HKSAR v. Chiu Shui Sim

DCCC 786/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 786 OF 2008

____________

____________

Before:    Deputy District Judge Francis Cheng

Date:    20^th of January 2009

REASONS FOR SENTENCE

1.You were originally facing 2 amended charges of obtaining services by deception, contrary to section 18A(1) of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong.

2.After you pleaded guilty to the 2^nd Amended Charge coupled with your admission of the Amended Summary of Facts, the Amended 1^st Charge - upon the request by the prosecution - was left on the court’s file. You were convicted of the Amended 2^nd Charge.

3.The particulars of offence of the Amended 2^nd Charge reveal that you, the defendant, on or about the 8^th day of May 2006, in Hong Kong, dishonestly obtained services from K. H. Yuen & David Cheung Solicitors (“the Victimized Solicitors Firm”), namely legal services in relation to the properties known as Ground Floor, No. 271 Tai Nam Street, Sham Shui Po, Kowloon and No. 50 Gilman Street, Central, Hong Kong (“the Two Properties”), by deception, namely, by falsely representing to LOK Hing-sun (“Mr. Lok”) and LAM Ka-wai, Karrie (“Ms. Lam”) that you were CHAN Yuet-ho who was the person entitled and/or authorised to transfer the title of the Two Properties.

4.The summary of facts agreed by yourself reveal the followings:

4.1 Mr. Lok was, at the material time, a solicitor of the Victimized Solicitors Firm. Ms. Lam was his secretary.

4.2 In late April 2006, Mr. Lok received a phone call from a male surnamed HONG (“Mr. Hong”) who instructed the former to handle matters and prepare documentations regarding the sale of the Two Properties. The total consideration of them is HK$39,000,000.

4.3 On the 8^th day of May 2006, Mr. Lok met Mr. Hong and you at his office. During this meeting, you claimed that you were “CHAN Yuet-ho”, the owner of the Two Properties. You also showed him a Hong Kong identity card bearing the name of this person. You were subsequently asked by Mr. Lok to sign on an authorization document so as to enable him to confirm your details with the Immigration Department. You did the same accordingly.

4.4 In fact, the person CHAN Yuet-ho has been the registered owner of the Two Properties. She passed away on the 6^th day of July 2005. You and her are not related in any way. You never had any interest in the Two Properties nor were you at any time authorised to deal with the Two Properties.  

4.5 On 15^th day of May 2006, you and Mr. Hong went to Mr. Lok’s office again. The purpose of this second visit was for Mr. Lok to prepare statutory declarations for you in confirming that you have lost all the relevant title deeds of the Two Properties.

4.6 Ms. Lam was present throughout this meeting. She was responsible for processing the paper work regarding the said declaration as well as taking you to another solicitors firm for the necessary affirmation.

4.7 On 5^th day of June 2006, Mr. Lok was informed by the Immigration Department that the record sent by him - regarding the person “CHAN Yuet-ho” - was false.

4.8 You were arrested on the 27^th day of June 2007. On that very day, a record of interview was taken from you. You admitted to the police that you were instructed by a friend called “Mrs. Chiang” to take part in this plot and in return you would receive a sum of HK$500 for transportation expenses.

5.Mr. Alan Ng made a professional and passionate mitigation on your behalf on the last occasion as well as today. He told this court that you are now a lonely lady, living by yourself and approaching the age of 75. You were divorced years ago and the two children of yours are both living apart from you.

6.In the past decade, you underwent two major operations. One on your knees; the other one related to your heart. At present, you are still under medication and you have to attend routine check-ups.

7.On the last occasion, I called for a probation officer’s background report of yours. The report is now before me. According to the assessment of the probation officer, you encountered “a lot of life adversities in the past 20 years, with your children leaving home, facing repeated evictions, suffering from ill health, tight financial conditions and death of your adopted mother. You also told the probation officer that in order to ease your loneliness, you had been indiscriminate and had befriended some dubious people you met in tea house and indulged yourself in gambling and mahjong activities. Hoping to gain friendship and make some quick money to pay for your living expenses, you had committed the present offence without thinking about the serious consequences”.  

8.Through your counsel I am being told that you met this Mrs. Chiang whilst playing Mahjong in the Shamshuipo area. It was her who touted you into committing the present offence by introducing Mr. Hong to you during a meeting at a Chinese restaurant. It was also her who told you, during the same meeting, that you were to sign some documents and you will get a reward of HK$500 for doing so.

