HKSAR v. Wong Chou, Johnny

DCCC 193/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 193 OF 2015

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REASONS FOR VERDICT

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1.The Defendant has denied the charge that he faces, namely fraud, contrary to Section 16A of the Theft Ordinance, Cap. 210.

2.The Prosecution’s case against the Defendant is that the Defendant knowingly submitted false documents to his new employer AIA International Ltd., formerly known as American International Assurance Company (Bermuda) Ltd. (hereinafter referred to as AIA) which inflated his actual earnings at his former employer Manulife (International) Ltd. (hereinafter referred to as Manulife) in order to obtain from his new employer AIA a signing fee greater than that which he would actually be entitled to.  The signing fee is calculated based on the Defendant’s actual earnings at his former employer Manulife.  For his new employer AIA to calculate the signing fee the Defendant was entitled to, the Defendant had to provide details of his income at Manulife. The Defendant submitted false documents of his earnings at Manulife which resulted in an increased benefit to him, and at the same time resulted in prejudice or a substantial risk of prejudice to AIA.

3.The Prosecution Opening was read into the record by Mr. Chao at the outset.   A list of Prosecution witnesses was also submitted.  Although there were 15 Prosecution witnesses listed, only 7 were actually called.  Much of the evidence was admitted and dealt with by way of admitted facts pursuant to Section 65C of the Criminal Procedure Ordinance, Cap. 221.   There were totally two sets of Admitted Facts, and these were read into the record by Mr. Chao, and marked as Exhibits P154 and P154A.  Much of the exhibits were also produced by agreement. At the outset, Mr. Chao also handed up two paginated trial bundles of the exhibits that were produced by agreement. He also submitted a separate blue file containing copies of the exhibits that were included in the trial bundles which the Prosecution submitted were the documents forming the basis upon which the charge against the Defendant was laid for ease of reference. At the conclusion of the Prosecution case, no submissions were made.  I found that there was a case to answer.  After having had his rights explained to him by his Counsel, the Defendant elected to give evidence and called 2 other Defence witnesses.  I was informed by Defence Counsel at the outset that the Defendant spoke perfect English and did not require any interpretation.  However, an interpreter was made available to him throughout the proceedings.   Closing submissions by the Prosecution and Defence were prepared in writing and supplemented in Court. After hearing all submissions, I adjourned the matter until today for verdict.

Undisputed evidence (admitted under Section 65C of the Criminal Procedure Ordinance, Cap. 221 and contained in the Admitted Facts Exhibits P154 and P154A)

4.The identity of the Defendant and that he had a clear criminal record was admitted.

5.The Defendant worked at Manulife from April 2002 until April 2011.  The ‘Career Agent’s Agreement’ setting out the terms of his contract with Manulife was produced by agreement (Exhibit P27 – on pages 103-115 of Bundle 1).  This agreement was dated 2 April, 2002.  He rose through the ranks and when he left Manulife in April 2011,   his post at Manulife was that of District Director.

6.In November 2010, the Defendant was approached by AIA to join AIA as District Director.

7.To attract new recruits,   AIA offers recruitment packages including a signing fee.  The signing fee is a one-off payment paid to new recruits about one month after they join AIA.  However, it is subject to claw back - i.e. the signing fee has to be repaid to AIA if the new recruit is unable to fulfill the prescribed production requirements within two years of his joining AIA or if there is a termination of his service within 5 years of his joining AIA.

8.Prospective recruits are required to submit income proof documents to AIA in order for AIA to work out the signing fee that AIA will offer to the prospective recruit.

9.The formula for the calculation of the signing fee is by multiplying the average annual income of the prospective recruit as shown in the income proof documents submitted with a specific rate set for that particular income level. The average annual income is calculated based on the prospective recruit’s incomes for the previous two years. The specific rate used increases as the average annual income increases. The maximum is capped at 150% for an average annual income of $1.5 million or above.  The highest grade of average annual income is level 5, namely an average annual income of HK$1.5 million or above. 

10.Between December 2010 and January 2011, there were several meetings between senior representatives of AIA and the Defendant to negotiate the terms of his employment at AIA, including the recruitment package to be offered to him.

11.The Defendant signed a letter of understanding, hereinafter referred to as the LOU, on 16 February, 2011 (Exhibit P18 - on pages 50-62 of Bundle 1) agreeing to join AIA from 1 May, 2011.

12.The LOU specified the production requirements the Defendant had to meet. The Defendant had satisfied the relevant production requirements during the time that he was at AIA and therefore the claw back provision did not apply.

13.The Defendant and his ex-wife Ms. Gee Sarah Elizabeth held a Premier account, numbered 047-572391-888 and a Current account, numbered 047-572391-00, at the HSBC. These bank accounts were opened on 4 June, 2002. The Defendant was the Principal Account Holder and Ms. Gee the Joint Account Holder of these bank accounts.

14.The Banker’s Affirmation of Lai Chung-wah, Ricky, (Exhibit P149 – on pages 334-372 of Bundle 2) in respect of the bank records of AIA,  as well as the Banker’s Affirmations of Tang Wan-pong (Exhibit P150 – on pages 373-554 of Bundle 2 and Exhibit P153 – on pages 1008-1024 of Bundle 2)) in respect of the Defendant’s HSBC Premier Account that he held jointly with his ex-wife Ms. Gee Sarah Elizabeth were admitted and the banking records produced by agreement.

15.At around 07.04 hours on 10 April, 2013, the Defendant was arrested by Senior Investigator Ms. Mak Sau-wai, Bonnie (PW10 on the list of Prosecution witnesses submitted) at his home in Tseung Kwan O, Kowloon for the offences of corruption, fraud and using a copy of a false instrument.

16.A team of ICAC officers including Assistant Investigators  Ms. Chow Kwok-chi, Lucy and Mr. Chan Kar-lun, Toni ( respectively PWs 12 and 13 on the list of Prosecution witnesses submitted)  arrived at the Defendant’s office at Unit 502, 5^th floor, Cornwall House, Taikoo Place, 979 King’s Road, Quarry Bay, Hong Kong o 19 April, 2013 but no search was conducted until the Defendant was present at the said premises with his legal representative, solicitor Mr. Yu Chun-yin and other ICAC officers at 10.20 a.m.  Under a search warrant (Writ No. 4277/2013) the Defendant’s office   was searched in the presence of the Defendant’s legal representative. Exhibits P80 to P97 (on pages 197-282 of Bundle 1) were seized during the search of the Defendant’s office as well as the computer and external hard-disk (respectively referred to as WC/O/3 and WC/O/4 on the sketch Exhibit P155). The computer and external hard-disk were subsequently examined and searched by the ICAC.  The ICAC did not find any records or files relevant to the present proceedings on the said computer or external hard-disk.

17.The Defendant voluntarily participated in a video recorded interview under caution with the ICAC conducted on 10 April, 2013 from 15.27 to 17.16 hours.  The Defendant was accompanied by his legal representative, solicitor Yu Chung-yin, throughout the said interview.  The video recorded record of interview, its transcript and the certified English translation of the transcript were all produced by agreement and marked as Exhibits P151, P151A and P151B respectively (Exhibit P151B is on pages 797-1006 of Bundle 2). The accuracy of the transcript of the video recorded interview under caution and its certified English translation were admitted.  Mr. Shek for the Defendant indicated that he did not require the video recorded record of interview under caution to be played in Court, and the parties would refer only to the transcript.

18.The Defendant earned $66,488.81 in December, 2008 (Exhibit P28 – pages 116-117 of Bundle 1) at Manulife.

19.The Defendant earned $35,507.99 in January, 2009 (Exhibit P29 – page 118 of Bundle 1) at Manulife.

20.The Defendant earned $65,654.10 in February, 2009 (Exhibit P30 – pages 119-120 of Bundle 1) at Manulife.

21.The Defendant’s income between 1 April, 2009 and 31 March, 2010 was $1,815,113 (Exhibit P31 at page 123 of Bundle 1).

22.The Defendant’s total income from December 2008 to November 2010 was $4,074,022.84.

23.Mr. Terry Lung Wan-sang (PW6 in these proceedings) prepared the “Registration Form for Defensive LOU Applicant”, Exhibit P1 (on page 1 of Bundle 1), and “Calculation Sheet”, Exhibit P2 (on page 2 of Bundle 1). These contained the recruitment package to be offered to the Defendant. These documents, together with income proof documents including Exhibits P3 to P8 (on pages 3-8 of Bundle 1) were sent to Mr. Lee Shing-hoi, Stewart (PW5 in these proceedings), Mr. Choi Kwok-hung, Hans (PW7 in these proceedings), Mr. Cheng Kwok-sing, Joe, Ms. Lee Mo-chi, Myra, and Mr. Chan Wing-shing, Jacky (PW6, PW7 and PW8 respectively on the list of Prosecution witnesses submitted) for approval. They would not have signed Exhibit P1 to demonstrate their approval of the contents of Exhibit P1 had they known that the said income proof documents or any of them were not genuine.  They all approved the amount of signing fee offered to the Defendant as set out in Exhibit P1 and each of them signed on Exhibit P1.

24.Ms. Mak Sau-wai, Bonnie (PW10 on the list of Prosecution witnesses submitted), Senior Investigator of the ICAC, received Exhibits P3 to P8 from the Compliance Department of AIA on 18 January, 2013.

