HKSAR v. LEONG WA CHONG

DCCC 285/2019

[2019] HKDC 1727

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 285 OF 2019

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Reasons for Sentence

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1.  The defendant has been convicted of the offence of using a false instrument which he knew or believed to be false.

2.  I have set out the facts on which I convicted the defendant in my verdict.  I do not propose to rehearse them again, but, in essence, for the purpose of sentencing, the defendant was one of two men who came with a deposit form and transaction advice of HSBC in the sum of what was US$666.6 hundred billion and presented those documents to HSBC with the intention that HSBC accept them as genuine and, in doing so, transfer some money within Mr Hu’s account, who was the beneficiary of those documents.

3.  The defendant was one of two men who was said to be -- claimed to be friends of the beneficiary and worked for him.  The other defendant has absconded.

4.  As I observed at the time, the amount of money is outlandish and would give cause to anybody to perceive the falsity of the documents they were presenting to the bank.

5.  The defendant himself is a man of clear record and I have obtained a background report on him.  He is now aged 63.  He owns a company in Macau and had taken up this business in his later life.  Now, the report tells me he came from an educated family in China, performed well in school.  He has been a primary school teacher and a reporter in a company in Macau.  After marriage, he ran a print workshop and then traded printing materials, reasonably successful in business.  Described as a caring and responsible for his family. 

6.  The background report supports the defendant as involving himself in this case in order to find or help engage a new business partner rather than trying to make money out of it.  It says he had no motivation to cheat and wanted to help a potential business partner.  I think at the time I convicted him I thought the defendant was reckless and foolish in relation to this matter, given how obviously it must have been part of what we describe as a scam.  His family is supportive.

7.  The offence itself is, one might say, radically out of character for this man, a man of a certain age, not a young man, and a man who had led, up to this point, a life of legality and shown in a way good character in the way he has conducted himself, running family businesses, being a family-orientated man, responsive to his family, a caring husband, good reputation within his family and the people he works with, and it is distressing and disheartening to see a man such as this come before the court in relation to a matter like this, and see him involve himself in this.

8.  The offence itself, there is no guideline sentence.  There cannot be, because the ways in which this offence could be committed are so many and varied that it would be almost impossible to define what sentence should be imposed.

9.  Nevertheless, in relation to offences like this, the amount of money that is put at risk, as it were, must be a significant factor in determining the eventual starting point for sentence, and that is the problem that, I think, the court faced in relation to this offence, is that the amount was so, as I described, outlandish that it was almost impossible to impose a realistic starting point for this matter.

10.  And I am told another judge of this court has tackled a similar case very recently, where, in similar circumstances, a sum of US$60 million was asked to be deposited in HSBC.  On a plea of guilty, there was a starting point for sentence of 21 months.  The defendant had a clear record, and again another -- there were two defendants originally and one had absconded.  The offence was committed at the same location, same head office as HSBC, as this one.

11.  The defence say that that was a more serious case, in that there was a request to actually deposit the money rather than a request here that had already existed in what was described as a deposit form and transaction advice of the bank itself. 

12.  I see little distinction in what actually occurred in these cases.  They seem very similar, seem part of the same kind of modus operandi of fraud and deception, and, of course, in our case, the sum is some 10 times higher.

13.  Another factor in sentencing is the almost unlikelihood of such a case ever succeeding, and it would appear that these men are sent to HSBC as part of what must be another fraud that is taking place further down the chain of people who have invested in this operation.

14.  Nevertheless, it is an essential part in the operation of this fraudulent engine and device, and the defendant has foolishly attached himself to it for motives related to promoting his own business and promoting his partner’s business.

15.  An immediate custodial sentence is of course inevitable, given the nature of the fraud and the large amounts of money involved. 

16.  I consider the minimum sentence that the court could impose would be one with a starting point of 21 months’ imprisonment. 

17.  The defendant pleaded not guilty at trial.  In determining that sentence of 21 months’ imprisonment, I take into account the nature of the defendant’s involvement and what I have already set out about his previous good character. 

18.  So the sentence of this court on the offence that he has committed will be one of 21 months’ imprisonment.