HKSAR v. Lee Kon Wing and Another
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DCCC 1086/2013 & 395/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 1086 OF 2013 & 395 OF 2014 (CONS) ----------------------
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--------------------- Reasons for Sentence --------------------- 1.There are two defendants before me: Lee Kon-wing (D1) and Tang Bik-wan (D2). D1 is a 47-year-old man with many previous convictions. D2 is a 62-year-old woman with a hitherto clear record. 2.D1 pleaded guilty to four charges of “Fraud” (Charges 1, 2, 4 and 6), two charges of “Attempted Fraud” (Charges 5 and 16) and one charge of “Conspiracy to Steal” (Charge 3). 3.D2 pleaded guilty to six charges of “Attempted Fraud” (Charges 8, 11, 12, 14, 15 and 17) and one charge of “Fraud” (Charge 13). 4.D1 and D2 also pleaded guilty to three joint charges of “Fraud” (Charges 7, 9 and 10). 5.The 16 Fraud/Attempted Fraud charges (Charges 1, 2, 4 to 17) concerned 16 incidents of fraud/attempted fraud practised on various banks in Hong Kong between April 2012 and February 2013. The modus operandi of the 16 incidents was that false remittance forms or cheques purportedly signed by the account holders would be presented to bank staff at counter to induce the banks to remit funds to local remittance agents. Upon successful transfer, the culprits would withdraw the funds in cash from the remittance agents (Charge 1) or instruct the remittance agents to remit the funds to bank accounts on the Mainland (Charges 2, 4, 6, 7, 9, 10 and 13). 6.For the attempted frauds, the bank transfer transactions were not processed because:
7.For Charges 2, 4, 5, 6 and 16, CCTV of the banks captured D1 presenting the false remittance forms/cheque to the bank staff. 8.For Charges 7 to 15 and 17, CCTV footages of the banks captured D2 presenting the false remittance forms to the bank staff. 9.On various occasions, forged identity documents were produced to the bank staff for record during submission of false remittance forms/cheques. 10.In particular, D1 had produced a total of four forged HKID cards and one Acknowledgement of Application for HKID card on five occasions in relation to Charges 1, 4, 5, 6 and 16. He played the following roles on the following days:
11.D2 had produced two forged HKID cards on five occasions in relation to Charges 8, 12, 14, 15 and 17. D2 was:
12.The total sum involved in the fraud/attempted fraud charges relating to D1 was HK$7,729,000, whereas that relating to D2 was HK$11,687,000. Charges 1 to 3 (against D1 only) 13.D1 committed Charges 1 and 2 on the 24 April 2012. 14.For Charge 1, D1 used a forged HKID card bearing his photograph, attended a “China & Hong Kong Renminbi Company”, a remittance shop in the morning on the 24 April 2012. He asked the staff to cash a cheque of HSBC purportedly issued by Kan Yin-lai (“Victim 1”) and successfully swindled HK$492,000 from the account of Victim 1. 15.For Charge 2, he attended HSBC in the afternoon on the same day. He requested to deposit a cheque of HSBC purportedly issued by Victim 1 in the sum of HK$620,000 into the account of a remittance agency held in the name of “Cheung Shing Trading Company”. The transaction was successfully completed. Thereafter, D1 attended the remittance agency and asked the staff to remit RMB100,000 and RMB141,483 to two Mainland bank accounts and to exchange the remaining amount to US$10,000 and RMB200,000. The remittance agent did as asked. D1 swindled HK$620,000 from the account of the same victim. 16.On both occasions, after the bank staff received the cheques from D1, they had called Victim 1’s phone number as recorded in the bank’s file to confirm the transactions. The person who received the calls authorised the transactions. Calls record check revealed that, shortly before the incidents, instruction was given to the telecommunication service provider to divert Victim 1’s phone number to prepaid phone card. 17.To avoid early detection of the fraud, D1 (as captured by the CCTV) had earlier on deposited two cheques totalling HK$1,376,000 into Victim 1’s current account. The cheques were subsequently dishonoured. 18.Bank records revealed that on 17 April 2012, a phone call was made to the bank’s customer service hotline to request for a cheque book to be sent to Victim 1’s residential address. Between 20 April and 23 April 2012, D1 attended Victim 1’s residential building with an unknown male and stole letters from Victim 1’s mailbox. 