HKSAR v. CHEUNG KA LING also known as CHEUNG KA HEI FLORENCE

DCCC 380/2018

[2018] HKDC 1274

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 380 OF 2018

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Reasons for Sentence

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1.  The defendant completed a two-year Juris Doctor (JD) programme at the Chinese University on 21 November 2013. However, her grades or her cumulative grade point average (her GPA) was not good enough to be eligible for admission in the Postgraduate Certificate in Laws programme of the University of Hong Kong, (HKU) the PCLL course at the HKU. Moreover, she failed land law in the JD course whilst the PCLL would have required a pass.

2.  In spite of her insufficient GPA, the applicant used a false JD certificate to apply and gain admission in the PCLL course. She then failed the first year twice and did not complete it, but that did not deter her in attempting to pursue a legal career.  She successfully applied for a job as a trainee solicitor by using a false instrument.

3.  The defendant, in order to attempt to become a solicitor, committed several offences, including using a false instrument, using a copy of a false instrument, making a false statutory declaration, obtaining services by deception, and obtaining a pecuniary advantage by deception.

4.  Her crimes were uncovered five months into her job as a trainee solicitor, when the Law Society processed the defendant’s application to register her trainee solicitor contract and it was discovered that she had never passed the HKU PCLL examinations.

5.  The defendant has pleaded guilty to five charges.

6.  The first charge was committed on 2 October 2013, when the defendant used a false instrument, which she knew was false, a transcript of a Chinese University JD degree, with the intention of inducing the Commissioner of Oath to accept it as genuine.  She was 24 years old at the time, not a young, immature adolescent who did not know right from wrong.

7.  Charge 2 was committed between August 2013 and August 2015, when the defendant obtained services by deception, dishonestly obtained an education from the University of Hong Kong, namely an education known as the PCLL course by falsely representing that her credentials in an application form for admission were genuine and accurate, and the certified copy of a transcript of her academic record issued by the Chinese University, a JD degree dated 29 July 2013, was genuine.

8.  Charge 3 was committed in the summer of 2015, when the defendant obtained a pecuniary advantage by deception, namely employment in a solicitors’ firm, by falsely representing that her credentials in an application for employment and the supporting documents were accurate and genuine.

9.  Charge 4 was committed on 29 September 2015, when the defendant made a false statutory declaration.  She knowingly and wilfully made a false statutory declaration that she had passed the PCLL examinations.

10.  Charge 5 was committed on 30 September 2015, when the defendant used a copy of the false instrument, namely a photocopy of a post-graduate certificate in laws, which she knew to be a false instrument, with the intention of inducing the staff of the Law Society of Hong Kong to accept it as a copy of a genuine instrument.

11.  These offences were uncovered after the defendant had applied for the position of a trainee solicitor in the law firm Pansy Leung, Tang & Chua.  She was employed on 8 July 2015 on the strength of, amongst other documents, her JD transcript of her academic record issued by the Chinese University as well as her PCLL certificate physically produced to her deceived employer on 29 September 2015.

12.  In order for the defendant to register her trainee solicitor contract with the Hong Kong Law Society, she had to make a statutory declaration under the Oath and Declarations Ordinance that she had passed the examinations of the PCLL course and that she was not required to sit any supplementary exams to obtain the said certificate.  She also had to include a certified true copy of her PCLL certificate.  This declaration and a copy of the certificate was submitted with her application and the Law Society discovered that the defendant was not listed as one of the candidates who had passed the PCLL examinations between 2013 and 2015.  Her employer was informed on 14 December 2015 and she was summarily dismissed on the same day.  These are the facts for Charges 3 to 5.

13.  Further enquiries were made with HKU and the Chinese University and it was uncovered that she had completed a JD programme but the certified JD transcript received by HKU in her PCLL application was a false instrument and not her real JD transcript and grades.

14.  On 2 August 2013 the defendant had approached the Tai Po District Offices with a false JD transcript to be certified by the attending Commissioner of Oaths, who accepted it as a genuine document.  He certified it as a copy of a genuine document, which the defendant then passed off in her PCLL application as her academic record.  This is Charge 1.

