HKSAR v. LEE KWOK ON

DCCC 18/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 18 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to seven counts of fraud, contrary to Section 16A of the Theft Ordinance, Cap. 210.

2.  The particulars of the offences are very similar.

3.  The defendant, together with a person known as “Ah Yu” and other persons unknown, applied for and used forged supporting documents to convince banks to approve various loans and credit cards in the defendant’s name. 

4.  In total, four credit cards were applied for: 

(1) two from Standard Chartered Bank, both having a credit card limit of HK$5,000 each;

(2) one from Hang Seng Bank, with a credit card limit of $28,000; and

(3) the last one from the Bank of East Asia, with a limit of HK$20,000.

5.  Three loans were successfully applied for:

(1) one being from Standard Chartered Bank for $13,000;

(2) Hang Seng Bank for $20,000; and

(3) lastly, Bank of China for $89,000.

6.  All the credit cards were used to their limits and no loans have, to date, been repaid.

7.  The losses suffered by three banks total $185,397, according to the figures from the summary of facts.  Interest owing has not been taken into account.  In reality the loss is a higher amount. There has been no restitution.  This is not an insignificant amount.

8.  The defendant’s best mitigation is his plea of guilty today.  Defendant is not a man of clear record.  He has one previous, but it is not similar; it is a criminal damage offence for which he was convicted in 2010.

9.  At the time of the offences, he was 23 years old but is now 25.  What he essentially did was agree to use his identity card and identity to apply for loans and credit cards.

10.  I have been told that he was paid $4,000 by Ah Yu, who enticed him to participate in these frauds for a share of money.  Defendant says that it was this Ah Yu who prepared or obtained all the forged supporting documents required by banks.

11.  By way of explanation, I have been told the defendant at the time of meeting Ah Yu was financial desperate.  He, his younger brother and his mother, were all unemployed at that time.  He used the $4,000 he received from Ah Yu to pay for rent and household expenses.

12.  I have been told the defendant regrets his actions, is remorseful and will turn over a new leaf.  I have been told he is now employed and working in a bar as a bartender and his employer has written a letter on his behalf.

13.  Because of his financial situation now, he is unable to repay any of the loss suffered.

14.  These offences took place over several months, in April/May 2011.  He was arrested in November 2011.  His first appearance in the magistracy was December 2013, two years later. 

15.  The defence say that the delay in prosecuting the defendant is a mitigating factor the court should consider relevant.

16.  Prosecution has explained that at that time, some 60 persons were arrested for these types of offences and there was a suspected syndicate involved. 

17.  For the defendant alone, there were three banks involved.  Now, that would also mean that, within those banks, there were two different departments involved - the credit card department and the loan department - and in helping the police with documentary evidence, banks can take time to provide the evidence required.

18.  I can understand why this would have taken two years to investigate, get legal advice and bring charges. 

19.  It is a significant period of time that the defendant would have to wait to know his fate.  However, it is not such a long period of time that it means he is entitled to a further discount to the appropriate starting point.

20.  Defence counsel has referred me to one authority, HKSAR v Wong Kar Wah, CACC 260 and 261/2006. 

21.  However, all parties agree there are no specific guidelines for this type of offence.  Each case is fact-specific.  It would depend on, for example, the role played by the defendant, the loss suffered, how many victims there were, whether or not it was a syndicate, the sophistication of the forged supporting documents, to name a few factors.

22.  The offence and facts are serious.  Imprisonment is inevitable.  In fact, offences of this nature will require a deterrent sentence.

23.  What I consider relevant for this case is the defendant’s plea, the fact he has no previous similar convictions, the defendant’s background and age.  The defendant is young but not that young, where I can consider him of extreme youth.  I will also consider the reason he has given for committing the offence.  Sophistication of the offence is a consideration as well as obviously the loss suffered by a total of three financial institutions here, the loss being over $185,000, and it is unlikely that any of the banks will receive any compensation or restitution.

24.  These offences took place, all seven took place over a period of two to three months. 

25.  Where the defendant’s role is concerned, I will accept he was not the mastermind.  However, he is an essential cog in the wheel.  He sold his identity to commit these offences.  He would have known that the banks would suffer loss and that there was no intention ever to repay any of the loans obtained or the credit cards used.

26.  Defendant, please stand up.

27.  Having considered all those factors, I will take a global approach, bearing in mind specifically that seven offences were committed over a couple of months and the loss was, as I have said, about $185,000.

28.  I find an overall starting point of 3 years’ imprisonment appropriate.

29.  You pleaded guilty; you are entitled to a discount of one-third.  That would be a reduction of one year.

30.  For each offence, this defendant is sentenced to 2 years’ imprisonment, all to be served concurrently.

31.  For Charges 1 to 7, the defendant is sentenced to a total of 2 years’ imprisonment.