980 into the shop’s bank account.  She then asked the shop owner to pay her the difference.  This the shop owner did and lost $1,552 (Charge 19).

18.  On 27 July 2016 the defendant went to a shop in Tsuen Wan, purportedly to purchase electronic appliances in the total sum of $274,460.  For payment she deposited two of the stolen cheques made out to the total sum of $274,460 into the shop’s bank account.  She then told the shop owner she did not require the installation service originally ordered and asked for a refund of the same in cash.  She also asked to take delivery of one of the items, a television set, by herself.  The owner agreed and suffered a loss of $2,100 for the refund and the cost of the television set in the sum of $1,950 (Charge 20).

Group 6: Charges 7, 21 and 22

19.  Some time in August 2016 the defendant stole the chequebook posted by a bank to its account-holder.  On 15 April 2016, upon being advised that the cheques had been used without her knowledge, the account-holder reported to the police (Charge 7).

20.  On 6 September 2016 the defendant went to a Tai Kok Tsui shop, purportedly to purchase sewing machines at a total cost of $120,176.  She deposited one of the stolen cheques made out to the same sum into the bank’s account.  She then asked the shop owner to allow her to take delivery of one of the sewing machines by herself.  The shop owner agreed and lost $6,980 for the cost of the sewing machine (Charge 21).

21.  On 13 October 2016 the defendant went to a Chai Wan pharmacy, purportedly to purchase a quantity of soap, toothpaste and medicine for the total sum of $603,000.  For payment she deposited one of the stolen cheques made out to the sum of $603,000 into the pharmacy’s bank account.  She then asked the shop owner to pay her the difference in cash.  The shop owner did and lost $3,000 (Charge 22).

Group 7: Charges 8 and 23

22.  Some time around October 2016 the defendant stole two chequebooks posted by a bank to one of its account-holders (Charge 8).

23.  On 2 December 2016, upon being advised that the cheques had been used without her knowledge, the account-holder reported the matter to the police.

24.  On 27 October the defendant approached a Mid-Level restaurant to place an order for supply of food for 16 days at a total cost of $1,853,280.  After depositing three of the stolen cheques into the restaurant’s bank account in purported payment, she asked for a kickback of $1,600.  The restaurant staff agreed and suffered a loss of the same sum (Charge 23).

Group 8: Charges 12, 15 to 17

25.  The circumstances relating to the above four charges involved the defendant using cheques from accounts not under her own name and forged signatures of the account holders thereon in purported payment of purchases she made.  All the cheques were not honoured and deliveries of goods halted in time.

26.  On 19 January 2010 the defendant placed an order for medical products in the total sum of $27,800.  For payment she deposited a cheque made out to the sum of $28,700 into the shop’s bank account.  She then asked the shop owner to pay her the difference in cash.  The shop owner did and lost $900 (Charge 12).

27.  On 11 August 2015, purportedly acting for a charitable organisation, the defendant placed an order for food for the total sum of $115,200 with a Kowloon City shop.  She also succeeded in securing the shop owner’s consent to make a donation of $3,800.  After depositing the two cheques made out to the total sum mentioned above into the shop’s bank account, the shop owner then gave her the $3,800 in cash.  The shop owner lost this amount when the cheques bounced (Charge 15).

28.  On 21 December 2015 the defendant placed an order for fruit baskets at a total sum of $50,400.  For payment she deposited a cheque made out to that sum.  She then asked the shop owner for a cash refund. The shop owner did and lost $3,200 (Charge 16).

29.  On 18 March 2016 the defendant placed an order with a Kwun Tong shop for food and drink, purportedly on behalf of an organisation, in the total sum of $58,550.  After paying a stolen cheque made out to the sum of $58,550 into the shop’s bank account, she asked the shop owner to make a cash sponsorship to the organisation.  The shop owner did and lost $3,000 (Charge 17).

30.  After the defendant was arrested, under caution she admitted to have committed all of the above charges.

Discussions

31.  The maximum penalty for theft is 10 years’ imprisonment, but, as pointed out by the editors of Archbold 2017 (at paragraph 5-584), the offence has a wide range of culpability.  There is no sentencing guideline for the offence. 

32.  Neither the parties’ nor my research yielded any precedence offering guidance on the proper sentence for cases similar to the present one.

33.  In the 15 instances where the defendant used the stolen cheques, the victims suffered a total loss of $40,446 in the form of cash refunds, a television set, a sewing machine, and hotel accommodation. Compared to the sizes of the alleged purchases and the effort required to lure the various owners to part with their property or cash, the amount is not particularly significant.  Yet whichever way it is looked at, the amount is still sizable.

34.  The following factors are what I consider to be relevant in assessing the defendant’s culpability.

(i) Despite the relatively small yield, each offence was a planned and premeditated operation.

(ii) The overall circumstances of the charges also reveal a consistent course of conduct over the span of more than 10 years.

(iii) Although the defendant did not manage to use the stolen cheques as such and the amount she managed to swindle out of the individual victims was relatively small, they represent part of the profits that the victim expected to make out of the transactions.

(iv) Hong Kong is a commercial city, the success of which depends partly on its low operation cost made possible by transactions being able to be carried out on words of honour; and where cheques would be accepted as valid forms of payment without having to take the precaution of a full background check. The defendant’s deceit had poisoned this sense of trust and rendered the commercial environment toxic. The sentence to be meted out must have a deterrent effect of such behaviour.

35.  In the seven instances in which the victims’ identities were known, the defendant had stolen the chequebooks obviously with the intention of using the same.  Each of the seven thefts is linked at least to one charge of using a false instrument.  Their culpabilities overlapped. For the sake of convenience, I have put them in separate groups and consider the culpability of the group as a whole.

