HKSAR v. POON HOI KAN

DCCC 191/2018

[2018] HKDC 1271

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 191 OF 2018

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Reasons for Sentence

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1.   The defendant faced 12 charges, of which three were alternative charges.  He pleaded guilty to six charges.  The pleas were accepted by the prosecution.  Upon the application of the prosecution, I allowed the remaining six charges to be left on the court’s file, not to be proceeded with without leave of the court.

The facts

2.   The facts can be summarised as follows.

3.   In February 1999, the defendant enrolled in the course for Bachelor of Applied Science (Computer Science) of Royal Melbourne Institute of Technology (RMIT) in Australia (“the bachelor degree”). He failed part of the course and no graduate certificate was awarded to him. 

4.   Between December 2002 and December 2004, the defendant worked as a general clerk in the then-Education and Manpower Bureau. At work he had a chance to obtain a photocopy of a genuine graduate certificate dated 19 December 2001 of the said bachelor degree of RMIT.  He made a false copy of it by covering the genuine holder’s name with his own name (document A).

Charge 1 (Using a copy of a false instrument)

5.   On or about 25 May 2004, the defendant applied for the post of District Council Secretariat Assistant with the Home Affairs Department (HAD).  On the job application form, the defendant falsely claimed that he had obtained the said bachelor degree and attached a copy of document A in support of his application.  The defendant was subsequently offered the job.  From 25 April 2005 to 26 March 2006, he received a total remuneration of $90,828.40.

Charge 4 (Obtaining pecuniary advantage by deception)

6.   On or about 15 February 2006, the defendant applied for the post of Processing Officer with the Student Financial Assistance Agency.  On the job application form, the defendant falsely claimed that he had obtained the said bachelor degree.  He was subsequently offered the job.  From 27 March 2006 to 2 June 2008, the defendant received a total remuneration of $226,441.35.

Charge 8 (Obtaining pecuniary advantage by deception)

7.   On or about 8 April 2010, the defendant applied for the post of Contract Project Executive with the HAD.  On the application form, the defendant falsely claimed that he had obtained the said bachelor degree.  He was offered the job subsequently.  From 2 August 2010 to 7 November 2010, defendant received a total remuneration of $42,249.52.

Charge 9 (Using a copy of a false instrument)

8.   On or about 10 December 2010, the defendant applied for the post of District Council Project Co-ordinator with the HAD.  On the job application form, the defendant falsely claimed that he had obtained the said bachelor degree and he attached a copy of document A to support his application.  He was offered the job subsequently.  From 5 September 2011 to 9 December 2012, the defendant received a total remuneration of $196,419.15.

Charge 10 (Using a copy of a false instrument)

9.   On or about 17 March 2011, the defendant applied for the post of District Council Executive Assistant with the HAD.  On the job application form, he falsely claimed that he had obtained the same bachelor degree and he attached a copy of document A to support his application.  He was offered the job.  From 10 December 2012 and 27 April 2015, the defendant received a total remuneration of $577,715.77.

Charge 11 (Using a copy of a false instrument)

10.   On or about 3 June 2013, defendant applied for the post of Assistant Clerical Officer with the ICAC.  On the job application form, he falsely claimed that he had obtained the said bachelor degree.

11.   On 29 July 2013, the defendant attended a job interview and he produced a copy of document A.  Later, he declined to complete a form for checking and hence his application was not further processed.

12.   RMIT confirmed that the defendant had not completed the said bachelor degree course and document A was false.

13.   On 1 December 2015, defendant was arrested by the ICAC officers.  Under caution, the defendant admitted having forged document A.

Defendant’s background and mitigation

14.   The defendant, aged 41, has one previous conviction concerning disclosing identity of person under ICAC investigation.  His counsel, Mr Marash, senior counsel, informed the court that the criminal record relates to the disclosure of the identity of his own brother arising from a dispute over the estate of their grandmother. 

15.   The defendant is married with no children.  He has been working with an accounting firm for three years.

16.   Mitigation letters written by the defendant’s current employer, the defendant’s wife and the defendant’s sisters have been submitted to the court.  They describe the defendant as a hardworking employee, a caring husband, and a person of kind heart.  The defendant also wrote a letter to express his remorse.

