HKSAR v. PANG YAN CHAN, PATRICK

DCCC922/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 922 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty today to two charges of theft, contrary to section 9 of the Theft Ordinance, Cap.201, as well as pleading guilty to two charges of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap.200.

2.  The amount of the theft for Charges 1 and 2 total $241,637.    

3.  The facts of this case are straightforward and unfortunately not uncommon.  The victims had trusted the defendant as their insurance agent of Manulife (International) Limited, and in turn he was responsible for their accounts.  These victims’ premiums were paid for the relevant period by PW2 on behalf of both victims.  She paid these premiums directly to the defendant either by way of a cheque or cash between January 2004 to the end of November 2008.  At all this time, nearly 5 years, both PW1 and PW2, the victims, thought they were paying the premiums for their insurance policies and up-to-date.

4.  Unfortunately, PW1 in early 2008 was diagnosed with cancer and turned to his insurance policy to pay for medical expenses.  He made the first two claims through the defendant and, unbeknownst to PW1, the defendant covered the first two claims himself, but when PW1 made a third claim for $90,000-odd, the defendant was unable to make this payment.  As a result, the defendant confessed to PW1 that his insurance was not valid because the defendant had stolen his premiums.  The first two claims which the defendant covered totalled $119,000-odd. 

5.  PW1 made enquiries with Manulife and ultimately made a report to the police in January 2009.  In September 2009, the defendant was arrested when he tried to leave Hong Kong via Lok Ma Chau.           

6.  The defendant under caution made a full admission and explained he stole the premiums out of greed.  He had financial problems and used the money for his own purposes.    

7.  I will take into account that PW1 was ultimately out of pocket when he thought he had prudently been paying for insurance for that period of 5 years.          

8.  Insurance is bought for many reasons, but one is normally in case there is a disaster, such as a diagnosis of a serious illness which will be expensive to treat.  PW1 is at least out of pocket by $90,000-odd.        

9.  PW2’s policy also lapsed without her knowledge. In fact, all but one were lapsed, and Charges 3 and 4 relate to two documents relating to the payment of policies purporting to bear her signature, which were clearly falsified.       

10.  The defendant’s best mitigation today is his plea of guilty.  It shows his remorse, but this is a classic breach of trust scenario and viewed seriously by courts. 

11.  It is aggravated here because PW1 actually tried to claim for medical expenses before it was discovered that his policies had lapsed due to the defendant stealing his premiums, so not only was he dealing with the stress of a serious illness, such as cancer, there was the shock that he was not actually covered by insurance he thought he had been paying for. 

12.  At least the defendant paid out of his own pocket for part of PW1’s claims.  I have been informed that luckily PW1 is now not seriously ill and recovered.             

13.  That amount, $119,000-odd, is not actually restitution for the theft, it is just what PW1 would have been entitled to if his policies had been paid up.  However, this payment by the defendant will be relevant to sentence.

14.  The defendant realises that a term of imprisonment is inevitable, and I have looked at the authorities of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017. The first authority provides guidelines for sentencing where there is a breach of trust.  The Court of Appeal said that where HK$250,000 or less is stolen, a 2 years or less term of imprisonment would be appropriate.           

15.  The total amount here for the two charges of theft, as I have said, is $240,000-odd, just within this bracket for sentencing.

16.  I will also consider that the four charges involve one enterprise.  The false documents were required to carry out the theft undiscovered for this period of nearly 5 years.  It prevented PW2 from discovering the theft.    

17.  Defendant, please stand up. 

18.  I have considered relevant to sentence your plea, the facts of the case, the amount stolen, how you attempted to recover some of PW1’s medical expenses, and mitigation you have put forward.    

19.  You are not a man of clear record but none of your previous convictions relate to offences of dishonesty and the majority of them took place a long time ago.     

20.  After considering all of those factors, for each offence I will take the same starting point.  I take a starting point of 21 months’ imprisonment.  Because of your plea, you are entitled to a discount of one-third, which is 7 months. 

21.  For each offence, Charges 1 to 4, you are sentenced to 14 months’ imprisonment.  I order that all four charges be served concurrently.  You will serve a total of 14 months’ imprisonment.