HKSAR v. TO KWONG FAI

CACC 132/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 132 OF 2003

(ON APPEAL FROM DCCC NO. 855 OF 2002)

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J U D G M E N T

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Hon Stock JA:

1. This is an application for leave to appeal against sentence. The applicant appeared with three others in the District Court. The first defendant, Chan Choy, was an insurance agent whose modus operandi in the scheme in the case with which we are concerned was to submit on behalf of clients bogus applications to an insurance company by which the company was induced to believe that applicants had consulted a private doctor and had incurred expense in doing so and, to support claims for loss of earnings, that sick leave and other certificates had been issued by the doctor. The first defendant pleaded guilty to a large number of charges and the second and third defendants who were a doctor and a herbalist respectively were acquitted.

2. The applicant, who was the fourth defendant, pleaded Not Guilty before Deputy Judge McNair in the District Court to two charges of procuring the execution of a valuable security, namely, in each case, a cheque, by deception; the deception being that he had consulted and paid medical expenses to a named doctor, and that he had been recommended to take sick leave and had produced sick leave certificates as well as receipts to support his bogus claim. The first of these two charges (Charge 15) alleged that on 15 February 1999 he secured the execution of a cheque in his favour from the insurance company in the sum of HK$15,899.07. The second charge, which was Charge 16, was in the same vein; the date of the fraud was 11 March 1999 and the amount was HK$19,877.50.

3. Given the thrust of the appeal, a recitation of the judge's findings of fact is required to the following extent:

"37. D4 had known D1 for about 10 years before the events in question. D1 was his insurance agent. In 1997, D4 took out a CELA policy, Exhibit P200. This policy contained accident benefits. In February 99, he injured his hand. He attended a government medical clinic and obtained medical attention, which is seen documented in the Exhibition P202-203. It was recommended that he take 10 days' leave.

38. Thereafter, D4 and D1 discussed perceived problems with the government medical services. I rejected as untrue and disingenuous his explanation as to why he agreed to D4's suggestion, as seen in paragraphs 305-310 of the transcription of his interview.

39. D4 decided to claim on his CELA policy. D1 recommended a private doctor. D4 agreed that D1 would obtain sick leave certificates from a private doctor for him, and further, that D4 would not attend the private doctor for a consultation. D1 told D4 that each medical consultation would cost around HK$400-600. D4 trusted D1 to work out the appropriate total of expected medical fees and paid him at that rate. He paid cash to D1 for the provision of sick leave certificates. After payment, D1 showed D4 the sick leave certificates that he had obtained apparently issued by D2. D4 never saw the medical consultation fee receipts apparently issued by D2, which were subsequently forwarded by D4 to CELA. D4 never attended D2's clinic, nor did he consult him. D1 processed D4's claim, Exhibit P202, with CELA with D4's blessing. Attached to his claim was D2's attending ;physician's statements, various documents from Queen Mary Hospital, and sets of receipts and sick leave certificates dated 2, 9 February 1999, apparently issued by D2." (Tr pp 47-48).

As for the second charge laid against the applicant, the judge in his Reasons for Verdict said that:

"44. Charge 16: D4 made a further claim, seen at Exhibit P210, being a copy of a previous claim form earlier referred to in Charge 15, to CELA arising out of the same accident. Some time in March 99, D1 commenced his claim under D4's policy. The claim was submitted to CELA by way of a copy of the previous accident claims form, attached to three sets of receipts for medical consultations and sick leave certificates, apparently completed by D2. These can be seen at Exhibits P211-216. In addition, was a receipt for $1,750 from Hong Po Chinese Medicine Clinic, apparently completed by D3. This claim was prepared on the same basis as the earlier one as stated in D4's video recorded interview. He paid about $10,000 to D1 to obtain the reeipts and a sick leave certificate supporting this claim. He never went to Hong Po, never paid consultation fees of $1,750, and had never seen the receipt from Hong Po dated 7 March 99. Further, he had never seen the medical receipts or sick leave certificates, issued apparently by D2. He admitted that D2 had never provided any medical service to him regarding this claim.

