Secretary for Justice v. Tsang Wai Ling

[English Translation – 英譯本]

CAAR 1/2019

[2020] HKCA 159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 1 OF 2019

(ON REVIEW FROM DCCC NO 1124 of 2018)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.On 28 June 2019, the respondent (Tsang Wai Ling) appeared before District Judge Stanley Chan (the trial judge) and pleaded guilty to three counts of conspiracy to steal (Charge 1, Charge 2 and Charge 5) and one count of theft (Charge 4). With the consent of the prosecution, the charge of using an identity card which relates to another person (Charge 3) against the respondent was kept in court file and would not be proceeded further.

2.On 18 July 2019, the trial judge sentenced the respondent to a total of 16 months’ imprisonment for the four charges (8 months on Charge 1, 12 months on Charge 2, 6 months on Charge 4 and 16 months on Charge 5), and ordered all the terms of imprisonment to run concurrently (the sentence).

3.The Secretary for Justice (the applicant) considered that the sentence was contrary against sentencing principles and was manifestly inadequate; it is one that a judge, having applied his mind to all the relevant factors, could not reasonably consider it to be within the appropriate range of sentences. Therefore, pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221, an application was made to the Court of Appeal for review of the sentence. 

4.On 19 August 2019, Poon Acting CJHC (as he then was) granted leave to the applicant to proceed with the application. Hence, this Court would deal with the formal application for review of the sentence.

5.After the hearing, we allowed the applicant’s application for review of sentence and increased the total sentence imposed on the respondent from 16 months to 34 months. Below are our reasons for judgement. 

Facts of the case

6.The victim, Ms Wong, lost her identity card between 16 and 22 February 2018. At the time, Ms Wong had bank accounts with Citibank and HSBC (Account 1 and Account 2 respectively).

7.On 23 February 2018, the respondent produced the lost identity card of Ms Wong to the staff at a branch of Citibank, and made enquiries about the balance of Account 1. As a result, the bank staff handed her a computer printout of the balance of Account 1.

8.On 24 February 2018, the respondent went to another branch of Citibank. She produced the lost identity card of Ms Wong, causing the staff become satisfied that she was Ms Wong, and thus successfully withdrew $90,000 from Account 1 (Charge 1).

9.At around 11:30 am, on 26 February 2018, the respondent further went to another branch of Citibank, producing the identity card of Ms Wong. In the capacity of Ms Wong, she succeeded in asking the staff to exchange USD 60,000 in Account 1 into Hong Kong dollars and issue a bank draft for HKD 850,000 made payable to Dynasty Jewellery & Goldsmith Co Limited. Having obtained the bank draft successfully, she left the bank. Later, in the afternoon of the same day, a man and a woman, by that bank draft for HKD 850,000, bought and withdrew gold of an equivalent value from Dynasty Jewellery & Goldsmith Co Limited (Charge 2). The defence admitted that the respondent was one of the people who withdrew the gold. Information showed that after the above two withdrawals, only about HKD 50,000 was left in Account 1.

10.At around 4 pm, on 26 February 2018, the respondent produced the identity card of Ms Wong at a branch of HSBC, falsely claiming herself to be Ms Wong, and requiring withdrawal of HKD 65,000 from Account 2.  The respondent succeeded in deceiving the bank staff into mistaking her for Ms Wong. As a result, she obtained HKD 65,000 and left the bank (Charge 4).

11.At around 12:30 pm, on 27 February 2018, the respondent went to the same HSBC branch. Again, she produced the identity card of Ms Wong, falsely claiming herself to be Ms Wong. She tried to persuade the bank staff to issue a bank draft for $2.93 million made payable to Elegant Jewellery Group Limited from Account 2. The bank staff alertly made enquiries with Ms Wong, and consequently learnt of the fraudulent act of the respondent. As a result, the respondent’s crime was exposed, causing her to be arrested.

12.Under caution, the respondent remained silent. But later, during the period of custody pending trial, she wrote to the police, indicating that it was a man surnamed Sham who gave her Ms Wong’s identity card and instructed her to go to Citibank and HSBC respectively to withdraw the cash and bank drafts in question.

