HKSAR v. Fung Wai Kwan

DCCC189/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 189 OF 2009

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Reasons for Sentence 

1.The Defendant pleaded guilty to 14 charges. The other 6 charges were left on file. I now set out the particulars and the fact of the charges in the following table:-

Charge 3	Fraud			9/9/2008		Use PW1’s genuine Standard Charter Bank Master card to rent a Mercedes S350 for 13 days		$10,682
Charge 5	Fraud			30/9/2008		Use PW1’s genuine AE card to rent a Porsche		$45,000
Charge 7	Fraud			3/11/2008		Use PW1’s genuine AE card to rent a Porsche		$45,000
On 8/8/2008, PW7 of Avis received an enquiry for renting a motor vehicle from the Defendant. PW7 told the Defendant to fax him a photocopy of the renter’s identity card and bank statements. The documents showed that PW1 was the intended driver. The fax documents also included PW1’s American Express Card and the Standard Chartered Bank MasterCard.In the evening on 8/8/2008, the Defendant attended the Avis office, rented a Mercedes and drove away the car. Later, she returned the Mercedes and rented a Porsche.
Charge 8			Fraud	21/10/2008		Use PW1’s particulars to apply for a Citibank credit card in PW1’s name
Charge 11			Fraud	30/10/2008		Use PW1’s particulars to apply a credit card in PW1’s name. HSBC issued a credit card to PW1
Charge 12			Theft	28/10/2008				$45,009.13
Charge 13			Theft	28/10/2008				$20,000
Charge 14			Theft	28/10/2008				$4901.10
Charge 15			Theft	28/10/2008				$39,990
Charge 16			Theft	28/10/2008				$1,300
								Total:-$111,200.23
Charges 12-16 related to 5 cheques to reimburse PW1’s expenses. Defendant deposited the 5 cheques (total : $111,200.23) into the Citibank Visa cards account and advanced cash ($99,300) from the Citibank Visa card account.
Charge 17		Obtaining property by deception			24/9/2008		Use PW1’s genuine AE card to buy groceries from Park’N Shop		$1,623.40
Charge 18		Obtaining property by deception			11/10/2008		Use PW1’s genuine AE card to buy groceries from Park’N Shop		$1,824
Charge 19		Fraud			26/9/2008		Use PW1’s particulars to obtain a loan from GE Capital to purchase a Porsche		$950,000
Charge 20		Theft			10/10/2008				$9,500
The helper of PW1’s mother passed an envelope containing $9,500 to the Defendant and asked the Defendant to pass on to PW1. Defendant never gave the money to PW1.In a video recorded of interview, the Defendant frankly admitted committing all the above offences.

2.The Defendant was employed by PW1 as a personal assistant since July/2008 and worked in the office of the Civic Exchange. She was dismissed in Nov/2008 when she was arrested by the police.

3.The Defendant committed these offences mainly because she had access to PW1’s photocopies of ID card and her bank statements.

4.She made use of the photocopies of PW1’s ID card to apply for credit cards, to advance cash from the credit cards account, to rent cars from Avis, to make purchases from Park'N Shop , to buy a Porsche car by way of obtaining a car loan. She also  stole $9,500 from PW1. The logical thinking would be, had she not been found out in Nov/2008, she would have committed further offences of this kind.

5.On 5/11/2008, PW1 received a HSBC and a DBS credit card. On 6/11/2008, PW1 further received a letter for the redemption of gift in relation to a newly applied card. On 5/11/2008, PW2, the staff of Civic Exchange, confronted the Defendant who admitted that she used PW1’s personal particulars to apply for credit cards and to buy a Porsche car. She was arrested on November 9, 2008.

6.Defendant is 33 of age. She has a clear record, in mitigation, I have been supplied with two doctors reports from the Defence. I also called for 2 further psychiatric reports. These 4 reports tell me more or less the same things which can be summarized briefly as follow:-

(i) Defendant migrated to Canada with her parents and 2 sisters at the age of 16. She has a very unhappy childhood as her mother favours her 2 other sisters who are more successful in their studies. While the Defendant completed her University education at the age of 26.

(ii) The Defendant also has 3 previous relationships:-

(a) the first relationship was about 8 years long , it was cooled down at the end.

(b) the second relationship lasted for 2-3 years, but she was cheated by her second boyfriend because he also went out with another woman.

(c) the third relationship was very traumatic. The Defendant had to submitted herself to this man totally. She handed all her money to him including the money she borrowed from her friends and relatives. She was mentally and physically abused by him.   She lost her job with PW1, she had to work in the nightclub to keep the relationship going on. Eventually, she woke up from these abuses and left him.