17.   In mitigation, Mr Marash, SC, submitted that the defendant did complete the three-year course in the RMIT.  He only failed a number of subjects and hence could not obtain the degree.  Yet, he could obtain distinctions and credits in some subjects.

18.   The defendant did later obtain a part-time bachelor’s degree in criminal justice at the University of Hong Kong in November 2008.  Hence, by the time he applied for the jobs in Charges 9, 10 and 11, he did have a university degree.

19.   It was submitted that the jobs that the defendant obtained were of clerical nature and did not require a bachelor degree as qualification. 

20.   It was emphasised in mitigation that the defendant has repaid voluntarily all of the money he earned, together with the MPF contributions and gratuities, to the Hong Kong SAR government.  The restitution in the sum of about 1.2 million dollars should be regarded as a strong mitigating factor.

21.   Counsel also submitted that the present case is not like a case where a person presents a medical or law degree to obtain a professional job that he cannot perform to the required standard so that the public would be put at risk.

22.   Appraisal reports of the defendant in his previous employment with various government departments were also made available to the court.  These reports recorded favourable comments on the defendant’s ability and performance. 

23.   Mr Marash, SC, also stressed that there was a delay in prosecution as the defendant was arrested on 1 December 2015. Submitting that it is an exceptional case, Mr Marash urged the court to consider a community service order or a suspended sentence.

24.   Mr Marash cited a series of sentencing cases in support of his submission, among the cases is Secretary for Justice v Hui Siu Man [1999]2 HKLRD 236.  That is a case involving a carefully planned and executed series of frauds over a long period, which involved grave breaches of trust.  The defendant made full restitution of about $630,000. Coupled with the delay in the prosecution of the offences and the defendant’s guilty plea, the suspended sentence ordered by the judge was confirmed by the Court of Appeal upon the application for review of sentence by the Secretary for Justice.

25.   In HKSAR v Shih Tian Liang, HCMA 16/2008, a security guard used a copy of his falsely altered identity card in which he had lowered his age in order to obtain a renewal of his contract as a security guard, the age limit being 65 years.  On appeal, McMahon J varied the sentence of 4 months’ imprisonment to one of 150 hours of community service, which he found was appropriate in the circumstances to protect the interests of the community and that of employers.

26.   In HKSAR v Chan King Wan, HCMA 226/2007, the defendant used a false reference letter to gain employment as a secretary and thereby obtained a pecuniary advantage.  The defendant pleaded not guilty but was convicted after trial.  She had originally been sentenced to 6 months’ imprisonment.  Nguyen J allowed her appeal and sentenced her to perform 200 hours of community service, noting that community service is not a soft option but a real and effective alternative to prison.

27.  In HKSAR v Au Yuen Wah Gloria [2005]1 HKC 449, the appellant was convicted of obtaining pecuniary advantage by deception, by failing to disclose a conviction for theft in 1975 in order to obtain employment as a crown counsel in 1988.  Saunders J imposed a sentence of 180 hours of community service.  This is an example of a case where the defendant lied to gain employment but was in fact qualified to do the work required.

28.   In HKSAR v Poon Lap Fung, HCMA 413/1998, where the defendant pleaded guilty to obtaining pecuniary advantage by deception, by using a document stating that he had worked as a marketing executive for a company for a salary of $18,000, when he had in fact only worked for that company as a freelance agent with no fixed salary.  He earned a total of $66,590 during the three-month employment, which he obtained by virtue of the forged document.  Nguyen J allowed his appeal and sentenced him to 4 months’ imprisonment, suspended for 12 months, and fined him $30,000.

29.  I have myself also considered another case not cited by the parties, The AG vTai Chin Wah, CAAR 5/1992.  In that case, the defendant uttered forged document purporting to be a Law Society of England and Wales certificate of passing a solicitor’s final examination.  He hence obtained his qualification to practise as a solicitor in Hong Kong and fraudulently practised as a lawyer for eight years.  He was sentenced to 6 months’ imprisonment, suspended for 12 months.  The AG applied for review of the sentence.  On appeal, the Court of Appeal said, making all due allowance for every factor of mitigation, a sentence of 1-year imprisonment would have been appropriate; but that was not a case that a suspended sentence should have been made.

