HKSAR v. TSANG SZE MAN, MAY

DCCC221/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 221 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to 18 charges. Eight of those charges relate to offences of fraud, and the other 10 relate to offences of deception. The amount of money obtained by the defendant in relation to the fraud offences is $108,000. For the deception offences the amount involved is $29,348.

2.  There are two sets of fraud offences.  Two of those in the first set relate to the obtaining of credit cards by fraud by the defendant, and the other six fraud offences relate to the obtaining by the defendant of loans from various financial institutions.  They include Citibank, three of the loans were obtained from the AIG Finance (Hong Kong) Limited, one from the Dah Sing Bank, and one from the Bank of East Asia.  The offences were all committed between 7 August of 2007 and 30 October that year.  The nine offences of deception relate to the obtaining of property by the defendant using the credit card obtained from the AIG Finance Company.

3.  A lady called Angela Suen was the victim of a domestic burglary in 2006. Amongst items stolen was her identity card.  A former boyfriend of the defendant was involved in that burglary.  He was subsequently imprisoned.  After he had been sentenced the defendant want to clear out his belongings.  Amongst those belongings she came across the identity card belonging to Angela Suen. 

4.  The defendant obviously appreciated that in order to obtain credit cards and bank facilities she had to establish some proof of residence.  So using the stolen identity card she obtained two mobile phones.  She provided the mobile phone company with her correct address, and they gave her a document which included the name of Angela Suen and a residential address.  Using those two documents and a forged letter of employment, the defendant then approached the various banks to obtain credit cards and loans. 

5.  Eventually, of course, the banks contacted Angela Suen, and it was then discovered that her name had been wrongly used in connection with the obtaining of these credit cards and with the loans.  I understand that these enquiries commenced in November of 2007.  But it was not until February the following year that officers visited the residential address which the defendant had supplied to the banks, and she was arrested.

6.  It is accepted by the prosecution that the defendant was very cooperative with the police officers.  Not only did she admit the offences, but she provided them with documentation which incriminated her in the various offences.  I am told that not only did she admit the offences, that she took the officers to the premises where the deceptions had been practised on the staff. 

7.  Police enquiries took a considerable time, and it was not until February of 2010 that the defendant was eventually charged with the offences.  In the interim period I understand that she had to answer her police bail every two to three weeks. 

8.  The defendant does not have the advantage of a clear record.  In the year 2000, for theft and blackmail, she was ordered to be detained in a training centre.  In 2004, for theft, she was sentenced to be detained in a drug addiction treatment centre.  In 2006, again for theft, she was sentenced to 12 weeks’ imprisonment. 

9.  The defendant is now aged 26, and at the time of the offences she was aged 23.  It was not necessary to adjourn this case for background reports because her counsel gave very full details of her background.  He describes her as having been a latchkey child with minimal parental supervision.  She was very much left to her own devices.  While she was still a teenager both her parents went off to work in China, and she was effectively left to fend for herself.  Such is the lack of parental concern that although they are aware of these proceedings, nether of her parents nor any relative have bothered to show up in court to offer any support to the defendant.  She has a friend in court.

10.  I am told also that the defendant has had a series of what counsel has described as “unfortunate boyfriends”.  I have already mentioned one who was sent to prison.  She followed up that relationships by another boyfriend who went to the drug addiction treatment centre, and I am told that he was in the Drug Addiction Treatment Centre while she committed these offences.  Some of the funds she obtained were used to finance her visits to the Drug Addiction Treatment Centre at Hei Ling Chau. 

11.  This lack of parental involvement in her life, having no relatives and the unfortunate series of boyfriends, has obviously contributed to her delinquent behaviour.  In sentencing this case, I note that the defendant pleaded guilty to all 18 charges.  In many cases such as this there is often an attempt by the defence counsel to plea bargain, offering pleas to certain charges if the defendant admit other charges.  There was no such offer made in this case. 

12.  The defendant has had these charges hanging over her for more than two years.  As I mentioned, the police became aware of these offences in November of 2007.  Most unusual in these sorts of cases, the defendant had given her correct address to the various banks, but it was not until February of 2008 that the officers visited the address that was given and arrested the defendant.  She produced documentation to assist with the police inquiry and made frank admissions in respect of all the charges.

