HKSAR v. Ho Ying Pan and Another

DCCC373/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 373 OF 2010

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Reasons for Sentence

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1.D1 was convicted after trial of three charges of “using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap. 200 (charges (5)-(7)).

2.D2 was convicted after trial of two charges of “attempted theft”, contrary to section 9 of the Theft Ordinance, Cap. 210, and section 159G of the Crimes Ordinance, Cap. 200 (charges (3) & (4)).

3.Both Defendants were acquitted of two other charges of theft laid against them jointly (charges (1) & (2)).

4.I shall first deal with the sentence of D1.

5.The background relating to the commission of these offences has been set out in full when I gave my verdict and I shall not repeat the details here.

6.Suffice to say that, insofar as charges (5) – (7) are concerned, they related to the three occasions in July and August 2007 (24 & 27 July and 2 August 2007), when D1, a legal executive, used false authorization letters to visit PW2 and PW3 at the Lai Chi Kok Reception Centre. D1 was working for Chong & Yen Solicitors at that time. All the forged letters he used bore C&Y’s letterhead and purported to have been signed by Ms. Gina Chong, a partner of that firm, when in fact they were not. Chong’s evidence, which I accepted, was that PW2 and PW3 were never the clients of C&Y. Chong did not know that D1 was handling this case as D1 had kept the firm in the dark about it.

7.In each of the forged letters produced to the CSD officers, it was stated that C&Y had instructions to act for the detainees named, and the letters purported to have authorized D1 and D2 to go there and take instructions. In fact, D1 was there to have his own purposes served. He was not there carrying out any work on behalf of C&Y. It was not disputed that as D1 himself was only a legal executive, he could not conduct the visits without the necessary authorization letters. He therefore had to use the three forged letters to gain access to the centre.

8.D1 is now aged 49. He has one previous conviction of “possession of offensive weapon” in 1979 for which he was fined. In August this year, he was further convicted of 8 charges of “using a false instrument” in respect of which he was sentenced to a total term of 6 months’ imprisonment. I was told that these convictions are also in relation to false authorization letters he used for conducting legal visits. D1, however, has not yet started to serve the sentence as he has been given bail pending appeal.

9.In mitigation, it was said that D1 has a stable family. He is married with one son and one daughter. D1 has had 20 years’ working experience in the legal field and it was said that he has been a highly competent law clerk. However, given his present conviction, his legal career would no doubt come to an end. Mr. Polson urged me to have the majority of the sentence which I am going to pass to run concurrently with the term imposed in August this year for otherwise, it would be too crushing a sentence for D1.   

10.At trial, evidence was adduced to show that it is for the protection of the interest of prisoners and detainees that legal visits are strictly monitored and that only those properly authorized personnel should be allowed such access. No doubt, the authenticity of the authorization letters and the integrity of legal professionals and para-legal staff are the keys to making the control system work for CSD officers have to rely on these professionals to provide them with genuine authorization letters so as to have the visitors screened.

11.Therefore, D1, by using the forged authorization letters to gain access to PW2 and PW3, was not only conducting the visits behind the back of his law firm, he was actually abusing the procedure and the system. The repeated use of three forged authorization letters within just about 1 week is clear proof that D1 blatantly disregarded the requirement and sought, on the strength of the forged letters, to deliberately mislead the CSD officers and to visit the centre at will without proper authorization.

12.I regard all these as aggravating factors and I consider that a deterrent sentence has to be passed in order to protect the system which is put in place to monitor legal visits and which aims at safe-guarding the interest of the persons detained.

13.Having considered the facts of this case and the aggravating features identified above, I am of the view that a starting point of 9 months is appropriate.

14.In adopting this starting point, I am aware that a term of 4 months was imposed in respect of each of the 8 charges D1 got convicted in the magistrates’ court in August. However, that sentence was in relation to the case before that court. I do not find that term has any relevance to the sentence I impose in this case save and except that when considering the totality principle, I shall take that sentence into account.