Respondent’s background and mitigation

13.The respondent was 63 years of age at the time of the offences.  She is a widow with a son and a daughter. She has several minor criminal records. The defence submitted that it was not a large scale or organised theft, nor was the respondent the mastermind. The defence emphasised that having found Ms Wong’s identity card on the street, the respondent committed the offences out of momentary greed and under the inducement of the man surnamed Sham which she could not resist. The defence asserted that she had accounted for the details to the police afterwards, indicating that she was willing to assist the police to apprehend the alleged mastermind surnamed Sham and to testify against him. However, her assistance to the police and the information about the mastermind surnamed Sham provided by her did not lead to any concrete result. She also put before the court letters of mitigation by her daughter and a clergyman, stating that she was remorseful, asking the court to give her a chance of rehabilitation.

The trial judge’s reasons for sentence

14.The trial judge did not accept the respondent’s claim that she had found Ms Wong’s identity card, and that it was under the inducement of the man surnamed Sham that she had gone to the banks, committing the fraudulent acts in question.

15.The trial judge pointed out that the case involved a number of people who perpetrated the crimes and that the modus operandi was not simple. The perpetrators, in particular, knew that Ms Wong had two bank accounts, and that there was a huge sum of balance in Account 2, showing that the respondent’s offences were organised and well-planned. The trial judge stressed that the respondent was to obtain bank drafts which were made payable to designated goldsmith shops, therefore she perpetrated the crimes with express purposes.

16.The trial judge also considered that the respondent played an indispensable role in the whole incident. She, as a female, might be used to gain the trust of the bank staff. The trial judge pointed out that if it was not for the prudence or professionalism of the bank staff, the respondent would have successfully obtained the bank draft for $2.93 million.

17.The trial judge passed the sentences on the basis that the respondent had successfully deceived the bank of a total of $3.935 million. However, for the four charges which involved the respective sums of $90,000, $850,000, $65,000 and $2.93 million, the starting points adopted were only 12 months, 18 months, 9 months and 2 years respectively. For the respondent’s guilty plea, the trial judge reduced the above sentences by one-third to 8 months, 12 months, 6 months and 16 months respectively.

18.The trial judge expressly stated that although all four offences were committed within the space of a few days, he was minded to show leniency and ordered all the terms to run concurrently, thus making a total sentence of 16 months.

Grounds for reviewing the sentence

19.The applicant considered that the starting points adopted by the trial judge did not adequately reflect the gravity of the case, and that they were far lower than those in similar cases. The applicant’s stance was that even after taking a view of the incidents which is most favourable to the respondent, the applicable overall starting point should not be lower than 4 years 9 months to 5 years.

20.Mr Ira Lui, Senior Assistant Director of Public Prosecution of the Department of Justice, acting for the applicant, emphasised that there were multiple aggravating factors in the case, including that (1) the sums in question were huge, and the stolen money had not been recovered; (2) the respondent committed multiple offences with others within the space of a few days, which was inconsistent with her claim that she had committed the offences out of momentary greed; (3) the case was well planned, and the respondent not only impersonated Ms Wong, but also forged her signature; (4) the respondent actively participated in the incident; (5) the respondent’s offences were targeted at banks and were comparatively more serious among similar cases, and the gravity of which was no lesser than that for cases of breach of trust; and (6) the respondent obtained substantial rewards in the incidents.

21.At the same time, Mr Lui submitted that for the charge of possession of a forged identity card or an identity card which relates to another person alone, the starting point was already 18 months’ imprisonment, and if those identity cards were used to commit crimes, the starting point would be adjusted upwards to 22½ months. Mr Lui cited a number of cases in support of his stance.

22.Mr Lui, in particular, emphasised that bank frauds are crimes of particular seriousness, which are as serious as cases of breach of trust. It was necessary for the court to impose deterrent sentences in respect of bank frauds.

23.Mr Lui asserted that the sentence did not adequately reflect the gravity of the case, and it was far lighter than those in similar cases. The sentence was manifestly inadequate and offended against the totality principle. Mr Lui cited a number of cases in support of his stance.

The respondent’s stance

24.In respect of committing a crime by using an identity card which relates to another person, Mr Hung, counsel for the respondent, contended that Charge 3 in the present case (using an identity card which relates to another person) eventually was kept in court file with no verdict. Therefore, the applicant’s submission in relation to the offence was only an academic discussion. In any event, Mr Hung contended that in a series of cases like HKSAR v Li Chang Li [2005] 1 HKLRD 864, where the Court of Appeal imposed a sentence of 15 months’ imprisonment upon a guilty plea, the focus was on immigration policy and the problem of illegal workers (see HKSAR v Ho Chak Ming, CACC 316/2009). Therefore, they were irrelevant to the present case.

