HKSAR v.WONG WING YAN, TIFFANY

DCCC615 & 965/2009(CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 615 AND 965 OF 2009

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Reasons for Sentence

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1.  The defendant was originally charged with 12 counts of obtaining property by deception. She pleaded guilty to eight of those 12 charges and charges 1 to 6 and 8 were ordered to be left on court file.

2.  The modus operandi adopted by the defendant in committing these eight offences were strikingly similar. For all eight charges the defendant approached the victims who had either put their property for sale on the internet or were running a retail business. Defendant on each occasion agreed to purchase the property at a certain price. She would then deposit a cheque into the account of the victims which would result in the increase of balance before the cheque was actually cleared. This was enough to make the victims believe that money had been paid by the defendant. They therefore agreed to part with their property only to find out that the defendant’s cheque had bounced very shortly afterwards. The defendant in all eight offences either used her own cheques or the father’s cheques.

3.  I adjourned sentencing of the defendant till today for the purposes of calling for two reports on her, namely psychologist’s report and background report. I was advised by Mr Acton-Bond, counsel for the defendant, that the contents of those reports are fully admitted. As far as the value of these reports are concerned, all I can say is that they have given me more background information concerning the defendant. However, at the end of the day they are unable to come up with anything that would significantly affect my view and ultimately my decision on sentence. Suffice to say that the defendant is clearly suffering from obsessive compulsive disorder, according to the psychologist, but that alone is not sufficient for this court to give the defendant any additional favourable consideration.

4.  Defendant is a relatively young lady, she is only 30 today, but she has a very disappointing criminal history. She had been brought before court on four previous occasions, all in relation to deception offences. Her last conviction was on 10 February 2009, again for obtaining property by deception. She was given a suspended sentence. Because of the commission of charges 9 to 12, the defendant was in breach of the suspended sentence passed on her in February last year. Mr Acton-Bond, counsel for the defendant, has in my view done everything he possibly could in terms of mitigation. I do not want to go into every single point made by Mr Acton-Bond. All I can say is I can imagine that the defendant’s criminal behaviour has undoubtedly caused a great deal of pressure and anxiety to her family, especially her parents. I can also accept that the defendant is remorseful. That is self-evident because the defendant chooses to plead guilty before me. However, I cannot find anything other than her pleas of guilty that will enable me to come to a conclusion that her sentence can be further reduced apart from giving her the usual one-third discount for her pleas of guilty.

5.  These eight offences are all serious offences, they all involved valuable properties. For a couple of them, they are worth $300,000 to $400,000. Apart from the victims in charges 7 and 9, all other victims received no payment from the defendant. As a result, these victims are left completely uncompensated. The total losses suffered by the various victims, according to the prosecution, runs up to some $1.18 million. Of course, this figure in my view is not wholly right because as far as charge 11 is concerned the two diamond rings being the stolen property were pawned for $130,000 but these rings had been recovered from the pawnbrokers by the police. Therefore, I would not imagine that the loss suffered by the victim in charge 11 would be anything more than the amount pawned for. Having said that, the amount involved is well in excess of $800,000, according to my calculation. This is a very substantial sum of money.

6.  I have been referred to the cases of Barrick and Cheung Long-chung but I do not find them to be applicable here because I do not view the present case as a case of breach of trust. For all these eight charges to which the defendant pleaded guilty, in my judgment the only proper sentence would be one of immediate custodial sentence. The defendant has previous convictions for similar offences and it does give me an impression that at least on this occasion I have to consider deterrent sentences. After careful consideration of all the relevant factors as well as the mitigation advanced on the family’s behalf by Mr Acton-Bond, the individual starting points for these eight offences I adopt as follows:-

(a)  For charges 3 and 4, these two offences involve property below $20,000. I take 9 months as the starting point.

(b)  Charge 5 involves property valued at $83,000. I take 12 months as the starting point.

(c) Charge 7, after partial-payment was made, the victim stands to lose $210,000 and I take 12 months as the starting point.

(d)  Charge 9, defendant has made full payment to the victim and the value involved is less than $50,000, so I take 6 months as the starting point.

(e) Charge 10, $115,000, I take 12 months as the starting point.

(f) Charge 11, as I earlier analysed, I take the amount that the diamond rings were pawned for to be the maximum amount of loss suffered by the victim. With that in mind, I take 12 months as the starting point.

(g) Charge 12, I also take 12 months as the starting point.

7.  The defendant will be given one-third discount for her pleas of guilty in relation to all these sentences. As a result, for charges 3, 4 and 11, these sentences were all reduced to 6 months after the one-third discount.

8.  For charges 5, 7, 10 and 12, after giving the defendant one-third discount, these sentences were reduced to 8 months each on each charge.

9.  Charge 9, after the one-third discount, the 6 month term was reduced to one of 4 months.

10.  The final phase of work for this court to do is to work out the appropriate total sentence that I have to impose on this defendant. When I embark on this exercise I have to take into account the principle of totality, the gravity involved in all these offences. In my view, after the proper discount is given, the defendant ought to be sentenced to a sentence in the region of 18 months to 20 months. This is not a breach of trust case, therefore I cannot take the Cheung Long-chung starting point into consideration in the present case but the defendant has a number of similar previous convictions so to a certain extent that balances out that consideration. So I think at the end of the day a proper starting point would be in the region of 28 to 30 months in the present case.

11.  In order to arrive at that global sentence or total sentence, I make the following order:-

- For charges 3, 4 and 11, the defendant is sentenced to 6 months’ imprisonment and these sentences are ordered to run concurrently.

- For the 8 months’ sentence that I passed on the defendant in respect of charges 5, 7, 10 and 12, I order these sentences to run concurrently but consecutively to the 6 months I impose on charges 3, 4 and 11.

- For charge 9, the 4 months that I imposed, is ordered to run consecutively to all other sentences, making a total of 18 months and this is the actual length of imprisonment that this defendant has to serve.

12.  But this is not the end of the matter yet because I have to consider whether or not I should activate the suspended sentence which was imposed on the defendant on 10 February 2009 for a similar conviction for obtaining property by deception. I have considered all the circumstances. I find no reason why this court should not activate the suspended sentence. I therefore make an order that the 4 months’ suspended sentence be activated in whole and I also find no reason to order any partial concurrent order in respect of this 4 months’ suspended sentence. I therefore order that on activation of the suspended sentence this 4 month term is to be served consecutively to the sentences that I impose in respect of charges 9 to 12 being charges the defendant committed after she was given the suspended sentence. These are the sentences that I impose on the defendant in respect of the present cases.

(Discussion)

13.  18 months is the total that I have given to this defendant for the eight charges and on top of that, there was an addition of 4 months.

(Discussion)

14.  I am sorry, it is my slip because I have taken 12 months as the starting point for charge 11, so after giving the defendant one-third discount, that sentence is reduced to 8 months, so it is not 6 months, it is my slip. So it is only for charges 3 and 4 that their sentences are concurrent, whereas for charges 5, 7, 10 to 12, these offences all carry 8 months’ imprisonment and they are ordered to be served concurrently. So the end result is just the same because it ends up in exactly the way that it ends up if it is put in the category of six months. It does not increase or decrease of the total sentence, it is just a slip of my tongue.

15.  So I make everything clear now: for charge 11, you receive 8 months which is concurrent with other 8 month terms I impose in relation to charges 5, 7, 10 and 12.