HKSAR v. LAI YUK KWONG AND ANOTHER

DCCC 858/2022

[2023] HKDC 1512

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 858 of 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  There are altogether 4 charges against both D1 and D2.

Charges	Date of Offences	Against	Offences	Particulars
1	3 April 2018 to  7 July 2018	D1 and D2	Fraud	Using false documents for loan application of HK$2 million
2	26 July 2018	D1	Attempted fraud	Using false documents for loan application of HK$1.5 million
3	8 July 2018	D1	Attempted fraud	Credit card application (No documents were submitted to the Bank)
4	7 July 2018	D2	Fraud	Credit card application

2.  D1 pleaded guilty to Charge 2 and 3, D2 pleaded guilty to Charge 1 and 4.

3.  Charge 1 against D1 is now ordered to be left on court’s file and not to be proceeded with without the leave of the court.

Summary of facts

The loan application made by D2 (Charge 1)

4.  On 7 April 2018, D2 attended Standard Chartered Bank (“SCB”)  for a loan application in a sum of $800,000.

5.  Between 10 April 2018 and 20 June 2018, D2 was not able to provide the necessary documents to SCB. The application was then cancelled.

6.  On 23 June 2018, D2 renewed her application for a loan of HK$2 million together with incoming proof.

7.  D2 represented to PW2 that she worked as a tour guide for three companies, namely “Golden Travel”, “Golden Door Travel” and “Beautiful Travel Limited” and that she earned an annual income of around HK$2 million. D2 provided documents to SCB including the following documents:

(a)  Three copies of Bank of China (Hong Kong)  Limited’s (“BOC”)  cheques purportedly issued by “Beautiful Travel Limited” in favour of D2 in the amount of: -

(i)  HK$167,232 (dated 3 April 2018);

(ii)  HK$152,411 (dated 5 May 2018); and

(iii)  HK$151,183 (dated 10 June 2018)  respectively.

(b)  A copy of D2’s Tax Payment Notice for the tax year 2016/‌2017 with tax amount of HK$183,540 dated 19 August 2017; and

(c)  Two photos of 2 BOC deposit advice for tax payment.

8.  On 25 June 2018, PW1 make enquiry from D2 to clarify the information provided by D2. D2 stated that: -

(a)  She was a consultant of “Golden Yin Travel” and “Golden Door Travel” with an annual income of HK$2 million;

(b)  An employee of “Beautiful Travel Limited”

9.  Upon PW1’s request, D2 submitted the MPF statement from Manulife and 3 pages of salary proof from April to June 2018 to SCB on 3 July 2018 and 4 July 2018 respectively.

10.  On 6 July 2018, D2’s loan application was approved and HK$2 million loan was deposited to D2’s SCB saving account.

Investigation

Tracing of HK$2 million loan

11.  According to the bank records, HK$2 million loan was eventually transferred to the Male’s SCB saving account on 25 July 2018, which was then withheld by SCB.

Beautiful Travel Limited

12.  According to the Company Registry record, the Male was the sole director and shareholder of Beautiful Travel Limited whose registered address was Shop E, G/F, No 179 Ma Tau Wai Road, To Kwa Wan, Kowloon. In fact, there was no such address. D2’s residence was also reported to be the Male’s address in the Company Registry record.

13.  According to the record of Inland Revenue Department (“IRD”), there were no profits tax return filed by Beautiful Travel Limited from 2016 to August 2018.

Golden Yin International Travel Company Limited

14.  The managing director confirmed that: -

(1)  D2 worked as a part-time tour guide for $500 a day between January 2017 and March 2018; and

(2)  Golden Yin did not issue the “employment and income proof” in favour of D2 (which were found from the Male’s residence during a house search).

IRD

15.  IRD had never issued D2’s Tax Payment Notice.

16.  Record showed that:-

(1)  D2 worked as a tour guide; and

(2)  As a junior beauty advisor for Bonjour Cosmetic Wholesale Center occasionally with modest income for the tax years 2016/‌2017 and 2017/‌2018 and

(3)  no tax payment record from D2 was found during the said period.

Manulife

17.  Manulife confirmed that D2 did not have a MPF account held with Manulife and Manulife did not issue the MPF Statement to D2.

Search

18.  On 8 August 2018, the police conducted a house search at the Male’s residence. Amongst others, the following items were found: -

(a)  Copy of D2’s Tax Payment Notice (same copy as the one submitted to SCB for D2’s loan application);

(b)  One page of printout from the tax calculator of the IRD website;

(c)  Copy of one rental agreement for Room E, G/F, No 179 Ma Tau Wai Road, To Kwa Wan, Kowloon made with Kam Tat Property Agency dated 20 September 2017;

(d)  One page of “employment proof” issued by Beautiful Travel Limited to D2;

(e)  Five pages of D2’s “employment and income proof” purportedly issued by “金賢國際旅遊有限公司”; and

(f)  A BOC cheque deposit advice (ATM slip)  of a SCB cheque for HK$2 million payable to the Male made on 21 July 2018.

