HKSAR v. LI PO YING

CACC 105/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 105 OF 2001

(ON APPEAL FROM DCCC NO. 1060 OF 2000)

__________________

______________

______________

J U D G M E N T

______________

Hon Stock JA (giving the judgment of the Court):

1 This is an application for leave to appeal against sentence.

The charges

2 In September 1999 the applicant and her husband, Wong Hua King, were joint owners of a flat in Hill Road. The property was subject to a mortgage in favour of the Hang Seng Bank. The applicant wanted to raise funds by way of a second mortgage and, to this end, she approached Preamble Properties Ltd. They sent her to their solicitors, to complete the necessary formalities. She went to the solicitors and took with her a man who pretended to be Mr Wong, her husband. He is referred to in the papers as someone called "Fatty".

3 Identity cards were, upon request, presented to the solicitors, the identity cards carrying photographs which resembled the two people who thus presented themselves. A mortgage deed was prepared, and then signed by the applicant and her accomplice. Armed with the deed, the applicant returned to the offices of Preamble together with a power of attorney which empowered her to receive the loan in the absence of her husband. In this way, she secured the delivery to her of a cheque in the sum of $200,000 drawn on Preamble's account with the Kwantung Provincial Bank.

4 These facts formed the subject of the first charge to which the applicant pleaded guilty, namely the procuring by deception of the making of an entry in a record of the bank contrary to section 18D of the Theft Ordinance, Cap 210. The deception particularised was the false representation that "Fatty" was known as Wong Hau King; that he was the genuine holder of the ID card; and that he was one of the owners of the flat.

5 A day before she first approached Preamble for the second mortgage, she had visited a company called Well Target Holding Finance Consultants Limited, asking for a loan secured on the flat, again in the sum of about $200,000. That company referred her to WOC Finance Co. Ltd and that company approved a loan of $150,000. She was then told to go, with the co-owner of the property, to a firm of solicitors who acted for the company to execute the appropriate deeds and she did so, again with the man known to her as "Fatty". She went there on the same day as she went to the solicitors who acted for Preamble. Her accomplice was introduced, falsely, as Mr Wong, and the false identity card with "Fatty"'s photograph, but Mr Wong's name, was presented.

6 The mortgage documents were executed by the two of them, and they returned then to WOC Finance Co. Ltd and there she was presented with a cheque in the sum of $146,960 drawn on WOC's account with the Dao Heng Bank. This episode formed the basis of the second charge, which was in the same terms as the first, subject of course to differences in the amount and the name of the victim of the fraud and its bank.

7 Both sums advanced, that is, $200,000 and $146,960 were withdrawn by the applicant on 27 September 1999.

8 In late December 1999 the applicant went to the solicitors who had seen her in relation to the WOC loan and said she that wanted to sell the property. They told her to return with her husband, which she did in early January, and the solicitors then discovered, by comparing the photograph on the husband's identity card with that presented to them in September that something was amiss, and the matter was reported to the police.

9 The applicant was arrested on 10 January 2000 and, in a statement she made to the police, she said that she had been indebted to a loan shark who had suggested that she raise money by re-mortgaging her flat. On the instruction or suggestion of the loan shark she took her husband's identity card without his knowledge and handed it to the loan shark, who then produced the forged identity card, a card which had her husband's details on them but the photograph of another man. The other man was introduced by the loan shark and it was he whose photograph was on the card, and who accompanied the applicant to the two companies. As a result of these disclosures, the third charge was laid which was a charge of conspiracy to forge a document, namely the identity card, a conspiracy hatched in order to induce someone to accept that card as genuine and, by reason of accepting it as such, to do an act to that person's prejudice.

10 The applicant pleaded guilty to all three charges before HH Judge Wright in the District Court.

The applicant's circumstances

11 The applicant was aged 42 years at the date of her offences, and was then a person of previous good character. She came to Hong Kong from the Mainland in 1987, and has since had various jobs as a factory worker and a waitress. There are two sons both of whom are now adults.

12 In 1998, she started gambling in Macau and lost money which led her into the clutches of loan sharks, and that in turn led to these offences. She kept these offences from her husband, who had apparently not been in good health. The offences resulted in them having to sell the property which, as we say, was in joint names. Fortunately for the defrauded companies, there was sufficient equity in the property to permit the companies to recover the whole of the loans, but that left very little of the proceeds for the family. The family, that is, the husband and the sons, remain very supportive of her. The probation report described the applicant as "a simple minded person".

The judge's approach

13 The judge referred to the background to these offences as sad, to the fact that the husband had been apparently unwell, to the circumstances in which this applicant found herself in trouble, to the full cooperation which she offered the police, to the fact that the loan companies were not out of pocket, and to the applicant's clear record, and her plea of guilty.

14 On the other hand, he noted the fact that this was a carefully planned fraud; that the applicant concealed her predicament from her family; breached the trust implicit in the joint ownership of the property with her husband; that her conduct has resulted in the sale of the family home; and, a matter that concerned the judge most, that she knowingly facilitated the making of a false identity card which was then returned to the loan shark, and which card must therefore still be in circulation.

15 He took as a starting point for each of the first two offences a term of two years' imprisonment and, saying that they were in reality part and parcel of the same offence, ordered that the terms of 16 months' imprisonment which he imposed on each charge should, given the mitigation, be served concurrently.

