HKSAR v. Ho Ka Keung
Read the full judgment text of CACC 196/2007 on BabelCite. This Court of Appeal judgment was delivered on 14 November 2008 before Tang VP, Yuen JA, Wright J.
Criminal law – fraud – insurance brokerage – sentence – commercial fraud – custodial sentence – whether sentence manifestly excessive – whether Community Service Order appropriate – role of offender – boilerplate factory – commission structure – application for leave to appeal against sentence dismissed. The applicant was convicted of a single charge of fraud arising from the submission by Sky Pacific, an insurance brokerage, of proposal forms containing material misrepresentations to New York Life Insurance Worldwide Ltd. The misrepresentations included that proposers were genuine buyers of life insurance and had paid the premiums. Sky Pacific would receive a commission of 138% of the first annual premium after policies were issued. The applicant became a director and shareholder of Sky Pacific in return for a monthly salary of $12,000, although the prime mover was Chiu. The applicant set up the company, signed incorporation documents, took out professional indemnity insurance, opened bank accounts, completed PIBA applications, and attended a PIBA interview, knowing that the business was operating as a boilerplate factory to defraud New York Life. He was sentenced to 30 months imprisonment. The Court of Appeal held that the sentence was entirely appropriate for this offence and this offender and was not manifestly excessive, given that commercial frauds will attract, other than in exceptional circumstances, an immediate custodial sentence, even for a first offender. A Community Service Order could not sensibly have been a sentencing option given the extent of the applicant's involvement and his lack of remorse. Application for leave to appeal against sentence dismissed.
Legal issues: Whether 30 months imprisonment was manifestly excessive for the fraud offence · Whether a Community Service Order should have been considered as a sentencing option
Outcome: Application for leave to appeal against sentence dismissed
Cited by 29 cases
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CACC 196/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 196 OF 2007 (ON APPEAL FROM DCCC NO. 982 OF 2006) ---------------------- BETWEEN
---------------------- Before: Hon Tang VP, Yuen JA and Wright J Date of Hearing: 29 August 2008 Date of Judgment: 14 November 2008 ---------------------------------------- J U D G M E N T -------------------------------------- Hon Tang VP: 1.I have read in draft and agree with the judgment of Wright J. Hon Yuen, JA: 2.I have read in draft and agree with the judgment of Wright J. Hon Wright J: 3.The applicant was convicted of a single charge of fraud and sentenced to serve a period of 30 months imprisonment. The charge arose as a consequence of the submission by a company, Sky Pacific, acting as an insurance broker, to an insurance company, New York Life Insurance Worldwide Ltd of proposal forms in respect of life insurance. The essence of the prosecution case was that by submitting forms which contained material misrepresentations New York Life was induced to issue policies of insurance. By issuing the policies its proprietary interests were placed at substantial risk. The motive for this conduct was said to be that, after the policies had been issued, Sky Pacific would receive a commission equivalent to 138% of the first annual premium payable upon each policy. 4.The applicant had been approached by a third party, one Chiu, herself already operating an insurance brokerage, to become a director and shareholder of Sky Pacific. He did so in return for a monthly reward of $12,000. 5.The prosecution case was, and this was the evidence before the judge, that two of the misrepresentations made were that the proposer who had signed the proposal form, first, was a genuine buyer of life insurance and, secondly, himself or herself had paid the premium due when that was not so. Each proposer who testified supported the prosecution allegations: two proposers denied even having signed the proposal form or having heard of Sky Pacific. 6.The applicant sought leave to appeal conviction and sentence. We heard argument in respect of the application relating to conviction on 29 August 2008 and dismissed, by a majority, that application on 31 October 2008. We invited the applicant to supplement orally his written grounds of appeal against sentence if he wished to do so. He has indicated that he does not. 7.The first ground of appeal is that the starting point of 30 months imprisonment is manifestly excessive in support of which the applicant submits that the judge had not properly considered the role that he played; the nature of the fraud; the fact that there was only one victim; and the fact that the applicant received only a salary of some $12,000 per month. The second ground of appeal is that the judge had failed to consider a Community Service Order, this ground being expressed as "... only predicated upon [acceptance] that the applicant has only limited involvement and/or criminality, and/or that he is only an aider/abettor or had only turned a blind eye to Chiu’s fraud.” 8.For what was, in essence, a straightforward matter, this trial lasted an long time: the judge was fully aware of the role which the applicant played. In sentencing the applicant he recognized that the prime mover seemed to be Chiu but said of the applicant:
9.The judge then set out in detail other matters that had been placed before him in mitigation on behalf of the applicant, including all the matters personal to him. He also expressed himself, in colloquial terms, as being aware of the possible temptations provided by the commission structure offered by New York Life. 10.The judge then took a starting point of 30 months imprisonment but found that there was no mitigation available to the applicant to reduce that sentence. 11.This was a carefully structured, ongoing and substantial fraud in which the applicant played an active and vital role, even if it were not he who had conceived of the scheme. It is well established that commercial frauds will attract, other than in exceptional circumstances, an immediate custodial sentence, even for a first offender. Obviously the length of that sentence will be determined by reference to factors such as, but not exclusively, the nature of the fraud itself; the duration of the fraud; its sophistication; the role played by the convicted person; the effect it may have on the marketplace; whether there are cross-border or international implications; and the nature and extent of the risk to the victim's proprietary interests, as well as, albeit to a minimal extent, the extent of any loss actually sustained. 12.The sentence of 30 months imprisonment imposed by the judge was entirely appropriate for this offence and this offender. It was not, by any stretch of the imagination, manifestly excessive. 13.This was not a matter in which a Community Service Order sensibly could have been a sentencing option when the extent of the applicant’s involvement is considered, and when he has not shown the first sign of remorse. 14.I would dismiss the application. Hon Tang VP: 15.The application for leave to appeal against sentence is dismissed.
Ms Wong Kam-hing, Senior Public Prosecutor, Department of Justice, for Respondent Mr William Allan and Mr Albert Poon inst’d by M/s Tam, Pun & Yipp for the Applicant Appeal dismissed: see FAMC20/2009 dated 31 March 2009 |
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Further hearings and rulings under CACC 196/2007