HKSAR v. FAN TING YAN, YUKI

DCCC 283/2023

[2025] HKDC 73

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 283 OF 2023

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REASONS FOR SENTENCE

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Charge

1.  The Defendant was charged with 14 charges of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210.  She was convicted after trial of 12 charges of fraud (charges 1 to 10, 13 & 14).

2.  The particulars of each offence are the same (except the date of the offence, the name of the policy holder and the numbers of the insurance application policy), i.e.,

“FAN Ting-yan, Yuki, on or about the (date of offence), in Hong Kong, by deceit, namely by falsely representing to AXA China Region Insurance Company Limited (“the Company[1]”)  that the insurance policy application numbered (the number)  was genuinely taken out by (name of the Policy Holder), and with intent to defraud, induced the Company to approve the said insurance policy application and release bonuses and commissions calculated in accordance with the policy of the Company, which resulted in benefit to the said FAN Ting-yan, Yuki, or in prejudice or substantial risk of prejudice to the Company.”

The prosecution case

3.  The charges took place between November 2014 and September 2016 and they related to 6 policy holders (PW1[2], 2, 5, 6, 7 & 8).  Each of them testified that they did not take out the insurance policies which are the subject matter of the charges.  They did not pay any premium for the policies or any sum towards the policies.  They did not even know that the policies had been taken out in their names.  Some of the details of the policies were false and the purported signatures on the policies were not theirs.  

4.  I found as a fact that the defendant had submitted the subject policies to the Underwriting Department of AXA; that she knew the policies contained false particulars; that she practised a deceit by falsely representing to AXA that each of these policies were genuinely taken out by these PWs, with intent to defraud, induced AXA to approve each of these policies and to release bonuses and commissions to her.  As a result, the defendant did receive first year commission for the policies, and renewal commission in some cases and the upline managers also received commission on the policies.  

5.  Had AXA known that the policies contained false particulars, it would not have approved the policies.  AXA was induced to approve those policies and released the bonus and commissions which resulted in benefit to the defendant and caused loss to the Company.

6.  As shown in the admitted facts, the amount of commission paid for the 12 policies was $1,050,381.41.  AXA released the commission payments to the defendant’s HSBC bank account in the belief that she was the one who sold the policies. The breakdown of this sum is as follows:

Charge 1: $4,041.78 (PW8)

Charge 2: $196,821.49 (PW8)

Charge 3: $166.98 (PW5)

Charge 4: $187,035.06 (PW5)

Charge 5: $181.94 (PW6)

Charge 6: $190,311.44 (PW6)

Charge 7: $2,061.49 (PW1)

Charge 8: $80,744.99 (PW1)

Charge 9: $182,608.66 (PW7)

Charge 10: $1,835.18 (PW7)

Charge 13: $791.2 (PW2)

Charge 14: $203,781.20 (PW2)

7.  In the belief that the defendant sold the subject 12 policies, AXA also paid the defendant an additional bonus commission of $573,385.75 into the defendant’s HSBC account and paid the defendant’s six upline managers additional commission and bonus of $801,110.63.

8.  The total loss in monetary sense caused to AXA was a sum of

$2,424,877.79 (the amount of money of paragraphs 6 + 7).

Criminal Record

9.  The defendant is of clear record.

Mitigation

10.  At trial, the defendant was represented by Mr David Boyton.  Mr Boyton made mitigation submissions on behalf of the defendant on 23 December 2024, and the sentence was adjourned to 20 January 2025.  On that day, the defendant acted in person and she applied to adjourn the case.  Having considered the reasons in support of her application for an adjournment, I ordered that the case be adjourned to 12 March 2025.  In early March, the solicitors acting for the defendant informed the court that they have just been instructed.  As such, they applied to further adjourn the hearing. 

11.  Today, the defendant is represented by Miss Annie Lai.  Miss Lai submits that the defendant is presently 48 years of age.  At the time of the offences, i.e., in March 2015, the defendant was 39 years of age. 

12.  The defendant and her ex-husband were separated in 2010, after which the ex-husband remarried and their two sons were taken care of by the ex-husband.  On 18 March 2014, the ex-husband, who was a scaffolder, fell to his death in an industrial accident.  Shortly thereafter, the defendant joined AXA and became the sole person responsible for the care of the two boys, then aged 8 and 15.  At present, the younger son aged 19 is now studying for an associate degree in medical science while the elder son aged 26 is employed in media services. 

13.  The defendant started her career as a kindergarten teacher in 1994 and has worked in the same field for over 30 years.  Since 2009, the defendant has worked as a teacher and activity tutor at the Hong Kong Council of Early Childhood Education and Services.  To supplement her income, she also worked as a private tutor.  In 2012, she obtained an insurance agent licence and started working as an insurance agent at ING. She joined AXA in October 2014 and received a monthly income of $25,000 to $40,000.

14.  Miss Lai further submits that the court may wish to take into account the following factors for sentence:

a. a total of 12 insurance policies with 6 policy holders involved;

b. the fraud spanned 1 year and 11 months;

c. it was a breach of trust case;

d. the degree of planning and sophistication in the fraud;

e. the commissions and bonuses in the amount of $2.43 million was released;

f. the premiums received by AXA was around $1.82 million and the actual loss of AXA was around $605,756.

15.  Miss Lai refers to HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 in which the Court of Appeal laid down sentencing guidelines for the offence of theft involving breach of trust.  Miss Lai accepts that the sentencing band should be determined by the amount particularized in the charge.  As such, she considers that the amount involved here, $2.4 million, falls into the sentencing band of $1m to $3m with a sentencing range of 3 to 5 years.  Therefore, she is of the view that a starting point of 4 years’ imprisonment is appropriate. 