25.Mr Hung also contended that HKSAR v Ho Chak Ming cited by the applicant did not support that a starting point of 22½ months should be imposed on a single charge of using an identity cards which relates to another person. He pointed out that the defendant in that case was charged with two counts of using a forged identity card. The Court of Appeal considered that a total sentence of 15 months on two counts of using a forged identity card was not excessive. Therefore, that case could not be regarded as one where the Court of Appeal had laid down a starting point of 22½ months for a single charge of using a forged identity card. Mr Hung emphasised that the case of HKSAR v Kapanya Chatruthai (CACC 233/2011) similarly involved two counts of using a forged identity card.  The defendant in that case pleaded guilty and was only sentenced to 15 months’ imprisonment in total for the two charges.

26.Mr Hung quoted what Deputy High Court Judge Anthony Kwok said in HKSAR v Tsang Wai Man (transliteration) (HCMA 349/2017) that the sentencing guideline (namely 12 months) laid down by the Court of Appeal in Ho Chak Ming was applicable to a guilty plea, and could be enhanced to 15 months due to seriousness of the facts. Mr Hung also pointed out that in HKSAR v Li Xiu-chun (transliteration) (HCMA 744/2013), the defendant went to a bank and produced a forged identity card, intending to impersonate the account holder to obtain the money in the account. He was sentenced to 15 months’ imprisonment upon his guilty plea.

27.Mr Hung also argued that the respondent’s defrauding the bank by using an identity card which relates to another person had constituted the criminal elements and background of the four charges of conspiracy to steal and theft. If again for this reason her criminality was increased, it would result in double counting in the imposition of the punishment. 

28.In respect of charges involving bank frauds, Mr Hung submitted that in HKSAR v Chong Yui (transliteration) (CACC 161/2008), although the Court of Appeal made reference to cases like HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017, the sentence imposed was not in accordance with the sentencing guidelines in those two cases. Mr Hung pointed out that according to the sentencing guidelines in Ng Kwok Wing, for cases involving $9 million, the starting point was 7 years, and for cases involving $6 million, the starting point was 6 years. However, in Chong Yui which involved $9 million and the loss to the bank was about $6 million, the total sentence imposed was only 4½ years. Mr Hung contended that the criminality of bank frauds was not necessarily equivalent to that of breach of trust, and that in dealing with bank frauds, it is not necessary for the court to adopt the sentencing guidelines laid down by the Court of Appeal in respect of cases of breach of trust.

29.Mr Hung cited cases from the UK Court of Appeal: R v Clark (Trevor) [1998] 2 Cr App R 137 and R v Barrick [1985] 81 Cr App R 78, and asserted that the sentencing guidelines for cases of breach of trust were based on policy needs; people (who are usually employers or clients of professionals) who gave trust to others were more vulnerable, as the perpetrators would make use of the privileges or positions of trust (of accountants, lawyers, bank employees or couriers etc) to deceive their partners or clients. However, in bank frauds, the above special circumstances may not necessarily arise. Mr Hung contended that banks and financial institutions, being commercial organisations, could reduce risks of losses incurred in frauds by stepping up preventive measures and monitoring.

30.In respect of the sentences imposed in similar cases, Mr Hung cited cases such as HKSAR v Man Kam Fai (CACC 309/2009) and HKSAR v Ho Yung Yin (CACC 417/2012), and pointed out that there were no sentencing guidelines for offences of obtaining a pecuniary advantage by deception, as the facts of the case of this kind varied greatly, and in sentencing, the court had power to exercise discretion based on the facts of individual cases in order to fix an appropriate sentence.

