HKSAR v. NG CHO HANG

DCCC 428/2018

[2019] HKDC 204

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 428 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to one charge of conspiracy to defraud. The 2^nd charge is an alternative charge to charge 1.

Facts of the case

2.  It was an insurance fraud case.  On 2 November 2009, one Mr Chan (“Chan”) took out an insurance policy with Hanson Insurance Services Limited (“Hanson”).  On 17 November 2009, Chan was driving a private car that ramped into the rear of a taxi in front.  As a result, Chan was convicted of careless driving on 13 April 2010.

3.  The defendant was one of the passengers inside Chan’s car, they together filed a lawsuit against Chan for personal injury in the District Court (DCPI 1944/2010).

4.  In the statement of damages filed by the defendant, the defendant claimed his loss of income in the sum of HK$22,540 and loss of MPF in the sum of HK$1,127.  He also claimed damages for medical expenses, LSPA etc, the aggregate amount claimed by the defendant was HK$312,652.36.

5.  In his affirmation filed on 11 January 2011, the defendant affirmed that he had been working as a transportation worker in Business Page International Limited (“Page”) since 2009 with a monthly income of about HK$9,800 and been granted sick leave for 70 days between 18 November 2009 to 26 January 2010.

6.  Hanson felt suspicious and the matter was reported to the police.

7.  Company search conducted by the police that Page ceased operation and was struck off in 2006.

8.  On 2 August 2012, the defendant was arrested and under caution, the defendant stated that a person known as “Ah Kam” told him to commit the insurance fraud and he shared a rewards of HK$10,000.

9.  2 video recorded interviews were conducted, in gist, the defendant said:-

(1) In 2008 or 2009, he came to know Ah Kam in a bar when Ah Kam said he could help him to make some money.

(2) On the day of the accident, the defendant was told by Ah Kam to board a private car, the defendant did not know the driver and other passengers except one passenger named Cheung Mo Man. He did not know the car he was in would collide with a random or designated vehicle.

(3) The day after the accident, he was arranged by Ah Kam to see Dr Chan, the defendant then passed all medical documents to Ah Kam. Thereafter the defendant also attended a few more medical appointments and he did not have to pay for any of those.

(4) He was given HK$10,000 as a reward about one month after the accident.

(5) He did not know about Page and never worked there and during his sick leave period he was unemployed.

10.  The DCPI 1944/2010 action was discontinued upon the defendant’s instruction on 22 August 2012.

Mitigation and sentence

11.  The defendant is now 30 years old, he committed this offence back in 2009 when he was 21.  At the time of the offence, he had a clear record.  The reason he committed this crime was that he wanted to earn some quick money, counsel stressed that the defendant only got HK$10,000 as reward, and he gained nothing further.

12.  I have called for a background and a community service report, the contents of the reports are very favorable to the defendant and community service is recommended by the probation officer.

13.  In considering sentence, I have taken into account everything that have been said by his counsel, in particular his plea of guilty and at the time of the offence, he had a clear record.  I note from his criminal record, the defendant was sentenced to community service order for criminal damage in 2010.

14.  The usual sentence in this type of fraud case would be one of immediate custodial sentence, cases of similar nature have been submitted to this court[1], the starting point ranging from 5 months to 2 years.

15.  However, what caused me great concern is that there was a very long delay in prosecution, the defendant was arrested in August 2012, but he was only charged in April 2018, close to 6 years in delay.

16.  The prosecution has prepared a chronology of events, 1st legal advice was sought in 2013, 2nd legal advice in 2014 after all suspects were arrested, the 5th and the last legal advice in 2018.

17.  The prosecution said a total of 49 persons were arrested and involved 3 other fraud cases, the police suspected these arrested persons might be connected so they investigated all 4 cases together.  There were about 60 boxes containing up to 20,000 odd pages of documents they had to go through.

18.  It is true that the investigation involved numerous suspects and documentary evidence, but most of the documents as confirmed by the prosecution were insurance policies and medical and legal documents, taking into account the nature of the investigation was insurance frauds, I am unable to see any justifiable excuse why it took them 6 years to decide whether to charge the defendant or not.

19.  I have also clarified with the prosecution, the defendant is not connected to other insurance frauds or other suspects.  The evidence they have against the defendant is the same as it was back in 2012.

20.  In Chu On Chi[2], the Court of Appeal said at paragraph 10 of the Judgement “where there has been a delay in prosecution, the sentencing court must take it into account.  In particular, where the defendant rehabilitated, resumed work or repaid debts during the period of delay, the court will consider reducing their term of imprisonment, passing a suspended sentence or imposing a punishment other than an immediate custodial sentence, such as a community service order.

21.  Turning back to the present case, we can see from the background report, the defendant has rehabilitated himself and has been leading a law abiding life since his last conviction in 2010.  He first started working in a salon in 2012 after his arrest, then changed to work as a bar bender in 2016 for better salary until his present remand.

22.  His present employer has been contacted and is satisfied with his work performance.  The probation officer also commented that the defendant is not any notorious gang mobster’s but naive young adult susceptible to ill peer influence due to his lonely loser past.

23.  Besides, no actual loss been suffered by the insurance company, and the fact that the defendant has turned into a more mature person and has a steady job, not to mention the anxiety and stress that the defendant must have been facing for the last 6 years, and the role played by the defendant in this fraud, is prison sentence the only option?

24.  The prosecution has submitted all together 4 authorities, in Law King Yip & others[3], and Schmitt Charles Lee[4] and Ip Hon Ming & others[5], the prosecution submitted that the delay must be unreasonable.  I entirety agreed with this proposition.  It all boils down to the complicity or the numbers of people or documents involved in any given case, and every case must be viewed independently, as I mentioned in the preceding paragraph, the evidence against the defendant has all along been the same, when all suspects had been arrested in 2014, it took the police another 4 years to finally lay charge against the defendant, and no justifiable reason been put forward, I simply fail to see why it was not an inordinate delay.

25.  The prosecution further submitted, as in Sham Kwok Kee[6], where the delay was 8 years, a prison sentence was appropriate.  Again, whether to impose a prison sentence, every case depends on its own facts, the gists of the judgement as I understand is to acknowledge the need to take into account in sentencing where there is a delay in prosecution.

26.  Lastly, given the above mentioned mitigating factors, I am persuaded, a community service order is just and appropriate in all the circumstances, and to reflect the gravity of this offence, the defendant is to perform a total of 240 hours of community service.