HKSAR v. CHEUNG SO TUNG

DCCC 172/2020

[2020] HKDC 914

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 172 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant was convicted on his own plea and agreement to the summary of facts to:-

(a)  a charge of using copies of false instruments, contrary to section 74 of the Crimes Ordinance, Cap 200 (1st charge);

(b)  a charge of using false instruments, contrary to section 73 of the Crimes Ordinance, Cap 200 (2nd charge); and

(c)  a charge of possessing a false instrument, contrary to section 75(2) of the Crimes Ordinance, Cap 200 (3rd charge).

Facts

2.  On 26 March 2014, PW1, a relationship manager of The Hongkong and Shanghai Bank Corporation Limited, received messages and photos on phone from Ng Chung Leung (“Ng”) via WeChat, including:

(a)  a photo of two name cards of purported HSBC staff (“E1”);

(b)  one photo of HSBC Certificate of Balance dated 2014-3-5 in the name of Jiang Qiyun with purported balance of USD 10 trillion (“E2”); and

(c)  one photo of HSBC Deposit Transaction Statement of the integrated account portfolio summary of Jiang Qiyun (“E3”).

3.  PW1 replied Ng that E1 to E3 appeared to be fake and he would not assist Ng.  However, Ng insisted they were genuine and requested PW1 to be the bank officer for a transaction that was going to take place later.

4.  Later that day, Ng called PW1 and said that he and his friends had arrived at the lobby of HSBC main building and asked PW1 for a meeting, and then PW1 acceded to the request.

5.  Later, at the lobby of HSBC main building, PW1 met Zhong Dihang, Wu Ping Yang Jimmy, Hwa Sih Hul, Ng and the defendant as a group.  All of them except Wu spoke to PW1.  They together told PW1 that a sum of money had been transferred to HSBC for transaction and the high-ranking staff knew about it. 

6.  Later, all 5 persons proceeded to a meeting room on the 5th floor of that building.  Inside this room, Zhong, Wu, Hwa and the defendant repeated what they said in the lobby, during which Zhong produced the following three documents to PW1, stating verification of HSBC was needed:-

(a)  one HSBC Time Deposit/Capital Protected Investment Deposit/Deposit Plus Confirmation of USD10 trillion with “Jiang Qiyun” as Lawful Bearer (“E4”);

(b)  one HSBC Counter Deposit Form crediting account of “Wu Ping Yang” USD10 trillion by cheque (E5); and

(c)  one HSBC Counter Deposit Form crediting account of “CIAH LTD” USD10 trillion by cheque (“E6”).

7.  The defendant explained to PW1 that PW1 just needed to sign on these documents and then pass them to the CEO of HSBC Group. Hwa then said everyone, including the money holders, HKSAR government, United Nations, HKMA would all be there on 27 March 2014.  PW1 noted E4 to E6 looked suspicious and the amount of money involved looked unrealistic.

8.  Upon being urged repeatedly by Zhong, Wu, Hwa and the defendant to authenticate E4 to E6, PW1 asked his colleague Mr Yuen Wai Yiu (PW2) for assistance. 

9.  PW1 then passed E4 to E6 to PW2, who checked the HSBC system and found the account numbers concerned did not exist.  PW2 then met the defendant and the other four inside the meeting room.  PW1 was sure that all Zhong, Wu, Hwa and the defendant did represent to him that a sum of money was in HSBC preparing for that transaction and the senior staff of HSBC would know.

10.  PW2 then entered the room.  The defendant first talked to him.  He pointed at E4 to E6 and told PW2 to authenticate them and repeated to PW2 that everyone, including the money holders, HKSAR government, United Nations, HKMA would all be here on 27 March 2014.  PW2 asked the defendant to further explain, the defendant then pointed at the photo affixed on E4 and stated a large transaction would be made by the younger sister of Jiang Zemin, who would be the person making the transaction, meaning that Jiang Qiyun stated on E4 was the sister of Jiang Zemin.  The defendant then looked at Hwa and asked her to speak, and Hwa said to PW2, “You understand”, then immediately Zhong produced another HSBC Time Deposit/Capital Protected Investment Deposit/Deposit Plus Confirmation of USD10 trillion with “Wu Ping Yang” as lawful bearer (E7).  The defendant then stated that Wu was the lawful bearer stated in E7.  PW2 then asked Wu for proof of identity and Wu gave PW2 a passport (later found to be a counterfeit); and PW2 asked Wu for proof of entry.  Wu told PW2 that he did not have that because he entered through special channel.

11.  PW2 then alerted the police and later the same day, police arrived.  The defendant and the other four visitors were arrested.

12.  Upon search of the defendant, one copy of HSBC Counter Deposit Form dated 2012-11-08 (“E8”) was found.  E8 purportedly stated that on 8 November 2012, a sum of USD1 billion was deposited to “Wynn Investment (B.V.I) Limited” from a “China Suixin Group Company Limited”.  E8 also had on it words “Accepted by Offshore and Confidential Division”, “Approved by Hong Kong Monetary Authority (HKMA)”, and logo of HSBC.

13.  HSBC Financial Crime Investigation manager investigated E1 to E8 and confirmed they are all false documents.

14.  At the material times, the defendant:-

(a)  in Hong Kong, together with Zhong, Wu and Ng, used copies of instruments, which were, and which they knew or believed to be false instrument, namely E1, E2, E3, with the intention of inducing PW1 of HSBC to accept them as copies of genuine instruments, and by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice;

(b)  at the Room, together with Zhong, Wu, Hwa and Ng, used instruments, which were, and which they knew or believed to be false, namely E4, E5, E6 and E7, with the intention of inducing PW1 and PW2 of HSBC 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;

(c)  in Hong Kong, without lawful authority or excuse, had in his custody or under his control, an instrument which was, and which he knew or believed to be false, namely E8.

