HKSAR v. Chan Wai Man, Tracy

DCCC 616/2022

[2023] HKDC 1084

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 616 OF 2022

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REASONS FOR SENTENCE

The defendant pleaded guilty to 14 charges of "Fraud". She made up a false excuse to borrow money from her friends. A total of 14 friends were deceived and a total sum of $2.75 million were involved.

Summary of Facts

2.The defendant used to be a nurse at Queen Mary Hospital ("QMH").  She left QMH to join a private clinic in 2015.  PWs 1 to 4 and 6 to 14 are the defendant's former colleagues at QMH.  PW5 and the defendant worked in the same private clinic.

3.Between May 2020 and February 2021, the defendant borrowed money from PWs 1 to 14 by falsely claiming that her husband's business was in financial trouble.  All 14 PWs stated that they would not have lent money to the defendant had they known that her husband's business was not in trouble.

4.The sums of money borrowed by the defendant from each of her 14 friends are set out in details at paragraph 3 of the Summary of Facts[1]. The sums ranged from $20,000 to $550,000.  In short, the defendant borrowed a total sum of $2.75 million from them.  She has repaid 9 out of 14 friends partially, which amounted to a total sum of $177,000.

5.PW1 knows the defendant's husband.  She subsequently discovered that his business was not in trouble and that he had in fact separated with the defendant in 2019.  Some of the victims then confronted the defendant and she admitted having lied to them.  The victims reported the matter to the Police on 17 May 2021.

6.In her 2 video recorded interviews respectively conducted in July and August 2021, the defendant admitted that she had separated with her husband in April 2019.  In March 2020, she met a man on Facebook and they became an online couple.  Using various excuses, that man had scammed off the defendant's savings and she started borrowing money from her friends.  She has given that man $7 million in total.  The defendant further admitted that when borrowing from PWs 1 to 14, she had falsely claimed that there were problems with her husband's business.

Mitigation & Sentence

7.The defendant is 55 and has a clear record. Defence counsel Mr. Lo informed me that the defendant is a registered nurse. She married her 2^nd (current)  husband in 2004. They separated in April 2019 upon the defendant discovering that he was having an affair. She hit rock bottom of her life and started having symptoms of depression. Worse still, she met someone online and fell into the trap of a typical online romance scam. The defendant lost all her savings and started to borrow from her friends using a false excuse. The defendant reported her deception complaint to the Police in March 2021. Since she was unable to repay her debts, she filed for bankruptcy. Upon knowing the defendant's bankruptcy petition, PWs 1 to 14 reported their complaints to the Police in May 2021.

8.In mitigation, Mr. Lo submitted that the defendant is the victim of her own misfortune. Emotionally, her husband cheated on her; and financially, she lost all her savings when she was most vulnerable. The defendant naively believed in her online lover and thought she could repay her friends once that man's assets could be released. Based on the report written by a private psychiatrist[2], the defendant was diagnosed with moderate depressive episode. The defendant's parents have passed away and she has no children from her 2 marriages. Her only family member is an elder brother with psychiatric illness. She visits him regularly to clean and tidy up his home. A bundle of mitigation documents was placed before me; their contents are duly noted.

9.Although this case does not involve the Barrick type of breach of trust, I find the sentencing guidelines laid down by the Court of Appeal in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 nevertheless relevant. In my view, such guidelines are simply a yardstick. For cases which are not of the Barrick type, the court may still follow the guidelines in Ng Kwok Wing or impose a sentence which is higher or lower than the guidelines, depending on the facts of each case[3].

10.The defendant's misfortune is tragic. I accept that at the time when she borrowed from her friends, she believed that once the man's assets could be released, she could repay them all and she all along intended to so. In other words, although she made up a false excuse, she did not obtain those loans out of greed; she was buried too deep in her online romance which clouded her common sense and judgement. Hence, I am prepared to set the starting point for each charge slightly lower than the guidelines in Ng Kwok Wing.

11.Charge 1 involves a total of $470,000 (with 8 payments over a period of about 4 months). The defendant has repaid PW1 $3,000. According to Ng Kwok Wing, if the amount stolen is between $250,000 and $1 million, the starting point is 2 to 3 years' imprisonment. Applying a strict arithmetical approach, the starting point for deceiving $470,000 should be 2.5 years. As I have explained, I will adopt a starting point lower than the range specified by the guidelines. A starting point of 27 months' imprisonment is sufficient and just in the present case. No credit will be given for the nominal repayment[4]. With the timely guilty plea, the sentence is reduced to 18 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 18 months' imprisonment for this charge.

12.Charge 2 involves a total of $200,000 (with 4 payments over a period of 5 days). The defendant has repaid PW2 $50,000. According to Ng Kwok Wing, if the amount stolen is below $250,000, the starting point should not be higher than 2 years' imprisonment. Applying a strict arithmetical approach, the starting point for deceiving $200,000 should be 20 months. To adopt a starting point lower than the range specified by the guidelines, 18 months' imprisonment is sufficient and just in the present case. The repayment of $50,000 will bring the starting point further down to 15 months. With the timely guilty plea, I sentence the defendant to 10 months' imprisonment for this charge.

13.Charge 3 involves a total of $100,000 (with 2 payments over a period of 2 days). The defendant has repaid PW3 $3,000. Applying a strict arithmetical approach, the starting point should be 10 months. To adopt a starting point lower than the range specified by the guidelines, 9 months' imprisonment is sufficient and just in the present case. No credit will be given for the nominal repayment. With the timely guilty plea, I sentence the defendant to 6 months' imprisonment for this charge.

