HKSAR v. NGAN PIK CHUN, PEGGY

HCMA853/2006 & HCMA279/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.853 OF 2006

(ON APPEAL FROM ESCC 1952 OF 2006)

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BETWEEN

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AND

MAGISTRACY APPEAL NO.279 OF 2007

(ON APPEAL FROM ESCC 3042 OF 2006)

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(Heard Together)

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J U D G M E N T

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1. The 1^st appellant was a property agent and the 2^nd appellant was a solicitor’s clerk.  They participated in schemes where bogus tenants were installed in units of affected properties, with the use of false tenancy agreement and false rental receipts, prior to the cut-off date, in order to deceive HKHS into paying compensation to those tenants in the belief that they were genuine tenants eligible for re-location benefits.

2. In HCMA853/2006, the 1^st appellant was convicted of one charge of conspiracy to defraud after trial and was sentenced to five months’ imprisonment.  Whilst parties had put the mechanics of the offence in place they pulled out last minute before any benefit was paid.  The original agreement was that out of the $70,000 to be paid as compensation, the 1^st appellant would receive $60,000. 

3. In HCMA279/2007, the 1^st appellant pleaded guilty to two charges and the 2^nd appellant pleaded guilty to one charge of conspiracy to defraud.  Out of the two charges that the 1^st appellant pleaded guilty to, she pocketed $80,000 out of the $93,000 received as compensation in one, whilst the plot relating to the other was abandoned before any compensation was paid.  She received four months’ imprisonment on each charge, with two months ordered to run consecutively, making a total of six months’ imprisonment, and was further ordered to pay $80,000 compensation.  In the case of the 2^nd appellant, over $75,000 was paid to the bogus tenant out of which $50,000 was instructed to be paid to a designated account.  The compensation had since been repaid.  The 2^nd appellant was sentenced to four months’ imprisonment.

4. Both appellants now appeal against sentence in respect of both cases and I shall deal with the two appeals together.

Grounds of appeal

5. The following are grounds common to and advanced on behalf of both appellants :

(1)     Insufficient regard was given to their hitherto good character.

(2)     The time lapse between the commission of the offences in 2003 and the trials in 2006 and 2007 had caused them much stress and anxiety, manifested in the heavy drinking that the 1^st appellant had taken to, and the psychiatric disorder suffered by the 2^nd appellant.

(3)     The magistrate in HCMA279/2007 made an unwarranted finding that they were more than a mere middleman or facilitator in the absence of evidence in support of such, there absent any evidence that they were privy to the leak of confidential information relating to the cut-off date.

6. It was further submitted on behalf of the 1^st appellant that the magistrate in HCMA853/2006 had an exaggerated regard for the sophistication of what was in effect a simple and clumsily executed scheme.  Insufficient weight was given to the fact that two out of the three conspiracies, conceived at a time of considerable financial hardship, were withdrawn before any loss was suffered or any benefit had accrued once the situation had improved.  It was submitted that on those two occasions the 1^st appellant was instrumental in making the decision to call a halt to the furtherance of the scheme.  It was further submitted that the 1^st appellant had all through led a decent and self-less life and that her peculiar family circumstances and the impact of her incarceration on her family members were not given sufficient consideration.  It has also been brought to my attention today that the 1^st appellant has now ready the $80,000 as compensation and is willing to pay that over no matter what the outcome of this appeal.

7. On behalf of the 2^nd appellant, it was submitted that the magistrate paid insufficient regard to his remorse manifested by his guilty plea, and that he was merely trying to help his sister-in-law to ease her financial hardship with little to gain by himself.  It was urged that this was an isolated incident and immediate custodial sentence was not called for.

Respondent’s reply

8. Counsel for the respondent submitted that the magistrate was entitled to find both appellants more than simply facilitators or middlemen.  The 1^st appellant recruited bogus tenants, instructed them what to do and provided false tenancy agreement and false rental receipts to be presented.  The 2^nd appellant arranged for his sister-in-law to pose as a tenant and made arrangement with an estate agency for her to be recorded as tenant of one of those properties.  Both of them instructed the bogus tenants what to do during the occupancy survey and how to dispose of the proceeds of compensation paid.  The magistrate was correct to conclude that “they had each been substantially and actively involved in making the necessary arrangements, instructing the bogus tenants and disposing of the proceeds”.