31.In respect of other cases cited by the respondent, Mr Hung contended that in HKSAR v Chiu Ka Kin (CACC 158/2007), the Court of Appeal did not dismiss the appeal against sentence, but refused leave to appeal against sentence out of time due to the lack of explanation for leave to appeal out of time. Further, the Court of Appeal said that the starting point of 2 years could be regarded to be on the high side. HKSAR v Man Kam Fai and HKSAR v Lao Hang-hong and another (CACC 218/2009) are appeals by the two defendants in the same case. In Man Kam Fai, the defendant pleaded guilty, the Court of Appeal considered him to be a dishonest recidivist and that case also involved a criminal syndicate, therefore 3½ years was an appropriate starting point. In Lao Hang-hong, the defendant was convicted after trial. Since the defendant played a relatively minor role and had no criminal record of dishonesty, the Court of Appeal did not adopt the starting point of 3½ years in Man Kam Fai, and only sentenced him to 3 years’ imprisonment. HKSAR v Kapanya Chatruthai (CACC 233/2011) involved 7 counts of obtaining property by dishonesty where the defendant made fraudulent loan applications to three financial institutions respectively and involved a total sum of $290,000. The starting point for each of the charges varied from 9 months to 18 months. For her guilty pleas, the defendant was given a one-third discount. Based on the totality principle, the sentence on each of the charges was from 6 to 10 months, making a total sentence of 19 months on the 7 charges. On another two counts of using a forged identity card in that case, the defendant was sentenced to 15 months’ imprisonment after a plea of guilty. HKSAR v Ho Yung Yin (CACC 417/2012) involved three loan applications for the respective sums of $200,000, $36,000 and $70,000. The Court of Appeal held that the starting point for each of the charges should be reduced to 12 months, 12 months and 20 months respectively, and that based on the totality principle, the total sentence was one of 2 years.

32.Mr Hung emphasised that having considered the respondent’s background, the judge would definitely take account of the totality principle. He contended that there was no evidence in the present case clearly showing that the respondent had played a significant role in the fraud syndicate. It was within the reasonable ambit of the exercise of the trial judge’s discretion to impose a total sentence of 16 months, which was not manifestly inadequate.

33.Mr Hung also emphasised that given the special facts of the present case, even if the sentence was excessively lenient or manifestly inadequate, this Court should not impose a heavier sentence on the respondent. Mr Hung pointed out that when the respondent was released on the day of sentencing, she had been in custody for over 16½ months, and that in the computation of sentence, the court was to take account of section 67A of the Criminal Procedure Ordinance, Cap. 221, namely that the period of custody shall be deducted from the sentence. Further, under section 69 of the Prison Rules, Cap. 234A, a person serving a sentence of imprisonment should be granted remission of one-third of the sentence on the ground of his good conduct. In other words, the 16½ months for which the respondent had been in custody was equivalent to a sentence of 24¾ months, which was also equivalent to a starting point of 37 months. Mr Hung argued that looking at the matter from this angle, the sentence of 16 months imposed on the respondent was not manifestly inadequate.

34.Mr Hung also argued that an application for review of sentence means the defendant was subject to double jeopardy, and it would cause stress and anxiety to her.  If the defendant is sentenced to imprisonment again after she has served her sentence, it would cause greater stress and anxiety to her. Mr Hung emphasised the fact that the trial judge imposed a total sentence of 16 months or this application for review of sentence could only be heard 8 months after her release had nothing to do with the respondent. In support of his stance, Mr Hung cited AG v Wong Kwok-wai [1991] 2 HKLR 384 and Attorney General’s References Nos. 14 and 15 of 2006 [2007] 1 Cr App R (S) 40.

The views of this Court

35.Theft is a serious offence. Thefts targeting banks should be more heavily punished. One of the reasons is that those offences would affect the integrity of the banking system, and would even undermine Hong Kong’s status as a financial and commercial centre in the world.

36.Offences of planned frauds or thefts targeting banks must be punished severely, otherwise the sentence will not serve a deterrent effect. We are of the view that for planned frauds or thefts targeting banks, even for those which do not involve substantial amounts and have no other aggravating factors, the starting point for sentence should not be less than 2 years’ imprisonment.  

37.In the present case, there are a number of aggravating factors, including:

(1)   The respondent, by using the lost identity card of Ms Wong, impersonated Ms Wong, forged her signature and defrauded two different banks for a number of times.

(2)   The respondent acted by no means out of momentary greed, but in a well-planned and carefully organised manner.  By using the lost identity card of Ms Wong, she impersonated her, succeeded in defrauding the bank staff and obtained particulars of the deposits in Account 1. Having withdrawn $90,000 from Account 1, the respondent again succeeded in obtaining by fraud a bank draft for as much as $850,000.  Encouraged by her success in the fraud in a short period of time, the respondent, by the same mode of operation, first withdrew cash of $65,000 from Account 2, and tried to obtain a bank draft for a sum close to $3 million.  If the bank staff was not alert enough to detect her crime, it was highly probable that she would withdraw all of the deposits from Account 1 and Account 2.