16.  Miss Lai asks this court not to lose sight that the actual loss suffered by AXA is $605,756 which can be a matter for mitigation: HKSAR v Chong Hung Shek [2019] 2 HKLRD 937. 

17.  Finally, she urges this court to bear in mind the totality principle and to impose concurrent sentences for those charges relating to the same policy holder. 

Reasons for Sentence

18.  I have considered all the circumstances of the case, the mitigation submissions and letters as well as the relevant authorities.

19.  Fraud is a serious offence and the maximum sentence is 14 years’ imprisonment.

20.  The facts of the case are serious.  Obviously, it is a breach of trust case. 

21.  The defendant practiced a deceit not on a single occasion but on 12 different occasions.  The defendant’s fraudulent acts had lasted for 22 months, from November 2014 to September 2016.  The offending period was lengthy. 

22.  During the 22-month period, she used the same modus operandi and sold 12 insurance policies involving 6 policy holders.  Amongst them, some are her friends.  The evidence shows that unbeknown to the policy holders, some of their personal particulars namely, HKID card numbers, residential address and mobile phone numbers were used in support of the application for the insurance.   It goes without saying that there was a certain degree of planning in the fraud.

23.  Needless to say the amount of bonuses and commissions paid to the defendant was huge.  She did it out of momentary greed.  The amount of first year and renewal year commission paid to the defendant arising from the policies relating to each PW is almost or slightly over $200,000, except charges 7 & 8, the amount of which was $82,806.48 ($2,061.49 + $80,744.99). The defendant had additional commission as well, and her upline managers were benefited.  Behavior like this brings the entire insurance industry into disrepute.

24.  Miss Lai has prepared a table summarizing the amount of commissions the defendant received for each charge.  In respect of the amount of additional commissions and bonuses, it is an admitted fact that the defendant received $655,738.83 which was subsequently revised (excluding charges 11 & 12)  to be $573,385.75.  There is no breakdown of this sum nor the sum of money received by the 6 upline managers.  Be that as it may, I will adopt the following starting points (see: table below)  for each charge after having considered all the circumstances of the case.  Bearing in mind the actual loss resulting from the fraud, I reduce the starting point for each charge by 2 months.

	Charge	Starting Point	Reduced
Group A	Charge 1	12 months	10 months
	Charge 2	24 months	22 months
Group B	Charge 3	12 months	10 months
	Charge 4	24 months	22 months
	Charge 5	12 months	10 months
	Charge 6	24 months	22 months
Group C	Charge 7	12 months	10 months
	Charge 8	18 months	16 months
Group D	Charge 9	24 months	22 months
	Charge 10	12 months	10 months
	Charge 13	12 months	10 months
	Charge 14	24 months	22 months

25.  The defendant is convicted after trial so she is not entitled to a one-third discount of sentence.  The authors of the mitigating letters gave positive comments on the defendant.   

26.  The defendant committed multiple offences over a long period of time.  The overall sentences must reflect this factor. 

27.  In R v Tong Hoi Fung CACC 466 of 1987, the Court of Appeal said:-

“This Court has said time and time again that where there are more than one offence of a similar nature committed at different times it is right for the court to award a higher sentence than if there had been only one offence.”

Totality principle

28.  Miss Lai rightly says that the grand amount of $2.43 million attracts a starting point of around 4 years.  Now, I must stand back in order to form a view of the overall culpability of the defendant so that I could determine the appropriate ultimate sentence for her.  Taking a global view of the magnitude of the defendant’s fraudulent acts, I consider that the overall starting point for all these charges is 54 months’ imprisonment. 

29.  To achieve a term of 54 months’ imprisonment, I order that:-

Group A

· the sentence of charges 1 to 2 (committed between November 2014 and January 2015, relating to PW8)  be run concurrently with each other i.e., 22 months’ imprisonment in total;

Group B

· the sentence of charges 3 to 6 (committed in March, relating to the couple PW5 & PW6)  be run concurrently with each other i.e., 22 months’ imprisonment in total;

Group C

· the sentence of charges 7 & 8 (committed in November 2015, relating to PW1)  be run concurrently with each other i.e., 16 months’ imprisonment in total;

Group D

· the sentence of charges 9 to 14 (committed between June 2016 and September 2016, relating to PW2 and PW7)  be run concurrently with each other i.e., 22 months’ imprisonment in total;

· 12 months of sentence of Group A;

· 15 months of sentence of Group B;

· 5 months of sentence of Group C ;

are to run consecutively to the sentence of Group D

12+15 + 5 + 22 = 54 months’ imprisonment.

30.  The defendant committed the offences between 2014 and 2016.  She was arrested on 20 July 2020.  It is noted that the charge sheet was dated 17 March 2023.  This case was brought to Eastern magistrates’ court on 2 February 2023, and to the District Court on 18 April 2023.  The trial took place in August 2024 and in consultation with the diaries of all parties and the court, the verdict was given on 6 December 2024.  The reasons for sentence was somehow delivered today (see: paragraph 11 above). 

31.  Miss Lai says the prosecution is not at fault and she is not raising undue delay as a mitigating factor.  Nevertheless, she considers that the matter has been hanging over the head of the defendant for long.  The court may wish to exercise its discretion to reduce the sentence.

32.  It is unavoidable that time must be spent in investigating into at least 14 insurance policies, the taking of witness statements from a number of civilian witnesses and the obtaining of bankers’ affirmations in relation to the bank accounts of the defendant and that of the witnesses.  Therefore, I do not consider that there is undue delay.  However, I do agree that the case has taken some time to come to an end.  Bearing this in mind and the good comments of the defendant disclosed in the mitigating letters, as an act of mercy, I reduce the sentence by 3 months.

33.  The defendant is sentenced to 51 months’ imprisonment.