HKSAR v. Yeung Mei Mei

DCCC1209/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1209 OF 2009

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Reasons for Sentence

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1.The defendant admits Charges 1 to 24. Charges 1 to 8 and Charges 22 to 24 are all fraud charges. Charges 9 to 21 are charges of obtaining property by deception.

2.The facts are as follows.

3.At the material times the defendant had been living at some hotels including the Landmark Mandarin Oriental Hotel. She was also a regular customer of a salon. She came to know Ng Tsz-yi (Ng) and Tsang Kin-on (Tsang) who were working there. Ng later introduced her mother, Wong Yuk-ling (Wong), to the defendant.

4.The defendant behaved as a big tipper. However, she later borrowed money from the three.

Charge 1

5.Between 6 March 2008 and 8 April 2008 the defendant falsely represented to Wong, either directly or through Ng, that money had to be deposited into Ng’s bank account so that the defendant could apply for a Taiwan entry permit for Ng to facilitate Ng’s working there with her. Wong thus deposited a total of $92,500 into that account. The defendant disposed of the money subsequently.

Charge 22

6.On the same pretence, the defendant also requested Tsang to deposit money into Ng’s account between 10 and 14 March 2008. Tsang deposited a total of $120,500 into that account. The defendant subsequently disposed of the moneys in that account but she later returned $38,000 to Tsang.

Charges 2 to 21

7.The defendant also asked Wong for her and her husband’s credit cards, claiming falsely that the cards were required for Ng’s application of the Taiwan entry permit. Wong thus gave the defendant five credit cards of her and two credit cards of her husband. The defendant later gave some documents to Wong for signature, which were later found to be payment instruction forms issued by the Landmark Mandarin Oriental Hotel and Lane Crawford.

8.Wong only discovered in early April 2008 that the defendant had used the seven credit cards to commit Charges 2 to 21 between 14 and 26 March 2008, either to pay for the defendant’s own hotel bills or to purchase Lane Crawford gift vouchers and also to buy some clothes from a boutique.

9.The hotel bills amounted to a total of $97,400. All the gift vouchers were worth $165,000, while the clothes bought from the boutique was more than $2,000.

10.Wong demanded the defendant to pay her back the spent amounts. The defendant only managed to pay back $11,000. Wong later reported the matter to the police in May 2008.

Charges 23 and 24

11.Wong once told the defendant that her husband’s company had cash problems. The defendant said she could arrange a loan of $4 million for her. Between March and May 2008 the defendant told Wong to deposit money into Wong’s own bank account and the defendant’s mother’s account. Wong thus deposited a total of $176,000.

12.In late April 2008, the defendant also asked Ng’s father, that is Wong’s husband, to deposit a further $75,000 for the same purpose. Wong’s husband complied with that request. The defendant subsequently disposed of all the deposited money.

13.The defendant was later arrested. According to defence counsel she surrendered to the police in May 2009. Under caution, the defendant admitted her misdeeds.

14.The defendant is now aged 31. She has no previous convictions.

15.Defence counsel has made full mitigation on her behalf, stating how the defendant went on to the road of self-destruction, including indulging in love affairs, lavish spending, cheating, developing psychotic problems and attempting a few suicides over the years of 2000 to 2009.

16.Those incidents are also mentioned in the few medical reports submitted by defence counsel and in those probation officer’s and psychiatrist’s reports I have called for.

17.Counsel also submits some mitigation letters, either written by the defendant herself or by her family members. They all ask this court to give the defendant a chance for rehabilitation.

18.Defence counsel says the defendant was not properly diagnosed of her psychotic problems and she later also defaulted her medical treatment through ignorance and avoidance, but in the past year the defendant has been attending outpatient treatment regularly, including seeing the psychiatrist and the clinical psychologist every few weeks.

19.Defence counsel says the defendant is now fully remorseful. The defendant wants to pay back the victims but she has no ability to do so, her family has spent all the money they had on her. The defendant herself had also gone bankrupt. The defendant is now living with her aged parents. She has remained unemployed for some time. She is now helping in her sister’s boutique business. The probation officer also mentioned that the defendant is offering tutorial service to her sister’s children.

20.Defence counsel has asked me to consider imposing a Community Service Order in lieu of imprisonment. I have indicated that imprisonment is the norm in such serious case and the total term will not be so short that it can be substituted by any Community Service Order.

21.However, as I had to enlist the probation officer’s assistance to obtain the full background of the defendant, I took the chance to call for a probation officer’s report and a Community Service Order report in case I cannot impose imprisonment because of the defendant’s mental state.