15.  The grades for the 18 subjects in this false document did not match those in the Chinese University student records.  The GPA was 3.460 whereas the student records showed a GPA of 2.492 and a demerit owing to misconduct. The Chinese University issued a JD transcript to the defendant twice on 24 June and 4 September 2013, whereas the false transcript was dated 29 July 2013.  The defendant admitted to the police that she paid for a transcript to be forged with better grades and a pass in the subject of land law.

16.  Based on this false JD transcript, the defendant was accepted and enrolled in the part-time two-year PCLL programme starting from 2013 to 2014.  She failed the first-year examination and had to repeat it in 2014 to 2015.  She was required to repeat the first year again.  In June 2015 she failed the examination again and was automatically withdrawn in August 2015 without completely the programme.  It goes without saying she was never issued a PCLL certificate.

17.  The admissions director of the HKU part-time PCLL programme confirms that a GPA of 2.492 would not have been sufficient to gain admission to the programme in the year of 2013 to 2014.  In that year, a minimum score of overall GPA of 3.014 was required.  A failure in land law would have required proof of other evidence of competence, otherwise it would have been a bar to gain admission. 

18.  The defendant had to commit Charge 1 in order to commit Charge 2.  She had to have a false JD degree certified for the purposes of applying for the PCLL course. 

19.  Charges 3 to 5 all relate to her successful application to the solicitors’ firm for the trainee solicitors contract, which necessitated her making a false statutory declaration and using a false PCLL certificate.

20.  The defendant surrendered herself to the police on 14 December 2015 on the same day she was dismissed from the solicitors’ firm.  She made a full admission under caution in video recorded interviews. She told the police that, because her academic results in the JD programme were not high enough for the PCLL programme, she paid for a false JD transcript online.  She then used it to apply for the part-time PCLL programme.  Despite failing this course, she went on to apply for a trainee solicitors job with a fake PCLL certificate that she had purchased online for about one or two thousand RMB.  She admitted making a false statutory declaration and submitting a copy of a false document in order to register as a trainee solicitor with the Law Society of Hong Kong.

21.  The defendant has a clear record in Hong Kong and I have heard mitigation in full.  Mr Yim really has said all he can say in mitigation on her behalf.  She is now 29 years old and single.  A psychiatrist’s report was submitted to the court on the day of plea.  Her father has been suffering from depression from before the defendant was born and he has been unable to work for decades, so her mother provided for the family, which included the defendant and her younger sister.  Her parents did not have a particularly happy marriage and the family environment was not particularly loving or harmonious.  Her mother is now retired and her younger sister is still a student, so the defendant is now the family sole breadwinner.

22.  The defendant has written a letter of mitigation.  She explains why she committed these offences and this mistake. She gives more details of her family background.  She is deeply remorseful. She helps tutor an underprivileged child for free in her spare time because she feels strongly about children receiving a good education.  She reads to children in English in community centres.  I have taken all of the contents of her letter into account.

23.  Clearly from a young age the defendant was a high achiever and very academic.  Her parents did at least agree on the importance of a good education.  The defendant won many academic prizes, did very well in her GCSEs and A levels.  She graduated from the University of Hong Kong with a BA, a double major in comparative literature, politics and public administrator.  She then enrolled in the JD programme.  However, she had to borrow a large amount of money to do this.

24.  The psychiatrist’s report describes the defendant as struggling during the JD programme and becoming depressed.  She displayed all the classic symptoms of depression.  It became a vicious circle because the more worried and depressed she became, the more her academic performance was affected.  For the first time she experienced academic difficulties and yet she had borrowed money to study this course.  The defendant describes herself as having had an emotional breakdown during this time and was foolish not to seek professional help.

25.  Since seeing this doctor, she now feels that she enrolled in the JD course to gain praise and appreciation from her parents. She felt what she had already achieved at school and a double major BA did not impress them enough.  They were not proud enough of her.  She felt pursuing a legal career would make them finally happy.  When she failed to reach a high enough GPA score to apply for the PCLL course, she felt her only way forward was to obtain a false document to apply for the course.  She then had to borrow more money to study this course.  She felt the only way to pay back these loans was to perpetuate the lies and apply for a trainee solicitor’s job even though she failed the PCLL course.

