HKSAR v. Hui Tsz Hang

CACC 58/2022

[2023] HKCA 347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 58 OF 2022

(ON APPEAL FROM DCCC NO 804 OF 2021)

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REASONS FOR JUDGMENT

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Introduction

1.The applicant pleaded guilty to 2 charges of Fraud, contrary to section 16A of the Theft Ordinance, Cap 210 before HH Judge Lily Wong (the “judge”) in the District Court.  On 27 April 2022, he was sentenced to 34 months’ and 37 months’ imprisonment respectively for the 2 charges, with 12 months out of the sentence on Charge 2 ordered to be served consecutively, resulting in a total term of imprisonment of 46 months.[1]  His application for leave to appeal against his sentence was refused and these are the reasons.

The facts admitted by the applicant

2.The applicant admitted the following facts.

3.Between 2010 and 2017, 3 properties were purchased by Madam Ho (“PW2”), mother of the applicant in the applicant’s name: Property 1 (“Charge 1”), Property 2 and Property 3 (“Charge 2”).

4.On 27 March 2019, upon the request of PW2, a declaration was made by the applicant in the Home Affairs Department (“HAD”) confirming that Properties 1 to 3 belonged to PW2.  The purchase monies came from PW2, and the applicant only held the 3 properties on trust for her.  The applicant did not have any right to sell or mortgage the properties (“Declaration”).  The Declaration was kept by PW2 and it was delivered to the Land Registry for registration by the legal representative of PW2 on 8 October 2020.

5.Within a span of 9 months, the application made false declarations twice to a finance institution representing himself to be the sole and absolute owner who made the down payment and mortgage repayment of the 3 properties involved.  As a result, he obtained a mortgage loan of HK$3 million (Property 1) and another mortgage loan of HK$4 million (Properties 2 and 3).

6.The financial institution would not have approved the application had it been known that the applicant was not the sole and absolute owner of Properties 1 to 3.

Mitigation

7.The judge was told of the applicant’s background, that he was 34 years old, single and had attained a higher diploma in mechanical engineering.  The applicant had a clear record.He was employed as an engineering foreman at an elevator company.  Unable to repay the loans he took out in respect of the offences, his office received various calls demanding repayment of the debt and he was forced to resign.[2]

8.Counsel for of the applicant in the lower court relied on a number of authorities to illustrate the sentencing principle in fraud cases: HKSAR v Ho Ka Keung[3], HKSAR v Ng Kwok Wing[4], HKSAR v Lam Wing On[5], HKSAR v Ling Veronica[6], HKSAR v Kong Hon Yui Kevin[7]and HKSAR v Chau Kar Ho Bernard[8].[9]  In relation to the issue of voluntary surrender to the police, the applicant relied on the case of HKSAR v Lam Hoi[10]. [11]

9.The following mitigation factors were advanced:

(1)  The applicant’s clear record;

(2)  His timely guilty plea;

(3)  His remorse;

(4)  His voluntary surrender;

(5)  His repaired relationship with his family;

(6)  The unsophisticated nature of the offence.

Reasons for sentence

10.The judge considered the present case involved a breach of trust reposed in him by his mother[12] and the applicant committed the offences out of greed.[13]

11.Applying the guidelines in HKSAR v Cheung Mee Kiu[14], revised in HKSAR v Ng Kwok Wing [15], the judge was of the view that the total amount of $7 million involved should attract a starting point of 6 years and 8 months’ imprisonment.

12.Accepting that the applicant acted alone in committing the offences and the degree of premeditation and the modus operandi deployed was less elaborated and sophisticated compared to other cases, the judge adopted a starting point of 54 months for Charge 1 and 59 months for Charge 2.[16]

13.Giving the applicant’s full credit for his pleas of guilty, the judge reduced the sentence on the two charges to 36 months and 39 months respectively.[17]

14.The judge took into account his voluntary surrender but she was of the view that that fell into the lowest end of the scale for discount described in Lam Hoi.  She reduced the sentence for each charge by 2 months, thus arriving at 34 and 37 months’ imprisonment respectively for each charge.

15.She then took into account totality and considered that a global starting point for the 2 charges should be 72 months’ imprisonment, reduced to 48 months for his guilty pleas and further reduced to 46 months for his voluntary surrender[18].  Hence it was ordered that 12 months out of the 37 months’ imprisonment in respect of charge 2 to run consecutively.[19]

Grounds of Appeal and submission

16.The applicant acts in person.  He complains that the sentence is manifestly excessive.  He contends that the present case is nowhere like the cases of Ling Veronica, Kong Hon Yui Kevin and Lam Wing On and did not involve any use of false documents or elaborate planning.  He acted alone.  The amount involved in the present case is lower than that of Ling (HK$8.2 million), Kong (HK$11 million) and Lam (HK$7 million) where starting point of 6 years was adjudged to be appropriate.  He further argues that the judge failed to take sufficient account of the fact that he lost his job as a result of committing the present offence.  He submits that the 2 months’ reduction for his self-surrender to the police was insufficient and urges the Court to adopt 4.5 years as a global starting point for the two charges and to afford him 4 months’ reduction for his self-surrender.

Respondent’s submissions

17.The respondent relies on the case of Lam Wing On which ruled that the guidelines set down in Cheung Mee Kiu and Ng Kwok Wing could be used as a reference in fraud cases involving breach of trust.  The judge was correct to identify 80 months as the starting point for the total amount involved in the two charges, ie. HK$7 million.  Having taken into account the mitigating factors, the judge rightly lowered that to 72 months.  The respondent further contends that the discount of 2 months for his lowest level of voluntary surrender was entirely appropriate.

18.Given the above, the respondent submits that the sentence is not manifestly excessive.