Group 1 to 2

36.  For Charges 2 to 3, the defendant attended the shops.  While the shopkeepers were not paying attention, she stole their chequebooks.  Some of the missing cheques were used in connection with other offences.

37.  In my view, these two instances of theft were akin to a burglary of a commercial premises.  She was not invited to go there to steal.  The shops were open for customers, which obviously the defendant was not.  The defendant has stolen not for the intrinsic value of the cheques, but rather with the purpose of stealing them to commit further offences.  Her culpability, is akin to that of burglary, warranting 30 months’ imprisonment.

38.  I would therefore consider the proper global sentence for each charge in each group should be 32 months.  The sentence for each charge therefore should be 32 months, to run concurrently.

Groups 3 to 7

39.  For Charges 4 to 8, the cheques were somehow stolen by the defendant while they were in the post from the banks to their respective account-holders. 

40.  In my view, they were not cases of theft by finding. Nor were they opportunity crimes.  From the circumstances, can only conclude that they were seven separate instances of premeditated acts of theft where the defendant purposefully helped herself to the other people’s mails in order to find the chequebooks (or other valuables) for the purpose of committing further offences with them.  Having stolen the chequebooks, the defendant then went about to commit fraudulent acts with the same, in some cases, for more than once.

41.  Group 3 involved one charge of theft and one charge of using a false instrument.  I consider that 12 months for this group an appropriate reflection of culpability of the group.

42.  Group 4 involved one charge of theft and two charges of using a false instrument.  The victims lost the total sum of $3,000.  I consider 15 months’ imprisonment an appropriate order for the overall culpability.  The defendant is therefore sentenced to 15 months for the three charges in group 4, all to run concurrently.

43.  Group 5 involved one charge of theft and three charges of using a false instrument.  The victims lost a total sum of $9,602.  I consider that 18 months’ imprisonment an appropriate order for the overall culpability of group 5.  She is therefore sentenced to 18 months for Charges 6, 18 to 20, all to run concurrently.

44.  Group 6 involved one charge of theft and two charges of using a false instrument.  The victims lost the total sum of $9,900.  I consider that 15 months’ imprisonment an appropriate order for the overall culpability.  She is therefore sentenced to 15 months for Charges 7, 21 and 22, all to run concurrently.

45.  Group 7 involved one charge of theft and one of using false instruments.  The victims’ loss was $1,600.  I consider 12 months for this group an appropriate reflection of the defendant’s culpability in this group.  The defendant therefore is sentenced to 12 months for Charges 8 and 23, both to run concurrently.

46.  Group 8 consists of four separate instances of using a false instrument.  The four victims suffered a total loss of $10,900. I consider 12 months an appropriate starting point to reflect the overall culpability.  The defendant is therefore sentenced to 12 months in respect of each charge, all to run concurrently.

47.  Summary:-

(1) Group 1 (Charges 2 and 9): 32 months;

(2) Group 2 (Charges 3 and 10): 32 months;

(3) Group 3 (Charges 4 and 11): 12 months;

(4) Group 4 (Charges 5, 13 and 14): 15 months;

(5) Group 5 (Charges 6, 18 to 20): 18 months;

(6) Group 6 (Charges 7, 21 and 22): 15 months;

(7) Group 7 (Charges 8 and 23): 12 months;

(8) Group 8 (Charges 12, 15 to 17): 12 months.

On Totality

48.  Having assessed the culpability of each group of offences, I turn to consider the totality principle.  I take into account that the total amounts swindled by the defendant was a relatively small sum of $40,446 and conclude that the overall starting point should be 48 months.

49.  Accordingly, I order the sentences for group 1 to 2 to run concurrently; groups 3 to 8 all to run concurrently, but 16 months to run consecutive to group 1 to 2, making a total of 48 months.

Mitigation

50.  I turn to consider the mitigations contained in the background report as well as in the submissions by counsel.

51.  The defendant is aged 46.  She had a clear record.  As revealed in the background report furnished by the probation officer, she had drawn a rather short straw from this lottery of what we call life. 

52.  Her family was broken up by the political turmoils in China.  Her mother and younger sister had been separated from her. She had an uneasy relationship with her father and her stepmother.  She spent a large chunk of her childhood in a girl’s home.  After going back to her family, she had been cheated of money; blamed by her family and friends, and she was evicted by her father and became a dweller in the airport.  Her one chance to a normal life was dashed when her then-boyfriend was diagnosed to be suffering from and eventually died of a fatal cancer. 

53.  These are factors the court has taken into consideration.  I have to remind myself that the principle to be adopted in offences of this kind is one of deterrence and, although the court is sympathetic, the personal circumstances carry very little weight on the overall sentence.

54.  Although the defendant had a tragic past, it is no licence for her to commit offences against others.  There are many unfortunate people in this society who nonetheless rose above their misfortunes by their own determination and industry.  Some of them became success stories; but most of them managed to lead a peaceful, law-abiding life. 

55.  That the defendant kept committing offences is a deliberate decision on her part and I will be setting a bad example if I consider her background form any substantive reason for exercising leniency on her part.  I can only hope that the defendant would take advantage of this experience and make the best of the rest of her life.

56.  The defendant pleaded guilty and this is the one valid consideration.  Her overall sentence therefore is reduced from 48 months to 32 months. 

57.  As a further act of compassion I will reduce it by 2 months. 

58.  Therefore the defendant is to serve a total of 30 months in respect of all the offences in this case.