HKSAR v. Yuliana

DCCC 607/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 607 OF 2015

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

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

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

Reasons for Sentence

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

Charges

1.The Defendant pleads guilty to the following charges:

(1) Obtaining pecuniary advantage by deception (1^st – 9^th Charges);

(2) Using an identity card relating to another person (10^th – 17^th Charges);

(3) Breach of condition of stay (18^th Charge).

Facts

2.On 2 October 2012, QURESHI Hinna Ghafoor (PW1) lost her HKID Card in Tuen Mun.  She made a report to the police the same day. 

3.The Defendant is an Indonesian.  She came to Hong Kong to work as a foreign domestic helper.  Her last employment contract was terminated on 7 February 2007.  She did not make any application to the Immigration Department to extend her stay afterwards.  She had been an overstayer for 7 years and 10 months (18^th Charge) upon her arrest on 17 December 2014.  Other Offences (1^st – 17^th Charges) which were committed during her overstay then came to light. 

4.1^st – 17^th Offences happened between 9October 2012 and 17 December 2014.  Every time she had impersonated PW1 by using PW1’s HKID Card to handle her personal matters, namely, to successfully obtain jobs and earn salaries from 3 employers (1^st – 3^rd Charges), obtain loans from 6 finance companies (4^th – 9^th Charges), to subscribe for mobile phone services (10^th, 12^th – 14^th Charges), to open bank accounts (11^th & 15^th Charges), and to apply for a learner’s driving licence from Transport Department on 28 November 2014 (16^th Charge). 

5.On 17 December 2014, her escapade was busted when she produced to a police officer PW1’s HKID Card as her own in an identity check on the street (17^th Charge).  After arrest, she admitted all 18 Offences.  

6.Among the 3 employers, she had earned over $29,000 as a saleslady for 4 months (1^st Charge), over 18,000 as a customer service executive for 4 months (2^nd Charge), and over $48,000 as a restaurant worker for 5 months (3^rd Charge). 

7.Among the 6 finance companies granting loans from $5,000 to $20,000 to her, as the case may be, in total $93,000, she had repaid 4 of them in full.  She still owes over $14,000 to one (7^th Charge) and over $17,000 to another (8^th Charge) excluding accrued interest up to date. 

Mitigation

8.The Defendant is 33 years of age, educated up to F. 3 level in Indonesia.  She has a clear record.  In 2012 she married a Pakistani man in a mosque in Hong Kong.  They have no children. 

9.There are receipts showing her numerous remittances to Indonesia.  She says they were mostly for the medical bills of her uncle’s blood cancer treatment.  He died in 2015 after protracted ailment and treatment.  She says there are no receipts for the medical bills because the medical bills were not paid up.  I do not find this plausible unless not a single medical bill had been paid up throughout the continual medical treatment provided to him.  She can offer no explanation for the absence of any medical bills (in the sense of invoices) either.  Not that it is going to be a significant mitigating factor if substantiated but I do not accept her case that the reason for her commission of the offences was to finance her uncle’s medical treatment. 

Sentencing considerations

10.Miss Fung, counsel for the Defendant, has provided me with 5 cases in Tab 1 – Tab 5 in the first hearing of mitigation. 

11.In HKSAR v Leung Shuk Man [2002] 3 HKC 424 (Tab 1 of Initial Bundle) where the defendant stole her employer’s money, the Court of Appeal regarded her full compensation made to the victim as a powerful mitigating factor, which, together with the plea of guilty, afforded a 50% discount from the starting point of sentence.  

12.In HKSAR v Man Kam Fai CACC/2009 (Tab 2 of Initial Bundle), the defendant obtained a pecuniary advantage by deception, namely a loan of $78,000 in league with others who prepared a bundle of false documents including certain employment letter, bank statements, salary slips, and tax returns to be processed by a cohort working in the victimized finance company.  The Court of Appeal lowered the starting point from 5 years to 3 ½ years. 

13.In HKSAR v Li Chang Li [2005] 1 HKLRD 864 (Tab 3 of Initial Bundle), the Court of Appeal stated that where the illicit identity card was used for seeking illegal employment or extending the period of stay in Hong Kong, the sentence upon a plea of guilty should be 15 months. 

14.In HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903 (Tab 4 of Initial Bundle), the Court of Appeal regarded that the sentence for possession of the illicit identity card ought to be concurrent with the sentence for unlawful remaining save in exceptional circumstances. 

15.In HKSAR v Tiongson Patricia Manalad [2002] 1 HKLRD681 (Tab 5 of Initial Bundle), the defendant overstayed for 2 ½ years after her employment visa expired.  The Court of Appeal lowered the starting point from 9 months to 6 months. 