30.   The gravity of that case is no doubt much more serious than the case before this court. 

31.  At mitigation, my initial reaction was that because of the repetition of the offences and the amount of remuneration obtained by deceit, community service order (CSO) was not an appropriate option of sentence.  I therefore declined to call for a CSO suitability report and proceeded to sentencing the defendant.

32.   However, having given further thought to the matter, I considered that the defendant should not be deprived of the chance of such a possibility.  I therefore, on the resumed hearing, adjourned the case further to call for a CSO suitability report.  The report is now available.  The report is very favourable to the defendant.  He is found to be a suitable person to perform work under a CSO.

33.   The CSO report now provides a detailed background and information about the defendant.  The defendant passed the HKCEE with fair results in 1995.  He failed to obtain satisfactory results in the Hong Kong A-level examination in 1997 and was unable to pursue further study in Hong Kong.  He then first attended a foundation programme in Australia before he could be admitted to the RMIT for the said bachelor degree course.  He ceased his studies in 2001 and returned to Hong Kong for employment.

34.  Through part-time studies, he was awarded a bachelor degree in criminal justice at the Hong Kong University in 2008. Since August 2015, the defendant has been working in an accounting firm and is now a business development executive earning around $25,000 a month.  His supervisor commented that the defendant is hardworking, responsible, friendly and reliable.  He often takes initiative to help in sharing workload of other colleagues after finishing his own job.

35.   The defendant’s wife is a professional accountant.  They maintain good marital relationship despite that the defendant has been involved in a civil dispute with his elder brother and two criminal cases.  The couple participated as volunteer tutors in a voluntary organisation providing free tutorial service to the underprivileged.

36.   To the wife, the defendant committed the offences out of foolishness and the shame that his wife had to shoulder the financial burden of the family.  She praises her husband as a good man and responsible husband.  She believes that the defendant is now truly remorseful.

37.   The probation officer noted that the defendant was previously placed on a CSO for disclosing ICAC investigation, which happened well after the offences in the present case.  His performance in the last CSO was rated as good in the initial three times and very good for the rest.  The CSO ended satisfactorily in March 2017. 

38.   The probation officer also emphasised in his report that the defendant had repaid nearly $1.2 million to the government for the salaries he earned by the deception in this case. 

39.   Noting the remorse expressed by the defendant, the probation officer remarked that the defendant’s performing community service can serve the positive purpose of making reparation to the community.  Not only that the defendant can rehabilitate through making meaningful contribution, but the society in general can benefit.  To this particular family, CSO is a chance for the defendant to continue his role as a husband and a significant member to his and his wife’s families.

40.   The probation officer therefore recommended that the defendant be placed on CSO for 200 to 240 hours.

The court’s consideration

41.   This is not an easy case for sentencing. There is no sentencing guideline for the offences that the defendant has pleaded guilty to.  The defendant repeatedly practised deceit on the Hong Kong SAR government by exaggerating his academic qualification with forged copy of bachelor’s certificate in his applications for jobs.  By his deceit, he earned his remuneration for more than a million dollars.  One would naturally start with the assumption that the offences require immediate custodial terms.

42.   Against that, however, there are matters that the court must not neglect.  First, it appears that, and it is not challenged by the prosecution, the various jobs the defendant applied for did not require a bachelor degree as a minimum qualification.  Indeed, by reference to the monthly salary, the jobs relating to Charges 1, 4, 8, 9 and 10 certainly did not correspond to the salary of a post requiring a university qualification. 

43.   I would accept the submission of Mr Marash, SC, that all the jobs were of clerical nature, which did not require the special skill held out by the false university qualification.  The present case is different from other cases where the defendants would not have been qualified to provide his service for remuneration.

44.   That said, I acknowledge that the exaggerated academic background would increase his chances of getting the jobs. That was unfair to other applicants who were entitled to a fair competition.

45.   But undoubtedly the case of the defendant cannot be compared to cases where the defendants forged their qualification to become professionals and to provide professional service to the public, which they were never qualified to provide.  Indeed, various appraisal reports prepared by the defendant’s superiors during the years he was under the employ of the government reflect that the defendant performed well in his jobs.  He was qualified and competent for the jobs.

