HKSAR v. Chang Chi Keung, David

DCCC 20/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 20 OF 2015

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has been convicted after trial on 15 charges of forgery. In summary, the 15 charges relate to 15 cheques signed by the defendant.

2.The defendant was the company secretary of a company set up to manage a property owned by his cousin.  The defendant forged his cousin’s signature on the 15 cheques issued by the company, this being done, apparently, to assist his younger brother who was using the company extensively in his own business dealings.

3.This is a case of forgery simpliciter.  There was no accompanying fraud or monetary deception alleged against the defendant.

4.All the cheques, as I understand, went through as normal, honoured and drawn on the account which must have had funds.  The beneficiaries of the cheques, as far as one could see, suffered no losses.  I am not aware of any losses suffered by the company and the defendant received no personal benefit.

5.However, at the time of the issue of the cheques, they were forgeries.  There would, of course, be a risk that they would not be honoured in normal banking business.

6.Defendant, I am told, has a clear record.

7.I note that the creation of a forged cheque, a financial instrument, by adding a forged signature, undermines the integrity of the banking system, which relies on such instruments being genuine.  The truthfulness of the instrument, the cheque, is fundamental to the system’s integrity.  People who forge items such as this can normally expect to go to prison immediately. 

8.The defence submits that the circumstances of this offence, combined with the circumstances of the offender, are exceptional and that because of this the court can properly suspend any sentence of imprisonment that it considers to be appropriate.

9.It is said that this is not a typical case of an arm’s length fraudulent transaction, supported by forged documentation, certainly not on the part of this defendant.

10.This is a small family company owned by a cousin, of which the defendant was the company secretary, set up simply to manage a property, because the cousin was overseas.  The issue of the cheques was for the defendant’s younger brother, save for a few made out to himself that related to expenses apparently incurred by the defendant, for which the defendant was in funds.

11.The defendant’s acts were simple forgeries, the intent, as alleged in the charge, being to induce another to accept them as genuine and likely to act to their detriment or take upon a risk.

12.The defendant, as said in mitigation, has received no personal benefit from the forgeries.  He is a man living on public assistance with his mother.  The forgeries were simply created to help his younger brother.

13.Nevertheless, over a period of almost one year, 15 cheques to a total well over $3 million were signed by the defendant.

14.Reference is also made to the defendant’s personal circumstances and I have obtained a series of reports on the defendant, because he is clearly not the normal kind of defendant. 

15.He has a clear record.  He is unemployed now. The evidence at trial show the defendant has laboured under two psychiatric illnesses for a number of years.  He also appears to have what I think could be described as psychological maladjustments.  I therefore obtained psychiatric and psychological reports along with a background report.

16.The background report shows the defendant is locally born, lives with his mother in public housing.  He had been educated partly overseas.  He had worked in private business and also the Customs and Excise Department.  He was retired from the Customs and Excise Department on medical grounds that relate to his psychiatric condition. 

17.The defendant has suffered from depression since 2005 and alcohol dependent syndrome since 2008, although there is reference to that being 2004 in other documentation.  These matters have apparently been exacerbated by the defendant’s second younger brother’s suicide in 2012.

18.To the probation officer, the defendant admitted what he said his wrongdoing by signing the cheques.  He wished to be able to continue to care for his elderly mother, with whom he lives.

19.The probation officer describes the offence as being committed out of the defendant’s weak legal concept and desire to assist his first younger brother.

20.The psychiatric report confirms the defendant had depression and alcohol dependence, this says, since 2004.  His retirement on medical grounds from Customs and Excise indicated he is not really capable any more of holding down employment.  The defendant is maintained on antidepressants, sedatives and hypnotics.  He can be managed by way of outpatient treatment.  As of 2014, the defendant’s mood is low.  His energy level is suboptimal and interest decreased.  He apparently drinks quite heavily.

21.The psychologist’s report identifies what he describes as certain personality traits of the defendant, such as inflexibility and negativism and a need to blame external factors and others for the setbacks in his life.  These traits apparently lead him into difficulties in reflecting and modifying his own behaviour.  They underlie the onset of mood problems, which led to depression and alcohol dependence. 

22.It says whilst not amounting to a full clinical presentation of a specific personality disorder, clearly we are close to it in this defendant’s case.  He has poor insight and little appreciation of what he has done.

23.The report does say that the defendant’s concerns for his younger brother and his cousin and as well as his intention to help them were described as genuine.  His acts are described to be out of a consideration to offer assistance to his younger brother.