Evidence

25.PW1, Ms. Jessie Wong Yuen-yee (listed as PW9 on the Prosecution list of witnesses submitted), testified that she had been employed at Manulife since June 1997. In September, 2011, she became the associate director of the Agency Compensation Department. It was one of her duties to calculate and pay all insurance agents appointed by Manulife.  Insurance agents are not paid a basic salary by Manulife, but are paid a commission for the insurance products they sell. The actual calculation of the commission is done by other departments. Her department would check the calculation and effect payment.   Agents are paid twice a month, and payment can be by cheque or by autopay,   depending on the payment arrangement between Manulife and the agent.

26.PW1 testified that all the information in respect of commissions and salaries was stored in the computer system of Manulife. There were safeguards to prevent unauthorized access to that information by the use of passwords.  All employees had their own user ID and password to access the system.   If an agent wanted to retrieve information from the system, he had to use his user ID and password to gain access to the information, which was available on the intranet of Manulife.  The user ID and password is particular to each agent.  An agent could check his past records depending on the retention period of the records on the computer system. Different documents had different lengths of retention periods.  Some information on Manulife’s site was available to anyone who accessed the site but some was only for the agent’s own viewing, e.g. salary statements or to use the term used by Manulife, ‘statement of agent’s account’, which could only be accessed by using the agent’s own user ID and password particular to that agent as well as another password. Nor can the information on a ‘statement of agent’s account’ or other financial documents be changed or edited on the computer system, as it is in ‘PDF’ format. It could, however, be saved on the agent’s own computer or printed out.  If an agent complained of any inaccuracy or error on the statement, their department would check and if it was an error, correction would be made in a subsequent statement but not the original statement.

27.She confirmed that the computer system was working properly at the material time. Manulife had appropriate measures in force to prevent unauthorized access into the system and conducted regular quarterly access right reviews of the system to ensure that only authorized people could use the system.

28.PW1 produced Exhibits P28 (on page 116 of Bundle 1) to Exhibit P77 (on page 194 of Bundle 1) – these were all documents that she retrieved from the system and compiled by her department – these were the statement of agent’s account relating to an agent called Wong Chou, Johnny, the Defendant herein, with agent code 330837, a code unique to the Defendant.  She explained what the various terms on these statements represented.  ‘Previous Paid ‘PTA’’   - ‘PTA’ meant ‘payment to agent’ and this represented the payment that had been paid to an agent previously and reflected in the previous month’s ‘statement of agent’s account’.  ‘Current Pay’ represented the current month earnings of the agent from the various products that he had sold and accrued commissions and premiums.  PW1 explained Exhibit P28, the ‘statement of agent’s account’ dated December 24, 2008 – the Defendant had been paid $9,774.53 by autopay. This was reflected in the earlier statement dated December 10, 2008,  Exhibit P33 (at page 124 of Bundle 1) and the autopay electronic payment report of $9,774.53 was exhibited at Exhibit P100 (at page 285 of Bundle 1).  His earnings as set out in Exhibit P28 was $56,714.28. The total deductions was $3,123.28. So he was paid $53,591 by autopay.   The autopay electronic payment report of $53,591 was exhibited at Exhibit P101 (at page 286 of Bundle 1). The other ‘statement of agent’s account’ were in a similar format, and the autopay electronic payment report were also exhibited, Exhibits P99 (at page 284 of Bundle 1) until Exhibit P144 (at page 329 of Bundle 1).

29.The Defendant also received some payments by cheque from Manulife, and these were documented in Exhibits P145 (at page 330 of Bundle 1) to Exhibit P148 (at page 333 of Bundle 1) and Exhibit P152 (at page 1007 of Bundle 2).

30.PW1 was shown Exhibit P3, a one page document, (at page 3 of Bundle 1), also a ‘statement of agent’s account’ relating to the Defendant allegedly issued by Manulife and dated December 24, 2008, and compared this with Exhibit P28, a two page document, (at page 116 of Bundle 1) that she retrieved from the computer system of Manulife.  Exhibits P3 and P28 bore the same date.  She confirmed that according to Exhibit P3, the Defendant was paid $52,088.08 by autopay as ‘PTA’ which differed from the ‘PTA’ amount of $9,774.53 shown on Exhibit P28. She said she could not explain why there was a difference - she had checked the records to see if the Defendant had been paid $52,088.08 for the period up to December 24, 2008 and said the company records showed that he had been paid ‘PTA’ of $52,088.08 and this amount is shown in the statement dated March 28, 2007, Exhibit P77 (on page 193 of Bundle 1).  She had not seen Exhibit P3 previously, and did not recognize the handwriting on it.  It is to be noted that the number in brackets on the bottom right hand corner of Exhibit P3 is ‘7201’ and matches that on page 1 of Exhibit P28, which is also ‘7201’.  That number on page 1 of Exhibit P77 is ‘6322’.

31.PW1 was also asked to compare Exhibit P4 (on page 4 of Bundle 1 – a one-page document), a ‘statement of agent’s account’ relating to the Defendant allegedly issued by Manulife with Exhibit P29 (at page 118 of Bundle 1 – a one page document), that she retrieved from the computer system of Manulife, both of which were dated January 23, 2009.  She confirmed that according to Exhibit P4, the Defendant had been paid $3,643.96 as ‘PTA’ while the figure shown on Exhibit P29 was $3,730.01. According to Exhibit P4, his total earnings was $175,476.48 but according to the company records and on Exhibit P29, his total earnings for the period was $31,777.98 and after deductions, he was paid by autopay $30,190.01. She had checked the company records and found that the figures mentioned in Exhibit P4 had been paid to the Defendant, but these figures were reflected in the ‘statement of agent’s account’ dated October 28, 2009, Exhibit P50 (at page 147-148 of Bundle 1 – a two page document).  She confirmed that Exhibit P4 and Exhibit P50 were identical, except for the dates of the statements and the number at the bottom right hand corner of the documents, in brackets. The number in bracket on Exhibit P4 was ‘6976’ and matched the number on Exhibit P29, which is also ‘6976’ – that on Exhibit P50, which consists of 2 pages,  is ‘7864’ and ‘7865’. PW1 had not seen Exhibit P4 previously and nor did she recognize the handwriting that appeared on it.

32.PW1 was also shown Exhibit P5 (on page 5 of Bundle 1 – a one page document) and asked to compare this with Exhibit P30 (a 2 page document at pages 119-120 of Bundle 1) which she had retrieved from the computer system of Manulife.  She confirmed that Exhibit P5 purported to be a ‘statement of agent’s account’ issued by Manulife and dated February 25, 2009.  She said that the Defendant was paid in accordance with the figures shown on Exhibit P30 in February 2009, and not as shown on Exhibit P5.  She had checked the company records and found that the amounts as set out in Exhibit P5 were paid to the Defendant in May, 2010, pursuant to the ‘statement of agent’s account’ in their records dated May 27, 2010, Exhibit P64 ( a two page document exhibited at pages 170-171 of Bundle 1).  She found that Exhibit P5 and Exhibit P64 were identical save for the dates of the 2 documents and the number in brackets at the bottom right hand corner.  Exhibit P5 was a one page document – the number in bracket on the bottom right hand corner was ‘6907’ and matched that on the first page of Exhibit P30 (at page 119 of Bundle 1) whilst that on the first page of Exhibit P64 was 51578. She had not seen Exhibit P5 previously and did not recognize the handwriting on it.

33.PW1 confirmed that Exhibits P3, P4 and P5 were not generated by Manulife. 

34.She also confirmed that Exhibit P32 (at page 123 of Bundle 1) was generated by Manulife, and retrieved by her from the system.  It was a ‘notification of remuneration paid to persons other than employees for the year ended 31 March, 2010 and dated 03 May, 2010 in respect of the Defendant, and showed that Manulife had paid the Defendant a total of $1,815,113 for this period.     

35.PW1 was shown Exhibit P7 (at page 7 of Bundle 1) and confirmed that she had not seen the document before and it had not been generated by Manulife although it purported to have been and bore the same date as Exhibit P32 and purported to relate to the Defendant and showed that Manulife had paid the Defendant a total of $3,215,113 for the year ended March 31, 2010 – this was incorrect.

36.She confirmed that Exhibit P7 and Exhibit P32 were identical save for the particulars of income.

37.PW1 was also asked to compare exhibit P6 (on page 6 of Bundle 1 – a one page document) with Exhibit P31 (a two page document on pages 121-122 of Bundle 1) which she had retrieved from the computer system of Manulife. She confirmed that Exhibit P6 was identical with the first page of Exhibit P31 (on page 121 of Bundle 1) save that there was handwriting on exhibit P6 that did not appear on page 1 of Exhibit P31.  She did not recognize the handwriting on Exhibit P6.

38.PW1 was shown Exhibit P8 (at page 8 of Bundle 1).  She recognized the document as Manulife produced similar documents issued by the Agency Technology Department of Manulife.  The data source for this document came from the computer system of Manulife. An agent can access the document entitled ‘statement of advisor account summary’ from the intranet of Manulife using his own user ID and password.

39.PW1 was shown Exhibit P91 (at page 210 of Bundle 1) and confirmed that although the document was not produced by her department, she had seen it before – she had checked the figure on the document in respect of the Defendant to verify the accuracy of the figures on the document as to the total earnings of the Defendant – she did not check in respect of any of the others named on the document.  She agreed there were other agents’ names under the Defendant’s but could not say if they were the ‘downlines’ of the Defendant.  She said this was a document that would be given to the district director so that he could know the work performance of the people under him, and said that usually the names that appeared under that of the district director were people who worked under him.

