HKSAR v. Yip Wing Yee

DCCC 1010/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1010 OF 2015

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Reasons for Sentence

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1.The defendant has been convicted after trial of 9 offences of evasion of liability by deception.

2.The facts of the offences are set out in the reasons for verdict, and I do not propose to rehearse them again.  However, the essence of the offences is the defendant started up what was, in effect, a cut-price business in electronic goods; a scheme, in its inception, which could never have made money for her, nor was even capable of breaking even, and in which the inevitable losses crystallised in around June of 2015 by the defendant then issuing cheques to cover those losses to her customers.  There was no money behind the cheques.  They all bounced, and in doing so, ensured that the losses from this enterprise would always fall on her customers.

3.It would appear the defendant had many reasons for involving herself in this rather unusual scheme for a person such as herself, but it undoubtedly allowed her, at least for a period, to engage in a lifestyle higher than the one she would normally enjoy.  It also ensured her a degree of notoriety and attention, which she appeared to lack of.

4.As far as the defendant herself is concerned, she is 43 years old.  She, prior to this incident, has never been involved in any form of criminality before, and so the facts of this case and her involvement in it are quite unique.  One would not have expected a person from her background or with her upbringing to be involved in offences of this nature, and because they were entered into in, as it were, early middle age, they must also be out of character for her.

5.It was also clear from the evidence that the defendant had had psychiatric and psychological difficulties in the past, and that had led to threats and attempts of suicide.  I obtained both psychological and psychiatric reports on the defendant.  They do illustrate the difficulties she has had in her life, especially as to her psychological and psychiatric states, but they were unable to provide any real explanation as to why she involved herself in this scheme.

6.As far as the psychologist’s report is concerned, they say the defendant is a first offender.  She is a pessimistic and negative individual, with poor coping skills and weak problem‑solving skills, and what is obviously a prime consideration in this case, she has inadequate consequential thinking.  In her own description of herself to the psychologist, he draws the conclusion that she had lied repeatedly in handling monetary disputes with the victims of the indexed offences.  He describes that she has suffered a major depressive order, and she is recommended for rehabilitation.

7.The psychiatric report sets out the defendant’s previous history, including a suicide attempt.  It again shows that she has had a depressive illness in the past.  She is currently stable, but clearly she has probable depression, and a likelihood that she could suffer from that problem in the future as well.

8.The defendant has a young daughter who is now aged 18, and because of this I obtained a background report on the defendant.  I also sought to establish what would happen to the daughter were her mother to be imprisoned.  What I do know of the daughter is she is currently well cared for and is planning to go to university, so I can be confident her welfare will be ensured if her mother is not around, and the daughter is now 18 years of age and is an adult legally.  However, the mother and daughter are close, and one would not wish to deprive the daughter of the society of her mother for too long a period.

9.The background report also points out the difficulties the defendant has had in her past.  She was an orphan, and adopted.  She appears to have been brought up in a dysfunctional family setting, poorly treated by her adoptive parents, especially her father, and had to suffer the death of her mother, and cared for her when she was ill.  As a result of the pressures on her life around the time of her committing the offences, she had struggled with depression and loneliness.

10.Those are the background factors at the time the defendant entered into this series of offending which ultimately led to losses inflicted on her friends.

11.I turn to the question of sentence.  How does one approach sentence in a case such as this?  The essence of the offence in all 9 charges is the evasion of liability, so the case was never brought as a fraud, although I did observe that elements of fraud did exist in the case presented to me.  However, the case must be sentenced as one of an evasion of liability.

12.A feature of such a charge is that liability is evaded, not extinguished.  The liabilities she evaded still exist, although there would appear to be, on the face of the evidence I have, no prospect of them being met.  The defendant is not in a position to offer any restitution, and it would appear that any attempt to obtain these funds from the defendant is likely to be unsuccessful, certainly at this stage.

13.I also noted to counsel that although trust was placed in her, this is not a conventional breach of trust case, and I do not consider the general guidelines for breach of trust theft cases are applicable in this particular case, nor are the normal guidelines for fraud.  The case is unique and must be sentenced as a unique case.

14.The gravity of offence arises out of the period over which it took place, and that it involved the duping of her customers. Some mitigation arises out of the fact that it can be clearly seen that some of the customers were acting out of greed and selfishness; some had benefited from the cut-price goods they received at the early stage of the enterprise; that although she, as I said, identifiably enjoyed a high life at a certain stage of the enterprise, it is clear that no money is left.

15.In total, we are dealing with, on all 9 cheques, a figure of in excess of $5 million, and so it is a serious matter involving a considerable sum of money.  Because of that, an immediate sentence of imprisonment is the appropriate sentence for this defendant.

16.Having regard to the mitigating factors I have set out, I will try and mitigate that figure as much as I can whilst passing what I consider to be an overall appropriate sentence.

17.Clearly, the 2nd and 3rd charges involve considerably more amounts of money than any of the other charges.  The other factor I consider, of course, is that the cheques were issued on the same day, and so technically, all the offences occurred at the same time.  Because of that, I will pass a concurrent sentence on each charge.

18.I consider certain of the charges certainly reflect sufficient seriousness to reflect a proper sentence for the overall sentencing.

19.So the sentences I will pass on the individual charges are as follows:

on the 1st charge, a sentence of 12 months’ imprisonment;

on the 2nd and 3rd charges, sentences of 36 months’ imprisonment;

on the 4th charge, a sentence of 24 months’ imprisonment;

on the 5th charge, 12 months’ imprisonment;

on the 7th charge, 12 months’ imprisonment;

on the 8th charge, 12 months’ imprisonment;

and on the 9th and 10th charges, 6 months’ imprisonment;

all sentences served concurrently, totalled to 36 months’ imprisonment.