HKSAR v. WOO MEI BO, MABLE

CACC 274/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 274 OF 2014

(ON APPEAL FROM DCCC NO. 343 OF 2013)

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REASONS FOR JUDGMENT

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1. The applicant sought leave to appeal against her conviction after trial on 31 July 2014 by District Court Judge Johnny Chan of three offences, namely that :

·  on or about 4 March 2011 she used a false instrument, namely a document which purported to be issued by the Bank of China stating that the balance of a stipulated bank account in the name of the applicant was about $19.8 billion, with the intention of inducing another person to accept it as genuine and in consequence to do or not do an act to his own or another person’s prejudice, contrary to section 73 of the Crimes Ordinance, Cap. 200 (Charge 1);

·  on or about 26 July 2012 she possessed a false instrument, namely a document which purported to be issued by the Hongkong and Shanghai Banking Corporation on 12 January 2011, contrary to section 75(2) of the Crimes Ordinance, Cap. 200 (Charge 2); and

·  on or about 4 March 2011 she used a copy of a false instrument, namely a document which purported to be issued by the Hongkong and Shanghai Banking Corporation stating that the balance of a stipulated bank account in the name of the applicant was $39 billion, with the intention of inducing another person to accept it as genuine and in consequence to do or not do an act to his own or another person’s prejudice, contrary to section 74 of the Crimes Ordinance, Cap. 200 (Charge 3).  

2. In addition, the applicant sought leave to appeal against the total sentence of 6 years’ imprisonment imposed on her in consequence of those convictions. 

The Trial

The prosecution case

3. Mr Thomas Leung acted as a financial middleman, introducing investment opportunities or arranging financing for his clients, for which he received commissions.

4 March 2011

4.   At a meeting on 4 March 2011, Mr Leung was introduced to the applicant and the applicant’s Taiwanese business partner, Mr Wang Tsung-hsi, at the coffee shop in the Bank of China Building.  The applicant told Mr Leung that she was looking for people to invest HK$100 billion in a railway project on the Mainland.  In support of her creditworthiness, the applicant told Mr Leung that she had over HK$19 billion in her Bank of China (Hong Kong) (“BOC ”) account.

BOC credit balance

5. In response to Mr Leung’s request, that she provide some proof of capital, the applicant left him for about 20 minutes and on her return handed him a document apparently on the letterhead of the BOC dated 4 March 2011 (Exhibit P1), which stated that in the stipulated account in the name of the applicant there was a credit balance of about HK$19.8 billion.  It was an admitted fact that the document was a false instrument, in that: it was not issued by the BOC on that date or at all and did not reflect the true state of the applicant’s bank account at that time.[1] The opening balance of the account on 4 March 2011 was about $20,000.[2]

HSBC credit balance

6. In addition, the applicant told Mr Leung that she had HK$39 billion in her Hongkong and Shanghai Banking Corporation (“HSBC”) account.  In response to Mr Leung’s request that he be shown proof of capital from the HSBC account, Mr Leung met the applicant and Mr Wang at the Harbour Grand Hotel in the afternoon of 4 March 2011.  There, the applicant handed him a copy of a document apparently on the letterhead of HSBC dated 4 March 2011, which stated that a stipulated account in the name of the applicant held a credit balance of $39 million (Exhibit P3).  It was an admitted fact that the document was a copy of a false instrument.[3]  The original was not issued by HSBC on that date or at all and did not reflect the true state of the applicant’s bank account at that time.  The account was closed on 3 March 2011.[4]

5 March 2011

7. At a meeting between the same parties and others on 5 March 2011, various documents relating to the railway project were signed.  The effect of these agreements was that, if Mr Leung’s party succeeded in introducing investors of HK$100 billion into the investment project, Mr Leung’s party would make a huge profit.

8. March 2011

8.   Mr Leung succeeded in finding a consortium which was interested in investing in the applicant’s railway project and a meeting was held on 8 March 2011 at the HSBC Headquarters in Central between, on the one hand, Mr Leung and two representatives of the consortium and, on the other hand, the applicant, Mr Wang and an Indonesian Mr Djohan Pangestu, an associate of the applicant and Mr Wang.    At that meeting, as proof of capital, the applicant gave the two representatives of the consortium a document.  For its part, Mr Leung said that he had obtained from one of those two persons what he understood to be a copy of the document only subsequently.[5]

13/14 and 17 March 2011

9. On 13 or 14 March 2011, the consortium told Mr Leung that they wanted the applicant to change the HK$39 billion in her HSBC account into US dollars.  On 17 March 2011, Mr Leung passed the request to the applicant through Mr Wang.  Mr Wang told Mr Leung that the applicant was not happy with the arrangement.  Soon after that, Mr Wang had a meeting with Mr Leung at Harbour Grand Hotel.  When the two met, Mr Wang handed a copy of ‘Cease and Desist Order’[6] dated 17 March 2011 to Mr Leung.  The latter and related parties were directed to cease and desist from all activities in implementing the earlier agreements.  Mr Wang told Mr Leung that the applicant would suffer a loss in exchange rate if she had to exchange the HK$39 billion into US dollars.  Mr Leung was upset.

