State v Yam [2011] FJHC 320; HAC077.2008 (3 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 077 OF 2008

STATE

vs

CHIRK KING YAM

Ms M. Fong for the State
Mr. V. Vosarogo for the Accused

Date of Hearing: 06, 23, 24 and 30 May 2011
Date of Judgment: 03 June 2011

SENTENCE
[Forgery and Fraud]

[1] On the 24th May 2011, the accused entered pleas of guilty in this Court to all of 5 counts set out in an Information dated 20 May 2011.

FIRST COUNT

Statement of Offence

LARCENY BY SERVANT: Contrary to section 274(a)(i) of the Penal Code, Cap. 17.

Particulars of Offence

CHIRK KING YAM from the 22nd day of November 2005 to the 2nd day of March 2007, in the Western Division, whilst employed as the Financial Controller of Warwick Fiji Resort & Spa, stole $516,609.93, the property of the said Coral Surf Resort Limited trading as Warwick Fiji Resort & Spa, by depositing the said money into his Westpac account number 9801118515.

SECOND COUNT

Statement of Offence

FORGERY: Contrary to section 352(2)(a) of the Penal Code, Cap. 17.

Particulars of Offence

CHIRK KING YAM between the 5th day of September 2005 to the 11th day of September 2006, in the Western Division, with intent to defraud Coral Surf Resort Limited as Warwick Fiji Resort & Spa, forged 36 Coral Surf Resort trading as Warwick Resort & Spa cheques by inserting his wife namely Memrie-Ann Jane Yam's Westpac account number '9801117046' on the payee section of the said cheques, purporting the said cheques to be payable to her account.

THIRD COUNT

Statement of Offence

CAUSING PAYMENT OF FUNDS BY VIRTUE OF A FORGED DOCUMENT: Contrary to section 345(a) of the Penal Code, Cap. 17.

Particulars of Offence

CHIRK KING YAM from the 19th day of September 2005 to the 11th day of September 2006, in the Western Division, with intent to defraud Coral Surf Resort Limited trading as Warwick Fiji Resort and Spa, caused the payment of $214,718.73 into Memrie-Ann Jane Yam's Westpac account number '9801117046' by virtue of forged instruments, namely, 36 Coral Surf Resort Limited trading as Warwick Fiji Resort & Spa cheques, knowing the same to be forged.

FOURTH COUNT

Statement of Offence

FORGERY: Contrary to section 335(2)(a) of the Penal Code, Cap. 17.

Particulars of Offence

CHIRK KING YAM between the 1st day of September 2006 to the 21st day of March 2007, in the Western Division, with intent to defraud Coral Surf Resort Limited trading as Warwick Fiji Resort & Spa, forged 54 Coral Surf Resort trading as Warwick Resort & Spa cheques by inserting his business namely Greenways Limited Westpac account number '9801321374' on the payee section of the said cheques, purporting the said cheques to be payable to the said business account.

FIFTH COUNT

Statement of Offence

CAUSING PAYMENT OF FUNDS BY VIRTUE OF A FORGED DOCUMENT: Contrary to section 345(a) of the Penal Code, Cap. 17.

Particulars of Offence

CHIRK KING YAM from the 4th day of September 2006 to the 21st day of March 2007, in the Western Division, with intent to defraud Coral Surf Resort Limited trading as Warwick Fiji Resort and Spa, caused the payment of $614, 305.01 into Greenways Limited Westpac account number '9801321374' by virtue of forged instruments, namely, 54 Coral Surf Resort Limited trading as Warwick Fiji Resort & Spa cheques, knowing the same to be forged.

[2] On the 30th May 2011, the accused heard and admitted a set of facts relevant to the charges and on his plea and admission of those facts, I found him guilty of all charges and convicted him accordingly.

FACTS

[3] The accused joined the Warwick Hotel on 17 August 2005 as Financial Controller. His duties were to oversee the proper maintaining of all accounting records, prepare statements of account, oversee all expenditure of the resort and to ensue all company policies and accounting procedures were adhered to. In early 2007, when the accused was so employed, an external audit commenced by reputable external auditors with instructions that the audit be completed by 16 March 2007. The accused absented himself on unauthorized leave between 15th March until the 25th March.

[4] On the 19th March, the auditors came across irregularities which appeared to be unaccounted for on the part of the accused. A search of the accused's office revealed a lot of material raising suspicion. There were signed cheques, un-actioned letters etc. An attempt to reconcile the bank statements for year 2006 was not possible due to discrepancies amounting to more than one million Fijian dollars.

[5] The accused resumed his duties on 26 March 2007. On being interviewed about the discrepancies, he said that he had altered accounts to make them appear to be "healthier" than they in fact were and that he had tried to hide expenses. The accused immediately resigned and never returned to the Warwick thereafter.

[6] A full audit was then conducted and the true extent of the accused's misdeeds was revealed. The way he committed fraud in the majority of instances was by altering the manner in which overseas suppliers were paid. Before this accused's tenure they were paid by the Westpac Bank on instruction from the resort but the accused had amended this method by having a cheque raised for each supplier, writing "Westpac Bank" on the payee section of the cheque and attaching it to the letter of instruction. The accused would then sign both the letter of instruction and the cheque and would send it to other signatories to do the same. On completion of this signing and approval exercise, the letter would go to the bank to process the direct payment to the supplier but the cheque would remain with the accused. He would then add an account number in the payee section – either that of himself, his wife or the accused's business. The deposited cheque would then credit that particular account number.

