THE QUEEN v. FUNG HOI CHI AND ANOTHER

CACC000053/1984

Conspiracy to defraud insurance companies - sentence - no tariff - key role of one conspirator as employer and subordinate role of the other conspirator as employee.

IN THE COURT OF APPEAL

1984 No. 53 (Criminal)

BETWEEN

	THE QUEEN	Respondent
	and
	FUNG HOI CHI	1st Applicant
	SZETO LOK	2nd Applicant

 

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Coram: Sir Denys Roberts, C.J., Yang and Barker JJ.A.

Date: 18 APR 1984

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JUDGMENT

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Yang J.A.:

1. The applicants pleaded guilty to a charge of conspiracy to defraud and were sentenced to two years' and twenty-one months' imprisonment respectively. They now appeal against their sentences.

2. It will not be necessary for the purposes of this appeal to set out in detail the steps by which the conspiracy was to be carried out; suffice it to say that it was a deliberate and elaborate scheme to defraud such insurance companies as might be induced to pay money to the first applicant's garage company, under motor vehicle insurance policies effected by the garage company as agents for the insurance companies. The second applicant was the first applicant's employee.

3. In assessing sentence, the judge took into account a number of mitigating factors, including the substantial loss to the first applicant's garage business as a direct result of the prolonged investigations into the offence by the authorities, and that only one transaction of the conspiracy was completed, resulting in a total profit of some $5,000 to both applicants.

4. Trade plays an important role in our society, so honesty in doing business must be encouraged and dishonesty condemned. The fact that we take a rather different view of the sentences in the present case in no way detracts from this view.

5. The trial judge in his Reasons for Sentence referred to a tariff of two to four years for conspiracy of defraud. The types of commercial fraud must be extremely variable; each case must be dealt with on its own facts. Given such a wide variety of commercial frauds that conspirators might intend to commit, we do not think it helpful to lay down any 'tariff' - indeed we do not think there is a tariff for the type of conspiracy now under consideration.

6. In dealing with the second applicant, the judge said that despite the more active role he played in the execution of the conspiracy, the first applicant must nevertheless be considered "the commander" and mastermind. We agree, but feel that a differential in sentence of merely three months is not a sufficient indication of the different responsibilities of the two men.

7. In addition to the considerations already discussed, counsel for the first applicant brought our intention to the following four matters which were not before the court below:

	(1)	the insurance company defrauded has been repaid in full and has continued to do a certain amount of business with the first applicant;
	(2)	the conspiracy was conceived at a time when the first applicant was in financial difficulties which no longer exist;
	(3)	he is now conducting a reasonably successful business employing eight to ten persons, and
	(4)	he bought a residence five years ago and should be able to pay up all the instalments in two years' time, so that an immediate custodial sentence would prevent him from continuing his payments, thereby losing his residence.

8. All four matters merit some consideration. Taking these factors into account, we have come to the view that an appropriate sentence for the first applicant is one year's imprisonment, suspended for two years.

9. Giving due weight to the second applicant's subordinate role in the conspiracy, we think that his proper sentence is one of six months' imprisonment suspended for two years.

10. The applications for leave to appeal against sentences are treated as appeals and allowed to the extent indicated.

Representation:

Mr. S.N. Westbrook (Robertson, Double & Boase) for 1st applicant.

Mr. N. Aiken (Maurice Lee & Co.) for 2nd applicant.

Mr. Dale, Crown Counsel for Respondent.