13.  She was released on police bail on 14 February 2008 and was not charged until February of 2010.  The prosecution say the delay was caused because of extensive police enquiries.  I am told that the file was submitted by the police to the Department of Justice in late 2008, and having submitted the file there were various further enquiries which had to be carried out, all of which took some time.  I know that there are 18 charges involving a number of financial institutions, and statements and affirmations would have to be obtained from all of those institutions before the full picture of criminality could be ascertained.

14.  Notwithstanding the defendant’s background and her involvement in these matters, I am told that since she was arrested and bailed in respect of these matters she has effectively turned her life around. In July of 2008 she obtained employment as a waitress in the Kam Tin Japanese Restaurant in Yuen Long.  Submitted to the court is a letter from her employer.  He describes the defendant as being a reliable, hard-working and responsible individual.  Such is the regard in which her employer has held the defendant is that she has been promoted twice.  She was promoted to the position of assistant supervisor, and in March of this year she was made a supervisor, earning $9,500 per month. 

15.  In respect of the offences involving the loans, counsel has pointed out that the bank seemed almost desperate to lend money and made very scant enquiries about prospective borrowers.  He referred to a tape recording between the defendant and one of the staff members of AIG.  It is apparent from the transcript of that recording that the defendant gave the staff extremely hesitant and evasive answers to the most routine of enquiries. Her responses would have put even the most casual of bank staff on notice that there was something not quite right about this applicant.  There was no follow-up on the information supplied or confirmation sought in relation to the purported income.  I also note in this regard that, the defendant, in all her applications, used her correct address, and the police had no difficulty in locating her.

16.  Having considered all those matters, however, I have appreciate that the offences are serious offences.  The courts, quite rightly, take a very serious view about credit card offences and the need for deterrent sentences.  The defendant obtained a credit card by using the identity card of another and a forged letter of employment.  She initially obtained a chop for use on the forged letter of employment.  She then used the identity card and the forged letters to subscribe to two mobile phones in order to obtain a document which would provide proof of residence.  She then used the identity card, the forged letter of employment, the mobile phone company document containing her address to apply for the credit cards and the loans. All this required a degree of organisation and planning.  The offences were committed over a period of approximately three months.  The amount of money involved is not inconsiderable.  The total amount involved is $137,348.

17.  The major features of mitigation were the defendant’s guilty plea and very early cooperation with the police.  This matter has been hanging over the defendant for 2½ years notwithstanding her early admission to the police in respect of all the offences, supplying them with incriminating documentation and taking them to the premises from which the goods were obtained.  I accept that these matters do take time to investigate, especially when bank records are to be checked and statements obtained.  But, in my view, the delay in this case was excessive. 

18.  The defendant has had a most unfortunate upbringing, with no parental support or relatives to assist.  She has also made a disastrous choice in male company.  Notwithstanding her criminal activity, since her initial arrest as I said she has turned her life round and gained regular employment.  She acted alone in these matters.  There was no elaborate or technical skills employed.  The banks were almost negligent in the way in which they processed the applications for loans.  The care that one would expect a prudent banker to take seems to have been overborne by their eagerness to lend money.  The method employed by the defendant was not sophisticated.  She even used her own address.  There was no international dimension in this case. 

19.  Having taken all these matters into account, in respect of the fraud charges I propose to take a starting point of 2 years and 6 months, and for the deception charges 18 months.  I propose to reduce those sentences by one-third to reflect the guilty plea entered by the defendant.

20.  In respect of Charges 1 to 3, 11 and 15 to 18, I sentence the defendant to 20 months’ imprisonment, those sentences to run concurrently.  In respect of Charges 4 to 10 and 12 to 14, I sentence the defendant to 12 months’ imprisonment, those sentences to run concurrently.   

21.  I have to consider the question of totality, and I order that 6 months of the prison sentence imposed for the deception offences should run consecutive to the sentence imposed on the fraud charges.

22.  The total period of imprisonment will, therefore, be 26 months.