9.It was submitted by Mr. Ng on your behalf that HK$500 might not be a great sum to everyone but it was certainly a great sum to you. It was out of pure greed that you committed the present offence. Mr. Ng also urged this court to consider that no one has suffered as a result of your act apart from, perhaps, some services rendered by the Victimized Solicitors Firm such as checking with the Immigration Department and preparing affirmations for your purported declaration.

10.Mr. Ng further submitted that from the day of your arrest to the time when you were charged, there was a lapse of 13 ½ months. I am being told that you gave a detailed cautioned statement on the day of your arrest, admitting your guilt to the Amended 2^nd Charge.  Instead of charging you on that very day, the prosecution waited some 13 ½ months.  Mr. Ng relied on the decision of Secretary for Justice v. Hui Siu Man [1999] 2 HKLRD 236, and invited this court to consider suspending your sentence on the ground of such delay.

11.Mr. Edmond Lee for the prosecution explained to this court that the reasons for not charging you until August 2008 are as follows:

11.1   Although you made admission in the said cautioned interview of yours regarding the now Amended 2^nd Charge, no admission was made by yourself regarding the allegation originated from the Amended 1^st Charge.

11.2    The police therefore seek to substantiate their case by engaging handwriting experts in respect of their allegation arising from the Amended 1^st Charge.

11.3    I am being told that witness statement of this expert was not made available until the 5^th day of March 2008.

11.4     After obtaining the said witness statement, the case was sent to the Department of Justice for their consideration and the decision to prosecute was made in August 2008.  

12.I accept the explanation given by Mr. Lee. Although the Amended 1^st Charge is now left on the court’s file, it was reasonable for the police to further investigate their case against you after your arrest in the way described by Mr. Lee. I therefore do not view that there was a delay on the part of the prosecution.

13.During the last hearing, I told you that in view of the nature of your three previous criminal records, I am minded to treat you, for the purpose of sentencing, as a person of clear record. That thinking of mine has not been changed.

14.However, what you must understand is that the offence you have committed and been convicted of is very serious. The seriousness does not necessarily stem from your act in deceiving the Victimized Solicitors Firm, but the underlying aim for this plot, namely to prepare documents in order to facilitate the sale of the Two Properties.

15.You revealed to the probation officer that it was Mrs. Chiang who offered you $500 for helping her to sign some documents in a solicitor’s firm. You also overheard Mrs. Chiang mentioning about the fraudulent plot and learnt that she and her gang were expecting to make about $900,000 from their acts.

16.I have no doubt that you are not the master-mind in this plot. Likewise, I do not think that you know much about their plan regarding the Two Properties. I am also prepared to accept that you were simply doing this for the HK$500 offered to you.

17.Having said that, it is a fact that you went up to the Victimized Solicitors Firm, not once but twice. You represented yourself as someone whom you are not. You presented the identity card of another person and you went through the process (or at least part of it) of declaring yourself having lost all the title deeds in respect of the Two Properties. All these I must take into account.

18.The aggregate value of the Two Properties is another aspect I must pay heed to. Equally, however, I must also take into account that this plot did not materialize and hence no substantial loss was caused.

19.You were, through your deceiving acts, putting Mr. Lo, Ms. Lam and the Victimized Solicitors Firm at risk. They were trying to provide you with services but you, in return, put them in peril. The seriousness of your acts, as I mentioned earlier, is augmented by your continuous participation in the plot. Clearly, no matter how little you are aware of the plot, it was not a case of yourself simply signing a few signatures. You did much more.

20.You are an elderly citizen of our community. According to what I read from the probation officer’s report, you have made a lot of sacrifice for your family and this court is very sad to learn that you are now living a lonely life, more or less, by yourself.  Your counsel is most correct in saying that “sentencing an old-aged lady to prison would be a very draconian step to take”. However, this is the one step that I must take. I am of the view that immediate custodial sentence is the only option.

21.Mr. Ng urged this court, with his earnest and able submissions, to consider suspending your sentence. I wish I can do that but, regrettably, I cannot. I do not find that there exist any special circumstances that enable me to suspend your sentence.

22.After considering submissions from counsel, the gravity of the offence, the degree of your participation, the manner in which you were led into this plot and all other relevant matters, I take 30 months as the starting point. In view of your guilty plea, that will be reduced to 20 months. I would further reduce that by another 6 months due to your age.

23.You are therefore sentenced, for the Amended 2^nd Charge, to 14 months of imprisonment.