HKSAR v. YAN SUK FAN

CACC 595/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 595 OF 1999

(ON APPEAL FROM DCCC 620 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 9 November 1999, the Applicant pleaded guilty in the District Court before Judge Day to ten charges (charges 3-9 and 11-13) on an amended charge sheet containing fourteen charges in all. The remaining charges were left on the file. She was sentenced on the following day to a total of two and a half years' imprisonment against which she now seeks leave to appeal.

2. All the offences were committed by the Applicant while she was a chief litigation clerk of a firm of solicitors known as Jesse H.Y. Kwok & Co. ("the firm"). She was the most senior employee of the firm after the solicitors themselves.

3. The charges reflected three sets of offences relating to different factual situations.

4. Dealing with charges 3 and 4, both of these alleged an offence under section 87(b) of the Crimes Ordinance, Cap. 200. The particulars of charge 3 were that the Applicant:

"on a day unknown in January, 1998, in Hong Kong, delivered or caused to be delivered to King Mui a paper falsely purporting to be a copy of a decree nisi No. 3663 of 1997 dated and entered on the 19th day of November, 1997 of the Divorce Jurisdiction in the District Court of Hong Kong knowing the same to be false."

5. The 4th charge was particularised in these terms, that the Applicant:

"on a day unknown in January, 1998, in Hong Kong, delivered or caused to be delivered to King Mui a paper falsely purporting to be a copy of an order No. 3663 of 1997 dated and entered on the 19th day of November, 1997 of the Divorce Jurisdiction in the District Court of Hong Kong knowing the same to be false."

6. The evidence taken from the admitted facts relating to these charges amounted to this. Madam Fong Pui-pui ("Fong") and Mr King Mui ("King"), a married couple, wanted to divorce. They went to the firm to handle the matter on 26 June 1996 and were interviewed by the Applicant. On 12 November 1997, at the request of the Applicant, Fong and King attended the District Court for what they understood would be the hearing of the divorce. At the court, the Applicant told them that the judge was otherwise engaged and that the hearing had been re-fixed for 19 November 1997. On 19 November 1997, King attended court again only to be told by the Applicant that, as he and his wife had agreed to divorce, no attendance in court was necessary. The Applicant further said that if the decree of divorce was processed, she would ask King to attend the firm to collect the relevant documents. On 20 November 1997, King attended the firm and met the Applicant. She handed over two documents. She stated that these were the decrees of divorce. The first document purported to be a copy of a decree nisi and the second purported to be a copy of an order granting custody of the three children of the family to Fong. They further purported to relate to the divorce suit named in the charge. In fact, this suit did not relate to Fong and King at all and no orders such as those which were purported to have made in those documents had ever been made and, by 20 November 1997, no divorce suit had even been filed in the District Court under the name of Fong and King. Accordingly, no hearings had ever been set down for 12 or 19 November 1997.

7. The Applicant, in the course of her duties at the firm, had exclusive use of a computer. The hard disk of her computer was inspected in the course of this investigation and found to contain copies of the documents which were the subject of these charges.

8. The second set of offences related to charges 5-7, 9, and 11-13, and once again related to legal proceedings, this time in the High Court, which were supposed to be taking place. The action related to personal injuries and was commenced in 1993. The Applicant was supposed to represent Tang Wah-chau (the plaintiff) in an action to sue Tang's employer (the defendant company) for personal injuries. Legal Aid was granted and the Legal Aid Department assigned the case to the Applicant's firm. The charges tell their own story.

9. Charge 5 related to the delivery of a false copy of a consent order contrary to section 87(b) of the Crimes Ordinance. The particulars alleged that the Applicant:

"on a day unknown in January, 1998, in Hong Kong, delivered or caused to be delivered to Tang Wah-chau a paper falsely purporting to be a copy of a consent order No. P1-1242/1996 dated and entered on 29 December 1997 of the Court of First Instance of the Hong Kong Special Administrative Region knowing the same to be false."

10. This offence followed a number of understandable complaints from the plaintiff about the slow progress of his case. In December 1997, the Applicant had told her client, the plaintiff, that his case was listed for hearing on 29 to 30 of December 1997. This was untrue.

