HKSAR v. LAU YUEN

 DCCC1126/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1126 OF 2009

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges of using copies of false instruments. The offences were committed on 7 July, 14 July and 15 July in 2003. The particulars of the offence aver that the defendant in Hong Kong conspired with two other gentlemen, a Li Ka-lam and a Lee Kam-chau, to defraud financial institutions into providing credit to him by dishonestly supplying false documentation.

2.  The facts admitted by the defendant state that in January of 2003 the person referred to in the charges Lee Kam-chau, I refer to him as “KC”, who is a cousin of the defendant introduced a Mr Li Ka-lam, “KL”, to the defendant. Later KL persuaded the defendant and KC to set up a company named Time Success International Holdings Limited for generating employment proofs. The company was incorporated in February of 2003 and the only directors and shareholders were the defendant and his cousin KC.

3.  In February and March of 2003, an agent of Midland Realty was promoting a new property called Genius Court at Fuk Lo Tsuen Road, Kowloon City. The defendant indicated his interest to purchase a new property and received a name card from the agent. On 29 June 2003, through the same agent, the defendant acquired a property in the Oakridge, Shau Kei Wan, for $2,639,000 and he signed a preliminary agreement to that effect.

4.  On 7 and 14 July, the defendant presented himself as the executive general manager of Time Success and personally attended the North Point branch office of the Bank of China and Asia Standard Finance Company Limited and applied for a first mortgage of 70 per cent of the purchase price and a second mortgage of 25 per cent of the purchase price in those respective institutions.

5.  To support the application, the defendant verified and used copies of three Hong Kong and Shanghai Bank monthly bank statements and a forged Notice of Assessment and Demand for Tax for the year 2001/2002. Both the applications were rejected.

6.  On 15 July the defendant attended the Tsim Sha Tsui branch of the Wing Hang Bank and produced the same set of documents and applied for a personal loan. As a result of that application, I am told that the defendant received a cheque for $147,500 dated 21 July 2003. By the time the cheque had been presented for payment, the supporting documents were discovered to be false and no money was paid to the defendant. The Inland Revenue and the bank confirmed the supporting documents were false.

7.  The defendant left Hong Kong on 22 July 2003. The amounts applied for in the three charges are $1,847,300, $659,750 and $147,500. The total being $2,654,550.

8.  The defendant was arrested on 28 August 2009 when he returned to Hong Kong via Lo Wu. He was interviewed under caution by the police and initially he denied the offence saying that KL prepared and provided him with all these supporting documents for the various loan applications.

9.  He said that on the instructions of KL, he and his cousin set up a second-hand car trading company, but the defendant did not participate in its daily operation. He said that KL sometimes gave him $5,000 as the allowance for holding that company.

10.  He also told the police that he had been told by KL that he could obtain about 200,000 cash rebate from the property developer and also save an initial deposit of $10,000. He said that KL also assisted KC to purchase a flat in Hong Kong but he did not know the details.

11.  At the time of these offences, the defendant was aware that he had no financial capability to buy the flat and had no fixed income at that time. Apparently, he was persuaded by KL that he could be supplied with supporting documents and would keep $100,000 of the rebate which was to be supplied by the property developer.

12.  The defendant has seven previous court appearances. Three of those relate to gambling offences and there is only one offence connected with dishonesty that is in 1996 for accepting an advantage as a public servant, he was given a suspended prison sentence.

13.  The defendant is now 58 years of age. He was born in China. He came to Hong Kong illegally in 1978 and obtained a Hong Kong Identity Card. His identity card is a Hong Kong resident with a conditional stay immigration status. He was educated to Primary 4 level. He was a construction worker and textile merchandiser in Hong Kong previously.

14.  I was told that the defendant in regard to this matter was simply used by KL and that he was a pawn in this transaction. I am told that the defendant despite his lack of means did intend to purchase the property and intended to finance the mortgage by rental monies which he would receive from the property. He did set up a business with his cousin as a second-hand car dealer and the defendant was living in China at that time and was responsible for the China end of that business.

15.  In mitigation, it was urged upon me that these are old offences, they go back to 2003. It was urged upon me also that there was nothing sinister about the defendant departing from Hong Kong, the reason for leaving Hong Kong was because of his mother’s ill health. His mother was at that time aged 92 years of age. She had a stroke, and this was why he returned to China.

16.  It was urged upon me also that her health gradually improved, and he returned to Hong Kong knowing full well that he would face the consequences of these offences. It was urged upon me that no loss had been suffered by anybody in connection with these offences.

17.  I have been supplied with details of a number of similar cases. The sentences were imposed in 2005 to 2007. And I have also been supplied with details of the summaries of facts that were used and presented to the court in respect of those cases. Looking at those cases, it seems to me that an appropriate starting point in respect of the 1st offence would be a starting point of 30 months’ imprisonment; and in respect of the 2nd charge, 2 years’ imprisonment; in respect of the 3rd charge, 18 months’ imprisonment.

18.  It has been urged upon me that I should consider two factors which might lead the court to reduce that initial starting point. The first factor is that these charges go back some time, they go back to 2003. The second factor is that the defendant voluntarily returned to Hong Kong knowing that he would be arrested for these offences.

19.  I have decided in all the circumstances that in respect of the 1st charge that the starting point can be reduced, and I take a starting point of 27 months in respect of that offence. The defendant will be entitled to the usual discount to reflect his guilty plea, so that sentence will be reduced to one of 18 months’ imprisonment. On the two other offences, I impose concurrent sentences of 16 and 12 months. So the total period of imprisonment will be 18 months.