HKSAR v. Chiu Kiu Fung

DCCC 766/2021

[2023] HKDC 1650

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 766 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a single charge of conspiracy to deal with property known or reasonably believed to represent proceeds of an indicatable offence.

THE PROSECUTION’S CASE

2.The defendant had on 6 December 2010 opened a Hang Seng Bank Account 357-512-359-668 (HSB Account)  in her sole name for her personal use, at all material times, the defendant was the sole authorized signatory of the account.

BANK RECORDS

3.Bank records show the followings:-

(a)  From 9.8.2011 to 16.12.2012 consistent with ordinary legitimate use;

(b)  On 17.12.2012, the defendant withdrew 6 times on the same day leaving a balance of HK$24.15;

(c)  From 18.12.2012 to 6.8.2015, 4,239 deposits were made ranging from HK$50-HK$8,600 and 842 withdrawals were made ranging from HK$300-HK$18,000.

Year or Part year	Deposits (HK$)	Withdrawals (HK$)
2012-12-18 to 2012-12-31	37,650.00	34,500.00
2013	912,266.00	915,100.00
2014	1,650,845.00	1,649,500.00
2015-1-1- to 2015-8-6	683,502.01	682,000.00
Overall Totals	3,284,263.01	3,281,100.00

4.Only 2 out of 89 depositors were located, namely Mr Wong and Mr Lee, in gist, they were the victims of a loan shark, they repaid their loans through the HSB Account, the interest charged on them were 713.51% and 994.29% respectively.

5.The defendant was arrested and cautioned on 12 May 2017, under caution, the defendant replied she had reported the loss of her HSB Account to police, since then, she had not used her HSB Account and did not know what happened to it.

VRI

6.A video record of interview was taken from her, in the VRI the defendant stated:-

(a)  The defendant admitted she had given her ATM card to another for a reward;

(b)  In mid or end 2012, the defendant received a message to borrow money and she called back and obtained a loan of HK$2-3,000 from a Mr Wong (Wong)  through the phone, the money was later deposited into her HSB Account;

(c)  She did not get the full amount, the amount loaned was deposited into her HSB Account. If she borrowed HK$2,000, she could only get HK$1,500 to HK$1,800. If she borrowed HK$3,000, 10% would be deducted and she would only get HK$2,000 plus. Interest of HK$300 was charged for every 10 days until the full amount was settled in one single repayment.

(d)  Wong chased her for repayment and she was unable to pay, Wong proposed to borrow her HSB Account ATM card and in return would give her HK$4,000 every 4 months, after 4 months, she could get her ATM card back which she agreed.

(e)  The defendant gave her ATM card to an unknown male in Kwai Chung Plaza and she was given HK$4,000 in return. Wong later called her for the password and the defendant told him the same. Wong told the defendant the HSB Account would be used for receiving money, after 4 months she could get her ATM card back.

(f)  About 4 months later, Wong asked for repayment again and the defendant in turn asked him for the return of the ATM card. Wong refused to return the card and further deposited HK$4,000 to her other BOC or HSBC account.

(g)  After a while, Wong asked for repayment again and the defendant in turn asked for the return of the card, but Wong refused again and said the card would be used to settle the outstanding sum and would not be returned to her. Since then, they did not contact each other.

(h)  The defendant knew it was unusual for Wong in paying her to use the card, she did ask Wong whether it was OK and Wong told her it was only used for receiving money, she could make a lost report to protect herself to prove she had nothing to do with it, and she did make a lost report to police.

(i)  She did not cancel the HSB Account because she was paid for the use of the HSB Account and she was afraid if she cancelled it Wong would chase her for repayment again.

(j)  She did not know anything about the money in the HSB Account nor dealt with the money in the HSB Account after she had given the ATM card to Wong.

7.The defendant made a false report to the police of losing her wallet containing inter alia her HSB Bankcard on 18 December 2012.

MITIGATION AND SENTENCE

Personal Background

8.The defendant is now aged 66, married with 2 children.  She has lived a blameless and industrious life all these years.  She used to work as a caretaker taking care of the elderly since 2002 up until 2021 where she had to quit her job after committing suicide and needed time for recovery.  She now works as a part time cleaner.  She has a clear record.

9.2 psychiatric reports and a background report have been called for, I intent not to repeat the contents of the reports, suffice to say, live has never been easy on the defendant, she grew up in a poor family with 7 other siblings, she was educated up to primary school.  She started working at a very young age when she was 13, got married in 1980, her son aged 39, her daughter aged 40, she has 3 grandchildren.

10.Her husband used to run a small transport company, but it wasn’t very successful and the company was closed down in 2003, as their financial situation got worse, they had to borrow from financial companies, even from loan sharks, she was declared bankrupt in 2005, but they still needed to pay back the loan sharks.  Needless to say, her financial situation never improved and that was the reason that got her into trouble with the law as described in her record of interview.

11.The defendant has been known to mental health service since 2006, with presentation of low mood, poor sleep and suicidal ideation and still attending regular follow ups.  Due to her financial matters and this criminal case, she tried to kill herself by overdosing 70 tables of antihypertensive medications.  She was last discharged from Castle Peak Hospital in 2021 after her attempted suicide, she was diagnosed with severe depressive episode.