14.Charge 4 involves a total of $100,000 (with 1 payment over a period of 1 day). The defendant did not repay PW4 any amount. For reasons similar to those in Charge 3, I sentence the defendant to 6 months' imprisonment for this charge.

15.Charge 5 involves a total of $220,000 (with 3 payments over a period of about 1.5 months). The defendant did not repay PW5 any amount. Applying a strict arithmetical approach, the starting point should be 21 months. To adopt a starting point lower than the range specified by the guidelines, 18 months' imprisonment is sufficient and just in the present case. With the timely guilty plea, I sentence the defendant to 12 months' imprisonment for this charge.

16.Charge 6 involves a total of $150,000 (with 3 payments over a period of about 1 month). The defendant has repaid PW6 $1,500. Applying a strict arithmetical approach, the starting point should be 14 months. To adopt a starting point lower than the range specified by the guidelines, 12 months' imprisonment is sufficient and just in the present case. No credit will be given for the nominal repayment. With the timely guilty plea, I sentence the defendant to 8 months' imprisonment for this charge.

17.Charge 7 involves a total of $230,000 (with 3 payments over a period of 7 days). The defendant has repaid PW7 $11,500. Applying a strict arithmetical approach, the starting point should be 22 months. To adopt a starting point lower than the range specified by the guidelines, 19 months' imprisonment is sufficient and just in the present case. The repayment of $11,500 will bring the starting point further down to 18 months. With the timely guilty plea, I sentence the defendant to 12 months' imprisonment for this charge.

18.Charge 8 involves a total of $120,000 (with 3 payments over a period of 3 days). The defendant has repaid PW8 $1,000. Applying a strict arithmetical approach, the starting point should be 11.5 months. To adopt a starting point lower than the range specified by the guidelines, 9 months' imprisonment is sufficient and just in the present case. No credit will be given for the nominal repayment. With the timely guilty plea, I sentence the defendant to 6 months' imprisonment for this charge.

19.Charge 9 involves a total of $280,000 (with 4 payments over a period of about 2.5 weeks). The defendant did not repay PW9 any amount. Applying a strict arithmetical approach, the starting point should be 2 years. To adopt a starting point lower than the range specified by the guidelines, 21 months' imprisonment is sufficient and just in the present case. With the timely guilty plea, I sentence the defendant to 14 months' imprisonment for this charge.

20.Charge 10 involves a total of $550,000 (with 2 payments over a period of about 1 month). The defendant did not repay PW10 any amount. Applying a strict arithmetical approach, the starting point should be 2.5 years. To adopt a starting point lower than the range specified by the guidelines, 27 months' imprisonment is sufficient and just in the present case. With the timely guilty plea, I sentence the defendant to 18 months' imprisonment for this charge.

21.Charge 11 involves a total of $20,000 (with 1 payment over a period of 1 day). The defendant has repaid PW11 $2,000. Applying a strict arithmetical approach, the starting point should be 3 months. To adopt a starting point lower than the range specified by the guidelines, 9 weeks' imprisonment is sufficient and just in the present case. No credit will be given for the nominal repayment. With the timely guilty plea, I sentence the defendant to 6 weeks' imprisonment for this charge.

22.Charge 12 involves a total of $20,000 (with 2 payments over a period of 12 days). The defendant did not repay PW12 any amount. For reasons similar to those in Charge 11, I sentence the defendant to 6 weeks' imprisonment for this charge.

23.Charge 13 involves a total of $140,000 (with 2 payments over a period of about 3 months). The defendant has repaid PW13 $95,000. Applying a strict arithmetical approach, the starting point should be 13 months. To adopt a starting point lower than the range specified by the guidelines, 12 months' imprisonment is sufficient and just in the present case. The repayment of $95,000 will bring the starting point further down to 6 months. With the timely guilty plea, I sentence the defendant to 4 months' imprisonment for this charge.

24.Charge 14 involves a total of $150,000 (with 2 payments over a period of about 1 day). The defendant has repaid PW14 $10,000. Applying a strict arithmetical approach, the starting point should be 14.5 months. To adopt a starting point lower than the range specified by the guidelines, 12 months' imprisonment is sufficient and just in the present case. The repayment of $10,000 will bring the starting point further down to 10.5 months. With the timely guilty plea, I sentence the defendant to 7 months' imprisonment for this charge.

Totality

25.In all 14 charges, the defendant deceived a total of $2.75 million. She has repaid a total of $177,000.

26.According to Ng Kwok Wing, if the amount stolen is between $1 million and $3 million, the starting point is 3 to 5 years' imprisonment. Applying a strict arithmetical approach, the starting point for deceiving $2.75 million should be 4.75 years' imprisonment. To adopt a starting point lower than the range specified by the guidelines, I consider a global starting point of 4 years' imprisonment just and appropriate in the present case. The repayment of $177,000 will bring the starting point further down to 45 months. With the timely guilty pleas, the overall sentence becomes 30 months. To achieve this, I order the sentences to run in the following manner :-

(i)  Charges 1 to 4 to run concurrently;

(ii)  Charges 5 to 8 to run concurrently; with 4 months to run consecutive to Charges 1 to 4;

(iii)  Charges 9 to 12 to run concurrently; with 4 months to run consecutive to Charges 1 to 8; and

(iv)  Charges 13 to 14 to run concurrently; with 4 months to run consecutive to Charges 1 to 12.