HKSAR v. Li Bijuan
Read the full judgment text of CACC 432/2012 on BabelCite. This Court of Appeal judgment was delivered on 14 May 2013 before Yeung VP, McWalters J.
Criminal law – sentencing – conspiracy to defraud – conspiracy to possess false instruments – mortgage fraud – use of forged identity documents and forged documents of title – impersonation of property owners – fraudulent opening of bank accounts – application for leave to appeal against sentence – whether starting points manifestly excessive – whether global sentence manifestly excessive – consecutive sentences – one-third discount for guilty plea – comparison with co-defendants in HKSAR v Kong Hon Yui, Kevin (CACC 473/2009) – Mainland offender who came to Hong Kong for the purpose of perpetrating the conspiracies – total amount involved exceeds $11 million – aggravating factor of cross-border offending – well-planned, skilfully executed operation – money defrauded not recovered – deterrence – sentences not manifestly excessive – application for leave to appeal against sentence dismissed – total sentence 4½ years' imprisonment
Legal issues: Whether the applicant's sentences and global sentence of 4½ years' imprisonment were manifestly excessive
Outcome: Application for leave to appeal against sentence dismissed
Cited by 9 cases · Cites 1 case
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CAC C 432/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 432 OF 2012 (ON APPEAL FROM DCCC NO. 804 OF 2012) _______________________ BETWEEN
________________________ REASONS FOR JUDGMENT ________________________ Hon Yeung VP (giving the Reasons for Judgment of the Court): Introduction 1.The applicant (Li Bijuan) together with Liu Mingqiang (Liu) appeared before Deputy Judge Longely (the judge) in the District Court on an indictment consisting of six counts of conspiracy to defraud (the 1st to 6th charges) and one count of conspiracy to possess false instruments (the 7th charge). 2.The 1st, 2nd and 3rd charges were directed at the applicant alone, the 4th charge was directed at Liu and the 5th, 6th and 7th charges were directed at both of them. 3.The applicant pleaded guilty to all 6 charges and the judge sentenced her to the following terms after reducing the starting point by the customary one-third for the guilty pleas:
4.Apart from 9 months on the sentences on each of charges 3 and 6, the judge ordered the other sentences to run concurrently. The total sentence on the applicant was 4½ years’ imprisonment. Represented by Ms Monica Chow, the applicant sought leave to appeal against sentence. At the end of the hearing on 7 May 2013, we dismissed her application and indicated we would hand down our reasons in due course and this we now do. The Facts On the 1st and the 2nd Charges 5.The applicant, using a forged identity card and a forged two-way permit in the name of Zhang Jinlan, but bearing her photograph, successfully opened an account (Account 1) with DBS Bank (Hong Kong) Limited by falsely representing to DBS Bank that she was Zhang Jinlan. (The 1st charge) 6.Zhang Jinlan was the registered owners of Flat G, 17/F, Yat Tien Mansion, Taikoo Shing (Property 1). 7.On 28 September 2011, the applicant, pretending to be Zhang Jinlan and as the registered owner of Property 1, applied to Lei Shing Hong Credit Ltd for a mortgage loan of $5 million to be secured by Property 1. The applicant produced forged documents, including a Sale and Purchase Agreement and the Assignment in respect of Property 1 to the handling solicitors, Messrs Gloria Chan and Co and successfully obtained a loan in the net sum of $4,936,315 which sum was deposited into Account 1. (The 2nd charge) 8.Within a period of about two months, over $4.8 million was withdrawn from Account 1 and up to 28 May 2012, just over $350,000 had been repaid to Lei Shing Hong Credit Ltd. On the 3rd Charge 9.On 11 January 2012, the applicant, again impersonating Zhang Jinlan and as the registered owner of Property 1, applied for another mortgage loan of $1.2 million from Freeway Finance Co Ltd to be secured also by Property 1. The applicant produced and executed documents in the name of Zhang Jinlan and successfully obtained the sum of $1.2 million, which sum was paid into Account 1. 10.Between 12 January and 13 February 2012, a total of $1,274,571.20 was withdrawn from Account 1 and up to 11 May 2012, only $14,000 had been repaid to Freeway Finance Co Ltd. On the 5th and 6th Charges 11.On 16 April 2012, Liu, accompanied by the applicant and using a forged identity card and a passport in the name of Wang Yong, but bearing Liu’s photograph, successfully opened an account (Account 2) with DBS Bank by falsely representing to DBS Bank that Liu was Wang Yong. (The 5th charge) 12.Wang Yong was the registered owner of Flat E, 24/F, Heng Tien Mansion, Taikoo Shing (Property 2). 13.On 4 May 2012, the applicant introduced Liu to Lei Shing Hong Credit Limited. Liu, pretending to be Wang Yong and as the registered owner of Property 2, applied to Lei Shing Hong Credit Limited for a mortgage loan of $4.5 million to be secured by Property 2. Liu produced forged documents, including a Sale and Purchase Agreement and an Assignment in respect of Property 2 to Messrs Gloria Chan and Co in order to obtain the loan. (The 6th charge) 14.Lei Shing Hong Credit Limited was alerted to mortgage frauds encountered by other money lending institutions and enquiries were made. Discrepancies were discovered in the Sale and Purchase Agreement and the Assignment produced by the applicant and Liu and a report was made to the police. On the 7th Charge 15.On 29 May 2012, the applicant and Liu went to the office of Messrs Gloria Chan and Co in connection with the mortgage of Property 2 and they were arrested. Police recovered a forged identity card and a forged passport in the name of Wang Yong, but bearing the photographs of Liu. 16.Zhang Jinlan and Wang Yong said they did not know the applicant or Liu. They confirmed that they did not authorize and had not authorized the mortgages of their respective properties. They also confirmed that their purported signatures on the relevant documents were forged. 17.When interviewed by the police under caution, the applicant made the following admissions:
