HKSAR v. LAW WING KA, DEVINA (ALSO KNOWN AS LAW WING YIU, DEVINA AND LAW SHUK NGA)

DCCC 892/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 892 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant (female aged 45) pleaded guilty to 8 counts of evasion of liability by deception and 1 count of using false instruments. The total amount of money involved in the case is more than HK$6 millions.

Summary of facts

2.  The defendant and Ms Fung Mei Shan (“PW1”) were acquainted with each other since early 2014.  PW1 was told by the defendant that her business of Athena Workshop Limited was having some problems and needed money.  From July 2014 to December 2014, the defendant borrowed a total sum of HK$444,500 from PW1.  Upon demanded by PW1, the defendant subsequently deposited two cheques, bearing numbers 086473 and 086475 each of them for a sum of HK$150,000, which were drown in an account held in the name of defendant with Standard Chartered Bank and were dishonoured. (1^st and 2^nd Charges)

3.  The defendant made excuses that her business counterpart had failed to transfer money owed to her and asked for further loans from PW1.  In February 2015, the debt owed to PW1 by the defendant amounted up to HK$650,000.  On 4 February 2015, PW1 received a call from a woman purported to be a Leung Ka Man (“Leung”), later confirmed to be impersonated by the defendant, claiming that she was cousin of the defendant and told PW1 to continue lending money to the defendant as the defendant had attempted to commit suicide.  That Leung also claimed to have a husband Chung who is doing good business and was willing to be a guarantor of the defendant for the debts owed to PW1.  In light of the above assertions made by Leung, PW1 continued to lend money to the defendant and the total sum of debts went up to HK$1.7 millions in February 2015.

4.  On 12 February 2015, the defendant told PW1 that she was going to use her mother’s property as a mortgage by presenting two false documents to PW1 namely: (1) an English General Power of Attorney purportedly appointing Chan Pui Fan as the lawful attorney; and (2) a Chinese declaration purportedly signed by Chan authorizing the defendant to handle the mortgage of the property as security of a loan of HK$1.55 millions and asked PW1 to continue lending money to her. (9^th Charge)

5.  On 27 February 2015, a cheque bearing number 350341 drawn on an account held in the name of the defendant with the Standard Chartered Bank for a sum of HK$1,753,000 was deposited into the HSBC account of PW1, which was said to be used for settling defendant’s debts owed to PW1.  The same cheque was again dishonored on 2 March 2015. (3^rd charge)

6.  On 26 March 2015, Leung told PW1 that she would deposit a cheque in the sum of HK$480,000 and a few days later, a cheque drawn on the same Standard Chartered Bank (“SCB”) account in the name of defendant bearing number 350354 was dishonored. (4^th Charge)

7.  Despite PW1’s repeated confrontation, the defendant kept assuring PW1 that she would have money from Athena’s business in near future to repay the loans.  In fear the defendant’s business would fail and in the hope that Leung and Chung would eventually settle defendant’s debts in full, PW1 continued to accede to the defendant’s requests for lending money to her.  Between March and June 2015, PW1 continued to lend money to the defendant during which Leung agreed to pledge a property held by Chung in Park Island as a security to defendant’s debts.

8.  On 12 June 2015, the defendant told PW1 that she had deposited a cheque in the sum of HK$480,000 and a few days later, a cheque drawn on a Bank of East Asia (“BEA”) account in the name of defendant was dishonored. (5^th Charge)

9.  Between mid June and mid July 2015, Leung repeatedly called PW1 and asked PW1 to lend money to the defendant who was said to be in urgent need of money, as in mid July 2015, the debts owed to PW1 by the defendant amounted to about HK$4.8 million.  On 15 July 2015, Leung told PW1 that she had deposited a cheque in the sum of HK$5 million into her HSBC account but a few days later, a cheque drawn on the same BEA account in the name of defendant was dishonored. (6^th Charge)

10.  Since late July 2015, a woman who held out to be a Helen Ho being secretary of Chung repeatedly contacted PW1 telling her that the debts will be settled soon.  However, that Ho was making excuses every time and the loan was never re-paid.

11.  On 16 October 2015, the defendant owed PW1 altogether HK$6.49 million.  On 23 October 2015, Leung told PW1 that she would deposit a cheque in the sum of RMB4.8 million into PW1’s BOC account. Several days later, PW1 was informed by BOC that a cheque bearing number 533448 drawn on the SCB account in the name of the defendant was dishonored. (7^th charge)

12.  PW1 made a report to the police on 28 October 2015.

13.  On or about 4 November 2015, Leung told PW1 that she would deposit a cheque in the sum of RMB2 million into PW1’s Bank of China (“BOC”) account.  Several days later, PW1 was informed by BOC that a cheque bearing number 533449 drawn on the SCB account in the name of the defendant was dishonored. (8^th charge)