16.On the return date in my court to ascertain if the Defendant was able to repay the finance companies for the outstanding loans, Miss Fung puts forward 11 cases in further mitigation. They include all the 5 cases in the Initial Bundle but in a slightly modified sequence (re-numerated as Tabs 1, 2, 3, 9, and 11 respectively in the Further Bundle) and 6 extra cases for comparison of sentences. 

17.Among the 6 extra cases, 4 concerned solely with the charge of overstaying.  In HKSAR v Palathanthirige, Waruni Prasanthika HCMA 541/2015 (Tab 4 of the Further Bundle), the starting point of 9 months for overstaying for 5 years and 7 months was considered appropriate on appeal.  In HKSAR v Siti Iftakurohmah HCMA 586/2013 (Tab 5 of the Further Bundle) the starting point of 6 months for overstaying for 4 years and 8 months was considered appropriate on appeal.    In HKSAR v Ping-ay, Jose Eblogen HCMA 634/2011 (Tab 6 of the Further Bundle) the sentence of 6 months on a guilty plea for overstaying for 8 years and 6 ½ months was considered appropriate on appeal.    In HKSAR v Sapon Imelda G HCMA 948/2003 (Tab 8 of the Further Bundle) the sentence of 6 months on a guilty plea for overstaying for 8 years and 3 ½ months was considered appropriate on appeal.

18.In HKSAR v Guo Jun [2004] 3 HKLRD 726 (Tab 7 in the Further Bundle), the defendant was a Mainlander.  He pleaded guilty to the breach of condition of stay by taking up a job (1^st Charge) and using a forged identity card to get the job (2^nd Charge).  His overall sentence, comprising a partly consecutive sentence based on 6 months for the 1^st Charge and 15 months for the 2^nd Charge, was reduced from 18 months to 16 months on appeal by 2 months’ reduction for the 1^st Charge. 

19.In HKSAR v Kapanya Chatruthai CACC 233/2011 (Tab 10 in the Further Bundle), the defendant came to Hong Kong to work as a domestic helper.  After expiry of her visa, she overstayed in Hong Kong for over 6 years until arrest (10^th Charge).  During her overstay, she had used a forged identity card simulating the lost identity card of her friend to borrow $290,000 in 7 loans from 3 finance companies (1^st – 7^th Charges).  She repaid the loans from time to time.  The total outstanding sum before arrest was slightly over $130,000.  She also used the forged identity card to get a job (8^th Charge) and try to obtain banking services from a bank (9^th Charge).  The overall sentence of 34 months on her pleas of guilty was approved on appeal. 

Sentencing this Defendant

20.For the offence of overstaying (18^th Charge), which lasted for 7 years and 10 months, I take a starting point of 9 months.  The only mitigating factor is her plea of guilty. I give her a one-third discount.  The sentence is 6 months. 

21.She had used the illicit identity card to obtain 3 jobs in turn.  I take 15 months for each of the charges (1^st – 3^rd Charges).   The only mitigating factor is her plea of guilty.  I give her a one-third discount.  The sentence is 10 months for each charge. 

22.She had used the illicit identity card to subscribe for mobile phone services (10^th, 12^th – 14^th Charges), to open bank accounts (11^th & 15^th Charges), to apply for a learner’s driving licence from Transport Department (16^th Charge), and to produce it to the police officer (17^th Charge).  I take 15 months for each of these charges.  The only mitigating factor is her plea of guilty.  I give her a one-third discount.  The sentence is 10 months for each charge. 

23.She had obtained from 6 finance companies loans from $5,000 to $20,000 to her, as the case may be, in total $93,000 (4^th – 9^th Charges).  She had made repayment but stills owes over $14,000 to one (7^th Charge) and over $17,000 to another (8^th Charge) excluding accruing interest up to date.  There is no evidence that she had obtained the loans on the strength of any materials other than the illicit identity card.  Her repayments from time to time before arrest have been encompassed in the consideration for a starting point of 24 months for each of these charges, to be concurrent in their sentences, as part and parcel of a scheme of fraud.  One-third off for her guilty plea, the sentence is 16 months for each charge. 

24.On account of the totality principle, I make the following adjustments:

(1) 16 months concurrent (4^th – 9^th Charges);

(2) 10 months concurrent (1^st – 3^rd Charges), 6 months consecutive to other charges;

(3) 10 months concurrent (10^th – 17^th Charges), 6 months consecutive to other charges;

(4) 6 months (18^th Charge), 2 months consecutive to other charges.

25.The overall sentence is 30 months.