HKSAR v. Yung Man Ho

DCCC 421/2021

[2022] HKDC 166

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 421 OF 2021

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of fraud, contrary to section 16A of the Theft Ordinance[1]. Full particulars of the offence are set out in the amended summary of facts dated 10 February 2022 admitted by the defendant on 15 February 2022[2].

2.In summary on 11 July 2017 the defendant fraudulently obtained a personal loan in the sum of $300,000 from PrimeCredit Limited by submitting false income proof purportedly from Kai Lok Trading Company with supporting bank statements of the Hang Seng Bank. 

3.The defendant had never worked for Kai Lok Trading Company and the bank statements purporting to show deposits from Kai Lok Trading were false.  PrimeCredit Limited would not have approved the loan if they had known the documents submitted were false. 

4.The defendant repaid $155,000. The outstanding balance has been written off by PrimeCredit.

5.The defendant was arrested on 21 March 2018.

Mitigation

6.In passing sentence, I have carefully considered the oral and written submissions of Mr Lo, including that the defendant, who is 36, single, lives with his parents and works as a casual delivery worker, has been diagnosed with decompensated heart failure[3].  I have read the medical reports submitted to court and note that the defendant is awaiting surgery. 

7.I have read the mitigation letter written by the defendant’s father asking for leniency on behalf of his son.  The defendant’s mother and father are both in court today to show their support.

8.I take into account the defendant was last before the court in 2006 and has no convictions for offences of dishonesty.

Guidelines

9.There are no guidelines for offences of fraud. 

10.In HKSAR v Ho Yung Yin the appellant fraudulently obtaining three loans of $70,000, $20,000 and $36,000[4].  The appellant submitted false documents purporting to show he was in bona fide employment.  The false documents were supplied to him by D1.  The appellant claimed he handed all the money obtained to D1, who the sentencing judge regarded as the mastermind. None of the monies obtained were repaid.

11.The sentencing judge adopted an overall starting point of 4 years and 6 months’ imprisonment which took into account the appellant had a previous criminal record for offences of dishonesty. 

12.Taking into account the amount of the loans, the appellant’s role was crucial to the success of the crime, the appellant was neither the instigator or beneficiary; the level of culpability was far less than that of D1, the appellant’s youth (21 at the day of sentence)  and that the appellant was not a persistent offender, the Court of Appeal held that for the loan of $70,000 the appropriate starting point was 2 years and 6 months’ imprisonment and for the loans of $20,000 and $36,000 the appropriate starting point was 1 year and 6 months’ imprisonment.

13.Both the Court of Appeal and the sentencing judge referred to the decision in HKSAR v Man Kam Fai where the applicant was convicted of obtaining a pecuniary advantage by deception, namely a loan of $78,000 from a finance company by making fraudulent representations about his employment and supporting those representations by false documents provided by another[5].  At the time of sentence $13,000 had been repaid.  The applicant had obtained $30,000 as his reward. 

14.Taking into account that the offence was a planned organized crime involving more than one offender, the use of false documentation, the applicant played an important role in the commission of the crime and that the applicant was a recidivist, the Court of Appeal held that a starting point of 3 years and 6 months’ imprisonment was appropriate. 

Repayment

15.The defendant says he did not intend to default repayments and that together with his family he has tried to settle the balance of the outstanding loan.  As a result the defendant has repaid $155,000[6]. 

16.Mr Lo informs the court that PrimeCredit discovered the documents were false in July 2017 and invited the defendant to go to their office to settle payment.  In August 2017 the defendant repaid $50,000.  This was followed by seven monthly payments of $15,000. 

17.Mr Lo is instructed that after the defendant was arrested in March 2018 staff of PrimeCredit advised him not to make any further payments.  Notwithstanding almost four years have passed since the defendant’s arrest Mr Lo informs the court the defendant is not in a position to make any further repayment. 

