HKSAR v. Li Sin Kwan

DCCC 126/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 126 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of “Using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap 200. The defendant used a power of attorney bearing a forged signature of her husband to apply for mortgage by using the residential property jointly owned by them.

Summary of facts

2.The defendant and her husband jointly owned a residential premises in Hong Kong (“the Premises).  On 6 June 2016, the defendant attended the office of a finance company named Celebrity Credit and intended to apply for a mortgage loan. 

3.At the office of Celebrity Credit, the defendant told her husband manager that her husband would like to apply for a mortgage loan of HK$4 million with the whole Premises as the security.  The defendant produced an original copy of a power of attorney (“the POA”) purported signed by her husband and witnessed by a solicitor and a clerk of a solicitors’ firm David Y.W. Man & Co.  The POA authorized the defendant to do and execute all acts, deeds, matters and thing in connection with the Premises.

4.On 7 June 2016, the manager of Celebrity Credit sent a copy of the POA to another law firm Day & Chan for legal advice.  Day & Chan sent the copy of the POA to David Y.W. Man for verification.  Later it was confirmed that the POA is a forged document.  The solicitor and the clerk of David Y.W. Man & Co. who purportedly witnessed and signed on the POA confirmed that the signatures on the POA were not theirs.

5.On 19 September 2016, the defendant was arrested.  Under caution, she admitted that she knew the POA was forged.  She admitted that she intended to borrow money without letting her husband know.

6.In a subsequent video recorded interview, the defendant said the following under caution:-

(a) In or about April 2016, she received a cold call from a financial intermediary named “Dickson International Planning Co. Ltd.”(“DIP”). She went to the office of DIP and the staff of DIP told her that they could prepare some documents for her to apply for loan;

(b) Sometime in May 2016, she met with two staff of DIP. She paid them HK$80,000 and was given the POA. She noted that the signatures on it did not belong to her and her husband. The staff of DIP told the defendant to use the POA to apply for mortgage loan;

(c) In June 2016, she went to the office of Celebrity Credit as instructed by the staff of DIP to make an application of mortgage loan with the POA.

(d) She confirmed that both her husband and herself did not sign on the POA.

Mitigation

7.The defendant is 59 years of age.  She is married with two daughters and four grandchildren.  Both daughters are married and moved overseas.  Her husband is 70 years old and retired.  They have been married for 40 years. Though the daughters are living abroad, I am told that the family relationship is good.

8.The defendant has been working as a part-time account clerk at the same accountant firm for 40 years.  She earns HK$20,000 per month.  Defence submitted, the reason for the defendant to have committed the present offence is because of her habits of over-spending and gambling.  At the material times, the defendant was heavily indebted to credit card company and she needed to raise money to clear her debts.  Very foolishly she used the wrong way to try to solve her problem. 

9.Defence submitted, had the defendant honestly told her husband about her problem, her husband would have no hesitation to do whatever it was needed to help her.  Defence submitted, despite the defendant was in breach of the trust of her husband, her husband is still fully supportive to her.  I am told that he has forgiven the defendant.  After the incident, they had sold the Premises to raise fund to clear the debts of the defendant.  The defendant’s husband is ready to start a new leaf with the defendant when this matter is resolved.

Sentencing consideration

10.The offence is a serious one and it is clearly a breach of trust case. The amount of money involved could be substantial, if the defendant successfully carried out the scheme.  Though forged document was not prepared by her, the defendant knew full well the nature of the forged document and what she was doing.  The court has the duty to send a clear message that offences of this kind will be met with imprisonment even if the defendant is a first offender and that the terms are likely to be significant.

11.In sentencing the defendant, I have considered the two cases provided by the defence: Secretary for Justice v Ling Veronica [1998] 4 HKC 499 and HKSAR v Li Po Ying, CACC 105/2001, unrep.  While the facts of Ling Veronica case are much more serious than the present case, Li Po Ying case is very similar to this case.  The defendant in Li Po Ying case arranged someone to pretend to be her sick husband to obtain mortgage loans from two banks in the sum of about HK$340,000.  The Court of Appeal was of the view that a total sentence of 18 months’ imprisonment after pleading guilty is appropriate.

12.In the present case, while the amount involved was larger than Li Po Ying case, the defendant’s scheme was unsuccessful and no one suffered any actual loss.  On the other hand, there is a special mitigating factor in this case.  In the mitigation letter written by the husband of the defendant, who is supposed to be the one who will suffer loss, if the defendant successfully carried out the scheme, said that the defendant is genuinely remorseful and he had already forgiven her.  He also shows his unfailing love and support to the defendant by asking the court to treat the defendant leniently so that she can reunite with him and the family sooner.

13.Considered all the circumstances of the case, the defendant’s personal background, the fact that she has a clear record all her life, the mitigation put forward by the defence and the defendant’s husband, I am of the view that a starting point of 18 months’ imprisonment is appropriate.  The defendant pleaded guilty and is entitled to have a one-third discount.  Accordingly, the defendant is sentenced to 12 months’ imprisonment.