HKSAR v. Kho Yin Tak

HCMA 109/2024

[2025] HKCFI 1112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 109 OF 2024

(On appeal from ESCC 415/2023)

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JUDGMENT

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1.The Appellant was D2 at the hearing in the magistracy. He together with D1 were jointly charged with one count of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 (Charge 1), to which he pleaded guilty and was convicted accordingly on 15 February 2024.

2.The magistrate called for a background report, remanded the Appellant in custody for 14 days and eventually sentenced him to imprisonment for 5 months and two weeks on 28 February 2024.  On the same day, the Appellant filed a notice of appeal against the sentence.

3.On the other hand, D1, in addition to Charge 1, was charged with one count of using an identity card relating to another person (Charge 2) on his own.  He was convicted of both charges upon his own pleas and sentenced to a total of 4 months and 18 days’ imprisonment.

The facts

4.The particulars of the offence under Charge 1 were that, D1 and the Appellant, on 20 of May 2019, in Hong Kong, conspired together to defraud Vocational Training Council (“VTC”) by dishonestly and falsely representing to VTC that D1 who attended and took the Insurance Intermediaries Qualifying Examination (Paper I) on 20 May 2019 in Vocational Training Council Tower, 27 Wood Road, Wan Chai, Hong Kong was the Appellant, the person signed up for and scheduled to take the said examination, and thereby to induce VTC to act contrary to their public duty, namely to allow D1 to take the examination which VTC would not otherwise have allowed.

5.From the brief facts as admitted by the Appellant, the Appellant admitted that D1 was his property agent.  The Appellant signed up for the examination in question and was scheduled to take it on 20 May 2019.  He however gave his HKID card to D1 who attended and took the examination.  During the examination, it was found out that the appearance of D1 did not match that of the Appellant on the HKID card presented.  The matter was revealed and both D1 and the Appellant were eventually arrested by the police.

Mitigation

6.It was reported in the Appellant’s background report that the Appellant was 48 years old, married with a 9-year-old daughter.  He worked in the teaching field as a consultant lecturer in an education center from 2000 to 2015 and then as a guest lecturer in the Mainland China from 2015 to 2024.  He was at the time of the magistracy hearing a free-lance guest lecturer at different teaching institutions with irregular working hours and salaries.  He has no criminal convictions.  He expressed deep regret for his reckless acts and underestimation of the legal consequence of his wrongdoings in this case.

7.The defence submitted written submissions with mitigation bundle giving details of the Appellant’s background, the background to the offence and his position as to the sentencing options.  The defence suggested that the Appellant had nothing to gain in this case and asked for a non-custodial sentence.

Reasons for sentence

8.The magistrate took into account the Appellant’s guilty plea and his clear record.  The magistrate commented that the Appellant was a person of very good character in the past, with stable work and good relationships with his family members, friends and colleagues who were all very supportive.  This was an act out of his character.  The magistrate accepted that the Appellant had made an impressive and remarkable contribution to society by taking up various leading positions and giving out donations even in hard times. 

9.The magistrate then considered a magistracy appeal case HKSAR v Lee Ka Hing & Anor HCMA 71/2017, where there were discussions of this type of “exam fraud”.  In that case, both appellants were facing one count of conspiracy to use an identity card relating to another person and one count of conspiracy to make a false instrument, while the 1^st Appellant faced another count of attempting to pervert the course of justice.  The prosecution case was that the 1^st Appellant was the superior of Miss Yeung in an insurance company.  At the material time, the 1^st Appellant asked Miss Yeung to take the insurance professional qualification examination for the 2^nd Appellant.  The incident was unveiled in the examination upon verification of identity.  Later Miss Yeung provided further evidence to the police against the 1^st Appellant concerning the offence of attempting to pervert the course of justice.  Both appellants were convicted after trial.  The 1^st Appellant was sentenced to 24 months’ imprisonment in total whereas the 2^nd Appellant was sentenced to 18 months’ imprisonment in total.

10.The magistrate said it was worth noting that paragraph 15 of the judgment of Lee Ka Hing highlighted the gravity of the offence, where it said that the licensing system of the insurance practitioners was important to the stability of Hong Kong’s financial and international reputation.  Further, paragraph 17 of the judgment emphasized that this type of case was even more serious than the usual cases of using an identity card relating to another person as it involved the licensing system of insurance practitioners.  

11.The magistrate decided that non-custodial sentence could not reflect the gravity of this offence.  Though the Appellant faced a different charge from that of the appellants in Lee Ka Hing, the nature of the events was similar.  The magistrate accepted that this case might not be as serious as Lee Ka Hing as no false instrument was involved and that there were fewer conspirators involved.  The magistrate also accepted that D1 and the Appellant did not seem to have a solid working relationship as such in Lee Ka Hing.  However, the magistrate did not agree that the Appellant had no gain in this case as he would have the benefit of practising with the professional qualification if D1 passed the examination for him, whether or not he would choose to use that professional qualification in the future.

