HKSAR v. Hau Wing Chi

DCCC 606/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.606 OF 2011

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Reasons for Sentence

1.. The defendant pleaded guilty to 2 charges of conspiracy to defraud and one charge of conspiracy to pervert the course of public justice (charge 1, 3 and 5 respectively on the charge sheet). The charges that she pleaded guilty to are the same that Shum Yan Shing, the co-conspirator, has been charged with and convicted on in Shum’s own case (DCCC 39/2012).

Brief summary of facts

2.. The defendant was befriended by a Shum Yan Shing in September 2008. They started dating soon afterwards and became intimate. Some time in May 2009, Shum told the defendant that he was involved in an accident whilst in Shanghai and needed money to settle the hospital bills. He asked the defendant to raise money, the defendant did as told but Shum said that the money was not enough and kept asking for more. The defendant kept borrowing money.

3.. When the defendant had exhausted her sources of funds, Shum taught her to take the personal information of a client of the law firm that the defendant was working in and to use the information to support her application for a loan for the purchase of 2 vehicles. The defendant followed Shum’s instructions and was eventually successful in buying a Porsche and a BMW motor vehicle, each with a hire and purchase agreement. In the process of buying the vehicles, the defendant falsified documents as well as forged the signature of the said client on various documents.

4.. The defendant was given to understand that the original plan according to Shum was to sell the vehicles at a profit and they will only have to make a few repayments for the loans. This however did not work out and the defendant was forced to borrow more money to try to make the repayments for both vehicles.

5.. One day, the defendant by chance ran into Shum driving a car with the registration plate of one of the 2 vehicles that she had bought with the false information. The defendant called Shum on the phone immediately but Shum denied it was he who the defendant had seen driving the car. From then on, the defendant became suspicious and eventually asked Shum to hand over the 2 vehicles to her. Shum plainly denied having possession of those vehicles and asked the defendant what she was talking about. It was then that the defendant knew she had been played and decided to surrender to the Police, resulting in her and Shum being charged in two separate cases.

6.. Indirectly related to charge 1 and 2, charge 3 involved Shum and the defendant agreeing to not disclose the real identity of the driver of one of the purchased vehicle to the Police as a result of a speeding incident the vehicle was involved in.

7.. The defendant eventually pleaded guilty to her own case. She was then called as a prosecution witness in the trial of Shum for the same charges. Shum was convicted based on the defendant’s evidence given in that case.

Previous conviction

8.. The defendant was of previously clear record.

Mitigation

9.. The defendant is 22 years old. I have been very helpfully provided with a written mitigation by Ms. Lai and I will not repeat the contents here.

10.Ms. Lai pointed out that as a result of her blind loyalty to Shum, the defendant had borrowed money from her mother and friends. The total amount borrowed was around $150,000. Furthermore, since the defendant had signed as a guarantor for the 2 car loans, it is likely that she will face further civil action for the recovery of any loss that the 2 finance companies might suffer.

11.Ms. Lai pointed out that although the defendant did steal information of a client from the law firm that she was working at, this is not a case of breach of trust because the named victims in both charge 1 and 2 are the finance companies and they do not have a relationship of trust with the defendant.

Sentence

12.The defendant is of previously clear record. She is 22 years old and was just 19 when she committed the offences. She was obsessed with her boyfriend. She made the wrong decision in listening to what Shum had told her to do even when she did not feel comfortable about taking client’s information to facilitate the application for the car loans.

13.Nevertheless, the defendant was the person who did the ‘dirty work’ for Shum by forging the proof of salary letter, altering the contents of her bank statements as well as forging the signature of the client in the various documents.

14.The defendant could have stopped at any time. She should have stopped and realized that she was being used by Shum. Unfortunately she chose not to. She carried on to be the foot soldier of Shum in the conspiracies to defraud and only stopped when it was already too late. What the defendant did was seriously wrong.

15.The defendant however was not the mastermind of the frauds, Shum was. But I find that the defendant had done enough to warrant a prison sentence.

16.I find that this is not a breach of trust case. The victim in the 2 charges are the finance companies. The defendant did exploit her position as a law firm employee to gain access to the information of Ms. Chan, but she did not do that to defraud her own company. It is not a breach of trust situation.

Substantial assistance to authorities as mitigating factor

17.It is a well known principle that those who assist the authorities after their arrest should expect a discount in sentence.

“10. The policy of the courts to recognise useful assistance to the authorities in mitigation of sentence is based on the public interest. It is in the public interest that appropriate punishment should be imposed on defendants convicted of criminal offences. But at the same time, the prevention, detection and prosecution of crime is also in the public interest. The use of the informer is a powerful weapon in the hands of the law enforcement agencies in society’s fight against crime. Criminals should be encouraged to inform on other criminals. Honour among thieves should be discouraged. Indeed, dishonour and betrayal among thieves should be encouraged.

11. The courts have therefore adopted the policy of accepting useful assistance to the authorities as a mitigating factor. A discount to the sentence which would otherwise have been imposed is usually given for such assistance. This is a common approach in many jurisdictions. Its object is to provide an incentive for offenders to co-operate with the authorities. It encourages them to assist by giving information about the criminal activities of others, by giving evidence in prosecutions brought and the like. It must be recognised that the offender would be receiving a punishment which is less than that which his crime would otherwise have deserved. But this is considered justified in the overall public interest. The courts’ approach in this regard is a pragmatic one.” Per Li CJ in Z v HKSAR, FACC 9/2006

18.I find that the strongest mitigating factor in the defendant’s case is her surrendering to the Police and the assistance rendered to them in the prosecution of Shum. Without the defendant’s surrendering, the scam would have been discovered much later. Furthermore, without the defendant’s evidence, it would be extremely difficult to prosecute, let alone to secure a conviction against Shum in any of the three charges.

Sentence

Charge 1 and 3

19.Bearing in mind the seriousness of the offences, but also noting that the defendant had been influenced by her blind affection for Shum, I will adopt a starting point of 2 years and 9 months’ imprisonment, reducing it to 22 months upon the defendant’s plea of guilty.

20.I will further reduce this sentence by 6 months for the assistance the defendant had rendered the Police and the prosecution of Shum. The defendant is therefore sentenced to 16 months’ imprisonment for each of charge 1 and 3.

Charge 5

21.Again, I find that the defendant was influenced by Shum in the commission of this offence and I will adopt a slightly lower starting point than that of Shum. I adopt a starting point of 1 year and 9 months’ imprisonment, reducing it to 14 months’ imprisonment upon the defendant’s plea of guilty. I will further reduce this sentence by 4 months for the assistance the defendant rendered. The defendant is therefore sentenced to 10 months’ imprisonment for charge 5.

Totality

22.The defendant is 22 years old, likely to lose her job and will most certainly be made the subject of civil litigation. I have borne this in mind when applying the totality principle. I order that the sentence in charge 1 and 3 to be served concurrently, and 3 months of the sentence in charge 5 to be served consecutively, the rest concurrently.

23.The defendant is therefore sentenced to a total of 19 months’ imprisonment.

Please refer to CACC270/2012 for the relevant appeal(s) to the Court of Appeal.