12.She is responsible for taking care of her grandchildren, on 17 November this year, unfortunately, her eldest 15-year-old granddaughter was found to have a tumor in her right kidney, operation is expected to be performed pending further medical advice, to be followed up by chemotherapy or electrotherapy.  The defendant is greatly distressed and pleads this court’s clemency so she can be present to comfort and attend to her granddaughter during this difficult times.

13.Lastly, numerous mitigation letters have been submitted, again I do not intend to repeat the contents of these letters, these letters come from her siblings, close family members, friends, colleagues and a pastor, all of which speak very highly of her, in gist, a perfect role model whether in the eyes of her relatives or those whom had worked with her.

14.In mitigation, Defence Counsel urged this court not to impose an immediate custodial sentence on the defendant, he stressed suspending the sentence is a viable option given there are exceptional circumstances surrounding this case.

DELAY

15.The offence took place in 2012, the defendant was subsequently arrested on 12 May 2017 and gave the VRI to the police on the same day.  Charge was laid against her on and her first appearance in the Magistrate’s court in July 2021. Defence complained this is a rather straightforward case, only one bank account was involved, the defendant had already told them her account of events, the 4-year delay was plainly unnecessary.  The prosecution agreed this has a significant impact on sentence in favor of the Defendant.

16.Another complaint by the Defence is that, there was further delay caused by the prosecution when she attended her trial on 13 December 2022, on the day of the trial, the prosecution applied for an adjournment on 2 grounds, first, to obtain psychiatrist reports on her fitness to plead, second, to secure the attendance of PW1 who refused to return to court to testify.  Defence objected to the adjournment but was overruled.  She was found to be fit to plead and the trial was refixed to 25-29 September 2023.

THE ROLE OF THE DEFENDANT

17.The defendant was the victim of the loan sharks herself, she was not acting in concert with the offender who carried out the predicate offence.

18.The loan sharks took advantage of her indebtedness, the defendant at the time was unable to repay her loan, due to financial pressure, she acceded to giving her account to the loan sharks.

RELEVANT AUTHORITIES

19.I will adopt the case summary made by Defence Counsel.

20.In HKSAR v Lam Ka Sin [2021] 2 HKLRD 32, the circumstances of that case involved a 25-year-old single mother charged with conspiracy to commit money laundering.  She was not involved in the predicate offence of fraud.  She had agreed to lend her bank account to an accomplice of the criminal syndicate who intended to use her account to receive the victims’ funds from the fraud.  She had been offered a reward of $10,000 to allow the person to use her account.  She presented a cheque in the sum of $1.1 million payable to her to the Hang Seng Bank for clearance, but the cheque could not be banked into her account.  She then returned the cheque to the accomplice and took no further part in the conspiracy.  On her plea of guilty, the Deputy District Court Judge sentenced her to 1 year and 10 months’ imprisonment (from a starting point of 2 years and 9 months).  The judge did not believe her background justified suspending the sentence.  The Court of Appeal, however, disagreed and would have ordered a sentence of 16 month’s imprisonment (from the lowered starting point of 24 months)  and suspended it for 2 years (at [36]-[37]).

21.In HKSAR v Tsang Tsui Fun (D2) [2019] HKDC 1559 (Judge Douglas Yau), the 1^st defendant pleaded guilty to 28 charges of fraud while the 2^nd defendant, who was the mother of the 1^st defendant, pleaded guilty to 2 charges money laundering.  The total amount defrauded was $144,255, of which $125,455 passed through D2’s two bank accounts.  D2 allowed her son to use her bank accounts because she wanted to keep him by her side.  The court sentenced D2 to 15 months’ imprisonment suspended for 2 years.  In terms of exceptional circumstances, the court considered the defendant’s clear record, low risk of re-offending, the lack of choice but to passively comply with her son’s request, the impact jail would have on her employment and her grandchildren whom she looked after, and her son’s imprisonment being a severe blow to D2.

22.In HKSAR v Yeung Chun To [2022] HKDC 232 (Judge G Lam), the defendant pleaded guilty to conspiracy to commit money laundering.  The defendant opened a HSBC bank account on 2 July 2015.  From July to December 2015, the account received 976 deposits, totaling $1.9 million.  The funds were the proceeds of an online fraud.  The defendant was a student who after meeting someone at a bar agreed to lend his bank account to this person.  No reward was involved and he was “just helping a friend” (at [5]).  He was not involved in the predicate offence.  The judge sentenced him to 22 months’ imprisonment (from a starting point of 3 years)  suspended for 18 months, taking into account the undue delay in the case and the defendant’s background (at [22]).

Sentence

23.I agreed with the submissions of the Defence Counsel, cumulatively, there are exceptional circumstances in this case.

24.As to her personal background, she has devoted all her life to her family, she started working when she was 13, received only primary education, never been idle in her life, besides, for the past 65 years, she has never been in trouble with the law, living a very normal but decent life.  I am told she quitted her job as a cleaning worker recently just to take care of her granddaughter and spend time with her as much as possible, to support her both physically and emotionally.  I also bear in mind she is also a patient known to mental health service.

25.Moreover, there is no international element in this case, the amount involved and the role of the Defendant.

26.Most importantly, I considered it was an undue delay on the part of the prosecution, having considered the above authorities.  I will adopt a starting of 24 months, she only pleaded guilty on the first day of trial, she is entitled to 20% discount on sentence, that is 19 months and 6 days’ imprisonment, and the sentence will be suspended for a period of 24 months.