7.All the reports tell me the same thing, she was feared of her last boyfriend because he could beat her up anytime he wanted. One report said that she committed the present offences because of him. She just wanted to please him and hoped that she would not be beaten up again.  She suffered from depression and she has been receiving treatment before she was remanded in goal custody.

8.The latest report said that she is still depressed but not suicidal.  She also has personality problem. However, I am pleased to know that Dr. Yuen Henry said that psychiatric outpatient treatment can still be arranged even if she was sentenced to jail.

9.The Defendant also wrote a letter to this Court and said that she was genuinely remorseful and realized what she had done in the past was totally silly. She urged for a lenient sentence.

10.Her mother and a relative are also in Court to demonstrate their supports to her. Her mother undertakes to come back to Hong Kong more frequently to look after her.

11.Apart from her guilty plea, the other powerful mitigation factor is restitution.

12.The parties agreed that the total amount of loss was $699,467.49 ( $224,829.63 + $474,637.86 ). And the Defendant is prepared to pay this amount in full through the generosity of her father.

13.In the present case, the significant amount arises from Charge 19 which involved $950,000. The total value of all the charges except charge 19 is $224,829.63.  The Defence and the Prosecution agreed that the sum after auction in respect of charge 19 should be about $474,637.86 because GE capital has already auction the car for $510,000.

14.Although there is no guideline as to how much discount that the Court should be given when the Defendant repaid the victim.  In  both HKSAR v Chan Yuk Kwan CACC 26/2001 and HKSAR v Leung Shuk Man CACC 230/2001, a discount of 50 %  was given on a plea, it was “ because if a specific discount were not given the Defendant would have no incentive to compensate the victim”.

15.In the present case, it involved a large sum of $699,467.49. and the Defendant had already paid in full.

16.In the present circumstances, I adopted a discount of 50% upon the Defendant’s guilty plea.

17.The Defendant pleaded guilty to 14 charges, the total amount involved was about $1.17 million, which falls between the sentence bracket between 2-3 years and 3-4 years.

18.In  HKSAR v Cheung Mee Kiu CACC 99/2006, the Court has laid down guidelines for theft involving a breach of trust:-

a.  over 15 million  --- 10 years or more

b.  $3 million to 15 million  --- 5 to 9 years

c.  $1 million to $3 million  --- 3 to 4 years

d.  $250,000 to 1 million should be 2 to 3 year

e.  less than $250,000 should be less than 2 years.

19.In the present case, this is not only a serious case of breach of trust but is also a case of credit card fraud, custodial sentence is inevitable.

20.In Lai Mei Yuk CACC 427/2003, where the Applicant in that case, a sentence of 2 years was imposed by the Court of Appeal where the Applicant submitted application form to apply for credit card in the name of a female work colleague.

21.In HKSAR v Chan Yuk Kwan CACC 26/2001, the Applicant forged application forms for credit cards, obtained cards from a number of banks and incurred expenses in a sum of $148,000.00 by using the cards. A sentence of two years was imposed by the Court of Appeal.

22.In HKSAR v Leung Shuk Man, CACC 230/2001, the Appellant admitting 9 charges of theft from her boss involving a total of $430,000.00 and one charge of attempt to steal $2 million. The Court imposed a sentence of 18 months.

23.In passing sentence, I considered the overall criminality and the total amount of various offences involved.

24.The 14 offences were committed on different days over a period of about 2 months. The Defendant has pleaded guilty, has a clear record, has paid full restitutions, showed co-operation with the police with full and frank admission.

25.The facts of the case showed that the whole operations involved the Defendant alone. There is no international elements as such or any indication of a sophisticated organization involved in this operation.

26.As I have mentioned earlier, a 50% reduction on the sentence is warranted. I consider that the totality warranted by the criminality disclosed by all offences, it should be a sentence before plea of 4 year and by applying 50% discount on the sentence, it will be a sentence of 2 years.

27.I shall deal with Charge 19 first, 3 years reduced to 1 year and 6 months. Charges 3,5,7,12-16,17,18 & 20, starting point of 12 months reduced to 6 months. All sentences are to run concurrently.

28.As to Charge 8 & 11, starting point of 18 months reduced to 9 months, to serve concurrently. Three months out of the 9 months to serve concurrently with other charges, 6 months consecutively. The total sentence is 2 years’ imprisonment.

29.Finally, I must say that Miss Moosden has done the best that she can in mitigating on Defendant’s behalf, but it is inappropriate to impose a suspended sentence as suggested by Miss Moosden.