HKSAR v. CHAN KIN MAN

HCMA463/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.463 OF 2000

(ON APPEAL FROM WSCC NO.16129 OF 1999)

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J U D G M E N T

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1. The appellant was convicted by on 19 April 2000 of conspiracy to defraud. He was sentenced to six months' imprisonment. He appealed against both the conviction and the sentence, but abandoned the appeal against sentence and upon notice of abandonment, the appeal against sentence was dismissed.

2. The prosecution case was that in the early hours of the morning of 26 April 1998, the appellant intentionally drove a private car into a hillside. He and other passengers on board his vehicle feigned injury. He obtained from a Dr Lai sick-leave certificates for a total of some 100 days sick-leave. On the strength of those certificates, he claimed and obtained from the Traffic Accident Victims Assistance Scheme ("the Scheme") the sum of $54,000. He was charged in these terms :

"That [he] and [another] between [certain days] ... conspired together with other persons not in custody to defraud the Social Welfare Department of the HKSAR by dishonestly arranging for the vehicle .... crash into the hillside of Victoria Road ... causing the Social Welfare Department ... to approve applications by the said [accused and another] for claims under the Traffic Accident Victims Assistance Scheme."

3. The conspiracy therefore was that with intent to defraud, he made an agreement with another and others to dishonestly arrange a collision of his vehicle with a hillside with the intent of then making application for monies from the Social Welfare Department which he was not, at the time agreement was made, entitled to apply for or to receive.

4. Mr Lok, for the appellant, argues that the definition of "accident" under the Scheme is sufficiently wide to encompass the deliberate running of a vehicle into a fixed object with the intent of injuring the passengers and that, therefore, there can have been no conspiracy to defraud.

5. The substance of an offence of conspiracy to defraud is an agreement by two or more persons to do an act which is unlawful, or to do a lawful act by unlawful means. In this case, the magistrate was fully entitled to come to the conclusion that the appellant and others first of all entered into an agreement. The agreement was that the vehicle should be crashed so that certain otherwise untenable claims could be made. To have entered upon that agreement to obtain money from the Government could not by any measure be said to be honest, and the reasonable and proper inference to be drawn from the nature of the agreement was that the conspirators were acting dishonestly.

6. There was an intention to defraud. Prior to the undertaking of the agreement, those participating in it had no entitlement to payment by the Government or Social Welfare Department of monies under the Scheme. The intent was that they concocted an accident, that they do injury to the vehicle and to themselves deliberately so that the Government would be forced to make payment to them. There can be no doubt that this is a fraudulent undertaking. Therefore, at the time that the parties had made their agreement and had done some act in furtherance of it, which need be no more than in embarking upon the journey to bring the car into collision with the hillside, the offence was complete. It is not necessary for me to consider the width of the definition of accident under the Ordinance. Earlier than the time the collision took place, all the elements of the offence were already completed.

7. There is no merit in this appeal and the appeal against conviction is dismissed.