HKSAR v. JIANG YUAN

DCCC 822/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.822 OF 2012

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Reasons for Sentence

1.  The defendant pleaded guilty to one charge of ‘using a false instrument’, contrary to s.73 of the Crimes Ordinance, Cap.200.

Facts

2.  On 17^th May 2010, the defendant together with another person who claimed to be her stepfather (“the wanted person”) approached the senior manager of the Central branch of Shanghai Commercial Bank to cash a US Dollar Draft (“the Draft”) with a face value of US$4,253,400 (equivalent to HK$32,963,850), purportedly issued by HSBC Bank USA, N.A., dated 27^th April 2010, and remitted by Verizon Wireless, payable to the defendant.

3.  In order to cash the Draft, the defendant opened a Hong Kong dollar and a foreign currency account with the use of her income proof, 2-way permit and Chinese identity card.

4.  After the defendant presented the Draft in question, she and the wanted person then left the bank. The Draft was passed onto another staff member of the bank for verification procedures.

5.  10 days later on 27^th May 2010, the Hong Kong office of HSBC confirmed that the Draft was forged and the matter was reported to the Police. HSBC Bank USA also confirmed later that the Draft presented by the defendant was a counterfeit.

6.  The wanted person did call the senior manager to ask about the cashing of the Draft but had not contacted the bank anymore once he was told that HSBC had refused to cash the Draft.

7.  On 13^th June 2012, almost 2 years later, the defendant was arrested when she entered Hong Kong from mainland China. The two-way permit and Chinese identity card with the information that were used in the opening of the 2 bank accounts for receiving the Draft by the defendant were found on the defendant upon her arrest.

8.  The defendant admitted in the summary of facts that at the time of handing the Draft to the staff member of the bank she believed that the Draft was false.

Previous convictions

9.  The defendant is of previously clear record.

Mitigation

10.  The defendant is 28 and was born in mainland China. She went to university in South Africa and is the holder of a bachelor degree in commerce.

11.  Mr. Davies for the defendant submitted that the defendant had been used by her stepfather in this debacle. The defendant at first did not know about the scam but when she did finally realize that the Draft must have been forged, out of “blind trust[1]” for her stepfather, the defendant committed the offence.

12.  The defendant came from a broken family, her father left and went to work in South Africa. The defendant went to join her father there and obtained her university degree at the University of The Witwatersrand in Johannesburg. The defendant then returned to China with her qualification and got a job with the famous Ernst & Young firm and worked there for a couple of years, earning about RMB7,000 to 8,000 per month.

13.  The defendant then moved back to ChongQing to take care of her mother suffering from cancer. There she worked as a wine seller, earning about RMB10,000 per month. The defendant later switched to selling air-conditioners and was earning over RMB20,000 per month. This was the last job she held.

14.  The defendant’s mother and employer wrote in support of the defendant. The defendant has enrolled in a distant learning course in Brand Management with the Chinese University of Hong Kong while in custody.

15.  The prosecution referred me to 2 District Court cases[2] where offences had been committed under similar circumstances to assist in my sentencing. In relation to those 2 cases, Mr. Davies’ submission is that they are both more serious in the sense that they involved the use of false passports and the perpetrators hiding their identity. Mr. Davies however accepted that the amount of money involved in our present case is not small, but suggested that there is no chance of the defendant re-offending and that the court should be as lenient as possible.

Sentence

16.  The maximum sentence for an offence under s.73 is 14 years’ imprisonment.

17.  The defendant is obviously an intelligent and well educated person. It was not the case of, say, an illiterate peasant girl following blindly the order of her stepfather. The defendant knew exactly what she was doing and given that she holds a bachelor’s degree in Commerce and had worked in an international accountancy firm in China, she must have known the seriousness of her action in helping her stepfather to use the forged bank draft to obtain from the bank this huge sum of money, and the consequences she would be facing should the scam be exposed.

18.  There is no evidence to suggest that the defendant was the mastermind of the scam or how she and her stepfather came to be in possession of the forged Draft in the first place.

19.  It is unfortunate that cases where criminals would present bank drafts involving exorbitant amount of money to banks in Hong Kong hoping to get away with it is not that uncommon. Sometimes they are backed with colorful stories like coming by the fortune while discovering enormous amount of treasure left behind by refugees who had to flee to Taiwan, sometimes the story is more down to earth like in the present case. Whatever the stories made up, I find that one of the main factors to consider in sentencing in cases like this must be the amount of money that the criminals are trying to deceive the banks into paying them.

20.  The other factors to consider should include the role of the defendant to be sentenced, the organization and sophistication of the scam, whether there is an international element and whether someone came specifically to Hong Kong from other countries to commit the crime.

21.  In our present case, as pointed out before, there is a real possibility that the defendant was not the mastermind of the scam and since there is no other evidence to rebut the mitigation put forward, I will accept this as the version of fact that the defendant should be sentenced upon. Although the Draft was supposed to be a business payment by a South African company to the stepfather and issued by an American bank, it is however a forged document and so it probably had nothing to do with any of the foreign entities and was a made up story by the stepfather.

22.  The defendant and the wanted stepfather did however come specifically to Hong Kong to conduct the transaction, as evidenced by the fact that the defendant entered Hong Kong at 09:32am on the day of the commission of the offence and left at 2:59pm the same day, just about 5 hours and 30 minutes later. The defendant never came back until her arrest on 13^th June 2012.

23.  There is no evidence to suggest that there was a big organization behind the scam. The method used was unsophisticated and no false identity documents were used to open the bank accounts in Hong Kong.

24.  Under the circumstances, considering the large amount of the Draft and the potential of loss for the bank, but balancing that with the fact that the defendant was a small albeit essential part of the scam, I find that an appropriate sentence is an immediate custodial sentence and that the proper starting point is that of 4 years’ imprisonment. I will grant the defendant the full one third discount in recognition of her guilty plea and sentence her to 32 months’ imprisonment.

[1] See paragraph 2 of the defendant’s own letter in mitigation

[2] HKSAR v Mokonga Pierrot & another, DCCC 618/2011 and HKSAR v Mazhar Taha Ahmed Elmansouri, DCCC 309/2011