16 The third offence he viewed as separate and distinct, and the most serious. He said that, in principle, it ought to be served consecutively. He took a starting point of three years' imprisonment, reduced that by one-third to a term of 24 months but, noting that the resulting totality of 40 months would be too severe, he ordered that of that 24 months, 14 months should run consecutively to the term of 16 months for charges 1 and 2, the remainder to run concurrently; a total, therefore, of 30 months.

Analysis

17 The first ground of this application is an attack on the judge's approach to consecutive and concurrent sentences. It is said that he ought to have imposed, in relation to the third offence, a sentence to run concurrently with the first two, because the first and second charges as framed, asserting as they did the use of a false identity card, incorporated the third charge. We think there is something in the point in the sense that it was certainly open to the judge in sentencing for the first and second offences to take into account the steps taken by the applicant to secure the forgery of the identity card; the forgery of which was a central ingredient in the commission of these offences. Whether he did so or not, is not entirely clear.

18 On the other hand, we think that the judge erred when he said that the first and second offences were "in reality part and parcel of the same transaction". They were quite separate offences, albeit committed on the same day, involving quite separate victims and, in principle, they warranted the consecutive sentences, subject then, of course, to the question of the appropriate totality.

19 The scheme of these offences was not unlike that which was the subject to this court's consideration in Secretary for Justice v Ling Veronica [1998] 4 HKC 499. That was an application by the Secretary for Justice for a review of sentence imposed on the respondent who had obtained loan facilities on the security of property belonging to her parents, by presenting forged identity cards and by utilising persons posing as her mother and father respectively. There were four charges of forgery; four of procuring the making of a bank entry by deception; one of possession of a forged ID card; and one of possession of a forged entry permit. The card and permit which were the subject to the last two mentioned charges had nothing to do with the offences of fraud against the banks. In that case, the Court of Appeal was of the view that each of the mortgage offences warranted a starting point of three years' imprisonment, and that each of the forged document offences a starting point of one year and three months' imprisonment. The appropriate totality was put at six years, and the correct overall sentence after discount was said to be one of four years' imprisonment.

20 There are, however, significant differences in culpability between the two cases. In the Veronica Ling case the banks were defrauded of $4.3 million. The banks recovered none of those sums. There was more than one false card which was the subject of the charges, though not part of the charges which were directed at the frauds. The sums in the present case are very significantly less, though the third charge is one of conspiracy to forge a document, an offence materially more serious than mere possession of such a document. We note, further, that the amounts in the Veronica Ling case were losses to the bank, whereas in the present case there was, as it happened, no loss. We note, too, that in that case the background to the commission of the offence was very similar, namely, a lady of previous good character propelled to commit the offences by debt to loan sharks.

21 Whilst one has sympathy with a person of previous good character who finds herself in dire financial straits, and in the clutches of loan sharks - a situation which she led herself into, however, by gambling in Macau - it must be made clear nonetheless that calculated and well planned offences of this kind, involving substantial frauds on banks, will be met with imprisonment even in the case of first offenders, and that the terms are likely to be significant. The deterrent element, and the public interest, so require.

22 We accept that the forgery offence is serious and that the forged identity card may well, as a result of the applicant's complicity, still be in circulation. That said, serious though any forgery of this kind is, it was not the applicant's intention, by that forgery, to assist or promote the future use of circulation of the card. The forgery was part and parcel of the plan to defraud the banks, although it must nonetheless not be ignored that the victim of the forgery may in the event not be only these banks. Since a conspiracy to forge is the charge and not simple possession, a term greater than the 15 months starting point taken in Veronica Ling is warranted, but we think that the three years starting point adopted was, in the particular circumstances of this case, too high. Charge 3 merited a starting point of two and a half years' imprisonment.

23 We think that the first two offences merited a starting point each of two years' imprisonment. As we have commented they were separate offences with separate victims and in principle merit consecutive sentences.

24 Mitigation is constituted by the fact that the applicant pleaded guilty; and by the further fact of her previous good character which, at the age of 42, must carry some weight. She has a hardworking background and enjoys full family support. Furthermore, there has in fact been no loss at all to the banks. One must assume that the applicant knew that the equity in the property was large enough to cover the loans. Furthermore the schemes were not conceived by the applicant, although she lent herself to them and although she brought herself to this disaster by resorting to gambling in Macau, a course which every one should know often leads to this type of offence. The execution of these offences was not a momentary matter, but involved planning and several acts of blatant deception in which the applicant was an active party. The loss, as a result of her crimes, has been visited not only on her husband, but also on herself, since she owned half the property which had to be sold. We note, too, that it was over one year after her arrest that the applicant came to trial which, as the prosecutor concedes, is quite a bit longer than usual; so that this matter had been hanging over her head for quite some time before trial.

Conclusion

25 The correct sentences for each offence, after taking into account the mitigating factors to which we have alluded are, in our judgment, as follows:

Charge 1: 14 months' imprisonment

Charge 2: 14 months' imprisonment

Charge 3: 18 months' imprisonment

26 The question then is the correct totality. Having regard to all the circumstances, and to the particular mitigation in this case, we think that a totality in this case of 18 months' imprisonment meets the justice of the case. Accordingly, the application for leave to appeal against sentence is allowed. We treat this as the hearing of the appeal, allow the appeal, and set aside the sentences imposed by the judge and substitute the three sentences we have specified, namely, 14 months on charge 1; 14 months on charge 2 and 18 months on charge 3. We order them each to run concurrently, making a total of 18 months' imprisonment.