19.The two cheques that D1 used in relation to Charges 1 and 2 were in fact drawn from the newly issued cheque book. On the 24 April 2012, shortly before the incidents, a phone call was made to the bank customer service hotline for transferring HK$790,000 from Victim 1’s saving account to Victim 1’s current account. Charge 4 (against D1 only) 20.D1 committed Charge 4 on 29 June 2012. 21.On the day in question, D1 attended China Construction Bank (Asia) Corporation Limited, claimed himself as Chow Hing-sang and presented a forged HKID card bearing his photograph. He presented an Application for Telegraphic Transfer via Chats (Clearing House Automated Transfer System), purportedly signed by Chan Shun-wah (“Victim 2”) for the transfer of HK$780,000 from Victim 2’s bank account to a bank account of a remittance agency. The bank staff called Victim 2’s phone number as recorded in the bank’s file and received authorisation for the transfer from the person who answered the call. The staff therefore processed the transaction. 22.The remittance agency had earlier on received instruction from a male claiming himself to be Victim 2 to remit the sum to two Mainland bank accounts. Having received the funds from Victim 2’s account, the agency remitted the funds to the two Mainland accounts as instructed. 23.Call record revealed that, before the incident, instruction was given to the telecommunication service provider to divert Victim 2’s phone number to a phone number of an unknown person. 24.To avoid early detection of the fraud, D1 had deposited a cheque in the sum of HK$798,000 into Victim 2’s current account shortly before the incident to inflate the balance of Victim 2’s account. The cheque was subsequently dishonoured. Charge 5 (against D1 only) 25.D1 committed Charge 5 on 10 September 2012. 26.On the day in question, D1 attended China CITIC Bank International Limited, claimed himself as Pun Chiu Andrew, with the use of a forged HKID card bearing his photograph. He presented an Application for Fund Remittance purportedly signed by Ling Ping-man (“Victim 3”) for the transfer of HK$818,000 from Victim 3’s bank account to a bank account of a remittance agency. The bank staff called Victim 3’s phone number as recorded in the bank’s file and received authorisation for the transfer from the person who answered the call. The staff then signed on the form and returned the customer’s copy of the form to D1. D1 then left. Later, a bank manager who verified the transaction found that there was discrepancy in the account holder’s signature. The bank manager contacted Victim 3 with another phone number and revealed the scam. No loss was suffered. Charge 6 (against D1 only) 27.D1 committed Charge 6 on 2 November 2012. 28.On the day in question, D1 used yet another forged HKID card bearing his photograph, claimed himself as Tang Siu-ko, attended HSBC and presented an Application Form for Local Interbank Funds Transfer purportedly signed by Lui Man-lan (“Victim 4”) for the transfer of HK$932,000 from Victim 4’s bank account to a bank account of the remittance agency. The transaction was successfully completed. 29.The remittance agency had earlier on received instructions via phone and fax from a male claiming himself as Wong Chi-wah (a faxed copy of the HKID card bearing D1’s photograph was seized) to remit the sum to two Mainland bank accounts. Having received the funds from Victim 4’s account, the agency remitted the funds to the two Mainland accounts as instructed. Charges 7, 9 and 10 (against D1 and D2) 30.D2 attended Standard Chartered Bank (“SCB”) on 21, 22 and 23 November 2012. On each occasion, D2 presented an Application Form for Local Interbank Transfer purportedly signed by Yu Kam-sheung (“Victim 5”) for the transfer of money from Victim 5’s bank account to the bank account of a remittance agency. All three transactions were successfully completed. Charge 7 concerned HK$920,000, Charge 9 concerned HK$969,000 and Charge 10 concerned HK$1,218,000. 31.The remittance agency had earlier on received instructions to remit the sums to Mainland. Having received the funds from Victim 5’s account, the agency remitted the funds to the Mainland as instructed. Charge 8 (against D2 only) 32.D2 committed Charge 8 on 21 November 2012. 33.On the day in question, D2 attended HSBC, pretended that she was Yip Mei-ying with the use of a forged HKID card bearing D2’s photograph. She presented an Application Form for Local Interbank Funds Transfer purportedly signed by Fung King-san (“Victim 6”) for the transfer of HK$970,000 from Victim 6’s account to the bank account of a remittance agency. The transaction was not processed, as Victim 6’s account did not have sufficient fund. No loss was suffered. Charges 11 & 12 (against D2 only) 34.D2 committed Charges 11 and 12 on 23 and 24 January 2013 respectively. 