22.I have also asked the Correctional Services Department to assess the defendant’s situation to see whether she can receive sufficient medical attention and treatment if she is imprisoned.

23.I have also called for two psychiatrists’ reports to see whether the defendant requires any hospitalisation under a Hospital Order.

24.Now all those reports are available, I have read them, and counsel from both sides have made further submissions on points that I should consider.

25.The psychiatrists confirm that the defendant has been suffering from impulse control disorder with a significant personality impairment but she needs no hospitalisation at this stage.

26.The medical officer of Siu Lam confirmed that the defendant’s medical attention or treatment would not be interrupted if she is imprisoned.

27.On the other hand, the probation officer is sympathetic with the defendant and recommends probation supervision for 2 years on condition that the defendant shall attend psychiatric and psychological treatment as directed by the probation officer. As an alternative, the probation officer suggested a Community Service Order of 180 to 240 hours.

28.Defence counsel understands the gravity of the case and leaves the final decision regarding sentence to me.

29.The prosecutor has submitted a few cases on credit card fraud. However, those are forged credit card cases, the facts of which are very different from the present situation, but one of those cases is useful, that is the case HKSAR v Chu Pang, Richard, [2002] 1 HKC 41. The Court of Appeal says at page 46F:

“If an accused is suffering from mental illness which plays a part in the commission of the offence, the court may properly allow a discount of sentence.  The reasoning was described as allowing a diminished role for the element of deterrence to reflect the mental condition.  That, as we understand, means that while sentence normally imposed by the court is for deterring an accused unaffected by any abnormal mental condition in the commission of the offence and for general deterrence, the necessity for both kinds of deterrence is reduced because the accused was not operating under a normal mental condition.  While this reasoning has attraction, we prefer to lay emphasis on the justification for a discount of sentence in these circumstances as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind.  He knew that it was wrong to commit a crime but he did not appreciate that the commission was as serious as it was.  The degree of culpability was thus lessened.”

30.I would say that is also the case in the defendant’s situation here, only that she was not persuaded by others to perpetrate the crimes she had committed but by her inner self which ran amok at the material times.

31.The defendant is now remorseful. She is trying to reform herself. With the support of her family I believe there is a hope that she can really do so.

32.A Hospital Order is not necessary. Probation Order or Community Service Order are inappropriate for such serious offences. Imprisonment is the only option. The defendant’s mental impairment only justifies a discount but not suspension. Immediate imprisonment is inevitable.

33.The total sum of all the moneys cheated by the defendant of the various victims was $728,865. The facts reveal that the defendant had paid back $11,000 to Wong and $38,000 to Tsang.

34.Defence counsel says the defendant only pretended to be rich and spent lavishly. She gave back almost half of the Lane Crawford vouchers to Ng and Wong. She also tipped Ng heavily from time to time, sometimes in thousands and once up to $20,000. She also paid for many of Ng’s personal bills. Counsel said for all the moneys the defendant had given to Ng and for all the bills she had paid for Ng, she had spent about $150,000 as such.

35.The prosecutor cannot either confirm for dispute such allegations, but be that as it may, that is only the defendant’s own choice of her spending big using such money she had obtained by way of cheating others. The facts remain that she had deceived Ng’s family and Ng’s friend Tsang of more than $720,000-odd. Even though the defendant had paid back $11,000 and $38,000 respectively to Wong and Tsang and that she spent some on Ng as alleged, the various victims still suffered great losses. The defendant has no means to repay them now.

36.In a sense, the defendant has certainly breached the trust placed upon her by Ng’s family and by Tsang but that is not a trust created out of any special relationship like that between an employer and an employee. That should not be treated as an aggravating factor so the cases of Cheung Mee Kiu, CACC99/2006 and Ng Kwok Wing, CACC398/2007, are not applicable here.

37.I consider all the 24 counts as one set of incidents in that the defendant between March and May 2008 deceived Ng, Ng’s parents and Ng’s friend Tsang of the amounts I have mentioned.

38.I adopt a global approach in sentencing the defendant.

39.In respect of each of the 24 charges I adopt 36 months’ imprisonment as the starting point. The defendant pleads guilty to all the charges, I give her the one-third discount, thus reducing each term to 24 months, and because of the defendant’s mental condition at the material times when she committed the various offences under diminished culpability, I give her a special discount of 6 months on each of the terms, thus reducing each term to 18 months, and that is the final term I will impose in respect of each of the 24 charges, and because of the way these charges were committed and for the reasons I have spelled out, I order all the 24 terms to run concurrently.

40.The defendant is to serve a total term of 18 months’ imprisonment.