HKSAR v. KO KWOK LEUNG

DCCC 1056/2018

[2019] HKDC 949

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1056 OF 2018

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REASONS FOR SENTENCE

1.  On 8 July 2019 the defendant pleaded guilty to one charge of fraud, contrary to section 16A of the Theft Ordinance[1]and one charge of using an identity card relating to another person, contrary to section 7A (1A) of the Registration of Persons Ordinance[2].

2.  The fraud involves the unauthorized remittance of HK$1.959 million from the bank account of Ms Lau Lin.  Full details of the offences are set out in the facts admitted by the defendant today[3].

3.  In summary at about 11:30 a.m. on 28 August 2017 the defendant went to the Xin Kun Gold Jewelery shop in Mody Road, Tsim Sha Tsui and negotiated the purchase of HK$1.95 million worth of gold bars.  

4.  The gold shop did not have enough gold bars for immediate delivery in Hong Kong and instead offered to deliver the gold bars at their partner shop in Shenzhen. The defendant agreed and urged for delivery before 4:30 p.m.

5.  The gold shop staff then asked the defendant to remit payment to the bank account of the gold shop.  The defendant asked the gold shop whether they had an account with the Dah Sing Bank.  The gold shop was able to provide the defendant with an account held with the Dah Sing Bank.  The defendant then left the number of his “boss” and left the shop. 

6.  At around 1 p.m. the same day the defendant went to the Dah Sing Bank on the G/F of Golden Crown Court, Nos. 66-70 Nathan Road in Tsim Sha Tsui.  The defendant presented a remittance application form purportedly signed by the account holder Ms Lau Lin to remit HK$1.959 million to the bank account of the gold shop. 

7.  When the bank asked the defendant for his identity card the defendant presented an identity card in the name of Chui Siu Kei, Philip.  Subsequent investigation revealed that the identity card had been reported lost in May 2016. 

8.  After the bank staff pointed out a spelling mistake on the form regarding the amount the defendant left the bank and returned shortly afterwards with the form purportedly corrected by Ms Lau. 

9.  The remittance was successful.  The defendant called the gold shop to inform them of the remittance.  After the gold shop confirmed receipt of the funds the shop then arranged for the gold bars to be collected in Shenzhen.  The shop called the number of the “boss” who informed them the gold bars would be collected by a male Lam Chan Yip. 

10.  Around 4:15 p.m. the same day the gold bars were collected from the shop in Shenzhen by a male presenting a Home Permit in the name of Lam Chan Yip.  Subsequent investigation revealed that the Home Permit had been reported lost three months earlier.     

11.  On 2 September 2017 Ms Lau discovered the remittance of HK$1.959 million from her account.  Ms Lau did not sign the remittance application form and did not authorize the transaction.  Ms Lau did not know the defendant.

12.  In July 2017 Ms Lau had received a cold call from a purported intermediary financial institution offering a low interest loan.  Ms Lau met with a representative called Mr Tsui who asked her to deposit HK$2 million in her bank account as security for the loan. 

13.  On 21 August Mr Chan, another representative of the financial institution, delivered documents to Ms Lau for her signature.  Ms Lau signed multiple times but did not sign the remittance form.

14.  On 24 August Ms Lau’s brother deposited HK$1.95 million in her account.  After the money was deposited in her account Ms Lau showed Mr Tsui her bank passbook.  Mr Tsui took photographs of the passbook and address proof of Ms Lau. 

15.  Ms Lau was assured that the loan would be approved in a few days.  No loan was ever granted.  Instead four days later without the authorization of Ms Lau the defendant went to the bank and applied for the monies to be remitted to the gold shop.    

16.  The police were unable to locate the financial institution, Mr Tsui or Mr Chan. 

17.  Upon examination of the remittance application form the defendant’s fingerprint was found.  CCTV of the bank and the gold shop captured the defendant at the material time. 