26.  After reading this doctor’s report and hearing mitigation on the day of plea, I did call for a community service order report.  It is recommended today. 

27.  However, I did ask the prosecution to inform me if the part-time PCLL course was as competitive as the full-time course because they did not have that information at hand on the plea day.  I did warn the defendant that this is a factor I find relevant to the appropriateness of a community service order.

28.  There are no tariffs for offences of this nature, but the possible consequences of the defendant’s actions must be relevant.  In particular, a place at the PCLL course is competitive and today I have been told that the defendant has more than likely cost a genuine candidate a place on that part-time course.  I have a statement from a staff member who has given figures for that relevant year and the quota for the part-time course was 80 places.  The faculty received 189 applications for that part-time course and 276 applications for both the part-time and the full-time course. Therefore, there were 465 applicants for the 80 places for the part-time course.  A qualified student must have missed an opportunity to pursue this legal course and possibly a legal career because of the defendant’s dishonesty and deception.

29.  In addition, the defendant then joined a law firm as a trainee solicitor for a period of five months, when she was clearly not qualified.  She had failed the PCLL first-year exams twice.  She would have been given responsibilities at the law firm based on her supposed qualifications.  She could have been a liability that may have cost the law firm dearly if she had made any mistakes.

30.  The prosecution has referred me to the authority of The Attorney General v Tai Chin Wah [1993] 1 HKC 1, where an appellant faced five charges as well.  He uttered forged English Law Society documents to the Hong Kong Law Society, purporting to have qualified in the United Kingdom.  He then practised law as a solicitor in Hong Kong for eight years, even becoming a senior partner in his firm.  A suspended sentence imposed was reviewed and the Court of Appeal found it wrong in principle and manifestly inadequate.  The Court of Appeal said that a proper overall starting point for sentencing in these types of offences after trial would be from 18 months to 2 years’ immediate imprisonment.  That appellant’s crimes were more serious, for not only did he successfully attain a high position in the legal community, he was there for a long period of time.  He would also have made a significant amount of money during those eight years.

31.  I have to say that this defendant’s actions were still brazen.  It is one thing to apply for the PCLL with a doctored transcript because your grades are not quite there, but after failing that, and failing badly, instead of accepting reality the defendant very boldly applies for a job as a qualified lawyer when nothing could have been further from the truth.

32.  However, I can see why she did it, after reading the doctor’s report.  Nonetheless, her actions surely deprived a legitimately qualified student of a place on the PCLL course.  Therefore, her actions constituted offences of considerable gravity and do deserve a custodial sentence.  I am afraid community service is not appropriate and will not reflect the seriousness of the facts and consequences.

33.  After careful consideration of mitigation and the facts of the case, as well as the defendant’s plea and previous clear record, I find the following starting points appropriate.  For Charges 1, 2, 3 and 5, I take a starting point of 15 months.  For Charge 4, I take a starting point of 12 months.  I note the maximum sentence for Charge 4 is 2 years.

34.  The defendant has pleaded guilty and is therefore entitled to a discount of one-third, which means the sentences are reduced to 10 months for all but the fourth charge, which is reduced to 8 months.

35.  I have to say that the psychiatrist’s report was what swayed me on the last occasion to call for a community service order.  I accept and can see why the defendant developed symptoms of depression when she embarked on the JD programme.  Therefore, I intend to reduce the sentences for each charge by a further 1 month to take into account the medical report and her mental condition that developed during that programme.

36.  Therefore the defendant is sentenced as follows:

(1)  for Charges 1, 2, 3 and 5: 9 months’ imprisonment;

(2)  for Charge 4, 7 months’ imprisonment.

37.  I order all five charges to be served concurrently.

38.  Defendant is sentenced to a total of 9 months’ imprisonment.

39.  The defendant is to be offered psychiatric treatment whilst serving this sentence.