HKSAR v. TAM YING WAH

DCCC 1194/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1194 OF 2008

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to two charges of fraud, contrary to section 16A of the Theft Ordinance, Chapter 210.

Charge 1

2.  In summary on the 30th January 2007 the defendant after opening a bank account with the Bank of East Asia gave away the bank passbook, personal identification number, cyberbanking card and ATM card for use by others.

Charge 2

3.  On the 21st June 2007 the defendant successfully applied for a loan of $50,000 from Aeon Credit Service (Asia) Co by falsely claiming he worked for Longdefu Medicines (HK) Limited and resided at 2/F, 52 Pei Ho Street, Sham Shui Po.  No repayment of the loan was ever made.

4.  The defendant was arrested on the 13th September 2007.  During a house search the police found banking documents relating to the account with the Bank of East Asia together with employers return purporting to show the defendant worked for Longdefu.  When interviewed the defendant explained he owed a person called “Peter” HK$200,000 in gambling debts.  In order to repay Peter the defendant gave his HKID card and personal particulars to “Simon” to prepare income proof to enable the defendant to apply for loans to repay his gambling debts. 

5.  The defendant further explained that after opening the bank account with the Bank of East Asia he handed the bank book and cards to Simon and after receiving the $50,000 loan from Aeon he gave the money to Peter to settle his debts. 

6.  In passing sentence I have carefully considered everything said on the defendant’s behalf by Miss Cheng, including the defendant was heavily in debt and told if he did not open the bank account he would be beaten up.  Miss Cheng says this does not amount to duress, as the defendant does not claim that his will was not his own but asks I take this into account.  I also take into account the defendant co-operated with the police on arrest.

Charge 1

7.  The handing over of bank passbooks and cards to other persons to use undermines the integrity of the banking system and makes difficult the detection of crime by disguising the true owner of the account.  I regard this as a serious offence for which a deterrent sentence is required not only to punish the defendant but also to deter others from behaving in this way.  I am satisfied the proper starting point after trial is 2 years imprisonment.

Charge 2

8.  The obtaining of a loan by providing false particulars to the credit company is also a serious offence.  The credit company was left with no means of being able to trace the debtor and therefore not surprisingly none of the $50,000 has been repaid.  I am satisfied the proper starting point after trial is 12 months imprisonment.

9.  Giving the defendant full credit for his pleas of guilty the sentences are reduced to 16 months and 8 months respectively. 

Delay

10. The offences date back to 30th January and 21st June 2007.  The defendant was arrested on the 13th September 2007 but not brought to court until November 2008, over one year after his arrest.  The major reason for this was the complexity of the investigation and the time taken by the Department of Justice to finalise legal advice.

11.  This delay cannot be said to be attributable to the defendant.  I am satisfied that some credit should be given on account of this delay    (see HKSAR v WONG Ka-wahCACC 260/2006).  I do this by reducing the sentence on each charge by one month. 

12. I am satisfied the offences are separate and distinct for which wholly consecutive sentences are appropriate. 

13. The defendant is sentenced as follows:

Charge 1 - 15 months imprisonment; and

Charge 2 - 7 months imprisonment consecutive to charge 1;

I am satisfied a total sentence of 22 months imprisonment properly reflects the defendant’s criminality on the two charges.