11. On 28 December 1997, the Applicant contacted the plaintiff saying that the defendant company wanted to settle and was willing to pay between $900,000 and $950,000 in damages. The plaintiff refused to accept this and told the Applicant that he wanted $1.1 million. Later that day, the Applicant informed the plaintiff that the defendant company would pay this amount and he then agreed to accept it. What purported to be the consent order in charge 5 was an utterly bogus document insofar as these civil proceedings were concerned. No such order had ever been made and the defendant company had, as it turns out, only made offers to pay between $100,000 and $260,000 on 2 September 1997 and 9 September 1997 respectively.

12. Following these events, four cheques were sent between January and April 1998 to the Legal Aid Department by the firm in the sums of $320,000, $168,000, $100,000 and $21,846 which were reflected in the charge sheet as offences of procuring the execution of a valuable security contrary to section 22(2) of the Theft Ordinance, Cap. 210 in charges 6, 7 and 9 respectively. Charge 10, relating to the smaller sum of $21,846 was one of the offences left on the file.

13. In April 1998, the Applicant invited the plaintiff to her office. There she gave him two cheques which, like the earlier ones, were drawn on the firm's account. These were for $370,000 and $142,000 reflected in charges 11 and 12 respectively, alleging the theft of a debt in those sums owed by Dao Heng Bank Ltd. to the firm, represented by entries in the records of the bank. These two cheques brought the balance of the money paid out of the firm's account to $1.1 million. Of the sums paid to the Legal Aid Department, $500,000 was paid into the plaintiff's account.

14. No money had by that stage been paid to the firm by the defendant company. On 14 May 1998, the defendant company's solicitors received a letter stating that the plaintiff was prepared to accept $310,000. The defendant company's solicitors in due course informed the Applicant that they would agree to settle for that amount and asked the Applicant to prepare a consent order to that effect.

15. On 6 June 1998, a consent order was sent for the defendant company's solicitors to sign and in due course they paid the firm $310,000.

16. Charge 13 covered the final events of this particular chapter in the Applicant's grossly dishonest behaviour. It alleged the making of a false instrument contrary to section 71 of the Crimes Ordinance. The particulars of this offence were that the Applicant:

"on a day in June, 1998, in Hong Kong, made a false instrument, namely, a paper purporting to be a copy of a consent order No. H.C.P.I. No. 1242 of 1996 of the Court of First Instance of the Hong Kong Special Administrative Region, with the intention to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice."

17. The Applicant told a partner in the firm that the proceedings had been settled for $310,000 and the partner innocently signed the draft consent order. It was then undated but, when the consent order was discovered in the file at the firm during the investigation, it was found to have been dated 6 June 1998 and it purported to bear the seal of the Court of First Instance. Needless to say, the court had not sealed this particular order.

18. In the hard disk in the Applicant's computer, a copy of the consent order was found.

19. Charge 8 stands alone in a third category of offence. This related to the delivery of a false copy of a judgment of the court, contrary to section 87(b) of the Crimes Ordinance, and was particularised in these terms, namely, that the Applicant:

"on the 5th day of February, 1998, in Hong Kong, delivered or caused to be delivered to Au Yeung Yuet-wah a paper falsely purporting to be a copy of a judgment No. A12951/1995 dated and entered on the 16th day of January, 1998 of the Court of First Instance of the High Court of the Hong Kong Special Administrative Region knowing the same to be false."

20. This charge related to civil proceedings instituted by Union Film Laboratory Limited ("Union") to recover a sum of $639,158.70 from Modern Films Distribution Co. Ltd. From December 1995 to January 1998, staff at Union kept on inquiring about the progress of the suit. In February 1998, the Applicant faxed a copy of the judgment to the staff of Union, purportedly given by a High Court judge relating to a case No. A12951/1995, when in fact no judgment had ever been entered by the court in respect of Union's case.

21. In his grounds of appeal, Mr Mumford, SC, on behalf of the Applicant, has advanced three reasons why the sentences imposed were manifestly excessive. These relate to the Applicant's neurotic condition, the absence of any personal financial gain and the starting point of four and a half years which was taken by the judge before he reduced the sentence to take into account the pleas and mitigation.