24.It is said that the defendant still maintains a poor insight into his problem and this offence.  He does not seem to have learnt much and attained a much improved appreciation, but that may be what one expects from a person labouring under the kind of deficiencies of the defendant, both psychiatric and psychological, that the defendant has.  It is said the defendant requires help to internalise appropriate sets of values and standards adopted by society as a whole.

The approach to sentencing in this case

25.As I have indicated, a sentence of imprisonment as appropriate for offences such as forgery would normally in a case such as this be one that would be served immediately.

26.The defendant has faced these charges alone. His younger brother, I am told, has been investigated but has absconded from the investigation and as yet is not charged with any offence. 

27.However, the evidence such as it was in relation to these matters did show that the younger brother must be the prime mover in this matter and, insofar as evidence was called to deal with people who had dealt with the company PGL, nobody identified this defendant as having been involved. 

28.In fact, the psychiatric and psychological evidence appears to show the defendant was not capable of any productive work, even of an illicit nature.  The defendant’s role in this is confined to what he is charged with, signing cheques simpliciter and forgery.

29.Although the defendant was, on the face of it, the company secretary, it would appear that without his brother’s involvement in the use of the company the defendant would never have been called upon to act as he did.

30.And I form the view from having seen and heard the evidence in relation to this case and the psychiatric and the psychological reports that there is little risk of the defendant re-offending, certainly in this manner.

31.I am also referred to a delay to coming to court.  The matter has been investigated since 2011 and it appears to be primarily as a result of the younger brother’s absence. 

32.This is no fault of the prosecution; it is no fault of the defendant.  But it still is a factor that I should bear in mind when considering the length of any sentence and whether any deduction should be from that sentence.

33.Looking at, as I say, the term of imprisonment as the appropriate sentence for this case, one needs to determine what length that should be, taking into account the factors that I have already set out.

34.I consider that an overall sentence is the correct approach.  For that, I would take a starting point of 20 months’ imprisonment on each charge and reduce that to 18 months’ imprisonment to acknowledge the delay that has been incurred.

35.So the sentence would be on each charge one of 18 months’ imprisonment.

36.This would suffice also to meet the overall totality of criminality, so those sentences, if activated, would be served concurrently.

37.Now I turn to the question of whether those sentences should be made to come into effect immediately or there should be a suspension as urged on me by the defence.

38.Those who forge cheques can expect to go to prison.  There are no guidelines for this type of offence.  Each offence depends primarily on its own circumstances, such as the amount of money involved, the length of time over which it occurred, any fraudulent acts that accompanied the forgeries, whether loss was suffered and by whom, and whether benefit was obtained and by whom.

39.I initially take into account the defendant’s role was secondary to his brother, done to assist him, appears confined to writing out these cheques and taking advantage of his position in the company.

40.I take into account his clear record, the time taken, also again the time taken to bring the matter to court, and the fact that there is no evidence of any personal enrichment from these forgeries.

41.Now, also of importance in my consideration in this case is consideration of the defendant’s mental condition and this is relevant in at least two ways. 

42.Firstly, those who suffer from mental illness find sentences of imprisonment more difficult and harsher than those who do not suffer.  It is universally acknowledged in their cases to be a greater punishment and can lead to long-term adjustment problems and exacerbations of illnesses that they labour under.  A mentally ill person, a person suffering from psychiatric illness, is placed at a disadvantage to a mentally normal offender.

43.Secondly, although these matters do not go in this case to a capacity to form the intent to commit the offences, they too perhaps affect the appreciation of issues such as culpability and the ability for a person to justify their actions in an irrational way, and there is some evidence of that occurring here.

44.Now, these factors are also relevant to how I should exercise any discretion I have as to the sentencing of the defendant.

45.On balance, taking all these factors into account, I consider that the defendant’s position has moved into the area where it could be described as an exception, and in the interests of justice and the general deterrence of this offender, both these interests can be achieved by a suspension of the sentences of imprisonment that I will impose.

46.On each charge, therefore, there is a sentence of 18 months’ imprisonment to be served concurrently if activated.  Those sentences will be suspended for a period of 2 years. 

COURT: As far as the defendant is concerned, you do not go to prison immediately, but if you commit any further offence punishable by imprisonment in the next two years, you will serve those terms of imprisonment in whole or in part. Do you understand this?

DEFENDANT: Understand.