40.PW1 was cross-examined as to whether the computer system of Manulife dealing with the generating of statement of agent’s accounts had undergone a change in October, 2012 – she replied it had not. Nor was there any change in the handling of data. She was asked if the persons working for a district director such as his personal assistant or secretary would be assigned a user ID and password.  She said a secretary would not be.  Nor did a district director have the password to access the financial statements of his ‘downlines’.  A district director could access other reports generated by the system to see the performance of his ‘downlines’ and the performance of his team and gave the example of the production report – such as Exhibit P79 (at page 196 of Bundle 1).  She was asked if she was aware of any occasion in the time when she had been at Manulife when the computer system of Manulife had been hacked by outsiders or compromised in any way – she said she was not aware of this.  She also confirmed that there were no records of the Defendant asking to rectify his salary or tax statements – had there been such requests, there would be records of it.

41.PW2, Chan Kar-chun, PW11 on the list of Prosecution witnesses submitted, was an assistant investigator of Operations at the ICAC. He and other officers of the ICAC had gone to the Defendant’s home where they arrested him on April 10, 2013.  The Defendant was then taken to his office in Tai Koo Place – they arrived there at 10.20 a.m.  The Defendant was accompanied by his legal representative to go to his office.  The legal representative had come to the Defendant’s home upon being telephoned by the Defendant after the arrival of the ICAC at his home.  The Defendant’s office was searched pursuant to a search warrant that was explained to the Defendant by Ms. Mak Sau-wai, Bonnie, PW10 on the list of Prosecution witnesses.  He seized documents from the Defendant’s office and drew a sketch to show where he had seized the documents, Exhibit P80 to Exhibit P90 (at pages 197-209 of Bundle 1). These were marked as WC/0/1 on the sketch and were found on top of cabinet 2 in a blue folder, which was produced and marked as Exhibit P156.  He had also seized Exhibits P90 to P97 (at pages 210-282 of Bundle 1) – these were inside a brown envelope inside cabinet 2 on the sketch – he marked these documents as WC/0/2 on the sketch. The brown envelope was produced and marked as Exhibit P157.  The sketch he drew was produced and marked as Exhibit P155. He also seized the computer, which was marked as WC/0/3, and an external hard disc, which was marked as WC/0/4, on the sketch Exhibit P155. Apart from him searching the Defendant’s office, there were others also searching the room.

42.PW3, Mr. Francis Wong Wai Ping (PW1 on the list of Prosecution witnesses submitted), is a District Director at AIA. He joined AIA in March, 2005.  One of his duties was to recruit persons to join AIA that he thought had potential.  He felt that the Defendant, whom he had known since 2002 when they had both joined Manulife, was such a person. He himself had left Manulife in March 2005, and had joined AIA as a unit manager and was promoted so that in 2010 he was a district manager, a grade below district director, at AIA. He approached the Defendant towards the end of 2010 after discussing the matter with his superior Mr. Wong Ngao-sun, Marcus, PW4 in these proceedings (PW2 on the list of Prosecution witnesses submitted by the Prosecution).   They had a number of meetings with the Defendant before the LOU, Exhibit P18 (on page 50 of Bundle 1) was signed on February 16, 2011. The Defendant was to bring his team to AIA but the number of persons was not fixed – initially it would be 20 to 30 persons or thereabouts.  PW3 was concerned with the recruitment of the Defendant but the actual financial package was dealt with by his colleagues.  He was asked about a meeting where a telephone conference call with the CEO of AIA, Jackie Chan Wing-shing (PW8 on the list of Prosecution witnesses submitted by the Prosecution) but he could not recall the meeting. He was asked about a loan of $2 million made to the Defendant by AIA but said he was not present when the loan was discussed.   He confirmed that his signature appeared on Exhibit P18 at the last page of the document (on page 62 of Bundle 1) as well as on the bottom of each page of the 13 page document – he signed as ‘leader’ at the bottom of each page.  He said when he signed on the document, the Defendant was not present – the document had already been signed by the others – he was the last to sign on the document.

43.PW3 was cross-examined as to why he had thought to recruit the Defendant to join AIA.  He explained that he had kept tabs on the Defendant even after he left Manulife and knew he had been promoted to District Director at Manulife.  He felt that the Defendant was an up and coming leader and thought AIA could offer a better platform for financial planners and team development – the Defendant could benefit from the support he could get at AIA, and he would also be a benefit to AIA. The Defendant had been in the industry a while and could bring his knowledge of the industry to AIA, and he had the ability to lead and build teams, and this would add value to AIA’s business.  He was asked to explain the signing fee validation requirement of $12,730,640 set out in paragraph 5(b) of Exhibit P18 (at page 51 of Bundle 1). He explained that AIA expected a certain amount of business to be done over a certain period of time – in this case, AIA expected the Defendant to earn at least 70% of $12,730,640 within his first two years with AIA. If he earned less than that, AIA could claw back the amount not fulfilled.  The Defendant’s signing fee was set out in paragraph 5(a) of Exhibit P18 - $4,406,776.  To validate this signing fee, he and his team had to earn commission of $12,730,640 within 2 years of his joining AIA. If they earned 80% of $12,730,640, than AIA could claw back 20% of the signing fee of $4,406,776. By the time the Defendant left AIA in April 2013, he had recruited over 100 agents for AIA.

44.He was asked if he had received Exhibits P1 to P8 from the Defendant himself – he said he had not nor had he seen these before.  He said he did not himself discuss the financial package the Defendant would be offered to join AIA as it was not within his province.

45.PW4, Mr. Marcus Wong Ngao-san, listed as PW2 on the Prosecution list of witnesses, testified that he had joined AIA as an insurance consultant in September, 1997 and received promotions so that in December 2011, he had reached the rank of a Senior District Director at AIA.  PW3 worked under him.  PW3 discussed with him about recruiting the Defendant to join AIA in 2010, and there were a number of meetings to discuss this with the Defendant present as well. The Defendant’s team at Manulife was also to be recruited.  The Defendant had mentioned that he could bring around 80 to 100 agents from Manulife to AIA. 

46.In their meetings, they had discussed the financial package the Defendant expected to receive from AIA. PW4 described the package as ‘pretty standard for all industrial recruits’.  The Defendant was an industrial recruit.  PW4 said he was one of those who explained the financial packages on offer by AIA to new recruits, district directors and lower ranks, to the Defendant.  The Defendant was a district director at Manulife, and would be at the same rank at AIA – as his standing as a district director was quite high, the Defendant was expecting the standard package for a district director, which was a higher package than for lower ranks.

47.PW4 confirmed that he had signed on the LOU, Exhibit P18 (at page 50 of Bundle 1). Although the document was dated February 7, 2011, it was actually entered into on February 16, 2011, as can be seen from the handwritten date on the document.  His signature appeared next to his name on page 13 of the document (page 62 of Bundle 1) as well as on the bottom of each page, as ‘leader’. His signature was next to that of PW3.  He could not remember if he was present when the Defendant signed on the document, or whether the Defendant’s signature was already affixed when he signed as he has signed so many documents in the past.

48.He said he did not discuss the signing fee for new recruits with the Defendant. He recalled a meeting where the Defendant asked for a loan of $2million, although he could not remember when it was or who was present.  He said the Defendant sought the loan as the agents at Manulife, his ‘downlines’ might have to repay their signing fees to Manulife before they could be released and might need money.  Special permission was required from the CEO of AIA, Jackie Chan Wing-shing (PW8 on the list of Prosecution witneses submitted) to release the $2million loan to the Defendant.

49.The Defendant was requested to submit documents for the calculation of the signing fee, but he could not recall if this was done in his presence.  He said he and PW3 were responsible to recruit the Defendant, but financial matters were left to the corporate members of AIA such as Stewart Lee, Terry Lung and Hans Choi (PWs 5, 6 and 7 respectively in these proceedings).

50.PW4 was cross-examined about why he and PW3 wanted to recruit the Defendant to join AIA. He was asked if the Defendant during their negotiations had mentioned that he wished to receive 350 to 400% of his annual income at Manulife as part of the bonuses he would receive for joining AIA. PW4 said he did not remember the terms demanded by the Defendant.  In response to a question from the Court, he said he had no say in the negotiation of the financial package – that was not his province.  He and PW3 introduced the Defendant as a possible recruit to the company, but the decision was the company’s. PW3 was also asked about the different kinds of bonuses that were a part of the financial package.  He agreed that income proof documents that had to be provided by a prospective recruit such as the Defendant were the most important documents as the calculation of bonuses and signing fees were based on the income of the prospective recruit. AIA would rely on the prospective recruit to provide AIA with income proof documents so that AIA could calculate the bonuses and signing fee that were a part of the financial package to be offered to the prospective recruit. These income proof documents were required by AIA so that the LOU could be prepared.

51.PW5, Stewart Lee Shing-hoi (PW3 on the list of Prosecution witnesses submitted) testified that he joined AIA in 2005 as assistant vice-president in the Agency Business Development Department, which is responsible for sorting out the financial arrangements for intended recruits. There were many different channels for recruiting including recruiting university graduates, and there were different packages offered to different categories of recruits.  In 2009, he became the vice-president of this department in AIA, and in 2013 he was transferred to the Premier Academy Department, a department responsible for recruiting new people and their development to become premier agents.  In February, 2015, he was transferred to the Agency Strategy Department focusing on computer system development, and he is still in that department.

52.In 2010, he was the vice-president of the Agency Business Development Department with two subordinates, Terry Lung and Hans Choi, PWs 6 and 7 respectively in these proceedings.   PW6 Terry Lung was a team head and responsible in matters in relation to the recruitment of the Defendant while PW7, Hans Choi, was PW6’s superior.  PW6’s title was Director of Agency, and he reported directly to PW5.

