HKSAR v. BERNHARD GOETZMANN

DCCC 1020/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1020 OF 2014

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REASONS FOR SENTENCE

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1.  Bernhard Goetzmann you stand convicted after trial of one charge of possession of false instruments with intent to use, contrary to section 75(1) of the Crimes Ordinance, Chapter 200.

2.  Full particulars of the offence are set out in my verdict delivered on the 4 May 2015.  In summary on the evening of the 13th October 2013 you were stopped at the airport when leaving Hong Kong.  All your property was sealed by the police in tamper evident property envelopes. 

3.  On the 29 July 2014 DPC 6849 executed a search warrant to inspect your property.  DPC 6849 seized from one of the tamper evident property envelopes a Time Certificate of Deposit (exhibit P1), purportedly issued by J.P. Morgan and a SWIFT transaction record (exhibit P4), purportedly issued by Barclays Bank. 

4.  The instruments were false not having been issued by J.P. Morgan and Barclays Bank. For the reasons given in my verdict I was satisfied on the evidence that you knew or believed they were false and that you intended they would be used to induce somebody to accept them as genuine and intended that person by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice.

5.  You are presently serving a total sentence of 6 years and 10 months imprisonment.  In June 2013 you stood trial in the District Court on one charge of dealing with property known or believed to represent proceeds of an indictable offence, commonly known as “money laundering”.  You absconded during the trial and were convicted in your absence on the 8 August 2013 and sentenced to 6 years and 6 months imprisonment. 

6.  On the 13 October 2013 when you tried to leave Hong Kong you made a false representation to an Immigration Officer that you had lost your passport and that you had last arrived in Hong Kong in mid September 2013.  This resulted in two charges of making a false representation to an Immigration Officer.  You pleaded guilty to the charges and were sentenced to 4 months imprisonment concurrent on each charge, the sentence being ordered to be served consecutively to the sentence of 6 years and 6 months making the total of 6 years and 10 months imprisonment.

7.  I have read the papers in both cases. 

8.  The false time certificate of deposit was dated the 30 November 2010 certifying that Toma Australia Investment Limited represented by you and Anatoly Ivanoff had deposited with J.P. Morgan a sum of US$225,149,996.50 for a fixed period of 12 months maturing on 1 December 2011.  Between 30 March and 30 August 2011 you were a director of Toma. 

9.  The false SWIFT message was dated the 20 December 2011 confirming payment undertaking for the amount of €500,000,000.00 at the instructions of Foresight Financial Services Inc in favour of Profit Trend Investment Limited.   Profit Trend was incorporated on the 13 July 2011.  In November 2011 you became a director of Profit Trend and in December 2011 opened a bank account for Profit Trend with the Industrial & Commercial Bank of China. 

10.  Although you were found in possession of the two false instruments almost 22 months after the maturity of the false certificate of deposit and the date of the false SWIFT message I was nevertheless satisfied by carrying the two instruments with you when leaving Hong Kong you intended to use them to induce somebody to accept them as genuine and intended that person by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice. 

11.  Taking into account the amount of each of the false instruments; the maturity of the false time certificate of deposit and the date of the false SWIFT message was December 2011 some 22 months prior to your arrest in October 2013; the international dimension both false instruments involving overseas banks; and that at the time you were a visitor to Hong Kong and a fugitive from justice, I am satisfied the appropriate sentence after trial is 3 years imprisonment.

Totality

12.  The offence is separate and distinct from the offences for which you are now serving sentence.  The money laundering charge was in connection with an investment fraud in which you played a large part in defrauding the victims between March and May 2010 over three years prior to your arrest in October 2013 and prior to the dates of both false instruments. 

13.  I must however consider the totality of sentence to be served by you (see for example HKSAR v. Lam See Chung, Stephen [2013] 5 HKLRD 242 and HKSAR v. Leung Ting Fung & another [2015] 1 HKC 290).  I am satisfied a total sentence of 7 years and 10 months imprisonment properly reflects your overall culpability. 

14.  You are sentenced to 3 years imprisonment of which I order 12 months to be served consecutively and 24 months concurrently to the sentence you are now serving.