HKSAR v. CHAN KONG HUNG AND OTHERS

CACC 619/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 619 OF 1999

(ON APPEAL FROM DCCC 798/1999)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. All of the applicants (who will be referred to in a similar manner to the way they were in the District Court) pleaded guilty to a conspiracy to defraud. They were all sentenced by Judge Day to 15 months imprisonment and seek leave to appeal against their sentences.

2. The conspiracy related to fraudulent claims being made under the Traffic Accident Victims Assistance Scheme ("TAVA") which is administered by the Director of Social Welfare.

3. It is common ground that none of these applicants were the main instigators of this conspiracy. The ringleaders appear to be Sai Fai and Ah Wai who are referred to in the charge. They or one of them approached the applicants separately and suggested to them that a motor accident should be faked or simulated and that they should all take the necessary steps to lodge bogus claims with the Director of Social Welfare. The particulars of the offence set out what was involved.

"YAU Kin-keng, CHAN Kong-hung, YEUNG Man-lung, WONG Kei-man, WONG Ying-kit and LAI Yiu-chung, on divers days between the 1st day of June, 1997 and the 24th day of July, 1998, in Hong Kong, conspired together and with Sai Fai and Ah Wai and other persons unknown to defraud the Social Welfare Department of the HKSAR by dishonestly:-

(a) arranging a collision involving motor vehicle GA 1419;

(b) giving false information as to the cause of the collision to police investigating the collision;

(c) making false applications to the Traffic Accident Victims Assistance Scheme; and

(d) obtaining payments from the Traffic Accident Victims Assistance Scheme."

4. D2, D3 and D5 (who has not proceeded with his appeal) were passengers in a car which was deliberately crashed into a concrete slab at the side of Lung Cheung Road late at night on 6 December 1997. The "accident" was reported to the police and the applicants were taken to Caritas Medical Centre where they were treated for minor injuries and discharged.

5. They also at the instigation of Sai Fai attended doctors to obtain sick leave certificates in support of claims that they had had to absent themselves from their employment. Applications were made to TAVA and D2 received $86,285, D3 received $89,144. There was a further refinement in that the accounts into which these payments were made were controlled by Sai Fai. He subsequently paid out a portion of the proceeds to the applicants.

6. The role of D6 was rather different. His function was to recruit candidates to make claims. He recruited two but did not in fact receive any money. However Sai Fai and Ah Wai promised him $30,000 for each candidate recruited. Sai Fai and Ah Wai apparently remain at large.

7. The men's background and circumstances are not totally dissimilar save that D2 is a university graduate and had a good job. The Judge perhaps not surprisingly took the view that he was probably sufficiently intelligent to have known better than getting himself involved in such a scheme.

8. The Judge adopted 2 years as a starting point for all the applicants and gave them slightly more than the usual 1/3 discount for their pleas.

9. Nothing which has been said by these men in their written applications or before us in any way persuades us that any of the sentences imposed were either manifestly excessive or wrong in principle. All of the applications are dismissed. As they are devoid of merit we order that 2 months of the time all the applicants have served will not count towards their sentences.