46.   Secondly, the defendant obtained a bachelor degree from the Hong Kong University in November 2008.  The bulk of the wages he earned was in fact earned from his last two jobs (Charges 9 and 10), when he had already obtained his Hong Kong University degree.  Apparently, the motivation of his lie when he applied for these two jobs was not to increase his chances of getting the job, but to be consistent in his records with the government in order to cover up his initial lie.  No apparent advantage would have been gained by the false representation about the bogus degree from RMIT. 

47.   This is another story that once a previous lie was told, that can only be covered up by continuous lies.  In the present case, the defendant started his initial lie when he was young and immature, facing tremendous difficulty in finding a job when Hong Kong was in economic turmoil in 2004.  He told his initial lie very long time ago.  Since then, 14 years have passed.

48.   Apart from the exaggeration of his academic qualification, the defendant has basically lived a law-abiding life and has become a responsible family man and employee.

49.   Moreover, the defendant has well demonstrated his remorse.  When he was arrested, he admitted having forged the university certificate.  At the early stage of the proceedings in the District Court, he indicated his guilty plea.  Not only that his earlier admissions and guilty plea are of particular importance in the case, the voluntary restitution of all the remuneration he had earned from his 10-year service with the government in a sum of about $1.2 million is a very significant mitigating factor.  This is a huge sum that he might not have to repay. 

50.   The voluntary repayment of all he earned shows his exceptionally genuine remorse.  I bear in mind that restitution alone should not warrant a non-custodial sentence or it would be an inducement to persons who take the risk of committing offence knowing that they could avoid imprisonment simply by paying back the ill-gotten gains, but this is no doubt a very strong mitigating factor in the present case.

51.   A further factor which must be taken into account is the delay in bringing the defendant to court.  The defendant was arrested on 1 December 2015.  He was first brought to the Magistrates’ Court on 2 March this year.  The prosecution has submitted a chronology of investigation which shows that a report of this case was first received by the ICAC in October 2015.  A statement from a representative of RMIT was already received in January 2017.  Legal advice was only finalised in January 2018 and the defendant was charged on 28 February this year. 

52.   It seems that much time was taken in the process of taking legal advice.  I can understand the workload of the Department of Justice, but the case was not a very complicated one.  In any case, the delay was not through the fault of the defendant, who already admitted the forgery of the document when he was arrested.

53.   The defendant says in his mitigation letter that since the arrest he could not sleep well every night, worrying not only about himself but also his wife, as he feared that the case might affect his wife.  I accept that he must be anxious during the lengthy period of time waiting for prosecution.  Though he has only himself to blame, the prolonged anxiety caused to him in the delay might not be necessary and has contributed to his punishment through no fault of himself. 

54.   This delay, on the other hand, has given him the opportunity to rehabilitate himself by obtaining steady employment. Since the arrest, he has worked well on a good job with an accounting firm as a business development executive for three years.  He has turned a new page of his life, so to speak.  The defendant has strong support of a very good wife. I find the risk of re-offending very slight.  If the defendant is sentenced to jail, he would be deprived of a good job with an apparently reputable company. His life may  be crushed.

55.   The circumstances of falsification of documents in this case is not the worst sort of the offences.  I also note from the CSO report that the defendant in the past participated in voluntary work.

56.   I must emphasise that people who forge documents with a view to obtaining employment should always stand the risk of immediate custodial sentence.  However, standing back and looking matters in the round, I find that there are very exceptional circumstances in the present case to justify the need for individual justice for this defendant.  It is not just to crush the life of a man for a lie he told as a young and desperate job-hunter long time ago.  In my judgment, an immediate custodial sentence as a deterrent sentence is not necessary in the circumstances of the present case.

57.   However, a suspended sentence, in my view, may not fully reflect the criminality of the offences.  Rather, the imposition of a CSO would be appropriate to protect the interests of the community and that of employers in particular.

58.   I am satisfied that the Brown criteria for CSO endorsed by the Court of Appeal in HKSAR v Chow Chak Man have been met.  Defendant has given his consent to be placed on such order. 

The Sentence

59.   The terms and effect of the order having been explained to the defendant, I order that the defendant perform a total of 240 hours community service for all the offences he has pleaded guilty to, pursuant to section 4 of the CSO Ordinance.