HKSAR v. HAN SHIFAN AND ANOTHER

DCCC 445/2020

[2020] HKDC 1152

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 445 OF 2020

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REASONS FOR SENTENCE

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1.  The 1^st and 2^nd defendants both pleaded guilty to a joint charge of using false instruments, contrary to section 73 of the Crimes Ordinance.

2.  The particulars of offence stated that on 30 December 2019, at a branch of the HSBC bank situated at Harbour City (“the Branch”), the two defendants together with Zhang Jinlong (“Zhang”), used 6 instruments which were, and which they knew or believed to be false, with the intention of inducing a staff of the HSBC, one Ms Leung Chiu Wah (“Ms Leung”) to accept them as genuine, and by reason of so accepting them to do or not to do some act to their own or any other person’s prejudice.

3.  The said 6 false instruments consist of a BANKER’S DRAFT, a DEMAND DRAFT, a PROMISSORY NOTE (all three of them were in the amount of $300 million US currency, with “HSBC” logo, a chop purported to be a chop of “HSBC” and Zhang as the payee), an “Order of Payment Order”, a “BANK CONFIRMATION LETTER” and a “BANK GUARANTTE.

4.  The Amended Summary of Facts agreed by both defendants revealed that:-

(1)  About a week prior to 30 December 2019, Ms Leung, a customer service manager of the Branch, received a phone call from Huang Chungxin (“Huang”) who claimed that there would be a transfer in the sum of US$20 million to his bank account, which was payment of loan from Huang’s friend.

(2)  On 27 December 2019, Huang informed Ms Leung that he (Huang)  would come with his friends to deposit a banker’s draft.

(3)  On 29 December 2019, Huang sent a “loan agreement” to Ms Leung, which stipulated, inter alia, that the said loan of US$20 million will be transferred from an account held with HSBC (“Account 1”) in the name of Kuan Tse Jen (“Kuan”) to another account held with HSBC (“Account 2”) in the name of Huang.

(4)  Huang also informed Ms Leung that he and his friends would come to the Branch, with documents for the transfer of the said US$20 million from Account 1 to Account 2, and for his friend depositing a banker’s draft in the amount of US$300 million.

(5)  On 30 December 2019, Huang and the defendants went to the Branch. Ms Leung met them at the lobby and subsequently brought them into a meeting room (“the Room”) where the 1^st defendant took out some documents from a folder, amongst them were the said 6 false instruments.

(6)  Huang then pointed at the said BANKER’S DRAFT, the DEMAND DRAFT and PROMISSORY NOTE and requested Ms Leung to deposit them into a bank account. Huang further reiterated his request of depositing US$300 million into Account 1 and then transfer US$20 million from Account 1 to Account 2. When Ms Leung asked if Kuan was present, Huang replied that he could call Kuan to come to the Branch in about 20 minutes.

(7)  Ms Leung felt suspicious and thus consulted her senior.

(8)  When Ms Leung asked further information about Zhang, the 1^st defendant took out a PRC resident identity card and a PRC passport (both in the name of Zhang) together with an authorization letter which specified that Zhang authorized the 1^st defendant to handle all matters relating to the said PROMISSORY NOTE. The 1^st defendant further told Ms Leung that Zhang authorized him to handle all matters relating to the said BANKER’S DRAFT.

(9)  Both defendants were arrested at the Branch subsequently. Under caution, the 1^st defendant stated that Zhang instructed him to supervise other persons to handle the banking matters arranged by Zhang.

5.  Mr Jasper Kwan, appeared for the 1^st defendant, told this court that the 1^st defendant is a 71-years-old married man.  His wife is aged 70.  They lived together with their son, daughter-in-law and grandson in Shenzhen.  The 1^st defendant acquired his university degree in 1968, major in industrial technology.  In 1980, he came to work in Shenzhen as a technician.  He retired in the 1990s.  In the year 2017, the 1^st defendant met Zhang, a friend from his university days.  Upon Zhang’s invitation, the 1^st defendant joined Zhang’s business in land and real properties investment as a partner, though the 1^st defendant’s role is akin to a silent partner.

6.  A few days prior to the day of the offence, the 1^st defendant met Zhang at the latter’s place of residence.  There, Zhang showed the 1^st defendant some bank documents and asked the 1^st defendant to go to Hong Kong to supervise a bank transaction for him in order to ensure that the account would be active and had sufficient fund.

