HKSAR v. Wong Tip Sum, Esther

DCCC 224/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 224 OF 2017

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Reasons for Sentence

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Charge

1.The Defendant pleads guilty to a charge of fraud perpetrated on the Social Welfare Department as a result of which she was overpaid a total sum of $332,232.52 by way of Comprehensive Social Security Assistance between 2006-04-06 and 2013-09-18.    

Facts

2.On 2006-04-06, the Defendant applied for Comprehensive Social Security Assistance (“CSSA”), a scheme of public subsidies to be considered and granted by the Social Welfare Department (“SWD”), and she was interviewed by a SWD officer. The Defendant declared that she only had cash of $3,000 and money in her Hongkong and Shanghai Banking Corporation Limited (“HSBC”) bank account totalling $12,054.53. The SWD officer explained to the Defendant that she had to provide accurate information and she would be prosecuted for providing false information in order to obtain CSSA by deception.  The Defendant acknowledged the rules and signed on the last part of the application form. As a result of the application, CSSA was granted to the Defendant, and the first instalment of subsidies covered the period commencing from 2006-03-06 onwards.

3.Between 2007 and 2012, the Defendant was invited to attend 12 periodic reviews, and she was interviewed by SWD officers. The Defendant declared that she had two bank accounts from HSBC and Bank of China (Hong Kong) Limited (“BOC”) with cash deposited in those accounts ranging from $4,438.29 to $28,629.18. Officers of SWD explained to the Defendant that she had to provide accurate information and she would be prosecuted for providing false information in order to obtain CSSA by deception. The Defendant acknowledged the rules and signed on the last part of the review forms. As a result, CSSA subsidies was continued to be paid to the Defendant after each periodic reviews. 

4.In a review interview held on 2013-09-19, the Defendant revealed that she owned a Bank of Communication bank account, which had not been disclosed to SWD before, and that she was willing to make repayment to SWD and to cease from collecting CSSA subsidies from SWD. As such, SWD investigated on the Defendant's financial background. On 2014-02-17, in a SWD interview, the Defendant admitted that she failed to declare that she had:

(a) insurance policies with insurance companies;

(b) 3 bank accounts with Bank of Communications (which were opened before she applied for CSSA in 2006) and 7 bank accounts with Fubon Bank;

(c) assets of $1,006,847.41 as at 2013-03-11.

5.SWD confirmed that at the time of the application made by the Defendant on 2006-03-06, the Defendant and her family had total assets of over $121,374.01, which exceeded the level of CSSA asset limit for the size of the Defendant's family at the time, and as a result of the false declaration made by the Defendant to SWD officers during the CSSA application and periodic review interviews held between 2006-04-06 and 2013-09-18, the Defendant was overpaid with CSSA totalling $332,232.52 by SWD (the sum of overpayment covered the period from 2006-03-06 to 2013-09-30). SWD also confirmed that the Defendant had made full repayment to SWD. The Defendant was arrested on 2016-06-13. Under caution, she admitted that:

(a) she applied for CSSA from SWD as a single parent family with her son. The family received around $7,500 a month;

(b) she had failed to disclose to SWD that other than the HSBC and BOC bank accounts, she owned 3 and 7 bank accounts with Bank of Communication and Fubon Bank under her name. The Fubon Bank accounts had assets ranging from around $900 to $420,000;

(c) she had also failed to disclose to SWD that she owned 7 insurance policies under her name, worth of around $40,000 to $270,000;

(d) she did not disclose her total assets because of her greediness;

(e) she had repaid SWD the overpayment in full already.

6.At all material times, the Defendant falsely represented to officers of the SWD that she only had cash in two bank accounts with HSBC and BOC; and dishonestly concealing the ownership of 10 bank accounts with other banks and 7 insurance policies, all under the name of the Defendant, and with intent to defraud, induced officers of SWD to grant or continue to overpay the Defendant in the total sum of $332,232.52 as CSSA, which resulted in benefit to herself and in prejudice to the Government of the Hong Kong Special Administrative Region.

