HKSAR v. LING VERONICA

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

Application for Review
1998, No.1

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The respondent pleaded guilty to four charges of forgery, four charges of procuring the making of an entry in a record of the bank by deception, one charge of possession of a forged identity card, and one charge of possession of a forged entry permit.

2. The facts of the first of the charge of forgery were that on 18th March 1997, the respondent, Veronica Ling, went to the offices of Messrs. Peter Wong & Co., solicitors, where she saw a law clerk. She introduced herself to the clerk and also introduced a woman who was with her as her mother. She asked that a General Power of Attorney be prepared from her mother to herself. She handed in her identity card to the clerk and the woman with her also handed an identity card. Photocopies were made of each of those cards. The woman who represented herself as the mother was not in fact the respondent's mother and her identity card was a forged one. The General Power of Attorney was prepared, all of the parties signed and the respondent took it away with her.

3. The second charge was also one of forgery, it involved events which occurred some three days later. On that occasion, the respondent went to the offices of Messrs. Peter Wong & Co., again saw a law clerk, introduced herself and introduced a male who was with her as her father. The same procedures were followed, a General Power of Attorney was prepared, it was signed and she took that away with her.

4. The next charge was Charge 5 in the Charge Sheet. It was also a charge of forgery. In that offence, the respondent approached a property agent Au Wai-kwan ("Au") seeking assistance in applying to a finance company to re-mortgage the property jointly owned by her parents at Dragon Court, ("the parents' flat") over which, she said, she held General Powers of Attorney. These General Powers of Attorney were, of course, the ones she fraudulently obtained in charges 1 and 2. She was told by Au to send the documents to Yelsen International Holdings Ltd. and, on 4th April 1997, in the offices of Steven Wong, Yau & Co., solicitors, she signed a third legal mortgage between her parents and Yelsen International Holdings over the parents' flat.

5. We turn to the facts relating to charge 6, which was the first of the charges of procuring an entry in a record of a bank by deception.

6. On 4th April, she signed a Property Mortgage Loan Agreement in the amount of $3,000,000 with Yelsen International, the security of it was the parents' flat. Yelsen, relying upon the validity of the mortgage, instructed its bank to debit $3,000,000 from its bank account and to transfer that sum to the bank account of Steven Wong, Yau & Co. and this was done.

7. The next count, charge 7, was one of procuring an entry in a record by deception. This occurred on 4th April 1997. After the mortgage had been signed, two cheques were made out in settlement of the property loan proceeds. The first was drawn in favour of the respondent in the amount of $2,729,900 and she received that cheque from Mr. Steven Wong of Steven Wong, Yau & Co. It was banked by her and she received the proceeds. A second cheque was issued by Steven K.S. Wong & Co. in the amount of $135,000 and that was drawn to a person called Au Wai-kwan. Au Wai-kwan received that cheque and the proceeds of that cheque were then credited to the account of Au Wai-kwan.

8. The fourth forgery charge, which was charge 13, occurred on 9th April 1997 when the respondent transmitted faxed copies of the forged Powers of Attorney to Alberta Credit (Hong Kong) Limited. She sought a property loan mortgage from Alberta Credit in the amount of $5,200,000. The security was, again, the parents' flat. On 22nd May, she went to the offices of Messrs. Kitty So & Tong, who were the solicitors for Alberta Credit. She had a woman with her who she falsely represented to be her mother. That person had a forged identity card which was in the name of the mother which she presented to the solicitors clerk who was dealing with them. The respondent signed the mortgage in the presence of the clerk and the other parties, the clerk and the so-called mother also signed.

9. The next two charges were charges 14 and 15. Both of them were charges of procuring the making of an entry by deception.

10. After the fourth mortgage had been signed, the solicitors, Kitty So & Co., prepared a letter to Alberta Credit confirming that the fourth mortgage had been properly signed, the respondent took the letter to the office of Alberta Credit to receive the proceeds of that mortgage. Alberta Credit drew a cheque in the sum of $3,185,000 in favour of Kitty So and Tong. This amount was made a debit in the bank account of Alberta Credit. The respondent, at the office of Alberta Credit, received a cheque in the amount of $1,040,000. This cheque was in due course banked by the respondent.

11. Of the two remaining charges was one of possession of a forged identity card. On the respondent's arrest on 26th September 1997, she was found to be in possession of a forged identity card in the name of Newell Zing Ying, which bore a photograph of her.

12. The final charge of possession of a forged Entry Permit arose out of the seizure by the police on 27th September of a forged China Entry Permit in the name of Lam Yuk-ling, which was found in the flat of the respondent when the police conducted a search therein.