53.He recalled the recruitment of the Defendant – it was PW3 and PW4 that recruited him to join AIA.  He had attended meetings where the Defendant’s recruitment and financial package to be offered by AIA were discussed, with PW3, PW4 and the Defendant and others were present.  In the insurance industry, when recruiting people to join, prospective recruits had to submit income proof documents showing their commissions and bonuses so that the financial package to be offered could be calculated.  Income proof documents were received from the Defendant for the calculation of his financial package, but PW5 could not remember if he received the documents from PW3, PW4 or from the Defendant himself.  He received the documents at one of the meetings he had with PWs 3 and 4 and the Defendant.  He passed these documents to Terry Lung, PW6 in these proceedings, for him to calculate the financial package. After PW6 had done the calculations, he had to pass it to his superior Hans Choi, PW7 in these proceedings, for him to check and they each had to sign on the AIA/Form and AIA/Form/1, Exhibits P1 and P2 herein (on pages 1 and 2 of Bundle 1).  Exhibits P3 to P8 (at pages 3 to 8 of Bundle 1) were shown to PW5 and he confirmed that these were the income proof documents that were provided to AIA by the Defendant for AIA to calculate the financial package to be offered to him, and used in the calculations of the financial package contained in Exhibits P1. He could not recall who had given him Exhibits P3 to P8, but he had discussed them with PW6.  He did not look at the documents provided by the Defendant in depth. In answer to a question from the Court, he confirmed that the Defendant had handed over the income proof documents at a meeting in which he was also present, as were PW3, PW4, PW6 and PW7.

54.PW5 confirmed that Exhibit P1 was prepared and signed by PW6 on January 27, 2011 and then passed to PW7 for him to check and approve, and he did that and signed the document on January 27, 2011. It was then given to him for his approval, and his signature appeared on the document and the date January 27, 2011. It was then passed to his superiors Joe Cheng Kwok-sing and Myra Lee Mo-chi, PWs 6 and 7 on the list of Prosecution witnesses submitted for their approval, and endorsed by the CEO of AIA, Jackie Chan Wing-shing, PW8 on the list of Prosecution witnesses submitted.  Although PW5 did not participate in preparing Exhibits P1 and P2, he had checked them i.e. checked the calculations and overall total, before he signed on Exhibit P1. PW5 confirmed that the financial package offered to the Defendant was a special one, and not the standard package offered to an industrial recruit, and that it why the box ‘special’ at the top of Exhibit P1 was ticked. He was asked if the signing fee offered to the Defendant was a large amount, and he answered that it could be considered a large sum in the market i.e. in their industry.  Because of the Defendant’s status, his signing fee was boosted to 150%.

55.PW5 confirmed that Exhibit P25 (at pages 78 to 88 of Bundle 1) was the contract the Defendant signed with AIA on May 1, 2011, the day he joined AIA.   He had signed on the contract, as had the Defendant,   PW3 and PW7 in these proceedings.

56.PW6, Terry Lung Wan-sang (PW5 on the list of Prosecution witnesses submitted) testified that he had joined AIA in 2005. In late 2010, he was an assistant manager in the Agency Business Development Department of AIA. His immediate superior was Hans Choi, PW7 in these proceedings, and above him was Stewart Lee, PW5 in these proceedings.

57.PW6 testified that he was the one who had prepared the financial package that was offered to the Defendant – he had met the Defendant on a number of occasions during negotiations between AIA and the Defendant to recruit the Defendant to join AIA. In particular he recalled a meeting on January 21, 2011, when the Defendant, PW3, PW4, PW5, PW7 and the Defendant were all present there was a telephone conference call with the CEO of AIA, Jackie Chan Wing-shing, PW8 on the list of Prosecution witnesses submitted by the Prosecution.  Before that, there had been communications with the Defendant about the joining fee to be paid to him. The Defendant also had other demands, including that as there was a requirement of a validation quota, he demanded to be given an extra bonus so he could recruit agents.  There was also discussion about the support to be given to the Defendant and his ‘downlines’ after they joined AIA.

58.To calculate the financial package to be offered to the Defendant by AIA, he needed to be provided with the copy of the prospective recruit’s identity card, income proof documents of the past 24 months and his credit report for the past 3 months.  He was provided with the income proof documents of the Defendant, but could not remember clearly who had given him the documents – it should be either PW5 or PW7 and given to him between January 11 and 21, 2011. He confirmed that the documents Exhibits P3 to P8 (on pages 3 to 8 of Bundle 1) were the documents he had used in his calculation of the Defendant’s income for the past 24 months.  These were the documents that had been given to him by PW5 or PW7.  He used these in his calculations and compilation of Exhibits P1 and P2.  He had also signed on Exhibit P1 and pointed out his signature on Exhibit P1 and the date he affixed his signature – January 27, 2011.  Had he known that any of the documents, Exhibits P3 to P8, that he had used in his calculations had been false, he would not have drawn up the recommendation he did in Exhibit P1 of a signing fee of $4,406,776. The basis for his calculation of the signing fee was to multiply the annual income of $2,937,851.14 by 150%.   He had used the average annual income to calculate the signing fee, the monthly bonus (MB) and production challenge bonus (PCB).   He did not recognize the handwriting on Exhibits P3 to P6, they were not his handwriting and to his recollection the handwriting was already there when he was given the documents.  He based his calculations on the printed figures on these documents and not on the handwriting. 

59.PW6 also confirmed that the Defendant had sought an advance of $2 million of the signing fee and this was approved by the company – it was treated as a personal loan by the company to the Defendant – he was paid by cheque – PW6 collected the cheque from the company and gave it to the Defendant – he signed on Exhibit P19 (page 63 of Bundle 1) to receive the cheque from the Accounts Department and he gave the cheque to the Defendant after the Defendant signed on the letter of undertaking, Exhibit P20 (on page 64 of Bundle 1) confirming he was the borrower of $2 million from the company and this was witnessed by PW6, who also appended his signature on Exhibit P20.  The copy of the cheque is exhibited as CNA-2 (on page 367-368 of Bundle 2). When the signing fee was paid to him after the Defendant had joined AIA, this loan of $2 million and the interest for the loan was deducted and the balance of the amount of the signing fee was given to the Defendant (Exhibits P21 and P22 refers, on pages 21-22 of Bundle 1).

60.Exhibit P18, the LOU, was shown to PW6 – he confirmed that he had signed his initials on each page of the 13 page document above ‘company’. The Defendant had signed on each page above ‘applicant’ and he had signed the document in PW6’s presence. Before the Defendant signed, PW6 had explained the entire document to the Defendant and the Defendant had also taken the document and appeared to read it himself. Under cross-examination, he said he confirmed with the Defendant that the signing fee was calculated with his average annual income over 2 years x 150%, and he repeated the figures of the annual income he had used and the Defendant had confirmed that the figures were correct, the same figures as appeared on Exhibit P2.  The Defendant was also shown the income proof documents he had submitted, and after confirming that it was correct, he signed on the LOU.  It was put to PW6 that the Defendant  had not signed the LOU Exhibit P18 in his presence nor had he explained to the Defendant how the signing fee was calculated nor did he show the Defendant the income proof documents upon which he had based his calculations, but PW6 disagreed. PW6 also produced Exhibits P11 to P17 (on pages 32 to 49 of Bundle 1).  He confirmed that these documents were provided to him, either by PW5 or PW7, he could not remember exactly, and were to be used to calculate the growth bonus to be given to the Defendant, and had nothing to do with the calculation of the financial package or signing fee.  PW6 also confirmed that he had received a copy of the e-mail, Exhibit P9 and the documents attached to it, including the chart on the last page, and he produced the chart (on pages 11 to 23 of Bundle 1).   It was suggested to PW6 that in the main he liaised with the Defendant’s ex-wife Sarah during the recruitment of the Defendant, but PW6 disagreed. He did have contact with her but this was after the Defendant had already joined AIA. He was shown a series of e-mails, collectively Exhibit D2A, and he confirmed these, but these were all dated in May, 2011, and after the Defendant had already joined AIA.

61.PW7, Hans Choi Kwok-hung, was listed as PW4 in the Prosecution list of witnesses submitted.   He testified that he had joined AIA in June 2001 as a management associate. In 2010, he was a director of the Agency Division of the Agency Business Development Department of AIA. One of his major responsibilities was to examine and approve all employment at AIA including to approve financial packages to be offered to prospective recruits.  In 2010, PW6 was the assistant manager in the department while PW5 was his i.e. PW7’s superior.   PW6 would prepare the proposal for the financial packages to be offered to prospective recruits and pass these to him for verification and confirmation.  The Defendant was a prospective recruit to AIA in late December 2010 early January 2011.   He had met the Defendant at a meeting where PWs 3, 4, 5 and 6 were also present. During this meeting, he had seen an envelope containing documents, and in his experience, in such recruitment meetings, these documents would include income proof documents necessary for them in handling the recruitment of the prospective recruit.   He recalled that in this meeting, an envelope was passed to PW6, but he could not recall who had passed it. The documents were not taken out of the envelope.   Their usual practice was for PW6 to take the documents and enter the data from the documents into a worksheet for analysis of the income history of the prospective recruit. AIA has a document checklist – they would crosscheck with the list, and if any documents set out in the list was not provided, his department would follow up.  After this was done, a form would be compiled for approval.   In so far as the Defendant’s recruitment was concerned, the Defendant was asking for a package that was bigger than their normal package – PW6 discussed the matter with him.  He was shown Exhibits P3 to P8 and confirmed he had seen these before – these were the income proof documents provided that PW6 used to calculate the financial package to be offered to the Defendant. He also confirmed that the documents Exhibits P1 and P2 were the internal proposal of AIA of the financial package that AIA would offer to the Defendant, which was for the management of AIA to view and approve.   After he had checked the figures on these documents against the income proof documents provided, he appended his signature and the date on the Exhibit P1.  The documents were then passed to his superiors for their approval and endorsement and as it was a special case, the approval of the CEO was also required, and he endorsed the document as well.  Although he could not say if the signing fee offered to the Defendant was the largest he had seen,   he said it would be among the top 5.  Had he know that any of the documents of Exhibits P3 to P8 were incorrect, he would not have approved the offer contained in exhibit P1. 

