HKSAR v. Shek Man Ho and Others
Read the full judgment text of DCCC 1114/2016 on BabelCite. This District Court judgment.
1. D1 fraudulently posed as an insurance agent to obtain money from victims who handed over their money, thinking that they were purchasing motor insurance.
Cited by 2 cases
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DCCC 1114/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1114 OF 2016 -----------------------------------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.D1 fraudulently posed as an insurance agent to obtain money from victims who handed over their money, thinking that they were purchasing motor insurance. 2.D3 to D7 are individuals who allowed their respective bank accounts to be used by D1 to receive the insurance premium payments for a reward. 3.D1 was charged with 21 charges of fraud, one charge of possession of false instruments, and 5 charges of conspiracy to launder money. He pleaded guilty to 20 of the fraud charges, the false instrument charge and 3 of the money laundering charges. The prosecution offered no evidence against D1 on charges 20, 26 and 27 that he pleaded not guilty to and D1 was acquitted of those charges. 4.D3 pleaded guilty to 3 charges of conspiracy to launder money. 5.D4, D5, D6 and D7 each pleaded guilty to one charge of conspiracy to launder money. 6.In all the charges that D1 faced, D2 was also charged as an accomplice. The prosecution, however, offered no evidence against D2 on all the charges that she faced, and she was acquitted accordingly. Outline of facts 7.D1 falsely put himself out as an insurance agent and advertised his service on social networking platforms, through communication applications over the mobile phone and through word of mouth. He claimed to be able to obtain car insurance policies from Direct Asia Insurance Limited at a discounted rate. He also offered rebates to those who referred others to purchase policies through him. 8.The victims of the 20 fraud charges believed D1. They either purchased car insurance policies through D1 or referred others to do so. Some did both. 9.The premium payments were paid either in cash or by way of bank deposits. Each of D3, 4, 5, 6, 7 had allowed their respective bank accounts to be used by D1 for monetary reward, resulting in the charges against them and D1 for conspiracy to launder money. D3-7 were not aware of the underlying frauds committed by D1.
10.The insurance policies, given to the victims by D1, purportedly issued by Direct Asia Insurance Limited were in fact not so issued. They were all forged documents. A total of 584 sets of false insurance policies relating to the present fraud charges were retrieved from two USB thumb drives seized from D1’s residence. These false documents are the subject matter of charge 22 that D1 pleaded guilty to. 11.The total amount of monetary loss suffered by the victims out of the 20 fraud charges is $141,127. Previous convictions 12.D3, 4, 5 and 7 are of previously clear record. 13.D1 has 2 previous convictions, but none of them are similar to any of the charges in the present case. 14.D6 has 2 previous convictions for minor theft some 5 years ago. Sentence 15.The maximum sentence for the offence of fraud under section 16A of the Theft Ordinance is 14 years’ imprisonment on conviction upon indictment. 16.The maximum sentence for the offence of possession of false instruments under section 75(1) of the Crimes Ordinance is also 14 years’ imprisonment on conviction upon indictment. 17.The maximum sentence for the offence of Dealing with property known or believed to represent proceeds of indictable offence is a fine of $5,000,000 and imprisonment for 14 years on conviction upon indictment. D1’s sentence 18.The frauds perpetrated by D1 were all premeditated. D1 committed the offences with the aid of another. D1 exploited the reach of the various social networking and communication platforms both in reaching out to potential victims and to recruit the use of bank accounts as depositories for the money he planned to obtain from the frauds. The only reasonable inference from the use of other people’s bank accounts must be that D1 wanted to avoid detection. 19.D1 committed multiple offences over a relatively long period of time. 20.As a result of D1’s fraudulent conduct, vehicles were likely being used without proper insurance coverage on the road. Should there had been an accident, the consequences could have been disastrous for the victims involved. 21.The 20 fraud charges were committed against 20 different victims, on different occasions and at different times. The only connection between them is D1 and his mode of operation. 22.The possession of the false instruments is part and parcel of the commission of the frauds, as is the use of D3 to D7’s bank accounts to receive the money from the frauds. As such, the sentences for these two groups of offences should be made concurrent to the sentence for the fraud offences. 