15.Now, D1 was convicted after trial and he therefore could not get the usual reduction relating to a plea of guilty. I have carefully considered the matters urged upon me in mitigation but I do not find anything which warrants a reduction in the sentence. I therefore impose a term of 9 months for each of charges (5) to (7).

16.However, having considered the totality principle, I am of the view that an overall sentence of 12 months for these three charges is appropriate, and that 3 months of the 6-month term imposed in respect of D1’s convictions in August should run consecutively to this 12-month term, making a total of 15 months’ imprisonment. I therefore order that :

(a) 2 months of the 9-month term in respect of charge (6) are to run consecutively to the sentence for charge (5);

(b) 1 month of the 9-month term in respect of charge (7) is to run consecutively to the sentences for charges (5) and (6); and

(c) 3 months of the 6-month term imposed in the magistrates’ court case E/1338/10 are to run consecutively to the sentences for charges (5), (6) and (7) in this case, thus making a total term of 15 months’ imprisonment.

17.I shall now deal with the sentence of D2.

18.On my findings, D2 committed the two offences of attempted theft when she, being the counsel instructed to represent PW2 (PW1’s husband) and PW3 in a District Court fraud case, tried to get US$2,000 from PW1 and US$1,900 from PW3 by falsely representing to them that she had engaged a Queen’s Counsel to do the mitigation and that she had paid, out of her own pocket, a total of US$4,000 to the Queen’s Counsel. In fact, the work was done by PW5 on a complimentary basis. No extra legal fees were involved and D2 did not pay US$4,000 as she claimed.

19.Both offences of the attempted theft were committed by D2 on 6 September 2007. This was the time when the plea and sentence of PW2 and PW3 took place in the District Court. However, prior to that, D2 had written a number of emails to PW1, suggesting to engage a Queen’s Counsel. D2 also asked PW1 to try to sort out the necessary funds. When PW1 replied that she would not pay for PW3, D2 then said she would get half of the amount (US$2,000) from PW3. This last email was sent by D2 on 5 September 2007, that is, one day before the District Court hearing.

20.In fact, by that time, D2 had already got PW5, who was D2’s chamber-mate but who is not a Queen’s Counsel, to attend court on her behalf to represent PW2 and PW3 on a complimentary basis.

21.When they were in court, D2 introduced PW5 to PW1, PW2 and PW3 as the Queen’s Counsel she had hired for them.

22.Insofar as charge (3) is concerned, D2 met with PW1 in the Starbucks of the District Court shortly before the hearing and she got PW1 to agree to pay her US$2,000, saying that she had paid a sum of US$4,000 to the Queen’s Counsel.

23.As regards charge (4), it related to what D2 did shortly after she had met with PW1. It was not disputed that between 1:30 p.m. and 1:55 p.m. on 6 September 2007, D2 went to the cell of the District Court to see PW2 and PW3. During the meeting, she told them that she had engaged a Queen’s Counsel for them at the cost of US$4,000 and she then asked PW3 to sign to authorize her to get US$1,900 which was being kept for him by the police. I have pointed out earlier when giving the verdict that I found the main purpose, if not the sole purpose, of D2 conducting this cell visit was to get PW3 to release the money to her for, otherwise, there was not much for her to do on that occasion as PW5 had already been briefed to do the mitigation and she herself, although later being present in the court room, did not, according to the court’s record, represent PW2 and PW3.

24.What is worth noting is that, before leaving the cell, D2 told PW3 that, as he had refused to let her have his money, she would get the police to forfeit it and she actually did. It was not disputed that, during the court hearing, after PW5 had finished talking and had taken his seat, he was then prompted by D2 to tell the court that PW3 had US$1,900 for restitution and the court so ordered.

25.On the evidence which I accepted, PW3 had not given any specific instructions to D2 to have his money paid as restitution and D2 had not discussed this with PW3 before she asked PW5 to make that application.

26.D2 is now aged 43 and has a clear record. She was called to the Hong Kong Bar in 1990. At the time of her conviction, D2 was no longer practising as a barrister. She was working as a manager in a finance company, earning HK$25,000 per month. I have been provided with a letter which states that despite her conviction, the company is prepared to continue employing her.