The Judge’s Reasons for Sentence 18.The judge pointed out that the offences were part of a sophisticated operation and that they involved carefully planned attempts to obtain very substantial sums of money from finance companies with the use of forged identity documents and documents of title. 19.The judge emphasized that the applicant had successfully obtained two loans of $5 million and $1.2 million and that if the police had not been notified, Lei Shing Hong Credit Company would have suffered a further loss of $4.5 million. 20.The judge accepted that the applicant was not the mastermind and had only received a modest reward, but nevertheless had played a central role in the offences. The judge also accepted that the loans obtained were withdrawn by others and that the applicant had not previously committed any offence both in Hong Kong and in the Mainland. 21.The judge considered a 4½-year starting point appropriate for the 2nd charge which involved $5 million and a 2½-year starting point appropriate for the 3rd charge which involved 1.2 million. The judge also considered a 4-year starting point appropriate for the 6th charge for an unsuccessful attempt to obtain 4.5 million. 22.The judge reduced the starting points by one-third on account of the guilty plea and sentenced the applicant, in respect of charges 2, 3 and 6 to the respective terms of 3 years, 20 months and 32 months’ imprisonment. The judge sentenced the applicant to concurrent sentences of 20 months’ imprisonment on each of the 1st, 5th and 7th charges. 23.The judge ordered 9 months of each of the sentences on the 3rd and 6th charges to run consecutively to the 3-year sentence on the 2nd charges, making a total sentence of 4½ years’ imprisonment. Grounds of Appeal 24.Ms Chow suggested that the starting points adopted by the judge for the 2nd and 6th charges were manifestly excessive. Ms Chow also suggested that consecutive terms of 9 months on each of the 3rd and 6th charges, resulting in a total sentence of 4½ years’ imprisonment (representing a starting point of 6 years and 9 months’ imprisonment), for a mortgage fraud involving $6.2 million were manifestly excessive. 25.Ms Chow’s argument rested principally on HKSAR v Kong Hon Yui, Kevin (unreported CACC 473/2009) in which a solicitor, having been convicted of two charges of conspiracy to defraud (also mortgage fraud involving $11 million), was sentenced to a total sentence of 6 years’ imprisonment. 26.Ms Chow pointed out that there were two other defendants (J Ng and WC Liu) in Kong Hon Yui (supra) who played similar roles as the applicant in mortgage frauds and that they were only sentenced to the respective terms of 42 months and 44 months’ imprisonment. 27.Ms Chow suggested that the applicant’s global sentence, representing a starting point of 6 years and 9 months, which was very close to the maximum sentence that could be imposed in the District Court, was manifestly excessive. Discussion 28.On the sentences imposed on the respective defendants in Kong Hon Yui (supra), we have the following observations to make:
29.The applicant was involved in the fraudulent openings of two bank accounts for the purpose of dealing with proceeds of the mortgage fraud and she also pretended to be the owners of two separate properties in obtaining mortgage loans from different financial institutions. 30.The applicant, on three occasions, defrauded or attempted to defraud finance companies. She successfully defrauded two finance companies of $5 million and $1.2 million respectively and intended to further defraud one of them of another of $4.5 million. The total amount involved exceeds $11 million. 31.The applicant is a Mainlander who came to Hong Kong for the main if not the sole purpose of perpetrating the conspiracies in question. If she had not been caught in her 3rd attempt to fraudulently mortgage a property, it would almost be impossible for the police to arrest her. 32.In our view, the applicant’s culpability far exceeded those of J Ng and WC Liu in Kong Hon Yui (supra). There was an additional aggravating factor against the applicant when she visited Hong Kong to commit the offences as conceded by Ms Chow. 33.It was simply not appropriate to compare the applicant’s sentences with those of J Ng and WC Liu in Kong Hon Yui (supra). Ms Chow’s principal ground of appeal had no merit. 34.The offences in question are very serious offences indeed. Mortgages of properties are common in Hong Kong and they involve substantial sums of money. The offences committed by the applicant were very well-planned, and carefully and skilfully executed. 35.The applicant, together with others, was able to defraud lawyers and financial institutions and had obtained very large sums of money. The money defrauded was not and is unlikely to be recovered. 36.The crimes committed by the applicant must be deterred. We were not persuaded that the individual sentences or the total sentence imposed on the applicant was manifestly excessive. The application for leave to appeal against sentence was therefore dismissed.
Ms Polly Wan, SADPP of the Department of Justice, for the Respondent Ms Monica Chow, instructed by S H Leung & Co, assigned by the Director of Legal Aid, for the Applicant | ||||||||||||||||||||
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