45. CELA accepted this claim on the basis that it was a genuine one and paid out $19,887.50 to D4 in this regard. He was unable to positively identify the cheque. He acknowleged the payment of this sum into his account. The CELA cheque, 051713 dated 11 March 99 in that amount, was deposited into D4's bank account. He explained this arrangement with D1 to the investigators as being based on the ease of obtaining sick leave certificates from a private doctor as compared with the inconvenience of government doctors.

46. I rejected this application as a fabrication. Immigration records prove that he was not even in Hong Kong on many of the dates specified in the various sick leave certificates and medical receipts. It is clear that D4 colluded with D1 in the submission of the second claim to CELA. It was supported with documents which were, to the knowledge of D4, false."

4. In sentencing the applicant, the judge noted that the applicant had a history of offences of dishonesty that had taken place some time ago; and that the applicant had been convicted after trial; for which reasons he could not expect to receive the credits that might have been given in the absence of those factors. He also said that: "I do not accept that it was an innocent reliance on D1's advice that led him into this series of events for which I have convicted him."

5. In respect of the first of the two charges against the applicant (Charge 15) he sentenced the applicant to a term of eighteen months' imprisonment and to the same term in respect of the second charge (Charge 16) and ordered that six months of the latter term be served consecutively to that imposed on the first, making a total of twenty-four months.

6. The first ground of appeal asserts that the judge failed to give adequate consideration to the fact that the claims followed an injury actually suffered by the applicant for which he would have received sick leave certificates in any event, and Mr Ma says to us in his oral submissions today that part of the claim should be attributed to the sick leave to which he must, by reason of his injuries, have been entitled in any event. It is said that he would have been entitled to two to six months sick leave. This is based on a report which refers to injuries of the type suffered by the applicant but which does not address the applicant's own circumstances: what job he held, why he would have needed sick leave for a hand injury - about all of which there was no evidence save that the sick leave given by a Government doctor was ten days. Indeed there is no evidence that he in fact took any sick leave at all.

7. We are not attracted by this point. Injury or not, the applicant represented that he had had medical consultations which, to his knowledge, had never taken place, and had made claims for expenses which, to his knowledge, he had never incurred, for loss of earnings in respect of periods of sick leave when sick leave was not in fact given. So well aware of the dishonesty of the scheme was he that he paid monies to the first defendant for playing a role which was indispensable to the success of the fraud. The sentences imposed were perfectly appropriate in the circumstances of this case, which included the fact that there was, as it happened, an injury, and that he may perhaps or perhaps not have obtained sick leave had he actually consulted a doctor.

8. The second ground that has been advanced by Mr Ma is that the judge did not give credit for the fact that the applicant was not the instigator of the scheme. This ground may conveniently be addressed with the third, which is that the judge was wrong to reject the applicant's mitigation that it was an innocent reliance on D1's advice that led the applicant into the crime. The contention is that the judge, by paragraph 39 of his Reasons for Verdict which we have recited, found that the applicant "agreed to D1's suggestions in the participation of the crime", and from this we are asked to construe a contradiction to the finding in the Reasons for Sentence that the applicant did not innocently rely on D1's advice so as to be led into the scheme.

9. With respect, counsel has misread the thrust of the judge's comments and their intent. Paragraph 39 does not constitute a finding that the whole idea was D1's, but merely that the two of them agreed that D1 would obtain sick leave certificates; and the finding that the applicant did not innocently rely on advice was to say no more than that the applicant was no innocent dupe. That was a finding that was obviously correct.

10. Finally, it is argued that the sentences should have been made to run concurrently and not partly consecutively. The argument is that there was only one claim form used and the fact that there were two charges was, it is said, a consequence only of the coincidence of two sets of receipts being forwarded to the insurance company, each set on a separate date, rather than all the receipts being sent on one day, an act which would have resulted in the execution of one cheque and the preferment of one charge.

11. This is a superficially attractive proposition which does not however survive scrutiny of the realities. The second set of bogus receipts, whilst forwarded under the umbrella of a general claim relating to one injury, was in reality a set of further claims for later bogus visits to doctors and for loss allegedly certified since the submission of the first claim. The judge took the view that an overall sentence of two years for this conduct, which was planned and not an isolated act, was the correct sentence and the approach which he used to reach that result was one with which in our judgment with valid issue cannot be taken.

12. Accordingly, this application for leave to appeal against sentence is dismissed.