HKSAR v. CHAN YEE FAN, ANGEL

DCCC780/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 780 OF 2008

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Reasons for Sentence

1.  The defendant has pleaded guilty to a total of 25 charges.  They arise out of her employment with the American International Assurance Company (Bermuda) Limited, the company I will refer to as “AIA”.  The offences were committed between August 2003 and February 2005.

2.  The defendant opened insurance policies under the names of existing clients without their authorisation and also on behalf of persons she did not know.  In some instances, the defendant stole moneys entrusted to her by her clients to settle premiums of their insurance policies.  In one instance, she falsified the particulars of a credit card payment, a slip amounting to some $15,000 odd.

3.  I do not propose to read out all the charges.  They are a matter of court record.

4.  There are 20 charges involving fraud.  Thirteen of those charges relate to false applications for life and accident insurance polices.  The other seven fraud charges relate to loan applications purportedly made by these applicants for life policies and which were made for the purpose of meeting the premiums required to pay for the life and accident insurance policies.  There are four charges of theft.  They relate to theft of premiums entrusted to the defendant.  One charge, Charge 6, is a charge of procuring the making of an entry in a record of a bank by deception.  What happened in that case is that one of the defendant’s existing customers wished to settle the premiums for a policy by way of a credit card payment in the sum of just in excess of HK$15,000.  The defendant requested the client to sign on a blank payment slip of the AIA for payment of the premium by credit card, and she would complete the form for him.  She completed the form to secure a policy taken out by another client.

5.  The total sum stolen by the defendant amounts to $54,118.19.  The loans provided by the AIA under false applications made by the defendant amount to $681,054.57.  The commissions earned by the accused out of the false insurance policies taken out amount to $60,817.15.  Significantly in this case, the defendant will make full restitution.

6.  The charges, as they appear on the charge sheet, are not in chronological order.  They have been framed in such a way as to deal with the individual victims rather than the chronology of the case.

7.  The criminality started in August 2003.  The defendant had taken up employment with the AIA.  She was a university graduate, and she was in personal financial problems.  She owed a significant amount of money, in excess of $210,000, to various institutions.  She was working in a demanding and competitive industry, and she was under significant pressure to come up with clients.  I am told that notwithstanding her own financial problems, she took out four policies of her own to try and boost her record with the company.

8.  The criminality started in August 2003, which was in the immediate post-SARS era.  Hong Kong was experiencing difficult economic times, and people in the defendant’s industry must have found it difficult to obtain business.

9.  The defendant, who comes from a respectable background with an impeccable character, found the pressure too much.  In August 2003, she made the first false application for an insurance policy on behalf of one of her existing clients.  To pay the premium, she supported that application with a false application for a loan with the AIA.  These are offences 8 and 9.

10.  The following month, she did the same thing.  She made a further false application for a loan and policy on behalf of an existing client.  That is the subject of Charges 10 and 11.  She repeated that in October and November 2003, Charges 12 to 15.  In November, she made further false applications for loan and policy, and that is the subject of Charges 3 and 4.

11.  In March 2004, she stole the first of the premiums, the amount of $8,664.09, the subject of Charge 1.  In May 2004, she stole further moneys paid to her in the sum of $12,929.  Also in May 2004, she took out policies in the name of a person she did not know, a Mr Lee.  She knew Mrs Lee.  Mrs Lee was an existing client.  But she took out a policy in the name of her husband and also made a false application for a loan.  Also in May 2004, she stole a premium provided to her by a client, a Mr Patrick Yip, in the sum of $15,295.

12.  I do not propose to go through the rest of the charges, but they follow the similar sort of pattern, the only difference being that she later goes on to take out policies in the name of clients she did not know.

13.  I was told in mitigation that the defendant has a clear record.  She is 29 and, as I mentioned previously, she is a university graduate.  Fortunately for the victims, all the policies were honoured by the AIA.  The real financial losers in this case are her former employers, the AIA.