18.  The defendant was arrested on 22 August 2018 at the Lok Ma Chau border when he was departing Hong Kong. 

19.  The staff of the gold shop positively identified the defendant at an identification parade. 

20.  The bank later compensated Ms Lau in full. 

Mitigation

21.  In passing sentence, I have carefully considered the oral and written submissions of Mr Hui, including that the defendant, who lives with his daughter and brother, is the sole bread winner of the family[4]. I have read the mitigation letters written by the defendant and his daughter, who is in court to support her father together with her mother.   

22.  Although the defendant has previous convictions for offences of dishonesty and for possession of an identity card belonging to another person, I take into account that he was last before the court in 1993, over twenty-five years ago. 

Fraud

23.  The offence was an elaborate and well planned fraud involving a cold call to Ms Lau offering a low interest loan in order to obtain her bank account details.  No loan was ever granted.

24.  Shortly after Ms Lau’s brother deposited the money in his sister’s account, purportedly as security for a loan, the monies were remitted to the gold shop without Ms Lau’s authorization.   

25.  The defendant used a false document to apply for the monies to be remitted to the gold shop and presented a lost identity card in an attempt to cover up his real identity. The gold bars were collected by someone else in Shenzhen who used a lost Home Permit, also to cover up his real identity.  

26.  Mr Hui submits that the defendant was not the mastermind but only a foot soldier who received $5,000 for helping someone else buy the gold[5]. 

27.  Whilst I have my reservations that the defendant would agree for a mere $5,000 to help someone dishonestly obtain almost $2 million worth of gold bars, there is no evidence to show the defendant was part of the cold call and was the one who obtained the bank account details of Ms Lau[6]. I therefore proceed on the basis that the defendant was not the one who planned the fraud. 

28.  Although the defendant may not have been part of the cold call and therefore knew how the monies had been obtained, Mr Hui accepts that the defendant knew the monies had been obtained unlawfully from Ms Lau and was party to converting that money into gold. 

29.  I do not agree that the role played by the defendant was that of a mere foot soldier.  The defendant played an essential part in committing the fraud by both negotiating the purchase of the gold bars and submitting the false remittance to the bank.   

30.  By agreeing that the gold shop deliver the gold bars to Shenzhen made the recovery of either the gold bars or the obtaining of restitution much more difficult if not impossible.

31.  The bank having refunded Ms Lau has suffered the loss of HK$1.959 million.  Mr Hui says that the defendant is unable to make restitution. 

Sentence

32.  There are no guidelines for offences of fraud.  Mr Hui refers the court to HKSAR v Tang Bik Wan, a case also involving the remittance of monies using false remittance forms[7]. I have considered this judgment. 

33.  Taking into account the offence was clearly planned; the amount of the remittance; the role of the defendant; the gold bars were collected in Shenzhen resulting in total loss to the bank, I am satisfied the proper starting point after trial for the fraud is 4 years’ imprisonment. 

34.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 8 months’ imprisonment. 

Using an identity card relating to another person

35.  In HKSAR v Li Chang Li[8] the Court of Appeal held that the starting point upon a plea of guilty for possession of a forged identity card or identity card belonging to another should ordinarily be 12 months, whether or not the offender was lawfully staying in Hong Kong.  Where the offender actually produces or uses the card in order to conceal his identity the Court of Appeal said the starting point upon a plea of guilty should be 15 months. 

36.  HKSAR v Li Chang Li concerned a visitor from the Mainland.  In HKSAR v Fan King Lam the Court of Appeal said that where the offender is a Hong Kong permanent resident there is no specific tariff[9].

37.  Taking into account that the defendant was using the identity card to conceal his identity whilst committing a crime I see no reason to depart from the guideline sentence. 

38.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 15 months’ imprisonment. 

Totality

39.  The identity card having been used in the commission of the fraud I am satisfied concurrent sentences are appropriate. 

40.  The defendant is sentenced to a total of 2 years and 8 months’ imprisonment.