35.On the days in question, D2 attended HSBC. On each occasion, D2 presented an Application Form for Local Interbank Funds Transfer purportedly signed by Wu Po-king (“Victim 7”) for the transfer of money from Victim 7’s bank account to the bank account of a remittance agency. On the second occasion, D2 claimed herself as Yip Mei-ying with the use of a forged HKID card bearing D2’s photograph. Charge 11 concerned the transfer of HK$980,000 and Charge 12: HK$980,000. Both transactions were not processed, as Victim 7’s account did not have sufficient fund. No loss was suffered. Charges 13 & 14 (against D2 only) 36.D2 committed Charges 13 and 14 on 28 and 29 January 2013 respectively. 37.On both occasions, D2 attended HSBC and presented an Application Form for Local Interbank Funds Transfer purportedly signed by Suratkal Kishore Sheena (“Victim 8”) for the transfer of money from Victim 8’s account to the bank account of a remittance agency. Charge 13 concerned a transfer of HK$900,000, whereas Charge 14 concerned an attempt to transfer HK$1,900,000. 38.The transaction on 28 January was successfully completed. The remittance agency later received via phone and fax from a male claiming himself as Victim 8 to remit the sum to a Mainland bank account. The remittance agency acted as instructed (Re: Charge 13). 39.On 29 January 2013 D2 claimed herself as Yip Mei-ying and used a forged HKID card bearing D2’s photograph. A bank staff examined the HKID card and suspected it to be forged. The transaction was not processed and a report was made to the police. D2 left HSBC before police arrived. No loss was suffered (Re: Charge 14). Charge 15 (against D2 only) 40.D2 committed Charge 15 on 18 February 2013. 41.D2 attended HSBC, claimed herself to be Lee Shuk-chun and produced a forged HKID card bearing D2’s photograph. She presented an Application Form for Local Interbank Funds Transfer purportedly signed by Sui Fung-ping (“Victim 9”) for the transfer of HK$975,000 from Victim 9’s bank account to the bank account of a remittance agency. The transaction was not processed as Victim 9’s account did not have sufficient fund. No loss was suffered. Charge 16 (against D1 only) 42.D1 committed Charge 16 on 21 February 2013. 43.D1 attended HSBC on the day in question. He claimed himself as Kung Kenneth and used a forged HKID card bearing his photograph. He presented an Application Form for Local Interbank Funds Transfer purportedly signed by Lam Choi-ying Mandy (“Victim 10”) for the transfer of HK$980,000 from Victim 10’s account to the bank account of a remittance agency. The transaction was not processed, as a bank manager later found that the signature appended to the application form did not match the signature in the bank’s file. No loss was suffered. Charge 17 (against D2 only) 44.D2 committed Charge 17 on 22 February 2013. 45.She attended HSBC and claimed herself as Lee Shuk-chun with the use of a forged HKID card bearing D2’s photograph. She presented an Application Form for Local Interbank Funds Transfer purportedly signed by Tsang Mei-ying (“Victim 11”) for the transfer of HK$1,875,000 from Victim 11’s account to the bank account of a remittance agency. A bank staff examined the HKID card and suspected it to be forged. The transaction was not processed. A report was made to the police while D2 waited inside HSBC. No loss was suffered. Arrest and caution 46.On 15 January 2014, D1 was arrested at Lo Wu Immigration Check Point upon his arrival in Hong Kong. 47.D2 was first arrested on 22 February 2013, when she was caught red-handed committing Charge 17. 48.Under caution, D1 stated that:
49.Under caution for the transaction stated in Charge 17, D2 claimed she had been instructed by “Ah Shing” to submit the form to the bank and she would receive HK$2,000 in doing so. Under caution for the transactions stated in Charges 7, 9 and 10, D2 stated that she owed a debt to a male who lived in Shenzhen. That male had asked her to tender some remittance forms to banks and in return she would receive reward around HK$1,000 every time. 50.D1 had a total of eight convictions recorded against him. His previous convictions are mostly related to illegal gambling. He was convicted of “Possession of Forged Documents/Seals/Die” in 1994. In 1995 he was convicted of “Possession of an Identity Card Relating to Another Person”. In 1996, D1 was convicted of “Trafficking in Dangerous Drug” and was sentenced to 19 years’ imprisonment. 51.D2 had a hitherto clear record. 52.Ms Carol Shek mitigated for D1 and Mr Alan Ng for D2. 