12.The magistrate observed that around 5 years had lapsed since the commission of the offence in 2019 and that the Appellant had already led a new life and rehabilitated in the past 5 years after the incident.  

13.The magistrate concluded by adopting a starting point of 12 months imprisonment and discounted it by 1/3 to 8 months imprisonment for the timely plea.  A reduction of 1.5 months was then given for his positive good character and remarkable contribution to society and a further reduction of 1 month was given for the consideration of the Appellant  having rehabilitated during the time lapsed between the material time and the court hearing.  The final sentence was one of 5 months and 2 weeks’ imprisonment.

Grounds of Appeal

14.The Appellant relied on two grounds of appeal as follows:-

Ground 1

The magistrate erred in finding the present case comparable with Lee Ka Hing and hence warranted an immediate custodial imprisonment.  In particular, she failed to consider or consider sufficiently the following distinguishing and unique circumstances: -

(a)  The Appellant was never serious about or having any interest in starting an insurance business, given he has retired from his very successful business and been financially independent for many years.

(b)  It was only at the repeated suggestions by D1 that the Appellant registered for and planned to attend the examination.

(c)  The offence was committed on the spur of the moment and in a very amateurish manner.

(d)  It was highly likely for the Appellant to pass the examination had he sat for it given his wealth of experience, background and education level.

(e)  The examination in question was only the first of a series of examinations in becoming an insurance agent and there was no evidence or suggestion that the Appellant and D1 would have continued with the conspiracy with the rest of the examinations.

Ground 2

The magistrate erred in rejecting community service order and/or suspended sentence as realistic sentencing options as she failed to give sufficient weight to the cumulative effect of the following mitigating circumstances: -

(a)  The plea, clear record, positive good character of the Appellant and his substantial contribution to the society.

(b)  The delay of 5 years from the offence to the date of sentence.

(c)  The offending was a single fall from grace and entirely out of character.

(d)  The negligible risk of re-offending.

(e)  The Appellant has been remanded in custody for 14 days pending the obtaining of a background report.

Respondent’s submission

15.The Respondent submitted that this was a dishonest conspiracy involving the use of an identity card relating to another.  As a benchmark or reference, for the offence of possessing an identity card relating to another, the starting point upon a guilty plea should be 12 months’ imprisonment, so as to reflect the seriousness of the offence and to serve deterrence purpose: see HKSAR v Li Chang Li [2004-2005] HKCLRT 193 at paragraph 40 and Secretary for Justice v Wong Che Ping [2020] 5 HKLRD 200 at paragraphs 34 and 36.       

16.In reply to Ground 1, the Respondent submitted that the magistrate was entitled to consider the principles as set out in Lee Ka Hing and made adjustments in the sentence for this case.  It was submitted that the conspiracy was committed continuously throughout a period of time and was only exposed during the examination.  The Appellant and D1 apparently had deliberated as to how the false representation was to be made and made plans for it.  The Appellant’s claim that it was highly likely that the Appellant would pass the examination had he sat for it was a bare assertion which had no weight.  The Appellant clearly had a personal interest in the examination for his own benefits otherwise he would not have signed up for it in the first place.  Whether or not that Paper I was only part of a series of examinations did not matter, it was an essential component of the Insurance Intermediaries Qualifying Examination.   

17.In reply to Ground 2, the Respondent submitted that it would not be meaningful to compare other individual cases cited by the Appellant with this case as each case would depend on its own facts and circumstances.  It was submitted that, taking into account the conspiracy which involved the possession and use of an identity card relating to another, the sentence imposed by the magistrate was not wrong in principle nor manifestly excessive.

My Decision

18.For the record, to start with, there was an application by the Appellant for certain new materials (mainly Appellant’s character references) to be adduced for this appeal, which application was opposed by the Respondent.  For reasons which would be apparent from the following paragraphs, I am of the view that this appeal can be disposed of without a ruling on that application.

19.For convenience’s sake, the two grounds of appeal can be considered and dealt with together.

20.No doubt the case of Lee Ka Hing as considered by the magistrate did not set down any sentencing tariffs or guidelines for the subject offence, though there were some similarities between that case and the present case as both involved insurance professional qualification examinations.  The magistrate took the view that non-custodial sentence could not reflect the gravity of the subject offence but she agreed to adopt a lower starting point (12 months) than that in Lee Ka Hing (18 months) as she found the present case less serious. 

21.The Appellant’s major complaint was that the magistrate erred in finding Lee Ka Hing comparable with the present case and therefore warranted an immediate custodial sentence.

22.The Respondent, on the other hand, submitted that the magistrate was entitled to consider Lee Ka Hing and that when considering the sentencing guidelines under Li Chang Li as a “benchmark” the final sentence of the Appellant was not wrong in principle nor manifestly excessive.

23.I do not think one can criticize the magistrate for considering Lee Ka Hing in the sentencing exercise of this case as they both involved cheating in insurance related examinations.  Be that as it may, there are clear differences in both the charges and their respective factual contexts. 

