HKSAR v. Law Wing Ka, Devina (also known as Law Wing Yiu, Devina)

DCCC 1101/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1101 OF 2015

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to 2 charges of fraud. 

2.Her aged parents co-owned a residential property in which they resided with her.  In respect of the 1^st Charge, in early October 2013, she began to communicate with a finance company for a mortgage loan. She faxed over the copies of the required documents. 

3.On 16 October 2013, she attended the office of a finance company (“YCS”) with an elderly person recruited by her to impersonate her mother.  Her purpose was to obtain a mortgage loan secured by the residential property without her parents’ knowledge.  As an important part of the application, she provided the finance company with a power of attorney purportedly, but was not actually, made by her father in favour of her mother to apply for the loan.  She also provided the finance company the identity cards, the address proofs, and bank documents, of herself and her parents, apart from her own income proof.  After the application had been approved, the Defendant and the impersonator signed a promissory note to repay the finance company.  Then they attended a solicitors’ firm to formalize the loan.  There the impersonator signed a consent letter to have the loan released to the Defendant, who received $1,100,000 as the loan.   

4.In respect of the 2^nd Charge, the circumstances were similar, minor permutations being that no promissory note was signed but a deed of guarantee was signed by the Defendant.  She received $500,000 as the loan from the finance company (“WAC”). 

5.From November 2013 onward, letters to her mother in demand of repayment began to unnerve her parents. They checked with the Land Registry and found the 2 incumbrances registered against the property.  Her mother recalled once having lost her identity card and later found it in the Defendant’s purse.  Her father recalled the Defendant asking him to sign a telephone contract which must have been the power of attorney for the mortgage. 

6.On 30 April 2014, the Defendant was arrested.  Under caution, she claimed that her mother knew about the loans and the impersonator was called in because of her mother’s immobility. 

7.In a subsequent video-recorded interview under caution, she said she was in debts of $1,000,000.  She applied for the loans without her parents’ knowledge or consent as they had earlier on refused to have her mortgage the property.  She asked a solicitors’ firm to prepare the power of attorney and deceived her father into signing it on the pretext that it was for tax deduction.  She had met the impersonator, who resembled her mother, in a park.  She paid $150,000 to the impersonator.  The other part of the loans was paid to her creditors. 

Mitigation

8.The Defendant is 44 years of age, educated up to F. 5 level.  She has a clear record.  She had worked as a secretary, an advertising officer, public relations officer.  She had set up a public relations company with others.  She ended up in broken finance.  She worked as a marketing officer for artists.  Her employer lent her money to repay her debts.  She left the employment while still owed $300,000 to her employer.  She owed $1,200,000 to other creditors.  She then worked as freelance public relations officer.  A concert in her charge failed to materialize. The sponsor demanded damages from her.  In October 2013, she came to know an agent who arranged for her commission of the present offences. 

9.She contributed to the outgoings of the family and the mortgage payments for the property with her father, who worked in the account department of a jewelry shop.  Her mother is a housewife. 

10.Her solicitor estimates that the costs to remove the 2 incumbrances from the land search record will be about several thousand dollars.  The Defendant cannot afford such responsibility.

11.Up to early February 2016, she still owed YCS $778,500 and WAC $450,000.    

Sentencing considerations

12.The prosecution puts forward 2 cases for my reference.  In HKSAR v Kong Kon Yui, Kevin CACC 473/2009, the defendant was a practicing solicitor who defrauded the bank into granting a loan by mortgaging his client’s property in a well-orchestrated scheme with other accomplices.  The client did not know of the matter.  He succeeded with 2 properties, each reaping $5,500,000, but failed with the third.  This was the 1^st Charge, which covered all such 3 transactions.  The 2^nd Charge was for money laundering of the proceeds of $11,000,000, out of which he personally received $1,600,000.  The Court of Appeal approved an overall sentence of 6 years for the 2 charges after trial. 

13.In HKSAR v Li Bijuan CACC 432/2012, the defendant pleaded guilty in the District Court.  There was another accused, Liu, in the District Court.  The hearing before the Court of Appeal only concerned the defendant.  She had used a forged identity card and a forged two-way permit of a Zhang bearing her photograph to open an account with a bank (1^st Charge).  She impersonated Zhang to mortgage Zhang’s property to a finance company for close to $5,000,000.  There was a little repayment to follow (2^nd Charge).  

