HKSAR v. LIU CHUNG HIN

DCCC504A/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 504A OF 2007

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Reasons for Sentence

1.  Stand up, defendants.  D4 has been convicted by me after trial on two counts being Count 8 which is obtaining pecuniary advantage by deception and Count 9, of doing an act tending and intending to pervert the course of public justice.  D8 has been convicted after trial on one count, being Count 3, of conspiracy to obtain pecuniary advantage by deception and D9 has been convicted after trial of one count being Count 4, which is obtaining pecuniary advantage by deception.

2.  Briefly, the facts as found by me with respect to the deception charge for each defendant are that they had submitted various documents to Pacific Century Insurance Company Limited, PCI, purportedly showing they had the experience and income as appeared in the employment records submitted.  These were the employment records of Human Asia for all defendants and, as well, records of a Po Cheung International Trading Company in respect of D9’s application.  D9 had never, in fact, worked at Po Cheung.  As well, Human Asia had not started operating till October 2003. 

3.  As regards the three defendants they had been major deceptions in that, (1), for D8 he had stated he had earned $610,000-odd in the four months from June to September 2003; (2), for D9 he had claimed to work at Human Asia for about six months when it was not in existence out of 12 months’ records submitted and got $279,000-odd -- that is, nearly half of the total money earned for that period; and (3), for D4 it covered a six months’ period when Human Asia was not in existence and he claimed he earned $584,000-odd which was over 50 per cent of his total income. 

4.  It is clear, and was found by me, that recruitment staff at PCI relied on the accuracy of records submitted in support of applications to join in order to offer appointment as agents.  Each of the defendants were successful in gaining employment as agency managers who had the opportunity to earn a higher level of commission in bonuses than an ordinary agent.  Each of the defendants knew the documents submitted by them were bogus or false, I found. 

5.  With respect to the 9th charge against D4 I found that D4 had approached PW31 - that is, Chan Wai-sun - and offered him free insurance in July 2005.  PW31 said he would consider it and declined the offer.  In court he was shown an application form on which the signature was not his.  I found in November 2005 D4, whom PW31 knew, had phoned PW31 and told him that if the police contacted him in relation to the insurance policy he should lie to them and tell them that he - that is, PW31 - had paid for the premium himself.  D4 had also asked PW31 to amend any statement if already made.  PW31 had refused to do this.

6.  I was told on 13 February last that D4 has one previous matter on his criminal record, being the possession of a false instrument for which he received a 4 year sentence in 1994.  He agreed this record.  D8 and 9 have clear records. 

7.  Some mitigation had followed on 13 February last in which I was told that the matter had taken some time to come to trial and could have been dealt with in the Magistrates Court were it not for the nexus it had with the more serious charges on which others had been acquitted. 

8.  Various cases had been submitted to me with respect to sentence.  In view especially of the fact that D8 and 9 have clear records, I had adjourned the matter to today for the preparation of background reports as well as a further mitigation.  These are forthcoming and have been read over and explained to each of the defendants and agreed by them.  I have, of course, read those reports too. 

9.  Further mitigation has followed and in respect of D9 I am told, amongst other things, to take account of the fact that this has been hanging around for so long; three to four years.  It is stressed that it would probably be dealt with in the Magistrates Court, as I have referred to earlier, were it a  single charge. 

10.  The defendant D9’s mother is sick and cannot be here today; and very sick, it seems.  With respect to D8 I am told, amongst other things, that his wife now has a problem with respect to her pregnancy.  A letter has been produced from her which has an English translation and I have read that also.  I am aware that his niece is in court and she is referred to as well in the background report of D8. 

11.  With respect to D4 whose wife is in court today,  further mitigation had followed and I was, amongst other things, taken through some of the cases that had been proffered earlier to me and, especially in respect of the perverting the course of justice. Those cases are by and large more serious than the situation that existed here with respect to that charge.

12.  I regarded the matters as very serious, referring firstly to the advantage by deception matters against each of the defendants.  Contrary to what has been submitted it was a substantial deception and a gross exaggeration of each of the defendant’s employment history prior to October 2003 with Human Asia which, I stress, was not even in existence then.  It must have been that partly because of this gross exaggeration of several hundreds of thousands of dollars that they were each able to secure appointment as agency managers with the opportunity to earn a higher level of commission and bonus than an ordinary agent.  I’ve referred to that previously.

13.  It must be acknowledged that the evidence during the trial had disclosed that D4, 8 and 9 had worked for some period at Human Asia as insurance brokers, but it is very clear that when they applied to join PCI they exaggerated both the time they had spent at Human Asia and the amount they had earned there.  I stress here that the documents - that is the employment records - submitted by them purporting to have been issued by Human Asia prior to October 2003 were false. 

14.  It must be that persons who put up bogus or false documents with a view to obviously getting better terms of employment, as here, go to prison.  This is not a small deception by any means, which I have referred to earlier.  Each of the defendants committed these offences and benefited financially in that they got jobs as agency managers on higher levels of commission and bonus than an ordinary agent would have. 

15.  I am of the view that taking everything into account as I do here an appropriate starting point for those respective charges against D4, 8 and 9 is one of 10 months’ imprisonment.  It is a much lower starting point to account for the fact that the defendants had worked for Human Asia but not for the whole of the periods they had claimed as Human Asia was not in existence for some of that time. Further the matters have been around for about four years, through no fault of the defendants at all, and has gone through three lots of trial, the one before me being the last one.  I also take into account in coming to that starting point the fact that the most serious of the charges, if I can put it that way, the various defendants - including two of these defendants and others - have been acquitted.

16.  With respect to D4, on Count 8 he will be convicted and sentenced to 10 months’ imprisonment.  With respect to D8 and D9 on Counts 3 and 4 respectively they will each be convicted and sentenced to 9 months’ imprisonment. It is one month less because of their previous clear record. 

17.  Next I look to see if there are any exceptional circumstances existing which would justify a suspension of such sentence.  I have looked at the relevant circumstances surrounding the commission of the offence together with the offenders and their background now and there is nothing put to me which is out of the ordinary course or unusual or special or uncommon here.  There is no reason to suspend such sentence. 

18.  Next I deal with Charge 9 against D4 of perverting the course of justice.  This matter too is serious.  Any attempt to prevent the administration of justice taking its true course is always serious.  This was an attempt to persuade the witness - that is PW31 - to lie and tell the police that he, PW31, had paid the premium himself.  He had not.  D4 had also asked PW31 to amend or change the statement if one had been made.  An immediate custodial sentence is called for here too.  It can be regarded as at the lower end of such offences as there was no assault or threat or matters of that nature which pervades through the cases that have been proffered to me.  None of that exists here.  I am of the view that an appropriate starting point here is one of 8 months’ imprisonment.  It is a conviction after trial so there cannot be any discount with respect to a plea of guilty and there is nothing put to me which would cause me to reduce such starting point.  Further, this offence of doing an act tending and intended to pervert the course of public justice is in no way part and parcel of the other offence D4 has been convicted of. 

19.  Accordingly, D4 with respect to Count 9 will be convicted and sentenced to 8 months’ imprisonment.  That will be consecutive to the sentence for D4 that I have given on Count 8 which makes a total head sentence for him of one year 6 months’ imprisonment.  I will have endorsed on the warrant that the social welfare is to see the defendant - that is, D9 - in the cells with respect to looking after his sick mother who I have referred to earlier.