22. The sentencing judge is a highly experienced judge and gave detailed reasons for the sentences he imposed. When considering the Applicant's personal circumstances and mitigation, the judge took into account what was referred to as the "anxiety depression" of the Applicant from which, it was said, she was suffering at the time of the offences. The judge made reference to the report which had been prepared by her psychiatrist. At page 19 in the Reasons for Sentence, the judge said:

"It is plain that, these crimes apart, she has been a decent, hard working, filial member of society, well regarded by those who know her. I have also been shown a psychiatrist's report which suggests that the defendant was suffering from what the doctor calls 'anxiety-depression' when she committed the offences. This was a neurosis brought about by pressure of work and problems with her boyfriend. Indeed the pressure she was under at work has been urged upon me repeatedly as the reason for these offences."

He later went on to say:

"Although I accept that she worked hard, I have no way of knowing if her workload was inordinately large or if it was par for a busy solicitor's office. Whatever the situation, her chosen method of resolving her problems is entirely unacceptable. If her situation had become so desperate, why on earth did she not speak to the partners before embarking on this calamitous behaviour?"

23. We are in no doubt that Mr Stanley Chan, on behalf of the Respondent, whose written submissions he adopted, was correct in saying that, even assuming the Applicant was suffering from anxiety depression, this cannot provide a shield for exonerating her or reducing her criminal responsibility. These were, to an extent, planned offences which extended over a number of months, but the three actions to which they related stemmed from years of inactivity and were gathering dust by the time the Applicant invented her own method of disposing of them.

24. The judge also considered the absence of any personal financial gain. This must also have been a factor which led, in due course, to the Applicant receiving an additional reduction of six months in her sentence, after the judge had reduced the starting point from four and a half years down to three years to take into account her pleas, because he then further reduced her sentence for what he said was "her clear record and other matters".

25. The starting point was not inappropriate for offences of this gravity when taken in their full context. There is no way better to express this than the way in which the judge chose to do. In the appeal bundle, at page 20 line B, he said this:

"These offences constituted a gross breach of trust. Madam Yan has weaved a tangled web to cover problems of her own making. Members of the public expected her to handle their affairs professionally and relied on her advice to guide them through their difficulties. When they deal with a professional person they expect to meet integrity, not dishonesty.

Her actions undermine the due process of the law and must have caused untold difficulties to her clients. I would imagine, for example, that the divorcing couple had quite enough to contend with without this added worry and embarrassment. The wife thought she was divorced and had custody of their three children. This was not the case and the truth only started to emerge when she tried to emigrate. The inconvenience and worry must have been enormous.

Mr Tang, the litigant in charges 5, 7, etc, spent some five years pursuing, he thought, a claim for personal injuries. He thought he had achieved what he wanted, only to have it dashed from his grasp. He is, six years on, still seeking his remedy. What does he think of the law now, I wonder.

I accept all Mr Chan tells me about his client's remorse, how the offences are totally out of character, and how there is no risk of re-offending. I have been moved by his client's silent tears in the dock, and by her mother's heartfelt letter and quiet dignity as she has sat at the back of the court, but I would be failing in my duty if I did not impose an immediate custodial sentence for what she has done.

These are serious matters involving huge inconvenience to the parties involved, and were an abuse of the judicial system carried on over a lengthy period of time. They amount to a serious breach of trust and prison is inevitable."

26. The judge went on to consider a number of cases relating to breach of trust. However, this case was not concerned with financial gain so much as the considerable anguish suffered by litigants as the result of the Applicant's gross breaches of trust. It is difficult to determine the extent of their distress. It is in that sense an unusual case for which it is probably right to say that there is no particular sentencing precedent of much value to the court.

27. Finally, the judge went on to say:

"I have mentioned what I regard as some of the more aggravating features of the case and would have thought an appropriate starting point to be two years for each of the three groups.

For reasons of totality I would scale down that overall starting point from 6 years to 41/2 years and then consider what credit can be given."

28. He then imposed concurrent terms of two and a half years' imprisonment for each offence, having taken into account the discounts with which we have already dealt.

29. The judge, in our view, had demonstrated a complete grasp of all the factors to be taken into account and had humanely balanced all four of the often-quoted competing interests involved in any sentencing exercise of "retribution, deterrence, prevention and rehabilitation". He had done so with fairness, compassion and sound common sense.

30. There is, when all the circumstances are considered, and sad though the case undoubtedly is, no merit in this application and it is dismissed.