19.  The Male was also present during the house search. He was found in possession of a SCB cheque deposit advice (ATM slip)  of a BOC cheque for HK$2 million payables to the Male made on 24 July 2018.

Kam Tat Property Agency (PW8)

20.  PW8 confirmed that she had never signed the rental agreement with the Male. The company chop on the rental agreement did not belong to Kam Tat Property Agency.

The Male’s transfer of HK$1,000,000 to D2 in May 2018

21.  According to PW1, D2 increased the loan amount from HK$800,000 to HK$2 million during the application on 23 June 2018 because she was told by other bank staff that her credit amount could be enhanced if she deposited more money into her SCB account.

22.  On 25 May 2018, PW1 confirmed that D2’s bank account had over HK$1.7 million.

Charge 2 (against D1)

The loan application made by D1

23.  On 26 July 2018, D1 applied for a personal loan of HK$1.5 million with SCB.

24.  In the course of loan application, D1 represented to PW1 that:-

(a)  He was a marketing manager and a senior vice captain in Chu Kong High-sped Ferry Company Limited with monthly salary of over HK$100,000.

25.  In the application form he stated that he was a captain of Chu Kong High-Speed with annual income of HK$2 million.

26.  In support of the loan application, D1 submitted, amongst other documents, the following income proofs:-

(a)  One page of online banking printout of D1’s BOC saving account for the period from May 2018 to July 2018;

(b)  Six salary receipts purportedly issued by High-sped (sic)  Ferry Company Limited from April to June 2018, with monthly salary ranging from HK$64,105.33 to HK$122,400;

(c)  D1’s tax payment notice for the tax year 2016/‌2017 showing the annual income of HK$1,950,262 and the tax amount of HK$183,834 dated 18 August 2017; and

(d)  Two photos of 2 BOC deposit advice for tax payment.

27.  On the same day, D1 called PW1 to cancel the loan application.

Investigation

Chu Kong High-Speed Ferry Co Ltd (PW9)

28.  PW9 confirmed that:-

(i)  D1 was employed as a night vision officer from August 2016 to August 2018 and his monthly salary for April, May and June 2018 were HK$38,260.94, HK$34,105.22 and HK$34,399.97 respectively;

(ii)  D1 had never been employed as senior vice captain and marketing manager with total monthly income of more than HK$100,000;

(iii)  The six salary receipts were not issued by Chu Kong High-Speed Ferry Co Ltd; and

(iv)  D1 was summarily terminated on 8 August 2018.

IRD

29.  IRD had never issued D1’s Tax Payment Notice.

30.  Record showed that D1 was employed by Chu Kong High-Speed Ferry Co Ltd as a night vision officer earning the total income of HK$409,923 and HK$474,007 respectively for the tax year 2016/‌2017 and 2017/‌2018, and he paid HK$5,620 as tax payment on 5 February 2018.

Bank record

31.  The Online Banking Printout provided by D1 to SCB contained a numbered of altered transactions on the amount and frequency of salary pay made by Chu Kong High-Speed Company Limited.

Search

32.  Upon house search at D1’s residence on 8 August 2018, the following items relevant to Charge 2 were found:-

(a)  Two sets of BOC monthly statement of D1;

(b)  Copy of D1’s Tax Payment Notice;

(c)  Two copies of D1’s altered IRD salary tax bill dated 18 August 2017;

(d)  Two copies of D1’s altered IRD salary tax bill dated 18 August 2017;

(e)  One true copy of D1’s IRD record showing the tax amount of HK$5,620 dated 18 August 2017;

(f)  Copies of a number of altered IRD salary tax calculation record in the name of D1, some with handwritten calculation;

(g)  One page of D1’s IRD tax bill for the total amount of HK$5,620;

(h)  One true payment slip for April 2018 issued from Chu Kong High-Speed Ferry Co Ltd to D1; and

(i)  One set of refund set-off advice of salary tax for HK$709 issued from IRD to D1 dated 7 June 2018.

Charge 3 (against D1)

The credit card application made by D1

33.  On 8 July 2018, D1 represented to be an engineer of Chu Kong Shipping Ltd with monthly salary of around HK$45,000 for a credit card application with DBS Bank (Hong Kong)  Limited (“DBS”).

34.  D1 was in fact employed by Chu Kong High-Speed Ferry Co Ltd as a night vision officer, and D1’s annual income was HK$409,923 and HK$474,007 for the tax year 2016/‌2017 and 2017/‌2018 respectively.

