HKSAR v. Shum Yan Shing, Albert

DCCC 39/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.39 OF 2012

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Reasons for Sentence

1.The defendant was convicted after trial of 2 charges of conspiracy to defraud and 1 charge of conspiracy to pervert the course of public justice (charge 1, 2 and 3 respectively).

Background

2.The defendant befriended PW1 in September 2008. They started dating soon afterwards and became intimate. Some time in May 2009, the defendant told PW1 that he was involved in an accident whilst in Shanghai and needed money to settle the hospital bills. The defendant asked PW1 to raise money, which she did. Instead of sending the money to Shanghai, the defendant told PW1 to leave the money in a locker of a shopping mall in Hong Kong for his friend to collect and bring to him. PW1 did as told but the defendant said that the money was not enough and kept asking for more. PW1 kept borrowing money and kept handing them over to the defendant by leaving them in shopping arcade lockers.

3.When PW1 had exhausted her sources of funds, the defendant taught her to take the personal information of a client of the law firm that PW1 was working in and to use the information to support PW1’s application for a loan for the purchase of 2 vehicles. PW1 followed the defendant’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, PW1 falsified documents as well as forged the signature of the said client on various documents.

4.PW1 was given to understand that the original plan according to the defendant 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 PW1 was forced to borrow more money to try to make the repayments for both vehicles.

5.One day in March 2010, PW1 by chance ran into the defendant driving a car with the registration plate of one of the 2 vehicles that she had bought with the false information. PW1 called the defendant on the phone immediately but the defendant denied it was he who PW1 had seen driving the car. From then on, PW1 became suspicious and eventually asked the defendant to hand over the 2 vehicles to her. The defendant plainly denied having possession of those vehicles and asked PW1 what she was talking about. It was then that PW1 knew she had been played and decided to surrender to the Police, resulting in her and the defendant being charged in two separate cases.

6.PW1 had earlier pleaded guilty to all charges in her own case, DCCC 606/2011. Her sentence was adjourned pending the conclusion of the present proceedings.

7.Indirectly related to charge 1 and 2, charge 3 involved the defendant and PW1 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.

8.The full finding of facts are set out in the reasons for verdict and I will not repeat them here.

Previous convictions

9.The defendant has 2 previous convictions. The first one was in 2006 when he was convicted of driving whilst disqualified and using a motor vehicle on a road against third party risk. He was fined for both charges.

10.His last conviction was in March 2008 when he was fined $5,000 for each of the 2 counts of theft he was convicted of.

Mitigation

11.The defendant is 32 years old and is living with his parents and elder brother. The only ground of mitigation Mr. Arthur would like the court to consider is the fact that both the defendant’s parents suffer from heart disease and other complications and the defendant is the person to look after them. I was also told that the defendant had taken part in voluntary work involving the elderly.

12.Mr. Arthur told the court that he had advised the defendant, and the defendant is aware that in cases like the present one, the authorities all say imprisonment must follow. Mr. Arthur did not seek to dissuade the court to adopt other courses. Nor did Mr. Arthur advance anything on the facts and it was not his intention to do so.

Sentence

13.There is still a lot that we do not know about this case. We do not know who it was that went to the locker to collect the things left by PW1, be it money, car key, documents or the green box. We do not know what the defendant did with the altered documents sent to him by PW1 via email. We know that something was done with the documents since PW1 was eventually asked to sign certain documents in relation to the purchases and the car loans, but we do not know who did what to arrange that. We have heard evidence about a male calling up the employee of the finance company to arrange for the car loans. We do not know who that person is.

14.One thing is however for certain, which is that the defendant was the mastermind of the fraud as well as the conspiracy to pervert the course of public justice, and that PW1 was the willing participant, fueled by her blind passion for the defendant.

15.I find that there must have been some degree of premeditation in relation to the frauds on the part of the defendant, since otherwise he would not have falsely told PW1 that he had left for Shanghai. According to the movement records of the defendant, he had always been in Hong Kong during that time.

16.I find that an appropriate sentence for the defendant is that of a term of imprisonment for each of the 3 charges.

Charge 1 and 2

17.I adopt a starting point of 3 years’ imprisonment. The defendant was convicted after trial so there is no discount to this sentence.

Charge 3

18.In the case of HKSAR v Yuen Sun Wing [2010] 3 HKLRD 145, CACC 414/2008, the two applicants made arrangements for someone (PW1) to act as a substitute for other drivers who had committed traffic offences, so that they could be free from legal liability, and thus could avoid accumulating demerit points or being disqualified from driving.

19.The tenor of the Court of Appeal judgment is that a deterrent sentence is necessary in this sort of cases. A starting point of 3 years’ imprisonment was considered appropriate for the applicants.

20.It must be noted that the applicants in Yuen Sun Wing were operating on a much larger scale than our present case. That case involved a number of taxis and with some 20 traffic offences having been committed. There was also payment of a relatively large sum of money to the substitute driver.

21.Bearing in mind the need for a deterrent sentence but the much smaller scale of the agreement to pervert the course of public justice, I find that an appropriate starting point for our charge 3 is that of 2 years’ imprisonment.

Totality

22.I find that in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences, the sentence in relation to charge 1 and 2 should be made wholly concurrent. I find however that 6 months of the sentence in charge 3 should be served consecutively to the rest of the sentence.

23.The defendant is therefore sentenced to a total of 3 years and 6 months’ imprisonment for all 3 charges.