14.She impersonated Zhang before another finance company and got away with nearly $1,300,000.  There was a little repayment to follow (3^rd Charge). 

15.She and an accomplice Liu used a forged identity card and a passport of WANG but bearing Liu’s photograph to impersonate WANG, opened an account with a bank (5^th Charge).  She introduced Liu to a finance company.  Liu produced forged documents of a property in order to apply for a loan in the region of $4,500,000.  The finance company found the documents suspicious and reported the matter to the police without approving the application (6^th Charge). 

16.She and Liu were arrested in the office of the solicitor handling the last-mentioned loan application.  Liu was found in possession of the forged identity card and the forged passport (7^th Charge). 

17.The Court of Appeal approved an overall sentence of 4 ½ years on the defendant’s pleas of guilty. 

18.Mr. Lau puts forward 7 cases for my reference.  In HKSAR v Li Po Ying CACC 105/2001 (Case marked No. 1), the defendant and her husband co-owned a property.  She owed money to a loan shark but could not repay.  She wanted to raise loans from finance companies behind her husband’s back.  She stole her husband’s identity card for the loan shark to forge an identity card purporting to be her husband’s.  She attended the finance company with a man who impersonated her husband carrying the forged identity card and presented it to the solicitor processing for the finance company.  The man was introduced by the loan shark.  She obtained a loan of $200,000 and close to $150,000 respectively (1^st and 2^nd Charges).  The conspiracy to forge the identity card was the 3^rd Charge.    The Court of Appeal gave a discount of 2 months for the consequential hardship of her having to sell the property to repay the loans and the time taken to proceed between arrest and trial.  On appeal, the overall sentence was reduced from 30 months to 18 months on her pleas of guilty. 

19.In HKSAR v Ling Veronica [1998] HKC 499 (Case marked No. 2), there were two sets of mortgage fraud relating to the defendant’s parents’ property.  The defendant attended the handling solicitors’ firm with people impersonating her parents carrying forged identity papers in the name of her parents.  She used powers of attorney obtained with the forged identity cards.  For the host of offences for dishonesty leading to the loans of $4,300,000 in total that she received and failed to repay, the Court of Appeal increased the overall sentence from 2 years to 4 years on her pleas of guilty upon the prosecution’s application to review the sentence. 

20.There are the cases of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 476 (Case marked No. 3), HKSAR v Ng Kwok-wing [2008] 4 HKLRD 101 (Case marked No. 4), and HKSAR v Yeung Chiu CACC 105/2009 (Case marked No. 5).  They deal with the sentencing guidelines for breach of trust, being 2 – 3 years for $250,000 - $1,000,000, and 3 – 5 years for $1,000,000 - $3,000,000. 

21.Between the 2 finance companies and the Defendant in our present case, there is no trust relationship.  The sentencing guidelines are inapplicable.   

22.The cases of HKSAR v Cheung Suet Ting CACC 226/2009 (Case marked No. 6) and The Secretary for Justice v Lin Ming-ying & Another CAAR 7/2001 (Case marked No. 7) both reflect restitution as possibly a mitigating factor of weight. 

Sentencing this Defendant

23.She smuggled out her mother’s identity card for use by the impersonator and deceived her father into signing the power of attorney.  It was a well-planned but simple scheme.  Up to early February 2016, she still owed YCS $778,500 and WAC $450,000.  Out of loans amounting to $1,600,000 in total, these figures reflect a mild degree of restitution. 

24.For the 1^st Charge, I take a starting point of 2 ½ years.  I reduce it by one-third for her plea of guilty.  There is 3 months off for her restitution.  There are no other mitigating factors.  The sentence is 17 months. 

25.For the 2^nd Charge, I take a starting point of 2 years.  I reduce it by one-third for her plea of guilty.  There is 1 month off for her restitution.  There are no other mitigating factors.  The sentence is 15 months. 

26.On the totality principle, I order 4 months in the 2^nd Charge to run consecutively to the 17 months in the 1^st Charge.  The overall sentence is 21 months.