HKSAR v. CHAN KING LAM

HCMA482/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 482 OF 2009

(ON APPEAL FROM ESCC 1960 OF 2009)

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J U D G M E N T

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1.  This is an appeal against a sentence of 4 months' imprisonment which was passed following a plea of guilty to a conspiracy to defraud. 

2.  In a word, the Appellant was a man running a business where he had employees and he had them properly insured.  He had a friend who also ran a completely separate business who was not properly insured in respect of accidents to his workmen.  One of those workmen suffered an accident.  The friend was, therefore, in trouble.  He dishonestly turned to this Appellant to try to get himself out of trouble.  He proposed that the Appellant make a claim on his insurance, falsely stating that the accident had occurred at the premises of the Appellant in the course of employment with the Appellant. 

3.  The Appellant was not keen to go along with it but in the end he allowed himself to be persuaded and he made the consequent claim upon his insurance.  The worker pursued his remedies in the civil courts and it became apparent in the proceedings that his accident had not occurred where the Appellant had claimed it had.  This all happened back in 2005 and 2006.  By September of 2006 the police had been in touch with the worker and with the insurance company involved.  With the information available to them, they arrested the Appellant in November of 2006.

4.  In January of 2007, in the civil proceedings, the Appellant swore an affirmation.  In that, he admitted that he was not the employer and made a confession to the crime with which he was subsequently charged.  Judgment in the civil case was given in May and in September a letter was sent by the Judge in the civil proceedings to the Director of Public Prosecutions pointing out the obvious criminality that had been involved.  This was still in September of 2007.  Months passed whilst legal advice was sought.  It was a very simple case and the legal advice took much too long. 

5.  The Appellant was re-arrested in April of 2009.  He pleaded guilty immediately and spent 10 days in custody.  He has been on bail since then.  It is now nearly three years since he was first arrested.  I set that chronology out because one of the main points of the mitigation is that this matter has been delayed, it is stale and the sentence, therefore, should reflect that.  I agree.  I do not find it helpful to give adjectives to the delay to say whether it is inordinate or not.  It is as I have just described.

6.  The magistrate made the point that this was a thoroughly dishonest piece of conduct and that has to be countenanced.  It was.  Having said that, it was undertaken by a man with not just a clear record but a positively good character.  I have been referred to letters and material today by his counsel, which demonstrates that to be so.  He was a decent and trustworthy man but, of course, it is just such men that insurance companies trust because contracts of insurance are contracts of the utmost good faith.  Insurance companies are at the mercy of policy-holders because they are easy to cheat.  It is thus that if one is caught cheating one's insurers, it is a serious matter. 

7.  So I come to the first question in a case like this:  is a custodial sentence necessary?  The magistrate thought so and I think so too.  It is too serious to allow for a non-custodial sentence.  Whilst this is not a deterrent sentence in the sense that it has been increased above what it would normally have been to deter others, the general sentencing in this area of the criminal law has to be such that people are put off from cheating their insurers.  The public cannot be allowed a perception that the courts will let you go free, even though you might be subject to a fine or suspended sentence or community service if you take the risk and are caught.  They have to know if you are caught you lose your liberty.

8.  I fully appreciate that imprisonment for a man like the Appellant will come hard and I appreciate those elements of the mitigation on the facts as relate to him personally that have been put before me.  Once the message has been sent that it has to be a custodial sentence, I take the view that it can be kept to as short a term as is reasonable in the circumstances.  I take a starting point of 6 months and that starting point factors in the matters of mitigation that are put before me in relation to the way the offence was committed, the size of it, because $50,000 was involved, not a great sum in the circumstances, and the good character of the Appellant.  The plea of guilty earns a third discount.  That would give a sentence of 4 months.  The magistrate, in arriving at that, had built in an allowance for the staleness of the case.  I shall build in my allowance for that after reaching 4 months and I shall reduce the sentence to one of 3 months.  I wish to say in doing that I have no criticism of the magistrate's sentence. 

9.  This is a re-hearing because appeals from summary justice are re-hearings and the Appellant does not have to meet the bar he would meet in the Court of Appeal from an appeal on indictment of having to say the sentence was excessive or wrong in principle.  The fact is my view is very similar to that of the magistrate but slightly different, but if there is a slight difference, the Appellant is entitled under our system to have the advantage of it.  At this level, tinkering is allowed.  In effect, on the re-hearing, having heard the mitigation advanced before me today, which I do add has the extra dimension that the Appellant has followed up upon his offer to  help the police prosecute the other conspirator, I judge that 3 months is the right sentence.  It has to recognise the dishonesty I have referred to but at the same time it does not disrupt the Appellant's life so much that he would not be able to take up his hitherto respectable occupation and life.