HKSAR v. Lin Kwok Ting and Others
Read the full judgment text of DCCC 738/2012 on BabelCite. This District Court judgment was delivered on 19 November 2012.
1. D1 pleads guilty to 2 single charges and 3 joint charges with D2. D2 pleads guilty to 8 single charges and the 3 said joint charges. The charges are as follows:
Cites 7 cases
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DCCC 738/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 738 OF 2012 ----------------------------------
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-------------------------- Reasons for Sentence -------------------------- Charges 1.D1 pleads guilty to 2 single charges and 3 joint charges with D2. D2 pleads guilty to 8 single charges and the 3 said joint charges. The charges are as follows: 638 10.7,12.1,42.3,34.9
1st Charge, vs D2: Fraud 2.On 26 January 2012, PW1 and PW2 phoned a Mr. Chan in response to a job advertisement on the internet. 3.On 27 January 2012, at the appointed meeting in Mong Kok, WP1 brought them to see WP2 in a café. WP1 left. WP2 asked for their I/Cs and passport photos on the pretext of photocopying to make a record of employees. WP2 disappeared with the I/Cs and photos. The victims made a report to the police. 4.On 21 February 2012, D2 impersonated PW2 and produced PW2’s lost I/C to the staff of Bank of China at the Kwai Chung branch. He opened a savings account and got a passbook in PW2’s name. 2nd Charge, vs D2: Fraud 5.On about 12 February 2012, PW4 found his I/C missing. 6.On 6 March 2012, D2 impersonated PW4 and produced PW4’s lost I/C to the staff of Bank of China at the Wong Tai Sin branch. He opened a current account and got a book of 10 cheques in PW4’s name. 3rd Charge, vs D2: Obtaining property by deception 7.On 6 March 2012, PW6 met up with D2 at the Hung Hom MTR Station. D2 claimed to be the purchaser who had agreed on the auction website to buy 4 Bank of China Commemorative Banknotes from PW6 at the price of $13,600. D2 was to transfer money into PW6’s bank account. D2 used the ATM inside the concourse and came back with a cheque deposit record. PW6 handed over the banknotes to D2. PW6 later checked with the bank and learned that the cheque had bounced. 4th Charge, vs D2: Obtaining property by deception 8.On 6 March 2012, PW7 met up with D2 at the Kwun Tong MTR Station. D2 claimed to be the purchaser who had agreed on the auction website to buy 4 Bank of China Commemorative Banknotes from PW7 at the price of $9,500. D2 was to transfer money into PW7’s bank account. D2 used the ATM inside the concourse and came back with a cheque deposit record. PW7 therefore handed over the banknotes to D2. PW7 later checked with the bank and learned that the cheque had bounced. 9.D2’s activities at the MTR station at the material time were captured by the CCTV. 5th Charge, vs D2: Fraud 10.On 15 March 2012, D2 impersonated PW2 and produced PW2’s lost I/C to the staff of Bank of China at the Kwun Tong branch. He opened a current account and got a book of 10 cheques in PW2’s name. 6th Charge, vs D1: Fraud 11.On 11 March 2012, PW9 and PW10 attended a meeting at KC City, Mong Kok with WP3 and WP4, who were allegedly sent by an employment agent. WP3 asked for their I/Cs on the pretext of photocopying at a nearby shop to make a record of employees. WP3 disappeared with the I/Cs. WP4 left on the pretext of going to the washroom. PW9 and PW10 made a report to the police. 12.On 15 March 2012, D1 impersonated PW9 and produced PW9’s lost I/C to the staff of Bank of China at the Kwun Tong branch. He opened a current account and got a cheque book in PW9’s name. 13.D1’s activities at the bank at the material time were captured by the CCTV. 7th Charge, vs D2: Obtaining property by deception 14.On 22 March 2012, PW12 and PW13 met up with D2 at the Causeway Bay MTR Station. D2 claimed to be the purchaser who had agreed on the auction website to buy 30 Bank of China Commemorative Banknotes from PW12 at the price of $120,000. D2 was to transfer money into PW12’s bank account. D2 used the ATM inside the concourse and came back with a cheque deposit record. PW12 handed over the banknotes to D2. PW12 later checked with the bank and learned that the cheque had bounced. 