HKSAR v. Lai Wai Ho
Read the full judgment text of CACC 392/2006 on BabelCite. This Court of Appeal judgment was delivered on 8 January 2008 before Stuart-Moore VP, Stock JA and Hartmann J.
Criminal law – conspiracy to defraud – insurance commission fraud – using a false instrument – sentence – appeal – disparity between co-conspirators – totality principle – consecutive versus concurrent sentences – leave to appeal. The applicant (D3) was convicted after trial of conspiracy to defraud New York Life Insurance Worldwide Ltd between March 2002 and August 2004. The fraud involved false proposal forms making the insurer believe Silver World Limited was introducing genuine clients; commissions of up to 130% of premiums were obtained, netting HK$1.25 million. The applicant also used a forged University of Windsor certificate in June 2001 to obtain a position at Sino Cheer, a separate insurance broking company, contrary to s.74 of the Crimes Ordinance (Cap 200). The sentencing judge found the applicant played a lesser 'operational' role and imposed three years and eight months' imprisonment on Charge 1 (starting point 4 years, 4 months' credit) and one year concurrent on Charge 3. Co-defendants D1 and D2 received heavier sentences despite greater culpability and financial benefit, and despite D1 also being convicted of a second, more profitable conspiracy under Charge 2. The Court of Appeal held the Charge 1 sentence was disproportionate to D1's five-year sentence given the vast disparity in roles and financial benefit, and given that the four-month credit for not challenging evidence or testifying was an unusual and generally incorrect basis for discount. The Court substituted a sentence of three years' imprisonment on Charge 1. The Court further held it was inappropriate to treat the Charge 3 offence as part and parcel of the conspiracy because it predated the conspiracy and involved a separate company (Sino Cheer) suspected of similar wrongdoing; applying the totality principle, six months of the one-year Charge 3 sentence was ordered to run consecutively to, and the remainder concurrently with, the Charge 1 sentence, giving a total of three years and six months' imprisonment. Appeal allowed to that extent.
Legal issues: Whether the sentence for Charge 1 (conspiracy to defraud) was manifestly excessive given the disparity with co-conspirators · Whether the Charge 3 sentence (using false instrument) should run concurrently or consecutively and application of totality principle
Outcome: Appeal allowed in part. Leave to appeal granted and, treating the hearing as the appeal, the sentence on Charge 1 was reduced and the order for concurrent running of the Charge 3 sentence was varied to reflect totality.
Cited by 5 cases
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CACC 392/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 392 OF 2006 (ON APPEAL FROM DCCC NO. 1006 OF 2005) ------------------------------ BETWEEN
------------------------------ Before : Hon Stuart-Moore VP, Stock JA and Hartmann J in Court Date of Hearing : 8 January 2008 Date of Judgment : 8 January 2008 ------------------------------ J U D G M E N T ------------------------------ Hon Stock JA (giving the judgment of the Court): 1.This applicant seeks leave to appeal against a sentence of three years and eight months’ imprisonment imposed on 6 September 2006 by Deputy Judge C P Pang in the District Court. 2.The applicant was one of the three defendants in a trial upon a charge sheet with three charges:
3.What happened in the case of Silver World was that New York Life was led to believe by the use of false proposal forms and other documentation that Silver World was introducing a large number of clients to take out insurance policies; the defendants arranged millions of dollars worth of premium payments to New York Life; and in return commission was paid to Silver World up to about 130% of the premiums. The net sum fraudulently obtained in the case of the first charge was $1.25 million and in the case of the second charge $2.87 million. 4.All the defendants pleaded not guilty and were convicted after trial. 5.The sentencing judge noted that the crime was a calculated and premeditated scheme and was sure that D1 and D2 and a person called Wood had orchestrated the conspiracy and had pocketed the proceeds of the offences. He concluded that this applicant took instructions from those two for the operation of Silver World, that he played a lesser role than D1 and D2 and that his involvement could be regarded as “operational”. There is no evidence one way or the other as to the financial gain gleaned by this applicant. 6.None of the defendants had previous convictions. 7.In relation to the first charge, the judge took a starting point of five years’ imprisonment in the case of D1; a starting point of four and a half years’ imprisonment in relation to D2; and a starting point in D3’s case of four years’ imprisonment. He saw no mitigation in D1’s case and so sentenced D1 to a term of five years’ imprisonment on this charge. He noted that D2 was D1’s wife who would have been in difficulty in refusing to co-operate with her husband and for that reason and also because of the position of the couple’s children, he reduced her sentence by an overall period of eight months, resulting in a sentence on this charge of three years and ten months’ imprisonment. In the case of this applicant, the judge gave four months’ credit because the applicant challenged none of the evidence and did not himself testify, an unusual and in general an incorrect basis for a discount in sentence. The result was a sentence of three years and eight months’ imprisonment. 8.In addition, he sentenced the applicant to a term of one year’s imprisonment for the third charge, and ordered that to run concurrently with the sentence imposed in relation to the first charge because, he said: “I … treat it as part and parcel of the conspiracy.” This makes a total of three years and eight months’ imprisonment. 9.For reasons that we shall shortly identify, it is necessary to record also the sentences imposed upon D1 and D2 in respect of Charge 2. In that regard, he sentenced D1 to a term of four years’ imprisonment and D2 to a term of 3½ years’ imprisonment and ordered these sentences to run concurrently to the sentences imposed upon them for the conspiracy covered by Charge 1. 10.It is, with respect to the sentencing judge, a little difficult to follow his approach in relation to the first and second charges. The second offence secured a profit more than double that secured by the first conspiracy, yet the sentences on D1 and D2 for the offence covered by the second charge were less. The fact that the time span covered by the second charge was shorter than that covered by the first does not in our judgment account for the difference, given that both offences spanned a long time. More particularly what we have, in the result, is a five-year term imposed upon D1, whose role was significantly greater than that of the applicant, whobenefited very substantially in financial terms from the fraud and to an extent that, we can safely assume, was much greater than did this applicant, and who was convicted of two conspiracies, not one, and in respect of an overall amount three times greater than the amount covered by the first conspiracy of which this applicant was convicted; and yet this applicant received a sentence of a little over one year less. 11.We think in the circumstances that the appropriate sentence in relation to the first charge in the case of this applicant is one of three years’ imprisonment. We grant the applicant leave to appeal against sentence and, treating the hearing of this application as the appeal, we allow the appeal, set aside the sentence of three years eight months’ imprisonment in relation to Charge 1 and substitute a sentence of three years’ imprisonment. 12.This leaves the question of the sentence in relation to Charge 3. We do not take issue with a sentence of one year’s imprisonment imposed in relation to this charge and that sentence will stand. The question that therefore remains is one of totality. 13.It was inappropriate for the judge below to treat this offence as part and parcel of the conspiracy the subject of Charge 1. The Charge 3 offence was committed prior to that conspiracy and in the setting up of a company separate from Silver World, a company called Sino Cheer, itself suspected of complicity in a similar scam. A consecutive sentence is in principle required but to reflect appropriate totality, we order that six months of the one-year sentence on Charge 3 shall run consecutively to, the remainder concurrently with, the sentence on Charge 1, making a total of three years and six months’ imprisonment. To that extent, the appeal is allowed.
Ms Wong Kam-hing, SGC, of the Department of Justice for Respondent Applicant in person |