23.For each of the 20 fraud charges, I will adopt a starting point of 18 months’ imprisonment. 24.For the possession of false instrument charge, I will adopt a starting point of 18 months’ imprisonment. 25.For the 3 conspiracy to launder money charges, I will adopt a starting point of 18 months’ imprisonment each. Totality 26.I find that the overall sentence should be 44 months’ imprisonment before applying a discount for D1’s guilty plea. To achieve that sentence, I will order the sentences in relation to charges 1 and 2 to be served consecutively. 8 months of the sentence in charge 3 to be served consecutively to those 2 sentences. The balance of the sentence in charge 3 as well as the sentences for all the remaining charges to be served concurrently, making a total sentence of 44 months’ imprisonment. Discount 27.The defendant first indicated his pleas of guilty at the Pre-trial review on 25th May 2017, which was slightly less than 1 month before the commencement of trial. It is not disputed by Mr Alan So for the defendant that D1 did not enter a timely plea of guilty and should not, therefore, be entitled to the usual 1/3 discount for his plea. 28.I do note that given the number of charges and witnesses involved, the saving of time and costs from the defendant’s guilty plea is still rather substantial. 29.I find that there should be a discount of ¼ for his guilty pleas. 30.D1 is, therefore, sentenced to a total of 33 months’ imprisonment after plea. D3 to D7’s sentence 31.I have had the benefit of the various reports prepared on the defendants. 32.I find that they each committed their relevant offence or offences out of greed and being naïve. I am of the view that their rehabilitation should be the priority in deciding on the appropriate sentence. 33.Having considered their reports, I pass the following sentences. D3’s sentence 34.Despite the troubled background of D3, I believe that a Community Service Order is an appropriate sentence in the circumstances. 35.I will sentence her to 220 hours of CSO in relation to charges 23, 24 and 28, to be served concurrently. D4’s sentence 36.Although CSO was not recommended by the PO, I am of the view that given the circumstances and seriousness of the offence, CSO is an appropriate sentence. 37.I note the mention of internal guidelines of the SWD about tattoos having to be covered up when CS is being performed. I have seen the tattoos on D4’s hand and I am of the view that they can be covered up by plasters. There should not be any breach of the guidelines. 38.I order D4 to perform 200 hours of community service in relation to charge 25. D5’s sentence 39.I accept the recommendation of the probation officer and sentence D5 to 18 months’ probation with the added conditions as set out in the PO report in relation to charge 26. D6’s sentence 40.I accept the recommendation of the YOAP and sentence D6 to 18 months’ PO with the additional conditions as set out in the YOAP report in relation to charge 27. D7’s sentence 41.I accept the recommendation of the PO and sentence D7 to 150 hours of CSO in relation to charge 28. I am grateful for Mr Laine for attending court and explaining how he considered that D7’s asthmatic condition would not prevent her from performing unpaid work as required under the CSO. Prosecution’s application for compensation orders against D1 42.The prosecution applied for compensation orders against D1 in relation to each of the fraud charges. It is the defendant’s position that he does not have the means to pay any of the money back. I am also informed that the defendant has no assets that can be disposed of to raise money. The defendant had in fact asked his mother to try to borrow money but to no avail. 43.According to the defendant’s background report, he had worked as a computer gadget shop salesman, a broadband wiring technician for different subcontractors, motor vehicle salesman and fruit vendor since 2010. It is not inherently improbable that he does not have the means to make the repayments, which amounts to $141,127. 44.The defendant will be spending a relatively long time in jail and unlikely to be able to make enough money to satisfy any compensation orders that this court might make. 45.Upon release, given the fact that the defendant has a child to maintain, he and his family will likely be relying on public assistance for a period of time. To impose compensation orders that the defendant will not be able to fulfil may have serious adverse effect on the defendant and his family. 46.Taking into consideration all the circumstances of the defendant, I will refuse the prosecution’s application for compensation orders against D1.
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