15.D2’s activities at the MTR station at the material time were captured by the CCTV. 8th Charge, vs D2: Obtaining property by deception 16.On 27 March 2012, PW14 met up with D2 at the Kwai Fong MTR Station. D2 claimed to be the purchaser who had agreed on the auction website to buy 30 Bank of China Commemorative Banknotes from PW14 at the price of $75,000. D2 was to transfer money into PW14’s bank account. D2 used the ATM inside the concourse and came back with a cheque deposit record. PW14 handed over the banknotes to D2. PW14 later checked with the bank and learned that the cheque had bounced. 9th Charge, vs D2: Obtaining property by deception 17.PW15, PW16, PW17 and PW18 separately phoned a Miss Apple in response to a job advertisement on the internet. On 3 April 2012, at the appointed meeting in Mongkok, a female led them to see D2 in the Starbucks Café. D2 asked for their I/Cs on the pretext of photocopying at a nearby shop to make a record of employees. PW17 also gave D2 his MPF Statement. D2 disappeared with the I/Cs and the MPF Statement. The female left on a pretext. The victims made a report to the police. 10th Charge, vs D1 and D2: Theft 18.On 27 April 2012, together with D2, D1 produced PW17’s I/C to cancel, and withdraw a total of $990.80 from, PW17’s various accounts at Hang Seng Bank, Ngau Tau Kok. 11th Charge, vs D1 and D2: Theft 19.On 27 April 2012, together with D2, D1 produced PW18’s I/C and withdrew a total of $5,000 from PW18’s account at Hang Seng Bank, Wong Tai Sin. 12th Charge, vs D1and D2: Attempted theft 20.On 27 April 2012, together with D2, D1 produced PW18’s I/C and requested, a bank teller, to process a withdrawal of $4,000 from PW18’s account at Hang Seng Bank, Wong Tai Sin. Feeling suspicious, the bank teller made a report to the police. 13th Charge, vs D1: Handling stolen goods 21.At a later time on 27 April 2012, the police arrested D1 whilst still at the bank. D1’s handbag contained the 5 lost I/Cs of PW1, PW10, PW16, PW17, PW18 and 3 pages of PW17’s MPF Statement. Personal background and mitigation 22.D1 is now aged 20. He has a clear record. He was educated up to the equivalent of F. 5. His parents divorced when he was 6 years old. At the secondary school, he had engaged in various voluntary services as seen by the certificates submitted to this Court. In their mitigating letters, his father and stepmother, with whom he lives, have shown great care towards him. He had been employed, in various unskilled jobs, until one month before the present offences. 23.His solicitor asks me to call for Training Centre, Detention Centre and Rehabilitation Centre Report. 24.D2 is now aged 23. He has previous records for assault and possession of dangerous drugs. He was educated up to F. 1. He lived with his girl-friend, who had borne him a son now 4 months old, and his father. His mother had passed away. Relevant considerations in sentencing 25.No general principles for fraud can be derived from the authorities. The core factors have to be the degree of planning, sophistication and impact on the victim or community. 26.The guidelines for breach of trust sentences propounded in HKSAR v. Cheung Mee Kiu [2006] 4 HKLRD 776 were adopted in the assessment of the sentence where a bank was being defrauded in HKSAR v. Chong Yui CACC 161/2008. The applicant was the director and majority shareholder of a company. He defrauded several banks by providing them with false documents in order to get loans and credit facilities. The Court of Appeal stated that defrauding a bank is as serious as breach of trust[1] so that the same guidelines can be used. 27.In HKSAR v. Wan Kwong Chiu CACC 349/2003, the applicant posed himself as the representative of an existing company when he went to a business management centre to register an office purportedly for that company. Either he or the office had actually no relationship with that company. Using the address and the protection of a courier service, he obtained a book of 50 cheques from the bank for that company. Equating his act with those involving the use of forged credit cards, the judge sentenced him to 4 ½ years. 28.On appeal, the applicant’s counsel submitted that the seriousness and sentence here should have been less than that of credit card fraud. The Court of Appeal agreed with this submission, though pointed out that to determine the criminality it had been correct for the judge to rely on the relevant factors listed by Yang CJ in R v. Chan Sui-to [1996] HKCLR 128, which included:
29.The sentence of 4 ½ years was reduced to 3 years. 30.Using another person’s identity card twice to apply for phone service, from a CSL shop, had resulted in concurrent sentences of 12 months in HKSAR v. Kwok Siu Fai HCMA 153/2011. The starting point of 18 months for each charge and the eventual sentence of 12 months, on the guilty pleas, were affirmed on appeal. 31.Bounced cheques were used in The Queen v. Wong Shu Kan CAAR13/1993. The respondent had used cheques, which bounced later, to pay for rent and purchase price to 3 victims in the total sum of $685,000 within 2 years. The Court of Appeal regarded the concurrent sentences of 6 months too lenient and substituted them by an overall sentence of 18 months on the prosecution’s review of sentence. 32.In The Queen v. Lee Sing Wai CACC 72/1997, the applicant faced the following sets of charges:
33.Adopting a regime of overlapping sentences, the eventual sentence was 3 ½ years. The applicant only appealed the sentence of the 8th Charge. 34.The events occurred within 2 years. The fraud charges related to the applicant placing a purchase order beforehand to each seller. He then showed up to collect the computers upon presentation of a business card in the purported name of the purchaser and a cheque as payment to the seller. The cheque later bounced as the bank account had been closed for long. He reaped computers worth over $170,000 in total. He resisted arrest when the police set upon him as he attempted to collect a batch of computers. 35.The Court of Appeal considered that the identity card in the 8th Charge was not necessarily connected with any further deception, though clearly not for an innocent purpose. The PG sentence of 10 months was reduced to 6 months. The overall sentence was reduced to 3 years and 2 months accordingly. 36.In HKSAR v. Chan Chun Yeung & Anor CACC 45/2006, the 1st applicant conspired with others to defraud the sellers of goods in 4 instances by a forged Fortis Bank cheque bearing the same cheque number. Each time they would give the seller a forged cheque for payment. In the first instance, the 1st applicant gave a forged cheque of $12,000 to the seller of a computer. The seller would not release the computer until the cheque was cleared. The cheque bounced. The 1st applicant failed to get the computer. In each of the second and third instances, the 1st applicant signed a false name on the invoice prepared by the seller after presenting him a forged cheque. The 2 cheques, of $1,780 and $3,680 respectively, bounced after he had obtained the goods. In the fourth instance, the seller copied the 1st applicant’s own identity card when receiving the forged cheque of $3,320. Soon a co-conspirator called up the seller to pay cash instead, obviously to bail out the 1st applicant as his real identity had been exposed. 37.The trial judge had adopted a starting point of 48 months and passed a sentence of 44 months, apparently after taking into account his young age and his clear record. The Court of Appeal reduced the eventual sentence to 18 months. Sentencing present defendants D1’s sentence 38.Applying the Chan Sui-to list for sentencing fraud, it can be seen that:
39.The 2 victims in the theft charges lost $5,990.80. 40.I do not think the gravity of the offences can be addressed by the institutional options as requested by D1’s solicitor. 41.I take the following starting points:
42.For his pleas of guilty, I reduce his sentences by one-third. For his voluntary service, I further reduce his sentences each by 1 month in the fraud (6th Charge) and handling (13th Charge), and by 2 weeks in the other charges. His sentences are as follows:
44.D1’s eventual sentence is 25 months. D2’s sentence 45.Applying the Chan Sui-to list for sentencing fraud, it can be seen that:
46.The banknotes sellers in the deception charges lost $218,100 in total. The 2 victims in the theft charges lost $5,990.80. 47.I take the following starting points:
48.With no mitigating factors except for his pleas of guilty, which reduce his sentences by one-third, the sentences are as follows:
49.By totality, I make the following adjustment:
50.His eventual sentence is 37 months. 51.Before I leave this case, it has to be noted that but for the inadequate preparation on the part of D1’s solicitor for the hearing, there would not have been an adjournment practically forced upon this Court. Ironically the Legal Aid would have to pay him for an extra refresher out of taxpayers’ money because of his inadequacy. This must be a situation to avoid in future.
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Cases cited in this judgment