62.The Defendant testified that he was now aged 45 years. He had lived in Canada from 1985 to 1998, and had received a BA degree in economics from the University of Toronto in that time. He had also married his wife Ms. Sarah Elizabeth Gee in October, 1995. They are now divorced.  They moved to Australia in 1998 and remained there until 2002 when they returned to Hong Kong and he has been here since. Whilst in Australia, his wife Sarah was a housewife but took care of his personal and financial affairs.

63.In 2002, in Hong Kong, he joined Manulife as an insurance agent. After he had entered the insurance industry, he usually had 2 or 3 personal assistants to take care of his personal and financial affairs, and there were also office administrators and office boys.   Throughout his career in the insurance industry in Hong Kong, his ex-wife Sarah and his personal assistant Venus Poon took care of his personal and financial affairs.  He had different secretaries and personal assistants at different periods of time – e.g. Hilda Fung, DW2 in these proceedings, who joined him in 2006, Judy Ho and Maggie Lam, who joined him in 2010 or 2011.

64.He and Sarah separated in August or September, 2011, when they stopped living together as husband and wife, and formally divorced in around May, 2015. The application for divorce was filed in Sydney, Australia, in about 2013 by Sarah – and the divorce was finalized in May, 2015.

65.The Defendant described his career in Manulife – in 2010, he was promoted to the post of District Director in Manulife.  He said he was the youngest District Director to be appointed in Manulife in 100 years – he was only 38 years old at the time – he had also been promoted to be District Director in the shortest period of time in the history of Manulife.  He had 20 units and 60 odd financial planners in his team that he had recruited and trained.  There is no basic salary and they were paid depending on the insurance premiums they received.  When he was District Director in Manulife in 2010, the new premiums received by his team was about $100 million.  He also described his work as district director in Manulife.

66.He was shown page 1 of Exhibit P91 (page 210 in Trial Bundle 1) – a Statement of Advisor Account Summary dated June 01, 2010,  which showed his income from May 2009 till May 2010 – his total earnings for this period was $2,748,414.79 – he agreed this was his income but said he never really looked at his income.  The income of other agents were also shown on such documents.  Exhibit P92 to P97 (on pages 220 to 282 of Bundle 1) were also such statements.  Page 1 of Exhibit P97 (on page 272 of Bundle 1) was dated Dec. 01, 2010 and showed his income for November 2009 to November 2010 to be $3,305,138.93.  He said he did not view his own income from these statements – these were used to review the performance of agents in his team – his secretary would input the data into another report and he would use that report to review the performance of the agent with the agent.   When asked by his Counsel if he would use such statements to have an idea of his income over the past 12 months, he replied that he would ask his ex-wife, who was not an employee at Manulife but employed by him – she started to work part-time as his assistant from 2002 and full time from 2004. Her title when he was at Manulife was Executive Personal Assistant – she assisted him and controlled the administration of the entire district that he was in charge of in Manulife.  She took care of all the administrative work in the office as well as managing his personal and financial affairs.  He said his job was to earn money – he did not need to know how much he earned – since he had started working at the age of 18 years, he had never run short of money – he knew there must always be money in the bank account – he did not overspend – his ex-wife bought whatever she wanted and they did not owe any money.

67.He confirmed he had a joint bank account with Sarah at HSBC (page 401 of Bundle 2)   and when asked if he received his payment from Manulife in this bank account he replied ‘I believe so’.  He said he also had another personal bank account at HSBC but he seldom used it.  His ex-wife paid the rent, the parking fees, the top-up for his octopus – she managed the bank account at HSBC and all his financial affairs.  She was also one of his personal assistants and had his user name and password to access his financial statements on the computer - his personal assistants including his ex-wife helped him and without their help in administration and screening through all the reports that he received and informed him of what he needed to know from the reports.  He himself did not spend time at his desk doing administrative work – he said ‘its not productive. It would never help me, my agents or the company to earn money.  Reports only reflect on what happened in the past.  We focus on today and tomorrow’.

68.At the time that he was being recruited to join AIA, he had thought to leave Manulife as he felt there was a huge difference in Manulife’s vision and his vision for business.   He felt the company’s investment, agents’ recruitment policy etc. were not what he wanted – it was too limiting - he did not think he could achieve his target of 5 districts and 1000 agents working under him within 5 years at Manulife.  So when he was approached by PWs 3 and 4 to join AIA, he was ready to move.  Apart from AIA, other insurance companies had also approached him.  There were a number of meetings where various matters were discussed. He ‘estimated’ that he had told them the package he expected if he joined AIA – that he needed around $10 million income a year - $30 million for 3 years – he did not care how the amount was put together so long as it was there – he did not feel he had to justify why he was asking for so much more than his previous income at Manulife – he said it was for AIA to consider whether they felt he was worth it.  The Defendant was asked whether he was asked for income proof documents at the meetings he had had -   he replied that it was asked over time, but they were never given.  He said there was contact over the telephone, e-mails, SMS messages apart from the meetings.  He said they were asking for income proof documents not just of him, but of the people he wanted to recruit to AIA. He said his greatest value to AIA was the team of agents he would be bringing over.  He also said AIA was going through a tough time as the parent company in USA, AIG, had gone bankrupt and this had affected the business of AIA in Hong Kong.  He was asked if income proof documents were handed over at the second meeting on around 27/11/2010 – he replied ‘I think so” and said even if they were, he would ask his assistants to do it for him.  He would not photocopy and take them over himself.   The documents were sensitive documents and not handed over by fax or e-mail. Nor could he himself go to AIA as he was a senior officer of Manulife, a rival of AIA – he could not appear at AIA – there could be a possible conflict.  The matter of his leaving Manulife was a sensitive one – very ‘hush-hush’.   He was asked if his income proof documents were handed over to AIA at the meeting on 27/11/2010 – his response was ‘possibly there were chances’.   When asked if he knew how his income proof documents would be handed to AIA, he said he had no idea – he had assigned this to his ex-wife Sarah to handle – she knew how delicate the matter was.   He was asked if he had given Sarah any specific instructions as to what income proof documents to provide to AIA – he replied there was no need.  His district was the biggest at Manulife and very experienced in the administrative procedure for recruitment.  Sarah and his other assistants were also very familiar with the recruitment procedure and what was required – all companies wanted the same documents.   In response to a question from the Court as to whether he knew why AIA was asking for income proof documents, he said ‘of course he knew’ – it was to determine his package – to calculate what financial package to offer him. But he himself took no part in preparing the income proof documents to be provided to AIA as it was the time for the year end closing, and also this was administrative work – very straightforward.   He said apart from his own income proof documents, the documents of other agents had to be gathered and submitted to AIA as well.   In response to a question from the Court, he said the first batch for his core management team that he estimated was about 30 to 35 people was submitted at around the time of 27/11/2010 but did not know when his own income proof documents were submitted.   He described a meeting on 2/1/2011 when PWs 3 and 4 were present and said there was a discussion about his financial package. PW4  did a calculation on a piece of paper about the normal override, signing bonus, monthly production bonus, production challenge bonus, district director growth bonus – all these exceeded what he wanted.  Although his annual income at the time was around $3 million, he had requested for $10 million as he was moving to another company.  He was asked if they told him what financial package AIA was offering him. He replied that he was told roughly the package and told that the package was unprecedented – it had never been offered before – the only item not yet agreed upon was the district director growth bonus.  He was asked if any reference was made to the annual or average income at the meeting when the package was discussed – he replied initially that the idea he got was to calculate based on $3 million.  When the question was repeated by the Court, he replied he wasn’t asked about this – he was told it was calculated based on $3 million.  He believed it was PW4 who told him. He was asked what he knew his annual income to be in the year running up to the meeting in January 2011 – he replied $3 million odd but he did not remember the exact figure – the monthly payments he received varied from month to month depending on the business generated.  He did not cause any special check before he went to the meeting, and when asked by the Court why not, he replied that he had been making this sum all along and there would not be much difference.  He was referred to another meeting on 20/1/2011 when PWs3, 4, 5, 6 and 7 were also present.  At this meeting what was discussed was the financial package for the district, and there was no further discussion on his own financial package, which had already been confirmed.   He was shown Exhibits P3 to P8, which had been used to calculate his financial package and said he had seen such type of documents, but never these particular documents.  He said he had never asked his assistant to submit false documents to AIA. Before the documents were submitted to AIA, he had not had the chance to check and verify them, and said the handwriting on these documents were not his handwriting.   When asked by the Court if he recognized the handwriting, he said it might be his wife’s, and when asked by the Court if he was saying he did not know, he said after a lengthy pause that it was his wife’s handwriting.   He also identified his wife’s handwriting on Exhibit P23. 