Discussion

19.In HKSAR v Godson Ugochukwu Okoro[20],Zervos JA remarked that:

“87. There is no doubt in our view of the importance of sentencing guidelines, and that of the underlying sentencing policies and principles on which they are found, that seek to ensure consistent and appropriate levels of punishment of offenders for offences against the criminal law. …”

20.The total amount in the present case was HK$7 million, and that falls within the $3 million to $15 million band in Cheung Mee Kiu, which calls fora starting point of 5-10 years apply.  One should bear in mind that having identified the starting point by reference to the relevant band, the sentencing judge would then consider the aggravating and mitigating factors.

21.The arguments advanced by the applicant mainly focused on comparing this case with other cases where the amounts involved was said to be similar to or more than that involved in the present.  In doing so, two very important points have been overlooked.  The amount of money involved is only one factor to be taken into account.  The fact that there were two different transactions resulting in two offences charged is significant.  In Ling Veronica, Power V-P said:

“…the respondent was a key participant whose participation was essential to the successful conclusion of the frauds. We are satisfied that the two sets of mortgage offences should have been dealt with separately…”[21]

22.The second offence was committed within 9 months after the first, and the period over which the offences were committed is one of the factors to be taken account of: see Lam Wing On. The degree of trust reposed by the applicant’s mother in him was great and he had abused that trust to his own advantage.  Having gained the monies which otherwise he should not have been entitled, he lost all of them in gambling.  The sum is not a small one and impact to the mother cannot be said to be minimal. Taking all these into account, even the first charge on its own would attract a starting point of 5 years, and the second would warrant 6 years in view of the higher amount involved and that was the second time he practised a fraud of similar nature on the same victim.

23.Viewed in that light, the judge, taking a global view of his culpability by adding the amount in the two charges together and affording a global starting point of 6 years and 8 months in accordance with the guidelines cannot be faulted.

24.For the lack of sophistication of the fraud practised and that he acted alone, she reduced that to 72 months and afforded him a one-third discount for his plea.  In relation to the so-called self-surrender, the judge took account of HKSAR v Lam Hoi[22], which says:

“59. A further discount must then be awarded to the appellant to reflect his surrender to the police. Surrender to the authorities can take a number of different forms, each of which may be of a different mitigating value. The form of surrender that has the greatest mitigating value is that which is accompanied by a confession by an offender of an offence not known to the police. The next level would be where an offender confesses to the police in respect of a known offence which has not been linked to him. At the lowest level is an offender who is within the jurisdiction and who is being actively sought by the police but who the police have not been able to apprehend.”

25.Turning to the chronology of event prior to his arrest, I quote from the Judge’s Reasons for Sentence[23]:

“28. …

(i) Konew reported the matter to the police on 3 February 2021 and the police started investigating into it;

(ii) The police carried out an arrest operation on 17 March 2021 but the defendant could not be located at the address he gave to Konew;

(iii) The defendant had moved out before the arrest operation;

(iv) On 7 May 2021, the defendant made a report to Shan Shui Po Police Station as he considered himself a victim of a telephone fraud;

(v) 20 minutes after he left the police station, he received a call from Sham Shui Po Police Station that he was told about the general nature of the matter of this case and asked to return to the police station;

(vi) He returned to the police station and was arrested;

(vii)   On 8 May 2021, he attended a video recorded interview and he made frank and full admissions to the offences as he now admits in the summary of facts. …”

26.The circumstances leading to his arrest were nothing near to self-surrender.  He did not go to the police station voluntarily to face the music.  He turned up there to report an alleged crime for which he thought he was the victim.  It was only after he left and was contacted by the police again that returned to the police station.  I do not see this as self-surrender.  The affording of 2 months extra discount on this ground was generous by the judge.

27.I find all of the grounds advanced by the applicant are without substance and not reasonably arguable.

28.I remind the applicant of his right to renew his application for leave to the Court of Appeal but that may attract a consequence of a direction for loss of time spent in custody pending his appeal, should the Court come to the view that there is no justification for the renewal of his application.

Ms Kasmine Hui, SPP of the Department of Justice, for the respondent

The applicant acting in person

[1] Appeal Bundle, page 19

[2] Appeal Bundle, pages 31

[3] unreported, CACC 196/2007

[4] [2008] 4 HKLRD 1017

[5] [2019] HKCA 616

[6] unreported, CAAR 1/1998

[7] unreported, CACC 473/2009

[8] unreported, DCCC 1166/2013

[9] Appeal Bundle, pages 32-35

[10] unreported, CACC 105/2016

[11] Appeal Bundle, page 35-36

[12] §21, Reasons for Sentence, Appeal Bundle, pages 14-15

[13] §22, Reasons for Sentence, Appeal Bundle, page 15

[14] [2006] 4 HKLRD 776

[15] §23, Reasons for Sentence, Appeal Bundle, page 15; Footnote 1, Ng Kwok Wing extracted as follows: “The starting points set out in HKSAR v Cheung Mee Kiu for the offence of theft involving breach of trust would be revised as follows: (a) involving $15 million or more: 10 years or above; (b) involving $3 million to $15 million: 5 to 10 years; (c) involving $1 million to $3 million: 3 to 5 years; (d) involving $250,000 to $1 million: 2 to 3 years; and (e) involving $250,000 or less: below 2 years (HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 revised).”

[16] §§24-26, Reasons for Sentence, Appeal Bundle, pages 15-16

[17] §27, Reasons for Sentence, Appeal Bundle, page 17

[18] §32, Reasons for Sentence, Appeal Bundle, pages 18-19

[19] §§33-34, Reasons for Sentence, Appeal Bundle, page 19

[20] [2019] 2 HKLRD 451

[21] §2 at page 6

[22] CACC 105/2016

[23] Appeal Bundle pages 17G-18C