13. Those were the facts of the charges which were admitted by the respondent.

14. Judge Hawkes, when dealing with the matter, first made the following observations:

"the forgery and the procuring the making of an entry in a record of a bank by deception charges relate to two fraudulent and complicated schemes committed by the accused with the assistance of others to mortgage her parents' property on two occasions without her parents' knowledge or consent. False ID cards, false documentation and accomplices passing themselves off as the accused's parents were used in the scheme."

15. That briefly, but correctly, encapsulates the offences. They concerned two mortgages and the false and fraudulent acts that were used to obtain the mortgages and then to obtain the proceeds thereof.

16. The trial judge stated that he was taking a serious view of the offence and quite rightly. He said:

"In my view, a starting point for sentence of 2 years' imprisonment can be justified for each of the forgery and procuring the making of an entry charges. A sentence of 15 months' imprisonment on each of the 23rd and 25th charges (the forged document charges) can also be justified. However, I have to bear in mind the totality principle. It seems to me that the overall starting point for sentence in this case should be 4 years' imprisonment at least."

He then went on to, having given a discount for 50% because of the mitigating circumstances to impose an overall sentence of imprisonment for 2 years covering all of the charges.

17. The judge referred, when so doing, to a probation report and to the fact that the applicant had been a decent hard-working person for almost all of her life. It was apparently the breakup of her marriage that triggered the misconduct that resulted in these charges. That breakup led to drinking, gambling and debt, which, it seems, was to loan sharks who were pressing her for repayment.

18. The judge, when sentencing, gave her full credit for her plea, for remorse, for her clear record and he bore in mind particularly the pressure that she had been under to repay the loan-sharks. Bearing in mind all of those matters that he arrived at his total sentence of two years.

19. The Secretary for Justice in this Application for Review contends that that sentence was wrong in principle and manifestly inadequate.

20. It is submitted by Mr. Goodman, who appears for the Secretary for Justice, that the sentence imposed failed properly to reflect the very large amount of money that was involved, the respondent obtained $4.3m, none of which has been repaid, and failed to reflect the breach of trust that the applicant betrayed. The breach of trust was, of course, one placed in her by her family. It is contended that the overall starting point of four years was too low, and that the 50% discount which the judge gave was not warranted. It is further suggested by Mr. Goodman that there were distinct defences which merited separate sentences and that at least the offences involving and surrounding the third mortgage and the fourth mortgage should have been dealt with separately when it came to sentence. It was also submitted that the judge had failed to give sufficient weight to the very careful planning which had been involved in the two series of calculated offences.

21. Miss Remedios, who appears for the respondent, points firstly to the powerful mitigation. She says that the judge was right to give full weight to the remorse which the respondent exhibited and her preparedness, when she is able, to compensate those who suffered financially. She points out that the respondent has the continued support of her family whose trust she betrayed. She submits that the trial judge was entitled to take the view he did and that he only took it after having carefully considered and given proper weight to all of the matters that were placed before him. She submits that if it can be described as a breach of trust, it was a breach of trust of a particular kind. She, to use her words, refers to it as a 'family case'. She submits that there was no need for a deterrent sentence as this was not an offence which, again to use her words, "a commercial flavour". We say immediately that we have no hesitation in rejecting that submission. This was quite clearly a commercial fraud. Commercial institutions were defrauded of a very substantial sum of money. It was, moreover, a commercial fraud that was aggravated, insofar as it contained elements, albeit of a particular kind, of breach of trust. Miss Remedios goes on to submit that the 50% discount was one which was properly warranted given all of the mitigation. Again, we say immediately that we cannot agree. It was powerful mitigation and it certainly was allied to the plea of guilty, but we are not satisfied that it warranted anything like the 50% which was given which produced a sentence of two years.

22. These offences were a carefully calculated series of commercial frauds in which the respondent was a key participant whose participation was essential to the successful conclusion of the frauds. We are satisfied that the two sets of mortgage offences should have been dealt with separately and as we have already indicated the mitigation, powerful though it was, did not merit the deduction that it was given.

23. The sentences were manifestly inadequate. The proper sentence on each set of mortgage offences should have been one of three years. The proper sentences on the two forged documents charges should have been one year and three months for each. This would give a total sentence of eight years and six months. This could properly be reduced upon the totality principle to one of six years to which a full one-third discount for plea and mitigation could properly be given reducing the overall sentence to one of four years.

24. The sentences are ordered to be quashed. Sentences of two years are imposed on the first, second, fifth, sixth and seventh charges and those sentences are ordered to be concurrent. Sentences of two years are imposed on the thirteenth, fourteenth and fifteenth charges and those sentences are ordered to be concurrent with each other but consecutive to the sentences imposed on the earlier charges. Sentences of ten months are to be imposed on the twenty-third and twenty-fifth charges, those sentences are to be concurrent with each other and concurrent with the sentences earlier imposed. The overall sentence is one of four years.

25. The applicant succeeds and the sentences indicated are imposed.