69.He was asked about signing on the LOU, Exhibit P18 on 16 February, 2011.  He said he had not signed this on that date – he had signed it on 15 February, 2011 at his home. PW4 came to his home at about 7 a.m. with Exhibit P18 – he was there for one odd hour – PW4 explained to him that if he did not sign the LOU Exhibit P18, his ‘downlines’ could not be processed. The Defendant said that Exhibit P18 was a ‘letter of understanding’ and it was not a contract and therefore not binding – if he signed it, this was the minimum that AIA would give him. To him, the most important thing was that the document told him what the validation quota he and his team had to meet was. This was set out in clause 5(b) of Exhibit P18 - $12,730,640 He was referred to the signing fee of $4,406,776 .00 in clause 5(a) of Exhibit P18 – he said he did not know how this was calculated, nor was it explained to him. He was more concerned with the validation quota as the signing fee was not his if they were unable to meet the validation quota. He did discuss this with PW4.  He felt that this validation quota was achievable as he and his team at Manulife had been able to produce $8.9 to $9.6 million a year. He was referred to clause 7 on Exhibit P18 where the annual income of $2,937,851.14 determined on the income proof provided by the Defendant was mentioned and asked if he saw this annual income figure when he signed on exhibit P18 – he first replied that actually it took him only 1 minute to sign. When the question was repeated by the Court, he replied ‘no’. He was asked why he had not studied Exhibit P18 closely before signing on it and his answer was that this was not a contract – even after he signed it, he could choose not to join AIA – the document only told him what AIA was offering him and what he had to do to earn the money.   That PW4 came to his home on 15 February, 2011 at 7 a.m. and he signed on Exhibit P18 during that meeting was not put to PW4.  It was also an admitted fact that the LOU, Exhibit P18, was signed on 16 February, 2011.

70.He was asked about the $2 million payment from AIA to him. His reply was that he had read the LOU, Exhibit P18 – it was not binding.  The sum of $2 million was to be used to move his team to AIA – Manulife would have to be compensated by agents choosing to leave before they could be released from their obligations to Manulife and be free to join AIA.

71.He described the various offices he and his team were provided when he joined AIA – he needed more space as his team grew.  The floor plan of his office at Cornwall House was produced and marked Exhibit D3. He said the seating arrangement was the same as on the plan when the ICAC came to his office.  He also said the door to his personal office was not locked during the day, only at night, and others in the office had access to his office.

72.He was asked about the documents found from his office when the ICAC searched it, Exhibits P80 to 90 – he said he had never seen the documents before, and did not know how they came to be in his office.  When asked about Exhibit P80 and whether he had seen it before (on page 197 of Bundle 1) – he replied he had no recollection. But he identified the handwriting on it as his own handwriting but said he did not even remember what he had written it for or whether he had written it here – he said the document was a photocopy – and he had never seen the printed table on that document before.

73.He also described his relationship with his ex-wife and the troubles in their relationship.

74.He was referred to the bank statements exhibited to Exhibit P150. He said it was his ex-wife who managed the bank account and he had no idea of what was happening with the account – he referred to various remittances that were made from the account and said he did not cause these to be made, nor of the sums withdrawn from the account Some further bank statements were produced and marked as Exhibit D5.

75.The Defendant was cross-examined at length.  He emphasized that all along, his financial affairs were handled by his ex-wife.  She was employed by him at Manulife, but he was unable to say how much he paid her on average each month – his answer was that in his mind his money was her money. Even when at AIA, he was unable to say what she earned, though her salary was to be paid from his account.  She managed all his money – she took whatever she wanted – he did not check if she took more or less,  Other secretaries were paid $80,000.   He did not know from which account staff was paid, how much they were paid, how they were paid – all this was handled by his ex-wife.  He only knew that when they were paid their double pay, it was paid by cash as that would make the staff happy.   He was asked if Sarah paid tax, and he said all tax matters in Hong Kong and Australia were handled by her. In response to a question from th Court as to whether he had signed her tax forms, which he would be required to do in Hong Kong, he replied that he must have signed something like a tax return – everything was already prepared – he was only responsible to sign.   He never checked anything.

76.He was referred to his testimony in chief that he had never run short of cash since he had started working, save for one occasion when he had to borrow $500,000.  He was asked if he or his wife had ever borrowed from financial institutions in Hong Kong since their return to Hong Kong in 2002.  He replied ‘not that I recall’.   He was shown a Trans Union Report, dated 03-01-2011, that was produced and marked as Exhibit P158.  It was addressed to him at Manulife and bore his identity card number, as well as his address history, i.e. the addresses he had been living at and his telephone numbers.  The report set out the various loans he had taken out over the years – he replied that this was all organized by his ex-wife and he only went to sign, although he was the borrower on record.  It was suggested to him that perhaps life was not as rosy as he had painted in his testimony as he had had to borrow money in 2009 – he replied he did not know what the money was borrowed for – perhaps for an investment. Another loan for $180,000 from Dad Sing Bank taken out in 2007 was shown but he had no idea what the money was borrowed for. He was asked if it was possible his ex-wife had asked him to obtain the loans – he did not remember.  He was asked if he remembered going through financial problems at the times of these loans – his reply was that if he had, AIA would not have paid him and hired him.  He also confirmed to having a personal bank account at HSBC, from which loan payments were settled.  But he could not remember why the loans were repaid from his personal bank account and not the joint account he held with his ex-wife.   The statements of his personal bank account at HSBC were produced and these were collectively marked Exhibit P159.   He was asked about his residence at Tseung Kwan O and whether it was a rented property or purchased – he replied he ‘thought’ it was rented.

77.The Defendant was asked about whether the financial package he was offered would be an important consideration in determining which offer to accept but he said this was not his only consideration – he also had to consider what was being offered to his district as he had to meet targets.  He said that the offer from AIA was the smallest one and the worst one for himself.   He was asked if he was asked to provide documentation to prove his average income from the past two years in the meetings he had with AIA – he said he recalled that they asked him for documents for 2008, 2009, 2010 and 2011 and these were required by PW3 and PW4 to determine his year end bonus and district director growth bonus.  He was asked if the documents they sought included monthly statements – he replied he did not exactly remember – it was probably included. His wife never attended the meetings he had had with AIA.  She prepared the documents that were given to AIA.  He was asked if he had told her to send all the documents for 2008, 2009 and 2010 to AIA and he said he did not remember – perhaps he did not tell only her as one person could not do all the work.  When asked if he didn’t tell her,   or did not recall telling her, how would she know what documents AIA required.  He replied that in his district all secretaries were experienced – ‘how would they not know. Its their job’.  He was asked if he had told his ex-wife that AIA required documents for 4 years rather than the usual 2 – his reply was he did not remember.  He was asked if the documents for the 4 years AIA had asked for were ever given to AIA – again he did not remember.   He confirmed he was never been paid by Manulife the amounts set out in the documents that AIA used to calculate his financial package.  Exhibit P7 suggested he had earned $3,215,113 till 31/3/2010 but he had in fact earned $1,815.113 in that period. He said he did not know how Exhibits P3 to P8 got to AIA – he had never asked his wife or anyone to prepare such documents, nor did he know why anyone would provide false documents in his name to AIA.

78.The Defendant confirmed that the date written next to his signature on the LOU exhibit P18 appeared to be written in his own handwriting.  He was asked why he dated it ‘16-FEB-2011’ when in fact it was signed on ’15-FEB-2011’ at his home according to him.  He said he could not remember whether it was because that was a lucky date or because PW4 had to go back to the company to find an administrative staff member to affix a stamp - he could not remember the reason.   He repeated that the LOU exhibit P18 was not a legally binding document – it was given to him by PW4 – in response to a question from the Court as to whether he had read it, he replied he had, and then said he mainly read the part of the validation and the rest of the document was not very important. When asked again if he had read it, he said he read it very quickly – in 1 or 2 or 3 or 4 minutes.  He said AIA had given him a blank LOU without any names or figures filled in for him to read and to send to his lawyer – this was a document that had been used for years by AIA and the terms were unlikely to be changed.

79.DW2, Ms. Hilda Fung Lai Shan, testified that she began working in Manulife in February, 2010 for the Defendant. She was a personal assistant.  She followed the Defendant and switched to work at AIA in May, 2011.   At Manulife, at the material time, she, Venus and Sarah, the Defendant’ ex-wife, worked as the Defendant’s personal assistants.   Her responsibility was to fill in forms. When the company was recruiting people, Sarah would collect the documents and she would send them to the company, and she did other basic things like distributing letters. Sarah looked at the figures and the production of the district to see if they met the validation requirement.  Sarah accessed the computer system of Manulife to get the figures of the business each person had done.   She and Venus had access to much less information as they used the secretaries’ password.   She took her instructions from Sarah.   Sarah handled the administrative work in the office. The Defendant did not do any administrative work – Sarah would print out reports for the Defendant to review. If money was required by the Defendant, he would ask Sarah to withdraw the money.   She said she was unaware of discussions for the Defendant to join AIA until she returned from her sick leave at around the end of March, 2011.  She also recalled an incident in February 2013 when the Defendant had no money in his bank account.  She also identified the handwriting on Exhibits P3, P4, P5 and P6 to be the handwriting of Sara.  She confirmed that the Defendant’s office door was unlocked on 10/4/2013 when the ICAC went to the office, and people had gone into the Defendant’s room.