14.  I am told that the defendant is a single lady but she has had a steady relationship with her boyfriend for about four years and they intend to get married.  The defendant’s father is a chef and her mother works as a cleaner.  She was raised and educated in Hong Kong and graduated from the Chinese University with a degree in geography.  She graduated in 2001, and her employment with the AIA was her first job.

15.  These offences came to light in 2005, and she of course was dismissed from her employment.  Since that time, she has held two positions with other companies.  Letters of reference have been supplied to the court by both of those companies.  They both regarded her as an efficient and effective employee.

16.  I am told by way of background in this case that, in 2003, the defendant was under serious financial pressure.  She has no vice habits, but she was overspending, and her credit card and other debts amounted to in excess of $210,000.  She had also purchased a property in early 2003 in Yuen Long and was unable to keep up the repayments on that property.  It was repossessed in 2005.

17.  I am told that she found working for the AIA extremely stressful.  It was a very competitive industry, and she was under considerable pressure to perform.  She had taken out four policies, as I have mentioned previously, of her own to try and keep up with the quota that was demanded of her.

18.  These offences came to light in 2005.  She was arrested then, and these matters have been hanging over her for a number of years.  The reason why these matters have taken so long to get to this stage is through no fault of the prosecution or the defence.  By the nature of these offences, some of them did not come to the attention of the employers and the police until a significant time after their commission.  Clearly it was desirable that all offences should be dealt with at the same time by the same court.

19.  This is a difficult case to deal with because the defendant clearly comes from a respectable, if not humble, background, and she has done very well.  She was the first of her family to receive tertiary education.  She has written a letter to the court, and I have a letter from other members of her family attesting to her dedication as a responsible daughter and who has clearly been an asset to her parents.

20.  She has secured a good position with the AIA.  However, good positions bring with them heavy responsibilities.  The defendant had undertaken employment in a very challenging, demanding and competitive industry.  The pressures on persons employed in that industry are substantial, as can be the rewards, and it is not everybody that can cope with that kind of pressure.

21.  2003 must have been a very difficult time for people employed in that industry.  The defendant was in substantial financial difficulties personally.  She was under great pressure to perform at work and to keep up with the quota.  It was against that background that she started to commit these offences.

22.  Clearly, these offences are serious.  They involve breaches of trust with her employers and also with her clients, and the premiums paid by the clients are significant sums of money.  I accept what has been urged upon me in mitigation, however, that this was not a sophisticated series of offences.  They were foolish acts brought about by financial desperation.  I say “foolish” because the criminality would be inevitably discovered.

23.  As far as the significant features of the mitigation that has been urged upon me in this case, I take into account, first of all, the fact that the defendant has pleaded guilty to all offences.  Through nobody’s fault, these matters have been hanging the head of the defendant for a number of years.  It is now nearly four years since she was first arrested by the police.  This has clearly subjected the defendant to enormous psychological pressure.

24.  As I indicated previously, these offences were not sophisticated.  It was inevitable that the criminality would be discovered.  The defendant is about to make full restitution.  In my view, this is a significant feature of the mitigation in this case.  Letters of support have been provided to the court from her family and also from subsequent employers who have attested to her dedication and reliability.

25.  Throughout the period of her arrest and detention, her boyfriend has stood by her, and I understand they hope to marry and start a family.

26.  Usual sentencing principles dictate that I should decide a sentence appropriate to each individual offence and that I should then consider the question of totality and then arrange the sentences for each offence to come up to that total.  With 25 offences, I found that an impossible task, so I am going to ignore the usual sentencing principles.

27.  What I propose to do is come up with an overall sentence for the offences and impose that sentence in respect of each offence concurrently.  Considering the criminality in its totality and taking into account the significant features of mitigation that have been entered, I take the view that a starting point of 2½ years is appropriate for these offences, and I propose to reduce that by one-third to reflect her guilty plea.  She will, therefore, serve a sentence of 20 months’ imprisonment.