53.The offences committed by D1 and D2 were all serious in nature. They involved premeditation. Huge sums of money were swindled by D1 and D2. But for the astuteness of some bank officers and the insufficiency of fund in some victims’ accounts, D1 and D2 would have succeeded in swindling a much larger sum. Forged identity documents were used by D1 and D2 on many occasions. The frauds took place over an extended period of time and were carefully executed. The telephone numbers of some of the victims had been forwarded to the lines used by the fraudsters to deceive the banks concerned. The balance of the victims’ account was artificially and shrewdly inflated to avoid early detection. Monies swindled were soon siphoned off Hong Kong and remitted to bank accounts on the Mainland. It added to this case a cross-border element and made it more difficult for the police to chase and recover the proceeds. The crimes committed by D1 and D2 are most wicked and offensive to the mind and must be heavily punished. Counsel submitted that D1 and D2 were not the mastermind, they were the pawns exposed on the very frontline. True it is that D1 and D2 were not the mastermind, but they each played a pivotal role in the scheme to defraud. Had D1 or D2 been the mastermind, they would have to face a heavier sentence. The fact that they were not is not a mitigating factor that can be prayed in their favour. 54.On the materials before me, I am prepared to accept that D2 is less culpable than D1. D2 had a hitherto clear record, whereas D1 had a bad record. In fact, D1 admitted under caution that it was he who recruited D2 into the scam, ie in relation to Charges 7, 9 and 10. 55.Ms. Shek submitted that D1 had provided two non-prejudicial statements to the police implicating D2 hence he deserves additional discount over and above the customary one-third reduction. Ms. Fok, for the Prosecution, informed me that the information given by D1 in the statements did not assist the Prosecution, as what D1 told the police about D2 was something already known to the police. D2 was captured by the CCTV for what she did inside the bank and the evidence against D2 is overwhelming. Mr Ng told me he is not aware of the non-prejudicial statements of D1 hence D2’s pleas have nothing to do with the statements given by D1. In the circumstances, I am not prepared to give D1 any additional discount for his non-prejudicial statements. 56.D1 had successfully swindled HK$2,824,000 on his own (Charges 1, 2, 4 and 6). He attempted, but failed to swindle HK$1,798,000 (Charges 5 and 16). He conspired with another person to steal the cheque book of Victim 1 (Charge 3). He had used a total of five forged identity documents on five occasions (Charges 1, 4, 5, 6 and 16). 57.D2 had successfully swindled HK$900,000 on her own (Charge 13). She attempted but failed to swindle HK$7,680,000 (Charges 8, 11, 12, 14, 15 and 17). She had used two forged HKID cards on five occasions (Charges 8, 12, 14, 15 and 17). 58.Apart from the above, D1 and D2 had jointly swindled HK$3,107,000 (Charges 7, 9 and 10). 59.Charge 1 involved HK$492,000 and the use of a forged HKID card. I take 2½ years’ imprisonment as the starting point. D1 is entitled to one-third reduction for his guilty plea, that would bring his sentence down to 20 months’ imprisonment. 60.Charge 2 involved HK$620,000. I take 27 months’ imprisonment as the starting point. D1 is entitled to one-third reduction for his guilty plea. That would bring D1’s sentence down to 18 months’ imprisonment. 61.Charge 3 involved a conspiracy to steal a cheque book of Victim 1. The cheques used in Charge 1 and 2 were in fact drawn from the cheque book stolen. Charge 3 calls for a starting point of 2 years’ imprisonment. D1 is entitled to one-third reduction for his guilty plea, which would bring his sentence down to 16 months’ imprisonment. 62.Charge 4 involved HK$780,000 and the use of a forged HKID card. Charge 4 calls for a starting point of 33 months’ imprisonment. D1 is entitled to one-third reduction for his guilty plea, which would bring his sentence down to 22 months’ imprisonment. 63.Charge 5 involved a failed attempt to swindle HK$818,000. A forged HKID card was used. It calls for a starting point of 2½ years’ imprisonment. D1 is entitled to one-third reduction for his guilty plea, which would bring his sentence down to 20 months’ imprisonment. 64.Charge 6 involved HK$932,000 and the use of a forged HKID card. It calls for a starting point of 3 years’ imprisonment. D1 is entitled to one-third reduction for his guilty plea, which would bring his sentence down to 2 years’ imprisonment. 