7.  The 1^st defendant did have reservation as to whether those bank documents were in fact genuine.  However, upon repeated urges by Zhang, the 1^st defendant finally caved in and agreed to go to Hong Kong to assist Zhang.

8.  Mr Kwan said that there was no benefit involved. The 1^st defendant thought that he was simply there to witness the transaction.  Unfortunately, he under-estimated the consequences of his acts.

9.  On the day of the offence, under the arrangement of Zhang, the 1^st defendant met up with some other persons in Mainland China.  The group then came to Hong Kong together.  The said 6 false instruments were not originally entrusted with him.  When they were at the Branch, the 1^st defendant played a passive role.

10.  Mr Kwan submitted on behalf of the 1^st defendant that he is now very remorseful towards his commission of the offence.  He received no reward.  He simply committed the present offence out of his foolish loyalty towards his old friend Zhang.

11.  Mr Boyton, appeared for the 2^nd defendant, told this court that the 2^nd defendant is a 40-years-old married man and a father of his 3 children (aged 3 to 7).  He attained the education level of middle school in Mainland China.  Thereafter he worked as a construction worker as well as a dish washing worker before he became a clerk (as a result of further studying at night school).  He was earning about 5,000 RMB per month as a clerk prior to his arrest. 

12.  Due to the location of his work, the 2^nd defendant’s entire family (ie his wife, his 3 children and his parents) all moved from Henan to Jiangmen in 2016.

13.  The 2^nd defendant was the sole bread winner of the entire family.

14.  In mid to late 2019, the 2^nd defendant was initially transferred to the Shenzhen office of the company for a period of 2 months.  As a result of which he moved to Lo Wu and lived there alone.  Whilst in Lo Wu, the 2^nd defendant came to meet for the first time Zhang.  As it was known to Zhang that the 2^nd defendant was a clerk and familiar with loan agreements, Zhang asked him to draft a loan agreement for him.  The 2^nd defendant did accordingly.  As the sum was rather large, the 2^nd defendant was suspicious and thus asked Zhang for supporting documents.  Such was supplied to him subsequently.  It was then that the 2^nd defendant came to know the existence of Huang (by way of receiving, through digital means, the name card of Huang on 26 December 2019).  Huang also forwarded the address of the Branch to the 2^nd defendant.

15.  A folder containing the said 6 false documents was given to the 2^nd defendant by Zhang shortly before the party made their journey to the Branch.  The 2^nd defendant was instructed by Zhang to hold onto them as the latter explained that he did not have a brief case.

16.  Whilst inside the Room, the 2^nd defendant’s suspicion grew stronger and he realized that he had participated in the fraud in question.  He however failed to leave and handed the folder with the said 6 false documents to the 1^st defendant.

17.  Both Mr Kwan and Mr Boyton urged this court to consider that both defendants were men of clear record.  Both of them played a relatively less active role in committing the present offence.  None of them were the mastermind of this fraudulent scheme.  There was no loss suffered by the bank.

18.  Mitigation letters from both defendants, the Priest of the Correctional Service Department (writing for the 1^st defendant), the 2^nd defendant’s wife and friends of the 2^nd defendant were submitted to this court.  These letters showed, inter alia, that both defendants were law abiding and responsible persons.  It was out of their respective character that they committed the present offence.

19.  This court is prepared to accept that both defendants were not actively engaged in the fraudulent scheme in question.  Judging from the objective facts of the present case, Huang was the very person who was doing most of the persuading at the Branch whilst at the same time deliberately avoided to come into contact with the said 6 false instruments.  It is quite apparent that the defendants were tasked for the physical handling of the said 6 false instruments.

20.  This court further accept Mr Boyton’s submission that albeit there exists an international element in the present case, the extent of which is of a limited nature.

21.  Having considered all the circumstances of the present case, submissions made by counsel and the relevant authorities, I adopt a starting point of 3 years’ imprisonment for both defendants.  They are both entitled to the full 1/3 sentencing discount in view of their respective guilty pleas.

22.  The 1^st and the 2^nd defendant are therefore each sentenced to a term of 2 years’ imprisonment.