HKSAR v. Lam Chung Yan

DCCC 142/2023

[2024] HKDC 507

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 142 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant is convicted on her own plea and agreement to Amended Summary of Facts to a charge of fraud, contrary to section 16A of the Theft Ordinance, Cap 210.

Facts

2.The defendant used to work under PW1 in a drug store before the commission of the offence.  She later left employment in September 2019.

3.On 8 May 2020, the defendant rang PW1 and impersonated as a legal representative of the defendant named as “CHING YI SHUM (程以森)” (“Lawyer Ching”)  handling the defendant’s case. 

4.On 14 May 2020, the defendant impersonated as Lawyer Ching and misrepresented to PW1 that the defendant was arrested, detained in Sheung Shui Police Station and needed bail money.  As a result of this representation, the defendant demanded various sums from PW1 on many occasions between 14 May 2020 to 26 September 2020, totalling HK$1,382,100.

5.During the period, the defendant did return in total HK$16,000 to PW1 on 3 separate occasions. 

6.On 2 October 2020, PW1 went to the police station and discovered that the defendant had never been arrested and detained by police.  She reported the case to the police.

7.On 19 November 2020, the defendant was arrested at her residence.  In a subsequent cautioned video-recorded interview, she admitted that she impersonated as a lawyer and demanded bail money from PW1 between May and September 2020.  She admitted that she first recorded her voice through a voice-changing app, which was downloaded from the App Store in her mobile phone, and after that she sent the voice messages to another telephone number.  In the voice messages, she impersonated as a lawyer named as “CHING YEE SHUM”.  She had also sent a forged name card with the name of “程以森 (Sam Y Cheng & Co)” to make PW1 believe that the caller was a lawyer and her arrest and bail money request was true.

8.WhatsApp text records between the sham lawyer (Lawyer Ching)  and PW1 for the period from 5 July to 15 October 2020 were retrieved from PW1’s mobile phone, in which there was a record of the forged name card of “程以森 (Sam Y Cheng & Co)” sent to PW1.

Criminal Record

9.The defendant has a clear record.

Mitigation

10.The defendant is currently 30 years old.  She was 26 when she committed the offence.  The defendant lived with her mother and an elderly brother, both working.  It was said that the defendant’s brother did not contribute to the family and that the defendant was solely responsible for the outgoings of the family.

11.Defence counsel submitted that at the time of offence, the family was in financial difficulty.  The defendant herself had a credit card loan of HK$200,000.

12.It was said that when the case came to light, the defendant did repay some sums to the victim, but she was unable to pay more.

13.It was also submitted that the defendant has a clear record, she pleaded guilty at the earliest opportunity, and is regretful of what she has done to the good-hearted friend.  It was said that the defendant’s only wish is to get back on with her life and to continue taking care of her mother after she finished serving the sentence.  It was also said that the chance of reoffending is low.

14.Defence counsel submitted that the present case did not involve breach of trust.  The total sum involved is around HK$1.3 million.  He asked this court to impose a sentence of less than 3 years’ imprisonment.

Discussion

15.A person is liable upon conviction of this charge to imprisonment for 14 years. 

16.There is no tariff in sentencing or sentencing guideline for this offence, and the sentencing starting point in each case depends on the facts of a particular case.

17.As a result of the deceit by the defendant, the victim was defrauded the sum of HK$1,382,100, although during the period of the commission of the offence the defendant did repay him HK$16,000.

18.Defence counsel referred this court to the case of HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 and HKSAR v Tsui Chi Cheung, DCCC 829/2019. 

19.This court agrees that breach of trust is absent in the present case.

20.From the agreed Amended Summary of Facts, one could see that the defendant first recorded her voice using a voice-changing app and then she sent the voice messages to another telephone during the commission of the offence. Apart from impersonating as a lawyer, she also made use of a false name card of a lawyer.  The scheme she used to deceive PW1 is more sophisticated than just lying to someone that her mother is seriously ill and need money for medical treatment or even selling goods at a discount to the victim when there was no goods to be delivered.

21.The defendant committed the offence over a period of nearly 5 months, during which on many occasions, she impersonated as the defendant’s lawyer and put the victim in serious stress for her friend, ie the defendant herself.  Surely to this 30 odd years old victim who was just a sales supervisor, HK$1,382,100 was a lot of money.

22.According to the case of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776, sentencing guideline for fraud cases involving breach of trust involving amounts between $1 million and $3 million, is 3 years to 5 years’ imprisonment.

23.In the circumstances of this case, noting that there is an absence of breach of trust, but considering the modus operandi, the period of commission of the offence, the level of sophistication of the fraud scheme, the amount of money deceived, this court considers that the appropriate sentencing starting point is 3 years’ imprisonment.

24.The defendant has pleaded guilty and is therefore entitled to a full one-third sentencing discount. 

25.This court noted that she has repaid a total of HK$16,000 to PW1, but this was done before she further deceived sums from PW1.  The court finds the same was merely tactics used by the defendant in the commission of the offence and this sort of “repayment” would not be a valid mitigating factor. 

26.Committing the crime for financial reasons is not again a valid mitigating factor, especially when the defendant said she had HK$0.2 million credit card loan but then she deceived PW1 of HK$1.3 million.

27.Accordingly, the defendant is sentenced to 24 months’ imprisonment for this offence after the one-third sentencing discount.