65.Charges 7, 9 and 10 involved HK$920,000, HK$969,000 and HK$1,218,000. They were committed jointly by D1 and D2. As said, I find D1 to be more culpable among the two. For Charges 7, 9 and 10, for each of the offences, a starting point of 3 years’ imprisonment is appropriate for D1 and a starting point of 33 months’ imprisonment is appropriate for D2. D1 and D2 are entitled to one-third reduction for their guilty pleas. That would bring D1’s sentence down to 2 years for each of the offences and 22 months’ imprisonment in the case of D2. 66.Charge 8 involved a failed attempt to swindle HK$970,000. A forged HKID card was used by D2. A starting point of 30 months’ imprisonment is called for. D2 is entitled to one-third reduction for her guilty plea and clear record, that would bring her sentence down to 20 months’ imprisonment. 67.Charge 11 involved a failed attempt to swindle HK$980,000. It calls for a starting point of 27 months’ imprisonment. D2 is entitled to one-third reduction for her guilty plea and clear record, which would bring her sentence down to 18 months’ imprisonment. 68.Charge 12 involved a failed attempt to swindle HK$980,000. A forged HKID card was used by D2. A starting point of 30 months’ imprisonment is appropriate. D2 is entitled to one-third reduction for her guilty plea and clear record, which would bring her sentence down to 20 months’ imprisonment. 69.Charge 13 involved HK$900,000. It calls for a starting point of 33 months’ imprisonment. D2 is entitled to one-third reduction for her guilty plea and clear record, which would bring her sentence down to 22 months’ imprisonment. 70.Charge 14 involved a failed attempt to swindle HK$1,900,000. Having succeeded in swindling HK$900,000 from Victim 8’s bank account on 28 January 2013, D2 pounced on the same victim again on the following day; she failed to succeed only because of the astuteness of a bank officer. Charge 14 calls for a starting point of 39 months’ imprisonment. D2 is entitled to one-third reduction for her guilty plea and clear record, which would bring her sentence down to 26 months’ imprisonment. 71.Charge 15 involved a failed attempt to swindle HK$975,000. A forged HKID card was used by D2. Charge 15 calls for a starting point of 30 months’ imprisonment. D2 is entitled to one-third reduction for her guilty plea and clear record, which would bring her sentence down to 20 months’ imprisonment. 72.Charge 16 involved a failed attempt to swindle HK$980,000 with the use of a forged HKID card. Charge 16 calls for a starting point of 30 months’ imprisonment. D1 is entitled to one-third reduction for his guilty plea, which would bring his sentence down to 20 months’ imprisonment. 73.Charge 17 involved a failed attempt to swindle HK$1,875,000. A forged HKID card was used by D2. Charge 17 calls for a starting point of 39 months’ imprisonment. D2 is entitled to one-third reduction for her guilty plea and clear record, which would bring her sentence down to 26 months’ imprisonment. 74.For the reasons given:
75.Bearing in mind the totality principle and taking all matters into account, the 10 offences committed by D1 call for a total term of 52 months’ imprisonment, which represents a global starting point of 6½ years’ imprisonment. In my judgment, a total term of 52 months’ imprisonment should adequately reflect the overall criminality of D1 in this case. The criminal activities of D1 spanned over a period of almost 10 months. D1 successfully swindled HK$2,824,000 on his own on four occasions (Charges 1, 2, 4 and 6). On two occasions, he attempted but failed to swindle a total sum of HK$1,798,000 (Charges 5 and 6). He conspired with another person to steal a cheque book for fraudulent use (Charge 3). He had used a total of five forged identity documents on five occasions (Charges 1, 4, 5, 6 and 16). D1 and D2 had on three occasions jointly swindled HK$3,107,000 (Charges 7, 9 and 10). 76.To achieve this end, I order that:
77.The total term of imprisonment for D1 is 52 months’ imprisonment. 78.The 10 offences committed by D2 call for a total term of 46 months’ imprisonment, which represents a global starting point of 5 years and 9 months’ imprisonment. A total term of 46 months’ imprisonment reflects appropriately the culpability of D2. In the present case, D2’s criminal acts spanned over a period of 4 months. She had on one occasion swindled HK$900,000 (Charge 13). On six other occasions, she tried but failed to swindle a total sum of HK$7,680,000 (Charges 8, 11, 12, 14, 15 and 17). She had used two forged HKID cards on five occasions (Charges 8, 12, 14, 15 and 17). She, together with D1, had successfully swindled a total sum of HK$3,107,000 on three occasions (Charges 7, 9 and 10). 79.To achieve this end, I order:
80.The total term of imprisonment for D2 is 46 months’ imprisonment.
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Further hearings and rulings under DCCC 1086/2013