35.  The Police informed DBS that D1’s credit card application may be a fraud, DBS refused D1’s application on 11 August 2018.

Charge 4 (against D2)

The credit card application made by D2

36.  On 7 July 2018, D2 applied for her credit card with DBS.

37.  D2 represented herself to be a chief tour guide in Beautiful Travel Limited with monthly salary of around HK$50,000 for a credit card application with DBS.

38.  D2 also submitted the Manulife’s MPF Statement, three pages of salary proofs purportedly issued by Beautiful Travel Limited to D2 for April to June 2018.

39.  On 11 July 2018, DBS issued a credit card to D2.

40.  Subsequent investigation revealed that Beautiful Travel Limited had never employed D2 and the Manulife’s MPF Statement was not issued by Manulife.

Criminal record

41.  D1 – one previous record of theft in 2007 with a fine of $200. The prosecution agreed that it is a spent conviction, D1 should be treated as having a clean record.

42.  D2 – she has two previous convictions of breaching the conditions of stay in 1995 and 1998.

Background

43.  D1 is now 38 years old. He lives with his mother who had an operation in 2019. D1 is responsible to take care of her.

44.  D1 also has a sister suffers from epilepsy since her childhood. Her 3 children are now taken care of in foster homes.

45.  D1 provides financial support to his family including the 3 children of his sister.

46.  In respect of Charge 2 – D1 has an income of about $450,000 per year. He planned to take out a $1.5 million loan as a down payment to buy a property to live with D2 who is his girlfriend.

47.  He provided false documents in order to support his application. He knew that it was wrong to do such things, therefore he called the Bank to cancel the application. The Bank did not suffer any loss as a result of it.

48.  Nonetheless, D1 has sufficient earnings to repay the loan within 5 years if the loan was ever approved.

As to D2:-

49.  D2 is now 48 years old. She was divorced in 2005. In 2013, she met D1 and they started to live together since 2017.

50.  D2 lost her job as a tour guide during the pandemic, from October 2019 to August 2022, she worked as a cash box carrier with a monthly earning of about $21,000.

51.  It was submitted on behalf of D2 that:-

(a)  The Banks suffered no actual loss;

(b)  D2 has repaid Standard Chartered Bank for 6 instalments until her account was suspended by the Bank;

(c)  She was heavily punished financially as she was subjected to legal costs, interest and disbursements deducted from her account for about $900,000 by the Bank in a civil action to recover the 2 million loan from another account.

52.  Both D1 and D2 suffered mental illness as a result of the present incident.

D1 – Anxiety depression

D2 – Depression disorder

53.  They are remorseful for what they had done. They have been living under tremendous stress over the last 5 years.

54.  Lastly, D2’s counsel submitted that D2 had made a few hundred dollars’ donation to charity in the last few days. I told the defence that it has no bearing in mitigation if it is done with a view for sentencing deduction.

Sentence

55.  The maximum sentence for S16A (Fraud)  of the Theft Ordinance is 14 years’ imprisonment.

56.  As the defence pointed out in the case of HKSAR v Ho Ka Keung (No 2) [2009] 1 HKC 88 that there are a number of factors to be considered when sentencing a banking fraud charge:-

(a)  Nature of the fraud itself;

(b)  Duration of fraud;

(c)  Its sophiscation;

(d)  The role played by the defendant;

(e)  Effect it may have on the marketplace;

(f)  International element;

(g)  Nature and extend of the risk to the victim’s proprietary interest;

(h)  The loss sustained by the Bank.

57.   In the judgment of Ho Ka Keung, the court also said that “it was well established that commercial fraud would attract, other than in exceptional circumstances, an immediate custodial sentence even for a first time offender.”

58.  The Bank relied on the integrity and honesty of the applicants to provide true information and documents. It is always difficult to check the authenticity of all the documents submitted by the applicant. A deterrent sentence is necessary otherwise, applicants can abuse this system by submitting false documents to obtain loans from the banks.

59.  In the present case to support the loan applications, both D1 and D2 provided false income proofs . D2 also provided false documents to support her credit card application.

In D2’s case

60.  Charge 1 involved a loan of $2 million and Charge 4 involved a credit card issued by DBS.

61.  Charge 1 covered a period of 3 months as D2 could not provide the necessary documents to SCB for the processing of the loan application.

62.  The D initially asked for $800,000. Later, she increased the loan amount to $2 million. In order to support her application, D2 had put in an extra $1 million into her account, her total saving became $1.7 million. Apart from that she also provided some false documents:

(a)  A copy of D2’s tax payment for 2 years from 2016 to 2018;

(b)  2 photo copy of 2 BOC deposit advice for tax payment; and

(c)  Manulife MPF statements.