9. It was further submitted that there was no unjustifiable delay in the prosecution of the cases.  Neither personal financial hardship nor family responsibilities which existed already at the time of the offence could serve as factors to mitigate criminality. 

10. Counsel for the respondent also submitted that mitigating factors advanced had been fully considered by the sentencing magistrates. 

My judgment

11. It has been rightly pointed out that these were very serious offences.  Whilst it was never the prosecution’s contention that the appellants were privy to the cut-off date and it was accepted that such did not become known to them as a result of any direct corrupt activities by either of them, it was not disputed that the date was known to them. 

12. The gravamen of the offences, however, was that, as one magistrate pointed out :

“… the defendants and others, having become aware of the date, fraudulently and in order to circumvent the rules of the scheme, became involved in plots to install bogus tenants in certain units of the affected properties with a view to those persons claiming and receiving the relevant compensation, the bulk of which would be passed on to the conspirators.  Elaborate preparations were made in the form of instructions to the bogus tenants as to how to act and the provision of false tenancy agreements and/or rental receipts to show to the survey officers.”

13. Personal circumstances of the two appellants and the predicaments they faced if they were to be incarcerated were matters alive to the sentencing magistrates.  Matters of mitigation advanced today were fully canvassed and considered.  The appellants should have known better the consequence of their acts prior to their embarkation on such schemes.  They were the authors of their own misfortune by their own choice and greediness. 

14. It was rightly pointed out that :

“These were frauds on a public body, designed to circumvent security measures taken to prevent just of this sort of conduct.  They were substantially successful despite the efforts of HKHS.”

15. Looking at the facts of the cases as a whole, I tend to agree with the magistrate that the appellants were not mere facilitators or middlemen, their involvement were substantial, active and pivotal.

16. Miss Draycott on behalf of the appellants urged me to reconsider sentence and pass either a non-custodial sentence or community service order on them.  It was emphasized that community service orders called at the court below were favourable to them.  This court does not have to be reminded of the nature and principles regarding these sentencing options.  It is clear from the authorities that even assuming all six factors required for a community service order are present, a defendant is not automatically entitled to such an order.  Furthermore, even if community service order should have been an option open to the magistrate which I think not, the fact that the magistrate had opted for an immediate custodial sentence is not something which ought to be criticized on appeal.  A sentencing court has a duty to strike a fair balance between personal circumstances of the offender and the public interest in seeing those offended being properly punished.  The gravity of the offence cannot be overlooked.  The fact that on two occasions the plot did not go through, whether or not at the instigation and decision of the 1^st appellant, was not so significant a factor to substantially reduce her culpability to take the sentence out of an immediate custodial one.  I echo what was said by one magistrate in his Reasons for Sentence :

“It is obviously difficult for bodies distributing large sums of money in this way to prevent attacks by determined fraudsters.  A measure of protection must be provided by the courts in order to deter others from behaving in a similar way in ongoing urban renewal projects.  I judged that a short term of imprisonment in each case was imperative to achieve this objective.” 

17. In my view, a community service order is simply insufficient in reflecting the gravity of frauds of this nature.  There were no further grounds to justify suspending the sentences of imprisonment.

18. Despite the able and forceful submission of Miss Draycott, I am of the view that the sentences imposed on the two appellants were entirely proper and appropriate in the circumstances of the cases.  Having said that, it remains for me to consider whether the sentences in respect of the 1^st appellant in the two cases should be ordered to run concurrently or consecutively or partially consecutively.

19. At the time when the 1^st appellant was sentenced in HCMA279/2007, the magistrate, whilst aware of the five months’ imprisonment imposed on her in HCMA853/2006, did not make any order as to whether the sentence imposed should run consecutively or concurrently to the earlier sentence.  In his Reasons for Sentence he expressed that he should have so ordered and he considered a concurrent sentence appropriate.

20. Having considered the totality and culpability, I consider concurrent sentences is appropriate. 

21. Appeal by the 2^nd appellant is dismissed, appeal by the 1^st appellant is allowed to the extent that I order sentences in the two cases to run concurrently.