27.In mitigation, it was urged upon me that D2’s personal circumstances may render it appropriate to pass a suspended sentence in this case. D2 is now a divorcee but the custody proceedings were taking place in 2007 when these events occurred. She has a 16-year old son and a mother aged 71 to look after. D2’s father passed away a few months ago after having been unwell for a long time, and during that period, it was D2 who took care of him and paid him daily visits. It was said that as D2 is the only child in her family, the stress and the burden which had been placed on D2 are not difficult to imagine, and that if D2 were to be imprisoned, this would cause hardship to the family.

28.The court was also told that as D2 is the third generation lawyer in the family, this fall from grace is not only something personal, her family reputation in the legal circle would also be tarnished. Moreover, since D2 would have no prospect of going back to the legal profession, there would certainly not be any re-offending.

29.Finally, it was said that there was no actual gain to D2 concerning these offences of attempted theft and that she must have experienced a lot of stress when waiting for this trial as the offences took place in 2007. A most lenient sentence is therefore asked for.      

30.I should say at the outset that from the letters I received, I have no doubt that D2 is a very dutiful daughter and mother. Her present conviction is, no doubt, a heavy blow to the family and the plight in which her family will be put is not difficult to understand. However, not only has the court said time and again that family hardship is a matter which an accused has to seriously consider before, and not after, embarking on his criminal conduct and which is part of the price he must pay for his crime, it is also the case here that the matters which have been urged upon me do not amount to “exceptional circumstances” which render it appropriate to have the sentence suspended.

31.It should not be forgotten that the offences in respect of which I convicted D2 were committed by her when she was acting in her capacity as the legal representative of her clients. PW1, PW2 and PW3 are all foreigners who would not be very familiar with the legal system in Hong Kong and who would have to rely on the professional advice and assistance from their legal representatives in handling the case for them. D2, however, took advantage of her position and made use of the opportunity to seek financial gain for herself by falsely representing to them that she had instructed a Queen’s Counsel to mitigate on their behalf.

32.As noted by the Court of Appeal in HKSAR v Chan Peter CACC 102/2004 (unreported),

“ 75. Whilst we must not ignore the impact of the sentence on the applicant and his family, we should also have regard to the larger public interest when a solicitor defrauds his own clients in the course of his professional engagement.

76. Previous good character and the impact of conviction on the applicant’s future career count very little as mitigation in cases of this nature.

77. Put crudely, the applicant would not have been able to do what he did but for his previous good character and he should have foreseen the consequences of what he did.”

33.It is of course sad to see the career and the life of a professional being destroyed by his misdeed. However, in considering sentence, the court cannot lose sight of the public interest which requires protection. Arrested persons awaiting their criminal trials are people at their vulnerable moments. They rely on the assistance from their legal representatives to have their interest protected in the proceedings and they are entitled to expect that the best professional advice would be given for them to act upon. To make use of this opportunity to cheat them of their money is a matter which this court should view seriously. 

34.Having considered the facts of this case, the matters urged upon me in mitigation, the fact that D2 committed the offences in her capacity as the counsel acting for PW1’s husband and PW3, and the public interest involved, I am of the view that a term of 8 months’ imprisonment is appropriate in respect of charge (3).

35.Concerning charge (4), I take it as a further aggravating factor that D2, after having been refused by PW3 to authorize her to get the money, then prompted PW5 to have PW3’s money paid as restitution. That was done without PW3’s instructions and that caused monetary loss to PW3. I therefore consider it appropriate to impose a term of 10 months for charge (4).

36.Having considered the totality principle, I am of the view that an overall sentence of 12 months is appropriate for both charges (3) and (4) and I therefore order that 4 months of the 10-month term imposed in respect charge (4) are to run consecutively to the term of 8 months imposed in respect of charge (3), thus making a total of 12 months’ imprisonment.

Application for leave to appeal against conviction was dismissed. See CACC412/2010 dated 12 October 2011