HKSAR v. Banerjee Edwina-dilan

DCCC 931/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 931 OF 2011

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REASONS FOR SENTENCE

D1 and D2 were jointly charged with 18 offences of "Lending money at an excessive rate". After trial, D1 was found guilty of Charges 1 to 4, 6 to 9, 12, 14, 15 and 17 (a total of 12 charges); whereas D2 was found not guilty of all charges.

2.In short, I have found that between March 2007 and September 2010, D1 had on 12 occasions lent sums of money ranged from $1,500 to $4,000 to 10 Filipino domestic helpers working in Hong Kong.  I have also accepted the evidence of the accounting expert that the effective rate of interest for the 12 loans all exceeded 60% per annum.  The repayment periods of these loans ranged from 27 days to 3 months.

3.D1 is now 41 and has a clear record.  She holds a bachelor's degree in Computer Science awarded in the Philippines.  She came to Hong Kong in 1992 as a foreign domestic helper.  She got married in 1996 and has 3 children (now aged 15, 11 and 9).  From 1997 to 2008, she worked different jobs as an assistant accountant, sales person, loan clerk and insurance agent.

4.D1 separated from her husband in 2004 after repeated domestic violence.  She and her 3 children sought shelter from the Social Welfare Department and were allocated a public housing unit in Shek Kip Mei[1] in 2004.  D1 was formally divorced in 2007 with custody of the 3 children granted to her.  She relied on social welfare to maintain her family until 2008.  From 2008 to 2010, D1 worked as a sales manager in a trading company earning $16,000 per month. She resumed reliance on social welfare in early 2011 after her arrest in this case.

5.A letter written by D1 was submitted and its contents are duly noted.  D1's counsel Ms. LAI has also submitted a copy of the judgment in The Queen v YUNG Yiu Keung HCMA 671/1988 for my reference.

6.Sentencing was adjourned pending a Community Service Order Suitability Report.  The Probation Officer regards D1 as a marginal case and takes the view that CSO may be considered.

7.The offences committed by D1 are serious in nature; however, it is quite clear from the evidence that unlike the typical "loan sharking" cases, no triad element, criminal intimidation or illegal debt collection methods were involved in this case.  The interest rates levied by D1 were way over the limit at first sight, but the loan amounts were small by local standard.  From the 12 loans, D1 received a total sum of $5,150 in interest payments[2] ($4,550 of which were deducted up front from the loans at the time of lending).  However, since 2 borrowers (namely PW3 FUSILERO and PW2 BLANCO in Charges 15 and 17 respectively) did not repay the principal amounts (most probably due to the arrest of D1 in mid-September 2010), D1's net gain from these 12 loans was only $200. 

8.There is no evidence to suggest that D1 was running a commercial loan operation of significant size.  The ARs and Authorizations were homemade and of an amateur standard.  All the borrowers who gave evidence are foreign domestic helpers from the Philippines.  I accept that D1 was probably trying to earn some extra income by lending money to her fellow clanswomen.

9.Based on the reasons stated above, I am prepared to treat D1 as an exception and impose a Community Service Order.

[Requirements of Community Service Order explained. D1 understood and is willing to comply.]

10.For each charge she is convicted, I sentence D1 to 200 hours of Community Service.

Annex