Mitigation

7.The Defendant is aged 64.  She has 2 daughters from her first marriage, which lasted 10 years.  She had a divorce in 1985.   She has 2 sons by her second husband, who was an alcoholic and had a violent temperament.  Her two sons had seen enough from the 13 years until his death in 1999 to take after him in abusing her by violence and verbal confrontation.  Both sons did not respect her and remained an ongoing stress to her.  They had her invariably the first to blame and the last to thank.  Despite the broken relationship, she had worked hard to take care of them and to make ends meet.

8.In 1999, her late second husband’s estate was worth about $100,000.  She had savings of about $40,000.  She was gravely concerned about the finance of her family as she was only qualified to work in menial jobs for a low wage.  In 2005, a friend of her second husband came to Hong Kong from USA and repaid a sum of $600,000 said to be a debt owed to her second husband.  It was windfall to her.  

9.It is submitted in mitigation that she had suffered from her psychiatric condition over a protracted period.  In 1996, she first consulted a psychiatrist for her marital and parental issues.  She was lax in following up as she did not find it very helpful.  The condition did not relent and the latest psychiatric report from Dr. Hung based on his assessment indicates that she had been suffering from Recurrent Depressive Disorder and then Dysthymia (the latter being defined as “a constant depression of mood lasting at least two years, though not severe enough to justify a diagnosis of Recurrent Depressive Disorder”) over the offence period of 7 years.  There was greed in her mind although her psychiatric illness had also influenced her cognition and perception about the future.   She had decided to put aside the $600,000 windfall as caution money for the future, hence commission of the present offence.  

10.Dr. Hung is of the opinion that her prognosis is optimistic as she has developed a strong Christian faith, the parental relationship has significantly improved as the present case gets along, and she has become aware of the need to receive ongoing psychiatric treatment in her recovery process.  

Sentencing considerations

11.In HKSAR v Leung Wai Kei CAAR 6/2006, the Court of Appeal reviews the precedents in Hong Kong and UK and come to regard immediate imprisonment not as a priority sentencing option unless there is some intentional and persistent fraud.  If imprisonment is to be ordered, a sum of over $240,000 will warrant a sentence of over 24 months.  Community service order and suspended sentences are alternatives for immediate imprisonment. 

Sentencing this Defendant

12.The offence lasted 7 years 5 months, involving $332,232.52.  She had of her own initiative, before SWD made an investigation, confessed to her guilt and made full repayment of it.  Upon the death of her second husband, she was in for a financial strait until the windfall arrived.  She had long-term psychiatric illness which rendered her less able to reason sensible of the circumstances in which she came to commit the present offence.  She performed voluntary community work in various fields, e.g. as a Chinese character typing teacher, English pronunciation teacher, Chinese traditional therapy assistant, library assistant, and elderly home care worker.   She has pleaded guilty at the first opportunity. 

13.I take a starting point of 27 months’ imprisonment.  But for her own disclosure, the matter may not have been detected readily.  For this, together with her timely plea of guilty, I give her a discount of 12 months.  From the remaining 15 months, I give her a further discount of 2 months for her full restitution and 1 month for her voluntary service.  The sentence is 12 months. 

14.There is clear evidence that before and over the offence period, she had been suffering from psychiatric illness of no little impact.  Coupled with her being a widow with limited resource to fend for her family, that did not take much mental struggle for her to commit the present offence.  Presently having feasible solutions to her problems, she is unlikely to reoffend.   

15.I am satisfied that her special personal circumstances justify a suspension of her 12 months’ imprisonment.  The suspended period shall be 3 years.  

16.I also consider whether to impose a fine for her financial gain generated by the overpayment over the offence period.  My principle concern is that she should not be allowed to keep such gain.  I have discussed with her counsel as to its quantum.  Without resorting to elaborate calculations, the consensus lies in the region of $40,000.  I therefore impose a fine of this amount.  She shall have 14 days to pay.