HKSAR v. AGUSTIANUS GIANTORO

DCCC1277/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1277 OF 2010

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Reasons for Sentence

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1.  The defendant was found guilty after trial of one charge of conspiracy to use false instruments.

Facts

2.  In 2009 the defendant, an engineer of substantial life and commercial experience, received two cashier orders purportedly issued by a branch office of Hongkong Bank in London, one in favour of himself, the other in favour of Gaby Muljati Dharma, both in the sum of a €100 million euro.

3.  In April 2009, Dharma and the defendant presented themselves to two experienced solicitors in Hong Kong, and had copies of the two cashier orders and of their passports certified. 

4.  On 4 May 2009, a group of five persons attended the branch office of Hang Seng Bank in Sheung Shui and presented to a staff member of the bank:

(1) the two cashier orders together with certified true copies of them;

(2) two Powers of Attorney executed by Dharma and the defendant, authorising Jung Heung-sik to deal with the cashier orders;

(3) a Handover Letter evidencing the handing over by Dharma and the defendant to Jung of the original cashier orders; and

(4) certified true copies of Dharma’s and the defendant’s passport.

5.  An assistant manager of the bank noted some unusual features on the face of the cashier orders, instructed his staff member to obtain Jung’s passport, and made a report to the police.

6.  The police arrived shortly and arrested three of the five persons; the other two persons made good their escape. 

7.  The defendant left Hong Kong on 7 or 8 May 2009. He returned almost a year and a half later on 22 September 2010 and was arrested at the airport by the police. 

8.  Under caution, he said he received the two cashier orders as a business proposal from persons in the UK whom he had never met.  He was told to open a Hongkong Bank account in Hong Kong ‘because if this money came up, then it is under my [the defendant’s] name, therefore must go … in an account.’

9.  On 4 May 2009, the defendant was to meet up, he said under caution, with one of the three persons arrested later by the police that day, the purpose of the meeting being the arrested person had said ‘can be tested,’ and he ‘can cash this...’ 

10.  Arising from the use of the two cashier orders, if successful, the defendant stood to gain 30% share in the biggest golf project in China;  nothing of substance was however required of him.  For the defendant, the whole incident has resulted in the loss of some telephone charges only. 

11.  The two cashier orders were found to be false documents.

Conviction

12.  The court is satisfied that the defendant was a participant with full intent and knowledge in the criminal agreement to use the two cashier orders, and finds him guilty as charged. 

13.  The defendant has had a clear record prior to his current conviction.

Mitigation

14.  In mitigation, the defence puts forward the following matters for the court’s consideration. 

15.  The defence advances altogether three mitigation factors.  Firstly, the plot in which the defendant has got himself involved lacked sophistication.  The huge amount in which the cashier orders were issued would most naturally raise an eye-brow. The bank staff, a person without expertise, easily spotted the irregularities on the face of the cashier orders.  He called the police without hesitation.  The defence submits that the plot was almost doomed to failure from the start.

16.  The second mitigation factor arises from the defendant’s previous good character.  It is submitted that the defendant has had a clear record in Hong Kong and elsewhere before his current conviction.  He has reached the age of 64, living hitherto an industrious and unblemished life.  In this respect, the defence refers to paragraph 25 of the case of SJ v Wong Hong Leung CAAR 5/2009.

17.  Lastly, the defence submits that the defendant is of a poor health, which would make it somewhat difficult for him to serve a lengthy period of imprisonment. 

Discussion

18.  There is no sentence guideline for the offence of conspiracy to use false instruments, so each case depends on its own facts. 

19.  The chances that the two cashier orders would be accepted by the bank in the circumstances in which they were presented were minimal, and the prospect of money being lost somewhat remote.  The court is of the view that the criminal conduct in question has been unsophisticated.

20.  It is however clear that a significant amount of effort has been put into this criminal plot, which spanned over a couple of months and which involved multiple participants.  The face value of the two cashier orders was colossal.  Most importantly, in the court’s view, the defendant has had substantial involvement in the perpetration of the crime.  While having lived a life of good character to an advanced age is an acceptable mitigation factor, the facts of the case show that the defendant did not act out of momentary greed or a lapse in character.

21.  Further, there is a clear aggravating factor in this case.  The defendant and others, in particular Dharma, have come to Hong Kong to commit a serious offence.  Hong Kong is famous for her tourism industry and welcomes visitors from all over the world. The court has a duty to protect Hong Kong from criminals who come into Hong Kong in the guise of tourists to commit a crime that exhibits a degree of organisation.

22.  In all the circumstances, the court considers a starting point of three years would be appropriate. 

23.  The court has given careful consideration to the plea in mitigation.  The defendant was convicted after trial; this shows a lack of remorse on his part.  Nothing in his personal and family background would warrant discount in sentence.  The medical report shows that the defendant’s general health condition is satisfactory, and there is no reference in the report to any difficulties that may arise from the defendant’s incarceration.

Order

24.  For the offence of which he stands convicted, the defendant is sentenced to a term of imprisonment of three years.