24.First of all, in Lee Ka Hing, there were two conspiracies, namely a conspiracy to use an identity card relating to another and a conspiracy to make a false instrument.  Leaving aside the latter conspiracy, which theoretically should add to the overall criminality, the first conspiracy was precisely about the use of an identity card relating to another.  As such, the sentencing guidelines under Li Chang Li were clearly more relevant if not directly applicable. 

25.Coming back to this case, there was only one conspiracy.  More importantly, there was no mentioning of any use of identity card in the particulars of the offence of the conspiracy under Charge 1.  The particulars merely alleged a conspiracy to make dishonest and false representation to VTC by way of “impersonation”.  In other words, the conspiracy under Charge 1 did not cover the use of the identity card as it was not alleged to be part of the conspiratorial agreement.  There was nevertheless another charge of using an identity card relating to another person (Charge 2) with which D1 was charged but only on his own.  The Appellant was not charged with aiding and abetting D1 to use that identity card nor was there another conspiracy charge to cover that use of the identity card.  

26.I do not seek to look into why the charges were so drafted or framed but would instead focus on the relevant charge here, that is Charge 1, for which the Appellant was convicted.  It is beyond any dispute that the Appellant, just like any other defendants in other cases, should only be sentenced on the charge he faced.  The use of the identity card by D1, which was not part of the conspiracy under Charge 1 (but the subject matter of a separate charge under Charge 2), should not be included in or added to the criminality of the Appellant in this case.           

27.In any event, even if the Respondent was correct in arguing that the guidelines in Li Chang Li should be referred to and considered (as opposed to be directly applicable or binding) as the “benchmark” in the sentencing exercise in this case, I do not lose sight of what the Court of Appeal emphasized at the end of the judgment of Li Chang Li:-

“42. The above sentences (referring to the guideline sentences) are of course only applicable to ordinary cases. Where there are special mitigating factors, the judge should exercise his discretion and impose such sentence as is appropriate in the particular circumstances of the case.”

28.Also, the factual context of Lee Ka Hing was different from that of the present case.  When one looks closely at the facts of Lee Ka Hing, one can tell it was about a three-men-conspiracy where a senior employee of an insurance company devised a fraudulent scheme to arrange an individual to sit for an insurance professional qualification examination in place of his subordinate who was unable to.  It was a conspiracy by those who were in the insurance profession to cheat in the requisite examination apparently with an aim to obtaining benefit in their insurance work.  It was different in the present case as both D1 and the Appellant were not in the insurance profession and there was no evidence to show that they, or at least the Appellant who was all along having a successful teaching career, were interested in entering the insurance profession to obtain any benefit.

29.Apart from the circumstances of the case, including the charge and the relevant facts, as described above, there are personal circumstances of the Appellant to be carefully considered.  What are significant include the Appellant’s previous good character, his good background, the delay of nearly 5 years between the date of offence (20 May 2019) and the date of sentence (28 February 2024) and the fact that he had already been remanded for 14 days pending sentence.

30.On the issue of delay, I have considered the Court of Appeal’s decision in HKSAR v Chiu Chi Wing (趙志榮) CACC 243/2012, unreported, judgment dated 18 October 2013, where Lunn JA (as he then was) at paragraph 37 of the judgment recited the seven factors identified by the Court of Appeal of Western Australia in Scook v The Queen [2008] 185 A Criminal Review 164.  Those factors had recently been considered and recited by the Court of Appeal in HKSAR v Leung Yui Ming (梁銳明) CACC 30/2023, unreported, judgment dated 18 June 2024.  Suffice to say for the present purpose, it was observed in Scook as the first factor that delay is not of itself a mitigating factor, but as the fifth factor stated, that “delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged”.  As there was a lapse of nearly 5 years (and nearly 6 years at the time of this appeal) in this case and that the Appellant has all along been a family man and a lecturer, that should be factored into the consideration of his sentence.                

31.Having considered all the circumstances, including those of this case and those of the Appellant, I agree that Grounds 1 and 2 succeed in that the magistrate erred in concluding that this case warranted an immediate custodial sentence and that she had failed to give sufficient weight to all the mitigating circumstances.

32.When considering the appropriate sentence for the Appellant, I have also reminded myself of the sentencing principle for suspended sentence as stated in Secretary for Justice v Wade CAAR 1 of 2015, unreported, judgment dated 5 February 2016, where Lunn VP stated at paragraph 46 of the judgment, that when dealing with offences other than those stipulated by the courts requiring a test of “exceptional circumstances”, “the courts must have regard to all the circumstances of the commission of that offence and that of the defendant in determining whether or not it is appropriate to exercise its power to suspend the operation of the sentence of imprisonment”.  

33.In view of all the circumstances of this case and those of the Appellant as described above, I am satisfied that it is appropriate to impose a suspended sentence for the Appellant.  I allow the appeal and order the Appellant’s sentence of 5 months and 2 weeks under Charge 1 be suspended for two years.    

Charles Lee SPP, and Ng Hay Lok, Gabriel PP, of Department of Justice, for the respondent

Mr David Leung, SC and Mr Holden Slutsky, instructed by Weir & Associates, for the appellant