HKSAR v. Kapanya Chatruthai

DCCC359/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 359 OF 2011

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Reasons for Sentence

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1.Defendant pleads guilty to 10 charges. Charges 1 to 7 are fraud offences; Charges 8 and 9 are using a forged Hong Kong ID card; Charge 10 is breach of condition of stay.

2.Between April of 2010 and July of 2010, defendant defrauded United Asia Finance Limited on three different occasions. She used a friend’s identity particulars to obtain three loans of $40,000 each from the financial institution (Charges 1 to 3).  She still owed United Asia in the end $38,002.

3.Between July of 2010 and November of 2010, defendant defrauded Public Bank (Hong Kong) Limited in the same way on two different occasions, obtaining two loans for $70,000 and $80,000 respectively (Charges 4 to 5).  She did repay part of the loans but she still owed Public Bank $78,043.

4.Between July of 2010 and October of 2010, defendant defrauded AEON Credit Services (Asia) Company Limited, using the same modus operandi.  She obtained two loans of $5,000 and $15,000 respectively (Charges 6 and 7).  She still owes AEON $14,623. 

5.In total, she still owes these three financial institutions $130,668 as unpaid principal.

6.On 5 December 2010, defendant used a forged Hong Kong ID card bearing the name and ID number of the same friend to get a job at a spa (Charge 8).

7.On 5 January 2011, defendant went to Public Bank to see the manager for seeking services.  She showed the same forged ID card to the manager (Charge 9).  Police arrested defendant on that day.  The forged ID card was found in defendant’s person.  Defendant was only allowed to remain in Hong Kong until 13 February 2004.  By 5 January 2011, when defendant was arrested, she had overstayed here for almost 6 years and 11 months (Charge 10).

8.Under caution, defendant told police that she came to Hong Kong in 1999 and had worked as a domestic helper.  Her visa expired in 2004 and she could not renew it.  She bought the forged ID card from an unknown person and then used it to procure loans from the three different financial institutions.  She had also used that card to open a bank account with Public Bank in order to receive her salary and to borrow money.

9.Defendant is now aged 52.  According to her antecedent statement, she is a widow.  She has no previous criminal convictions.  Defence counsel says defendant came to Hong Kong first in 1999 to work as a domestic helper until 2003.  She then went in and out of this territory until her visa could not be renewed any more.  Then she chose to overstay here.

10.Counsel says defendant was first indebted due to her own spending and lending money to her friends.  She then borrowed money from the three financial institutions in order to repay her debts.  And for the money she had borrowed from these institutions, she had paid back some of the principals.  Counsel says defendant chose to overstay in Hong Kong for so long because she wanted to stay here to repay her debts and also to get back the money she had lent to her friends.  Her friends still owe her over $100,000. Counsel says defendant would need two years’ time after release from prison to pay back the outstanding amounts still owed to the three financial institutions.  She would have to harvest her rubber agriculture in Thailand, and she also expects to do some business to earn money for the purpose of repaying.

11.Counsel cites HCMA547 of 2006 to say 15 months’ imprisonment after plea is right for the three immigration-related offences, i.e. Charges 8 to 10.  For Charges 1 to 7, counsel cites CACC99 of 2006.  He asks the court to consider that the amount lost by the institutions at this stage is only the unpaid principal which is slightly over $130,000.  Counsel further cites HCMA115 of 2003 to say that the court can be lenient towards a first offender of such kind, but counsel concedes that a community service order is not suitable for defendant because the present case is a lot more serious than that appeal case of HCMA115 of 2003.  Also, defendant is a foreigner.

12.Indeed, defendant in the present case committed not only one fraud but a number of fraud offences against three different financial institutions over a period of time.  She cheated these institutions to grant her loans as stated in the seven charges.  She has repaid part of the loans, but as a matter of fact, she still owes these three financial institutions slightly more than $130,000, and she cannot make further repayment within foreseeable future.  In such circumstances, I cannot take into account defendant’s willingness to repay the institutions further.

13.Charges 1 - 3 are related to one victim, i.e. United Asia Finance Limited.  Defendant defrauded that company and got three different loans of $40,000 each.  I am of the view that these three dishonest acts are part and parcel of one single unlawful activity against this United Asia Finance Limited.

14.For each of these three offences, I adopt 15 months’ imprisonment as the starting point.  I give defendant one-third discount for her plea of guilt.  So on these three charges, defendant is sent to prison for 10 months’ imprisonment each.

15.Charges 4 and 5 were targeted against the same victim, i.e. Public Bank (Hong Kong) Limited.  The loans involved were $70,000 and $80,000 each, making a total of $150,000.  Again, I consider these two defrauding acts as one single unlawful activity against Public Bank. 

16.For these two offences, I adopt 18 months’ imprisonment as the starting point each.  After one-third discount for defendant’s plea of guilt, she is sent to prison for 12 months on each of these two offences. 

17.Likewise, Charges 6 and 7 were targeted against one victim, i.e. AEON Credit Services (Asia) Company Limited.  The defrauded loan amounts were much smaller, only $5,000 and $15,000 each, making the total $20,000. 

18.For these two offences, I adopt 9 months’ imprisonment as the starting point.  After one-third discount for defendant’s plea of guilt, she is sent to prison for 6 months on each of these two offences.

19.For Charges 8 and 9, counsel is right to point out that 15 months’ imprisonment is right even after plea.  So for these two offences, I adopt 22 and a half months’ imprisonment as the starting point. After one-third discount for defendant’s plea of guilt, she is sent to prison for 15 months on each of these two offences.

20.For Charge 10, defendant has overstayed for almost seven years, and she was not staying here for any good reason.  I adopt 6 months’ imprisonment as the starting point.  After one-third discount for defendant’s plea of guilt, I send defendant to prison on Charge 10 for 4 months.

21.I take into account the characteristics and nature of these offences.  I also take into account the legal principle of totality.  I thus make the following order.  The three terms of imprisonment for Charges 1 to 3 are to run concurrently.  The two terms of imprisonment for Charges 4 and 5 are also to run concurrently but 6 months of which are to run consecutively to Charges 1 to 3.  The imprisonment terms for Charges 6 and 7 are also to run concurrently but 3 months of which are to run consecutively to Charges 1 and 3, and also to run consecutive to Charges 4 and 5.  Thus, defendant has to serve a total of 19 months’ imprisonment for Charges 1 to 7.

22.For the three terms of imprisonment of Charges 8 to 10, I order these three terms of imprisonment to run concurrently, a total of 15 months’ imprisonment.  But this 15 months’ imprisonment must run consecutively to the prison terms of Charges 1 to 7. 

23.Thus, defendant for Charges 1 to 10 has to serve a total of 34 months’ imprisonment.

Please refer to CACC233/2011 for the relevant appeal(s) to the Court of Appeal.