14.  On 20 January 2016, the defendant was arrested.  Under caution, she admitted that Athena had commenced its business in mid 2014 and the monthly turn-over was around HK$30,000 to 40,000.  At one stage, her BEA account had a maximum deposit of about HK$200,000.  Due to the financial difficulty of Athena, she borrowed about HK$6 millions from PW1 which she had not repaid at all.  The eight pieces dishonored cheques were issued by her and she knew the two bank accounts did not have sufficient funds. She also admitted forging her father’s (“Law”) signature on the General Power of Attorney and also her mother (“Chan”)’s signature on the declaration, which were not known nor authorized by her parents.  Leung, Chung and Helen Ho were all fictitious and impersonated by her with a view to asking PW1 to keep lending money to her.  When PW1 asked her for proof of residential address, she made a forged copy of SCB letter to her at the Park Island address and send the image of the same to PW1 through whatsapp in February 2015.

15.  Upon investigation, it was further revealed that the defendant’s account held with SCB was opened between 19 December 2013 and 11 August 2015.  During the period concerned for charges 1^st to 4^th charges, the balance of the account was either “0” or negative.  The bank account was closed when the two cheques in respect of the 7^th and 8^th charges were issued.  Regarding the BEA account, it was opened between May and August 2015.  The balance of the account was negative when the two cheques in respect of the 5^th and 6^th charges were issued.

16.  Investigation also showed that the defendant had owed money to various financial institutions during the material times. 

Mitigation

17.  A background report on the defendant has been called for.

18.  The defendant is divorced, aged 45 and living with her elderly parent in a self-purchased flat under the Home Ownership Scheme.  She worked as a public relations manager at different entertainment companies in the past during which she had set up her own entertainment company.  Due to repeated failure in her business, the defendant lost a lot of money and was in great debt.  She has worked as an account manager in 2013 for a year and was unemployed since 2014.  Due to poor money management and bad spending habit and having been cheated by her ex-cohabitant who was a heavy gambler and had borrowed huge amount of money from loan sharks, the defendant got herself into great debt.  It is stated by her counsel that half of the stolen money was for repayment of the loan sharks and half was due to her own financial problem.  She is currently unable to repay the loan to PW1 but she had, through his counsel, told the court that she is willing to observe an order of bankruptcy should the court find it fit to order the same.

19.  The defendant has one similar criminal record of “Fraud” concerning false declaration of her parents authorizing her to handle the mortgage of their residence.  The defendant was sentenced to 21 months’ imprisonment in March this year.

Sentencing consideration

20.  Breach of trust involving a substantial amount of money is undoubtedly a serious offence.  Apart from the amount of money stolen, all surrounding circumstances of the case must also be looked at (see R v Barrick [1985] 81 Cr App Rep 78 and R v Trevor Clark [1998] 2 Cr App Rep 137).

21.  The total amount of stolen money involved in the present case was more than HK$6 millions.  The defendant was taking advantage of her friend’s trust and compassion on her.  This case also involved quite sophisticated plan over 1 year and 4 months’ time.  The defendant was forging documents and impersonating a number of other persons with a view to inducing PW1 to keep lending money to her on multiple occasions.

22.  There is no tariff for the present offences as sentence of the same is very fact sensitive.  I however have considered the sentencing guidelines for breach of trust cases set out in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 476 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017, which adjusted the guidelines in the former case.  As far as the overall total criminality in all the charges the defendant has pleaded guilty to, this case falls within the band involving $3 million to $15 million, here the sentence is between 5 to 10 years’ imprisonment as a starting point.

23.  In this case, I consider the proper approach to sentencing, is to determine the correct overall starting point for the overall criminality, subjected to the appropriate discounts, then pass the appropriate sentence in respect of each charge, and then adjust the total by way of consecutive or concurrent sentences to arrive at an overall appropriate total sentence.

24.  Having considered all the circumstances and the totality principle, I take a global starting point of 6 years’ imprisonment.  With the full one third discount given her guilty plea at the very first opportunity, the sentenced is reduced to 4 years’ imprisonment. I do not find there is any other mitigating factor warranting further discount.  The breakdown of sentence imposed on each charge is as follows:-

Charge	Starting point	After 1/3 discount	Sentence part consecutive to 7th charge
1	12 months	8 months	1 month
2	12 months	8 months	1 month
3	36 months	24 months	3 months
4	18 months	12 months	1 month
5	18 months	12 months	1 month
6	42 months	28 months	3 months
7	48 months	32 months	32 months
8	36 months	24 months	3 months
9	36 months	24 months	3 months
		Total	48 months

25.  Given there is no evidence showing that the defendant is in possession of any valuable property and that there is no such application made by the prosecution, I do not find it appropriate to make a bankruptcy order as suggested by the defence at this stage.

26.  I note that the defendant is currently serving a 21-month sentence which was imposed earlier this year and was of similar nature as the present offences.  Considering the totality principle, I order 6 months of the present sentence to be served concurrently with the existing sentence.