80.DW3, Dicky Poon Po Keung, had worked at Manulife from December, 2004, and came to know the Defendant in mid-2005, although he was not in the Defendant’s team. He switched to AIA in October/November 2011, when he worked in the Defendant’s team.  He would occasionally go the Defendant’s office in Manulife in December, 2010, but these were social visits.  His testimony related to his being approached by the Defendant to join AIA and he was told by Sarah the income proof documents he had to submit.  This was after the defendant had already joined AIA in May, 2011, although he had heard about the Defendant joining AIA in around the Lunar New Year in 2011.  He produced Exhibit D4, the conversation from the what’s app chat group between the Defendant and Sarah in 2013.

Analysis

81.I have carefully considered all the evidence adduced before me as well as the submissions of Counsel.  I bear in mind that the burden of proof remains throughout upon the Prosecution to prove guilt beyond all reasonable doubt. That burden never shifts.  I bear in mind too that if inferences are to be drawn,   these can only be drawn if the inference is the only reasonable inference to draw from the proved facts.   If there is a reasonable inference to draw against the Defendant as well as one in his favour, then the adverse inference cannot be drawn.   I have also borne in mind that the Defendant has a clear record, and have given myself the requisite directions in that regard.

82.The Defendant faces a charge of fraud contrary to Section 16A of the Theft Ordinance, Cap. 210, that between 1December, 2010 and 20 May, 2011, in Hong Kong, by deceit, namely by falsely representing to AIA that Exhibits P3, P4, P5 and P7 accurately recorded his income during his employment with Manulife in the period specified in the documents, and with intent to defraud, induced AIA to release a signing fee of HK$4,400,231.28 to the Defendant, which resulted in a benefit to the Defendant or a prejudice or substantial risk of prejudice to AIA.  The Prosecution’s case against the Defendant was that the Defendant knowingly submitted false documents to AIA which inflated his actual earnings in Manulife in order to get from his new employer AIA a signing fee which was higher than what he would have been entitled to based on his actual earnings.  By so doing, he received an increased benefit and at the same time, AIA suffered prejudice or a substantial risk of prejudice.

83.Much of the evidence relating to the background was not disputed.  The Defendant had worked at Manulife from April, 2002 until April, 2011. He rose quickly through the ranks and when he left Manulife to join AIA, his post at Manulife was that of District Director.  Towards the end of 2010, the Defendant was headhunted by PW3 and PW4 to join AIA at the rank of District Director.  Over the course of the next few months, various meetings took place between the Defendant and various representatives from AIA, including PWs 3, 4, 5, 6 and 7.  As a result of all these meetings, it was decided that an offer would be made by AIA to the Defendant for him, and thereafter his ‘downlines’ i.e. his team members at Manulife who wished to join AIA, to join AIA.  The Defendant would be recruited first. To that end, on 16 February, 2011, a Letter of Understanding (LOU), Exhibit P18, was signed by the Defendant and PWs 3, 4 and 6.  The recruitment package offered to the Defendant included among other things the signing fee, which is what we are concerned with. The signing fee is a one-off payment paid to new recruits about one month after they join AIA.  However, this is subject to claw back if the new recruit is unable to fulfill the prescribed production requirements within 2 years, or if there is a termination of service with AIA within 5 years.  To calculate the amount of the signing fee, prospective recruits had to submit income proof documents to AIA. The signing fee was calculated by multiplying the annual average income over 2 years with a specific rate set for that particular income level, which increases with the average annual income. The maximum is capped at 150% for an average annual income of $1.5 million or above.

84.It was not disputed that he did receive the signing fee of $4,406,776.00.   The signing fee is usually paid in one lump sum within a month after a prospective recruit had joined AIA.  In the Defendant’s case, a personal loan of $2 million was advanced to him by AIA against the signing fee – the Defendant was given the cheque for HK$2 million by PW6 after he had signed the letter of undertaking, Exhibit P20, in respect of the loan. The copy of the cheque the Defendant was paid was exhibited as CNA-2 (on pages 367-368 of Bundle 2). When the signing fee was paid to him after the Defendant had joined AIA, this loan of $2 million and the interest for the loan was deducted and the balance of the amount of the signing fee was given to the Defendant (Exhibits P21 and P22 refers on pages 21-22 of Bundle 1 refers).  These cheques were deposited in the Defendant’s joint bank account with his ex-wife at HSBC. The deposit of the cheque for HK$2 million was made on 1 April, 2011 (marked as HKSB-79(2) at page 550 of Bundle 2) whilst the cheque for the balance of the signing fee after deducting the loan HK$2million and accrued interest, namely HK$2,400,321.28 was deposited on 20 May, 2011 (HSBC-80(1) at page 553 of Bundle 2).

85.The recruitment package that the Defendant was to be offered by AIA was calculated based on the Defendant’s average annual income over the previous 24 months. The Defendant was also required to submit documents to prove his income for the period spanning December 2008 to November 2010.  These documents were submitted to AIA some time between November 2010 and January 2011.

86.Amongst the documents submitted were ‘Statements of Agent’s Account’ dated 24 December, 2008 (Exhibit P3), 23 January,2009 (Exhibit P4), and 25 February, 2009 (Exhibit P5) and a ‘Notification of Remuneration Paid to Persons Other than Employees for the Year Ended 31 March, 2010’ (Exhibit P7) – all purportedly issued by Manulife.  PW1 in her testimony was shown these documents and confirmed these documents although allegedly issued by Manulife, were in fact not issued by Manulife.  It was not in dispute that the amounts in these income proof documents were some of the amounts that PW6 entered in his calculation sheet Exhibit P2, to determine the Defendant’s average annual income over 2 years, and that was used to calculate the signing fee that would be offered to him by AIA, contained in Exhibit P1 and P2.  It was on the basis of the income proof documents submitted including Exhibits P3, P4, P5 and P7 that this offer was calculated by PW6 and approved by the senior management at AIA.  PW1’s testimony in regard to what the Defendant had actually earned and been paid whilst he was at Manulife was not challenged at all.

87.The amounts contained in Exhibits P3, P4, P5 and P7 were not the amounts that the Defendant earned at Manulife for the period set out in those documents.   From the Manulife records that PW1 checked. the body of these Statement of Agent’s Account in Exhibit P3 to P5 matched that in the Statements of Agent Account in their computer records for the ‘Statement of Agent’s Account’ contained in Exhibit P77, P50 and P64 respectively (at pages 193, 147 and 170 of Bundle 1). The total income set out in Exhibit P7 had been altered from $1,815,113 to $3,215,113..

88.Because PW6 calculated that the Defendant’s total income for the 24 month period was $5,875,702.28, he calculated the average annual income for the two year period to be $2,937,851.14.   The signing fee was calculated in Part D of Exhibit P1. As the Defendant was a special case, AIA used the percentage of 150% of his average annual income over the past 24 months to calculate the signing fee, making a total signing fee of $4,406,776.71, which is what he was actually paid.

89.According to the records kept by Manulife, which were produced by agreement, the Defendant’s true income over the relevant period, i.e. from December 2008 to November, 2010, was $4,074,022.84 instead of $5,875,702.28 as represented in the submitted income proof documents.  This is an increase of $1,801,679.44, approximately 45% of his actual income.  If his actual income for the 24 months had been used to calculate his average annual income for 24 months, his average annual income would have been $2,037,011.42, and applying the rate of 150%, the signing fee he would have received would be $3,055,517.13. He was paid $4,406,776.00 - $1,351,258.87 more than he was entitled to.

90.The Defendant in his testimony also confirmed that he had not received the amounts as set out in Exhibits P3 to P5 and P7.  PW1 also confirmed this.

91.Therefore the income proof documents Exhibits P3, P4, P5 and P7 that were used by PW6 to compile Exhibits P1 and P2 were false documents.  How did PW6 come by these documents?  It was the Prosecution case that it was either the Defendant himself or someone acting on his instructions who gave these documents to AIA. The Defendant’s case was that he was not the one who made these false documents and he did not submit these to AIA. He did not know the income proof documents submitted to AIA contained false information.  The Defence contended that the circumstances pointed towards the probability that this was a planned and deliberate set-up by Sarah, the Defendant’s ex-wife, to use the Defendant’s pending move to AIA to obtain money for herself before she finally left the Defendant – the Defendant was her scapegoat.

92.I carefully considered all the evidence adduced.  I found the Prosecution witnesses to be honest and credible witnesses, who each gave their evidence simply and directly. Where they were unsure or did not remember, they said so. PWs 3 to 7 were honest in recounting to the best of their abilities the events that had occurred in 2010 and 2011.  Memories of details in those circumstances may not be remembered.  I saw nothing sinister in this.  I found the Prosecution witnesses were all honest and reliable witnesses and I accepted their testimony in its entirety. As I understood it, the defence was not challenging the honesty and integrity of PW1, or those of any other prosecution witnesses, except PW6.  The only issue was the reliability of their evidence.  I did not believe the Defendant’s testimony. I rejected his evidence. I found his account inherently incredible. He was also very evasive when answering questions, sometimes quite simple and direct questions.  That I comment thus is not to misconstrue the burden of proof remaining throughout upon the Prosecution to prove guilt beyond all reasonable doubt but takes account of practical matters pertaining to the credibility of witnesses and the weight to be attached to evidence.

93.In the course of his testimony, the Defendant did admit that by the second meeting with AIA representatives at the end of November, 2010, he had been asked to submit his income proof documents to AIA.  PW6 testified that he used Exhibits P3 to P5 and P7 when he compiled Exhibits P1 and P2. 