Criminal record

15.  The defendant had seven previous records involving conviction of eight charges.  Two of them relate to dishonesty.  The last one was in 1993, in which the defendant was sent to DATC by reason of his possession of dangerous drugs.

Mitigation

16.  The defendant, now aged 52, was born in China. He was aged 46 at the time of the offence.  He came to Hong Kong in year 1983 and had received education up to Form 4.  He is divorced and, out of the wedlock of the defendant and his ex-wife, he had one daughter and one son. They are both now living with his ex-wife.

17.  The defendant was a garment trading individual business entity in Shanghai.  His monthly income was around $6,000 Renminbi.  The defendant’s mother is said to suffer from Alzheimer.

18.  The defendant was arrested on 6 March 2014.  He was granted bail and afterwards he jumped bail and returned to Shanghai for the purpose of looking after his mother.

19.  In December 2019, he and his elder brother jointly employed a domestic worker to help look after the mother and he also left some money for his mother.  Then he returned to Hong Kong and surrendered himself to police, giving advance notice to the police.

20.  Defence counsel submitted the present case was in fact the same case as the case of DCCC 746/2014.  He submitted that the defendant was supposed to be the 4th defendant in that case but because he jumped bail and the defendant now charged with three charges, the charges identical to the D1 in that case, where the defendant pleaded guilty to all three charges. 

21.  It was said that the Learned Judge in that case allowed the sentence for the three counts of offence to run concurrently, making a total sentence of 2 years and 4 months. 

22.  Defence counsel asked this court to adopt the same stance in sentencing of this case.  He also asked this court to consider the totality principle.

23.  Defence counsel also submitted to the court mitigation letters from the defendant’s mother, elder brother and neighbour. They all say that the defendant used to be kind and helpful, being loyal to his mother, and the defendant committed the offence in the hope to earn fast money to look after his mother, who suffers from depression.  They asked this court to deal with the defendant leniently.

Discussion

24.  Defence counsel submitted to the court that the present case and DCCC 746/2014 arose out of same incident.  The defendant in present case was now tried because he had previously jumped bail.  He also urged this court to adopt the same sentencing starting point as His Honour Judge Yau in that case. 

25.  The charges in this case are serious and the only appropriate sentence is one of immediate imprisonment. 

26.  The defendant committed the offence under the 1st charge and 2nd charge together with four other persons.  These are well-planned operations making use of false instruments.  If the staff of the HSBC was induced and accepted these false documents as being genuine, HSBC would suffer very substantial loss.

1st charge

27.  A person, upon conviction of this charge on indictment, is liable to imprisonment for 14 years. 

28.  The defendant is not a man of clear record but it is true that there are no similar convictions and that they were quite some time ago. 

29.  This court will adopt the sentencing starting point of 3 years and 6 months’ imprisonment despite his criminal record.  By reason of his guilty plea, he is entitled to one-third sentencing discount. 

30.  Despite mitigation by defence counsel, this court does not note any other valid mitigating factor.  The defendant is therefore sentenced to 2 years and 4 months’ imprisonment for this charge.

2nd charge

31.  As in the 1st charge, a person is liable to 14 years’ imprisonment upon conviction on indictment for this charge. 

32.  Again, had the HSBC staff accepted the false documents as genuine, HSBC would suffer a huge financial loss. 

33.  This court again adopts 3 years 6 months as sentencing starting point and, by reason of his guilty plea, he is entitled to full one-third sentencing discount.  Accordingly, he is sentenced to 2 years 4 months’ imprisonment for this charge.

3rd charge

34.  A person convicted of this charge is liable to 3 years’ imprisonment upon conviction on indictment. 

35.  The amount on the false instrument relates to a deposit of US$1 billion.  It is obvious that the defendant was in possession of this instrument for some purpose best known to himself and, should he use this document on any other person and if any other person induced were to accept the same as true, again serious prejudice or loss would be resulted. 

36.  This court in this case will adopt a sentencing starting point of 1-year imprisonment for this charge.  Sentence reduced to 8 months’ imprisonment by reason of the defendant’s guilty plea.

37.  It is obvious that the 1st and 2nd charge are inter-related and the defendant had committed the 1st and 2nd offences within short period of time and involving the staff of HSBC for the ultimate purpose to authenticate those false documents and to advance their fraudulent plan. They can be therefore treated as part and parcel of the same transaction. 

38.  Accordingly, the court will order that the sentence of the 1st charge and the 2nd charge is to run wholly concurrent to each other.

39.  As for the 3rd charge, it is obvious again that it relates to a different entity altogether and is not related to the ultimate purpose in the commission of the 1st and 2nd charge.  The sentence for this charge should be wholly consecutive to that of the sentence in the 1st and 2nd charge.

40.  However, considering the totality principle and having regard to the culpability of the defendant in the whole case, this court considers 2 years 8 months’ imprisonment is the just and proportionate sentence for the defendant in this case.

41.  Accordingly, 4 months of the sentence in the 3rd charge is to run consecutive to the sentence in the 1st and 2nd charge, whilst the rest of the sentence for the 3rd charge is to run concurrent to the sentence for the 1st and 2nd charges.

42.  The defendant is therefore sent to prison for a total of 2 years and 8 months.