(3)   The respondent committed the crimes in conjunction with others of which the actual number is unknown.  There is no way to find out their roles in the incidents.  In cases of conspiracies of this kind, different perpetrators would play different roles.  However, whatever roles they play, they are part of the fraudulent acts.  Generally speaking, when the offences committed by the perpetrators are similar, there should not be any difference in sentencing.  At the time of the offences, the respondent was in possession of the lost identity card of Ms Wong, and she even committed multiple offences by using the identity card.  We do not intend to speculate whether the respondent was the mastermind.  However, as the trial judge rightly pointed out that without the respondent’s active participation, the offences in question could not have succeeded.  The respondent has been treated extremely leniently, as the trial judge dealt with the case on the basis that she was not the mastermind.

(4)   The respondent committed the offences by no means out of momentary greed, as she committed multiple offences in a short period of time.  The trial judge pointed out that the four offences were committed in a few days, but he decided to treat her with leniency, ordering the sentence on the 4 charges to run concurrently. We considered that the trial judge’s approach was inappropriate.  The respondent committing multiple similar offences in a few days are acts aggravating the sentence, not mitigating the sentence.  It is also necessary for the sentence to reflect the aggravating factor.  To arrive at an appropriate total sentence, the court is to order at least part of the sentence to run consecutively.

(5)   The respondent succeeded in stealing more than $1 million from two banks.  If the bank staff had not been alert enough, she definitely would have taken the bank draft for $2.93 million and even continued to commit crimes until she took away all of Ms Wong’s bank deposits. Information showed that the victim in the incidents did not, and could not possibly recover the stolen money.

38.The respondent asserted that she was not the mastermind of the case, and that she did not obtain extremely great rewards in the incidents. We reiterate that in cases of conspiracies to defraud, the actual roles played by different conspirators and how much rewards they obtained can only be known to the conspirators, but cannot be verified by others. In cases of conspiracies to defraud where conspirators claimed that they had played minor roles and had not obtained high rewards, these are not grounds for mitigation. On the contrary, if there is evidence showing that the conspirators have played significant roles or actively participated or received substantial rewards in the offences, those are aggravating factors, and enhancement of the starting points must follow.

39.Also, this Court cannot disregard that the respondent committed the offences by using a lost identity card which relates to another person, as Mr Lui rightly pointed out that committing a criminal act by using an identity card which relates to another person alone could have attracted a starting point of over 20 months (see HKSAR v Ho Chak Ming, CACC 316/2009 & Tsang Wai Man). Although the charges to which the respondent pleaded guilty did not include one of using an identity card which relates to another person, such factor is not irrelevant to the sentence. The fact that the respondent used Ms Wong’s identity card and defrauded two banks in her capacity is the background of the entire crime, and it is one of the relevant factors to be considered in sentencing.

40.The present case involves a total of about HK$ 4 million, and the starting point should not be less than 5 years (see Ng Kwok Wing). Nevertheless, the victim eventually suffered financial losses of only about HK$1 million, and this factor should be appropriately reflected in the starting point. We consider the appropriate overall starting point to be 4 years and 8 months.

41.As there are multiple aggravating factors in the present case, the above overall starting point must be adjusted upwards. Given the nature of the charges and the respondent’s modus operandi, and even treating the respondent most leniently in sentencing, we considered that the overall starting point for the 4 charges should not be less than 5 years. The respondent pleaded guilty to the charges and must be given a one-third discount, therefore the total sentence should be one of 40 months. 

42.It is the duty of this Court to impose an appropriate sentence in accordance with the culpability of the defendant. Whether a person who is serving his sentence will obtain a one-third discount on the sentence under section 69 of the Prison Rules is to be decided by the Correctional Services Department, and does not concern this Court.

43.Nevertheless, we agreed that since the present case is an application for review of sentence and the respondent has served the sentence by now, if she is to serve a sentence again, it would be an extra punishment to her. We considered that the above factor should result in a further discount of 6 months, thereby arriving at a total sentence of 34 months.    

44.We granted the application for review of sentence by the applicant and set aside the sentence. In its place, we substituted the sentences of 16 months’, 20 months’, 16 months’ and 28 months’ imprisonment respectively on the 4 charges.

45.At the same time, we ordered the 2 months on each of the first 3 charges to run consecutively with the 28 months on Charge 5.

46.The total sentence to be served by the respondent was adjusted upwards to 34 months from 16 months. The respondent is to be remanded in custody to continue to serve the remainder of her sentence. 

Mr Ira Lui, SADPP of the Department of Justice, for the applicant

Mr Andy Hung, instructed by Gallant Y T Ho & Co assigned by DLA, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.