94.It was the testimony of PW5 that he had handed the income proof documents including Exhibits P3 to P8 to PW6.  PW6 had said he could not recall exactly who had given these documents to him, but it was either PW5 or PW7.  PW5 further testified that it was the Defendant who had handed over the income proof documents during a meeting when others from AIA were also present.  PW7 testified that he was present at a meeting where the Defendant was also present when an envelope of documents were handed over – he had not looked at the documents as the envelope was not opened at that meeting, but in his experience these should have been income proof documents.

95.The Defendant in his testimony confirmed that the financial package including the signing fee was explained to him by PW4.  His testimony in respect of the handing over of income proof documents to AIA was rather conflicting. Initially he said income proof documents were asked for, but this over time, and also via e-mails, by phone and text messages ‘just that it was never given’. He was asked if these were handed over in the second meeting he had with AIA representatives at the end of November 2010 – his answer was ‘I think so’ and went on to say that even if they were, he would ask his assistants to do it for him. He would not photocopy or take over himself.  As far as he remembered, these documents were not handed over by e-mail or fax as these were sensitive. It was not convenient for him to appear at AIA, being a senior officer of Manulife.  He was asked again if his income proof documents were handed over to AIA at this meeting (i.e. at the end of November, 2010) and he replied ‘possibly there were chances’. When asked if he knew how his income proof documents would be handed to AIA, he replied he had no idea. He assigned this to his assistant, his ex-wife Sarah, to handle and she knew the delicacy of the matter. When asked if he had given her any specific instructions of what documents to put together to give to AIA, he replied there was no need because his assistants were very familiar with recruitment procedures and what the companies wanted. Every company wanted the same thing.  His assistants were very familiar with the procedure and knew what had to be given.  He denied he had taken any part in the preparation of the income proof documents that AIA had asked for.  He confirmed he knew why AIA was asking for the income proof documents – it was to calculate his financial package for joining AIA.  In cross-examination, he said he was asked for the income proof documents of 2008, 2009, 2010, and 2011. If he had been asked for income proof documents in November 2010, how could he have been asked to submit income proof documents for 2011?  The norm in recruitment was to submit income proof documents for 2 years.  If AIA was asking for more than the norm, would he not have had to tell Sarah that?  She had not been present at any of the meetings where income proof documents had been asked for.

96.The Defendant in the course of his testimony maintained that is financial affairs were all handled by his ex-wife Sarah, and he had no idea of these – his job was to earn money, and she could spend whatever she wanted – he did not even know what her salary as his personal assistant was. He claimed that his financial situation was good – yet he had applied for loans from financial institutions – but he said he did not know what the loans were for – he just did what he was asked to by Sarah. The repayments for these loans were from his personal bank accounts – but he could not explain why that was so and not from their joint account.

97.The signing fee was set out in the letter of understanding, LOU (Exhibit P18).  How it was calculated was also set out in the document, including that calculation of his average annual income over the previous 24 months.   The Defendant confirmed that he had signed it. But the circumstances under which he said he signed it differed from the testimony of PW6.  PW6 testified that he had read over the entire document to the Defendant as well as showing him the supporting income proof documents that had been submitted. This all took place on 16 February, 2011, the date shown on the document.  The Defendant himself had read it as well.  The Defendant said that the document was brought to his home at 7 a.m. on 15 February, 2011 by PW4.  He just glanced at it quickly.  He confirmed the handwritten date 16 February 2011 under his signature was written by him. His explanation for dating it 16 February, 2011 although it was signed on 15 February, 2011, was that perhaps 16 February 2011 was a lucky date or because PW4 had to return to the office to get a stamp to affix on the document – he could not remember the reason.  It was never put to PW4 that the document was signed on 15 February, 2011. It was PW4’s testimony that this was on 16 February, 2011 and this was an admitted fact as well.  I did not believe the Defendant’s account of how he came to sign on Exhibit P18.  I am satisfied beyond all reasonable doubt that PW6 explained Exhibit P18 to the Defendant and showed him the income proof documents he had used to calculate the signing fee as he described to the Court.

98.The Defendant also said that he did not view the LOU as a legally binding document – he could choose not to join AIA even though he had signed the document - if one looks at the document itself, on the face of it, it sets out the terms and conditions of the agreement between the Defendant and AIA for the Defendant to join AIA, and the effective date for him to join AIA was also set out as 1 May, 2011.  It was the basis of the subsequent contract that was entered into between him and AIA.

99.He signed on it voluntarily, accepting all the terms and conditions.  In Clause 5(a) the Defendant warranted and represented to AIA that the income proof he had provided to AIA ‘was true, complete and accurate in all respects’.  The income proof documents that were submitted by the Defendant that resulted in the calculation of the average annual income over 24 months were also referred to in Clause 7 of the LOU.  In clause 21(h)(iv) of the LOU, there is again a declaration and warranty by the Defendant that ‘any proof of income that he provides to the Company is true, complete and accurate in all respects’. Clause 22 sets out the action that can be taken by the Company in the event of fraud, dishonesty or breach of trust or breach of any of the warranties including the warranty in clause 21(h)(iv).

100.It is not in dispute that the Defendant during the period that he did work at AIA was able to meet the validation requirements required of him and his team.  But by inflating the amount of the income he had actually received over the past 24 months at Manulife, the Defendant had dishonestly secured for himself a signing fee that he would not ordinarily have been entitled to if he had submitted true income proof documents for the 2 year period involved.

101.In the video record of interview under caution in the presence of his solicitor, Exhibit P151, which was made voluntarily by the Defendant, he was asked about the signing fee he was paid by AIA. He agreed he had received the signing fee from AIA. He also explained his understanding of what a signing fee was.  He was asked if he had submitted any income proof documents to PW4 – he refused to answer (Counter 171 to 176). He was asked about how AIA calculated his signing fee – he refused to answer (Counter 191-192).  In fact he refused to answer most of the questions that were put to him in the course of the interview. That was his right – I inferred nothing from it.     

102.It was not disputed that the documents Exhibits P80 to P90 were seized from the Defendant’s office by ICAC officers during a search of his office after his arrest on 10 April, 2013.   The documents were contained in a blue folder, Exhibit P156.  Exhibit P83 and P85-87 were identical to the income proof documents provided to AIA, namely Exhibits P3-P5 and P7.  Further, Exhibit P80 was a copy of a document where the Defendant confirmed that the handwriting on it was written by him although he said the table on the document was not there when he wrote the two sentences “Total for last 24 months ….Send to FW on 2^nd Jan.”  The Defendant testified that he did not remember how or why he wrote what he did on the piece of paper.  The figures next to the months in the table on exhibit P80 are identical to the figures in the top right corner of Exhibit P2 which reflected the income of the Defendant in the two previous years that was compiled by PW6 using the income proof documents of the Defendant that had been submitted. The total of the income $5,875,702.28 on Exhibit P80 and Exhibit P2 are identical.  There was evidence that others also had access to his office and used his office. The door to his office was not locked. I did bear this in mind.   It was admitted that these documents were seized from the Defendant’s office. These documents match the documents Exhibits P3 to P5 and P7 that were used in calculating the signing fee that AIA would offer the Defendant.

103.In his testimony, the Defendant maintained that he did not know what his annual income was – he thought it was about $3million a year – he left all financial matters to his ex-wife Sarah.  From his testimony, it would appear that even as far back as 2010 he and Sarah were having problems in their marriage in particular in respect of his work and the agents working under him.  Clearly his income was not $3 million a year at the material time.  I do not believe that he would not himself have checked through the income proof documents to be submitted to AIA.  The Defendant had worked his way up the ranks to the position of District Director at Manulife, through his hard work.  One of the reasons for his promotions must be the business he generated for Manulife for which he was paid as well. How much business he generated and how much he earned would obviously be a matter of some concern to him.  More so when he was thinking about changing to work for another insurance company. 

104.No doubt he was helped in the administrative work by his assistants including his ex-wife Sarah – and it may well be that he had given her his password so that she could access his financial statements on the Manulife intranet.  He testified that he gave the password to all his assistants. DW2 who was one of his personal assistants said she never had the password to access the Defendant’s personal financial statements. 

105.He and Sarah were divorced in 2015. They stopped living together in 2011 according to the Defendant, after he had joined AIA. But even after they no longer lived together, they went on holiday together.  She was also in the flat at the time when the ICAC went to his home in 2013. Even after the Defendant joined AIA, and when they were supposedly having problems and she was travelling in and out,   he left all his personal financial matters to her – I do not believe that.  His banking documents were kept in his office as well.  I do not believe that he paid no heed whatsoever to his bank accounts.

106.The Defence referred to Exhibit D1 and submitted that it was a requirement for original income proof documents to be submitted and signed by the applicant and recruiting manager for certification. Here, Exhibit P3 to P5 and P7 were not signed.  But there was evidence that AIA were very keen to recruit the Defendant to join AIA – they were even prepared to advance a sum of $2 million to him from the signing fee before he actually joined AIA. 

107.The falsified income proof documents were crucial for AIA to be able to calculate his average annual income over 2 years and to calculate the signing fee they would offer to the Defendant upon his joining AIA. I am satisfied beyond all reasonable doubt that the Defendant submitted these falsified documents in order that a larger signing would be paid to him, and in doing so he falsely represented to AIA that the contents of these documents were true and correct and with intent to defraud, he induced AIA to pay him a signing fee of $4,400,231.28, resulting in a benefit to him or a prejudice or substantial risk of prejudice to AIA.  He is convicted as charged.