63.  According to the Company Registry, there was one director and shareholder of Beautiful Travel Limited and that male was the account holder of the BOC accounts. As such, this male has the bank cheques to issue cheques to D2.

64.  There was no such address as registered by the Beautiful Travel Limited. The estate agent never signed any rental agreement with Beautiful Travel Limited.

65.  What was important to note was that:-

(a)  The registered address of Beautiful Travel was in Shop E, G/F, 179 Ma Tau Wai Road, Hunghom. In fact, there was no such address.

(b)  D2 also lived in the same building of 179 Ma Tau Wai Road, Hunghom.

(c)  The proper inference was that D2 is familiar with the area and locations of the shop on the ground floor to assist the Male to provide the registered address of Beautiful Travel. D2’s registered address was the same address of Beautiful Travel Limited.

66.  The Inland Revenue also said that there were no profits tax return filed by Beautiful Travel Limited from 2016 to August 2018.

67.  D2 was only a part-time tour guide for $500 a day between January 2017 to March 2018 and there was no tax payment record from D2 during this period of time.

68.  It all went to show that it was not only D2 in the scheme alone. Another person was also involved in helping D2 to apply for the loan as some of the documents were found during a house search of the Male:-

(a)  A copy of D2’s ID card and tourist guide pass;

(b)  Copy of D2’s tax payment notices;

(c)  Rental agreement made with Kam Tat Property Agency in relation with Beautiful Travel; and

(d)  Employment proof issued by Beautiful Travel.

69.  The scheme of the perpetrated fraud was well planned and executed.

70.  As to Charge 4, D2 successfully got a credit card from DBS when she falsely represented herself as a chief tour guide in Beautiful Travel with a monthly earning of $50,000 together with 3 pages of salary proofs issued by Beautiful Travel to D2 for April to June 2018 and the Manulife MPF statement.

71.  The credit limit in Charge 4 was $76,000. D2 had never used the card. The Bank did not suffer.

72.  Finally, as to D2’s financial loss of $900,000. My view was that the Bank is entitled to recover the $2 million loan through civil action. Whether the amount of costs incurred is reasonable or not is another matter, but D2 is not entitled to further deduction of sentence.

As to D1 –

73.  His application for a loan was $1.5 million in Charge 2. D1 also provided false documents to support his application: -

(a)  Print out of his BOC online banking record which has been altered;

(b)  Salary slips;

(c)  Tax Payment Notice; and

(d)  Two photos of two BOC deposit advice for tax payment.

74.  As to his credit card application, it was made one day after D2’s application. Charge 3 and 4 involved the same Bank (DBS).

75.  D1 did not supply any documents; the application was verbally made.

(a)  In reality, he was employed as a night vision officer with a monthly salary between $34,000 to $38,000.

(b)  However, he told DBS that he was employed as an engineer with a monthly salary of around $45,000.

76.  His salary has been inflated for about $7,000 to $11,000. D1 did not provide any documents in support of his application.  In this regard, D1’s culpability is less serious than D2. The DBS did not issue a credit card to him.

77.  I am told by the prosecution that the Banks did not suffer any loss.

(a)  Charge 1 – $2 million – the Bank has successfully got back the $2 million from a civil action;

(b)  Charge 2 – D1 cancelled the application on the same day;

(c)  Charge 3 and 4 – DBS did not suffer any loss as D2 did not use her card while D1’s application was refused.

78.  From all this information before me, I can see that the plan to execute the banking fraud was well planned and carefully structure. As it also involved a company as a vehicle for fraud.

79.  As discussed during mitigation, that applying the sentencing guideline in Cheung Mee Kiu [2008] 1 HKC 113 and Ng Kwok Wing [2008] 4 HKLRD 1017 that for a sum of 1 million to 3 million, it falls into a sentencing bracket of 3 to 5 years. However, since this is not a breach of trust case, the starting point should be lowered.

80.  As such, taking all the mitigating factors into consideration, I adopt the starting point for each charge as follows: -

Charges	Against	Starting point	1/3 discount
1	D2	2 years	16 months
2	D1	21 months	14 months
3	D1	4.5 months	3 months
4	D2	6 months	4 months

Totality

As to D1 –

81.  I order 2 months from Charge 3 to run consecutively to Charge 2, it arrives at 16 months. I further reduce 2 months for the “5 years’ of waiting” mitigation point.

As to D2 –

82.  I order 2 months from Charge 4 to run consecutively to Charge 1, it arrives at 18 months, I also allow 2 months’ deduction for D2 on the “5 years’ of waiting” point.

83.  Final sentence: -

(1)  D1 is to serve a sentence of 14 months.

(2)  D2 is to serve a sentence of 16 months.