[7] After the full investigation it was discovered that –

(i) 50 cheques had been forged and deposited into the accused's own account. These totaled $516,609.93.

(ii) 26 cheques totaling $214,718.73 had been fraudulently paid into his wife's account.

(iii) 54 cheques totaling $614,305.01 had been fraudulently paid into the accused's private company, Greenways Limited.

[8] As a result, the accused had forged and paid to his own, his wife's and his company's accounts a total of more than F$1.3 million dollars during his employ with Warwick from August 2005 to March 2007.

MITIGATION

[9] In careful and comprehensive written and oral submissions, Mr. Vosarogo relies heavily on the plea of guilty which he says was effected at a very early stage; there having been various versions of the information being laid and even at one stage a total withdrawal from prosecution when a nolle prosequi was entered in year 2008.

[10] The accused is 39 years of age, married with 5 children of ages between 6 and 17. He has worked in the accounting field all of his working life. He has a clear record and expresses sincere remorse.

He asks for mercy from the Court, given the shame and embarrassment he has caused to his family. The crime which has crippled him in the civil courts means that he no longer has the means to educate his two younger children.

[11] He has been back to his employer to ask for forgiveness, but it is not known what the employers' response to that was.

THE LAW

[12] Sentences for offences of this kind were very recently discussed in this Court in Anand Kumar Prasad and Others (Crim. Case No. 24 of 2010L). This Court referred to and relied on the principles enunciated in the leading case of Barrick – 81 Cr. App. R(S) 78 where the Court said:

"The type of case with which we are concerned is where a person in a position of trust has used his trusted position to defraud his partners or clients or employers. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case that he will never offend again and, in the nature of things, he will never again and in his life be able to secure similar employment with all that means in the shape of disgrace for himself and hardship for himself and also his family."

And later –

"In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficient substantial term of imprisonment to mark publicly the gravity of the offence."

[13] The accused in this case falls fairly and squarely into the persona envisaged by the Court in Barrick. He has a clear record, he was otherwise a good citizen and loving father; he will never be able to get employment again in the financial world (especially in Fiji). He has brought unthinkable disaster on the heads of his entire family; yet despite all of that he must serve a term of imprisonment that society would expect for theft of such an enormous sum of money.

[14] All of these offences of which the accused has been convicted attract maximum penalties of fourteen years imprisonment. In the Anand Kumar Prasad case (supra) the Court was restricted by the fact that the major charge being dealt with on sentence was a conspiracy to defraud which has as its maximum penalty a term of seven years.

[15] Without that restriction; it can now safely be said that the tariff for forgery, for larceny by a servant and for causing payment of funds or forged instruments is between two to ten years, depending on the value of the funds stolen and taking into account the methodology of the fraud, for example was it systematic, sophisticatedly planned and executed over a long period, or was it an opportunistic one off incitement to greed.

[16] As was said again in Anand Kumar Prasad (supra) the suggested tariff bands set in Barrick and extended to Fiji for Penal Code offences of fraud would bring this fraud involving F$1.3 million on to the maximum penalty available. This is a huge amount of money not only for a successful resort such as the Warwick, but also in terms of Fiji's tourist revenue.

[17] The aggravating features in this case are clearly:

(i) It was a systematically, sophisticated fraud.

(ii) It was executed over a long period of time.

(iii) It was enormous breach of trust in his position as a valued member of management (Finance).

(iv) It was a veiled assault on the tourist industry as a whole; it could have severely damaged a resort which is extremely popular with foreign tourists.

All of these aggravating features lead me to adopt a starting point at the top of the range, that is 10 years imprisonment. I add nothing to that term, the aggravating features being subsumed in the starting point.

[18] The greatest mitigating feature in the accused's favour is his plea of guilty, although it is disputable whether it be a plea at first opportunity or not. Admittedly it was entered within days of the final draft of the information being issued, however Counsel for the State submits that although a draft, the offences charged were in effect the same as had been included on previous informations, yet in nicer form. Were the plea to be at first opportunity, a discount of 33% would be available to the accused and decreasing percentages would attach to more belated pleas. Although there is force to both sides of this "argument" it is a point which has to be balanced. The accused could have indicated a plea far earlier that he did, yet when the final draft of the information was produced he did one day later and after receiving legal advice, change his plea. In the circumstances, I allow the accused a 25% reduction for his plea of guilty which brings his sentence down to 90 months (7 ½ years). For his clear record, his remorse, the pathetic plight of his family, I deduct a further 18 months from the sentence, meaning that the total term of imprisonment he will serve will be a term of six years.

[19] He will serve a minimum term of five years before being eligible for parole.

[20] In conclusion therefore, for the second count of forgery and for the fourth count of forgery, the accused is sentenced to two concurrent terms of six years each.

[21] For the first count of larceny by servant, he also sentenced to six years imprisonment, to be served concurrently with counts two and four.

[22] For the third and fifth counts of causing payment of funds by virtue of a forged document, he is also sentenced to two concurrent terms of six years imprisonment.

[23] All the terms of six years imprisonment are to be served concurrently with each other.

Paul K. Madigan
JUDGE

At Lautoka
3 June 2011