Sentence

18.There is no suggestion in this case that there was anybody else involved in the fraud.  Mr Lo informs the court that the defendant spent $140,000 on repaying personal loans arising from his lavish lifestyle of attending nightclubs.  As stated in the summary of facts $160,000 was used to repay loans with the Hang Seng Bank[7].

19.The amount of the loan, $300,000, is substantially more than that in the two cited cases.  Taking into account $155,000 has been repaid, I am satisfied a starting point of 3 years and 6 months’ imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 2 years and 4 months’ imprisonment. 

Delay

20.Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[8].

21.Mr Lo has supplied to the court a chronology of events and submits that through no fault of the defendant there has been a long delay and that the case could reasonably have been brought to court earlier[9].  Mr Lo asks the court to exercise its discretion to give further discount for delay. 

22.The case was reported to the police in July 2017, the same month the loan was granted. The defendant was arrested in March 2018 and only charged over three years later in April 2021. 

23.Mr Hui also submitted to court a chronology of events explaining why the defendant was not charged until April 2021.  Mr Hui was unable to confirm when PrimeCredit reported the case to the police.

24.Although the investigation involved a total of seven suspects there is nothing in the chronology which appears to justify the taking of over 3 years from arrest to charge.  I agree with Mr Lo that the matter could reasonably have been brought to court much earlier than it was.  

Ill health

25.The medical reports show the defendant was diagnosed with heart disease in August 2021, the defendant having complained of chest pain for the previous two years.  Surgery is recommended however due to the health risks involved the defendant has been referred for further consultation to determine the most suitable treatment.

26.In HKSAR v Cheng Ho Chow the Court of Appeal reviewed a number of authorities about the reduction of sentence on humanitarian grounds[10].  The Court of Appeal drew the following conclusions from that review:

(1)  Ill health generally will not operate as a mitigating factor. Medical facilities available in the prisons in Hong Kong are adequate to deal with prisoners’ general physical complaints.

(2)  In rare circumstances, very serious injuries, even where suffered in the course of criminal activity, can be (but not must be)  taken into account to reduce the sentence.

(3)  Reduction of sentence under these circumstances can be done as an act of mercy or on the basis that the hardship which the offender in question will suffer when he is in prison will, because of his disabilities or ill health, be more than those suffered by a healthy person.

(4)  Adjustment made to a sentence under these circumstances must be within proper limits, because of the necessity of maintaining proper standards of punishment.

(5)  In order to decide whether a sentence should be reduced for this reason, all the circumstances of the case should be considered.

(6)  The court must keep a proper balance between public interest and the regard for the exceptional hardship suffered by an accused. In offences of extreme gravity, public interest no doubt must prevail. But even when the offence is not of extreme gravity, that is not an indication that due weight does not need to be given to public interest.

27.In HKSAR v Cheng Ho Chow the appellant pleaded guilty to one count of dangerous driving causing death in the course of which the appellant was also severely injured.  Medical reports showed the appellant to be suffering from tetraplegia and required special treatment for spinal injuries.

28.In addition to medical reports the court requested a further report from the Correctional Services Department on the medical facilities available in the prisons.  The court noted that if specialist consultation was required the prisoner would either be treated by visiting specialists from the Hospital Authority or sent to outside clinics for treatment[11]. 

29.The court also noted that all along the Correctional Services Department have been taking care of disabled prisoners, for example, prisoners suffering from quadriplegia, paraplegia or suffering from a paralytic stroke[12]. 

30.I am satisfied the defendant will receive all necessary medical treatment while serving sentence and that the prison authorities will closely monitor the defendant’s condition.  Should there be a deterioration in the defendant’s condition he may always apply to the Chief Executive for clemency.

31.After careful consideration of all the circumstances, including the time taken to bring the case to court during which the defendant was diagnosed with heart disease, I am satisfied a reduction in sentence of 4 months to 2 years’ imprisonment is appropriate.

32.The defendant is convicted and sentenced to 2 years’ imprisonment.