19 March 2011

10. On 19 March 2011, Mr Leung met Mr Wang, who told him that the applicant would continue with the financing business if Mr Leung would lend her US$1 million to cover the loss arising from the costs flowing from the exchange rate in converting the applicant’s HK$39 billion to US dollars.  In return, the lender would get US$50 million if the project went ahead.  Mr Leung told Mr Wang that he would introduce someone.

21 March 2011

11. At a meeting on 21 March 2011, having been shown by Mr Leung Exhibits P1, P3 and P10 at a meeting at the Regal Hotel, Mr Cheung agreed to lend US$1 million to the applicant.  Mr Man and Mr Miao, who were also present at the meeting, had suggested to Mr Leung that Mr Cheung was in a position to lend the money.

22 March 2011

12. On 22 March 2011, Mr Leung, Mr Cheung, Mr Miao and Mr Man went to a solicitors’ office in Lippo Centre in Admiralty and met the applicant, Mr Djohan and Mr Wang. There, the applicant and Mr Cheung signed a loan agreement, pursuant to which the latter agreed to loan $1 million to the former.[7]

13. Mr Leung said that he and the applicant were present in the afternoon of 22 March 2011 when a document entitled “Irrevocable Payment Instruction” was signed by Mr Wang[8] at the office of other solicitors, Erving Brettell, in Central.  Having signed the document, Mr Cheung went to a branch of HSBC in Central where he transferred HK$7.8 million from his account to an account nominated by the applicant.  Having obtained a ‘Transaction Advice’ which reflected the transaction, a copy was given to the applicant.[9]

Disbursement of the funds

14. There was no dispute that on 23 March 2011 the applicant withdrew over $327,000 from the account that she nominated to receive Mr Cheung’s payment of US$1 million in order to pay the balance of money due for the purchase of a vehicle she had bought on 22 March 2011.  On the same date, she transferred $6 million from the nominated account to her own bank account.  On 25 March 2011, she made a payment from that account of $189,000 in respect of her purchase of a village house.

Charge

15. It was an admitted fact that a document[10], apparently on the letterhead of HSBC, dated 12 January 2011 addressed to the applicant was a false instrument and did not show the true state of the applicant’s bank account at that time.[11] The letter related to an account in her name with HSBC and asserted of the applicant:[12]

“ According to our records, Ms Woo has established a satisfactory account relationship, She is a premium & highly Privileged for My bank.

With our Bank since May 1982 reflecting a 200 million (USD) credit balance in Hong Kong equivalent to date.  Our experience with her had been satisfactory.”

Similarly, it was an admitted fact that Exhibit P16 was found in a drawer in the applicant’s bedroom on 12 July 2012 during a search of her home.

Defence case

16. The applicant did not give evidence or call any defence witnesses.  A report (Exhibit D1) prepared by Mr S C Leung, a handwriting expert, was produced by consent under Section 65B of the Criminal Procedure Ordinance.[13]  It was Mr Leung’s opinion that the signature appearing on Exhibit P1 was not written by the applicant.  He said that he could neither identify nor eliminate the applicant being the author of the signature on Exhibit P3.

17. In cross-examination of Mr Thomas Leung, it was suggested, but denied, that he had been handed Exhibits P1, P3 and P10 by Mr Wang and not the applicant.  Further, it was suggested to him, but denied that he had not relied on the authenticity of those documents.[14]  Similarly, it was suggested to him, but denied, that his conversations with the applicant were social and not connected with business at all.  Rather, it was Mr Wang who dealt with all the terms of the transactions.[15]

Issues at trial

18. The key issues at trial were:

(i)  in respect of Charges 1 and 3 whether:

  (a) it was the applicant who used Exhibits P1 and P3; and

  (b) there was prejudice. 

(ii)  in respect of Charge 2 were whether:

  (a) the applicant possessed Exhibit P16; and

  (b) the applicant knew that it was a false instrument.

Grounds of appeal against conviction

Ground 1: Charges 1 and 3

19. It was submitted on behalf of the applicant that, given that Mr Leung was the only prosecution witness who proved the use of the false instrument or copy of the false instruments alleged by Charges 1 and 3, in all circumstances the judge erred in accepting and/or relying on Mr Leung’s evidence as true and reliable.  The judge’s finding of Mr Leung that he was reluctant to admit that he had given investment advice to Mr Cheung Ka Lun [16] was inconsistent with his finding that Mr Leung was a reliable and honest witness.  The judge erred in his assessment of the evidence of Mr Leung.

Ground 2: Charge 2

20. By ground 2, it was submitted that the judge had erred in finding that the applicant knew Exhibit P16 was a false document.

21. In support of his submission that the judge erred in relying on the evidence of Mr Leung, Mr Cheung invited the Court to note that Mr Leung’s evidence that the applicant was present at the meeting in the office of the solicitors on the afternoon of 22 March 2011 was contradicted by the testimony of Mr Man Chung Pui that she was not present.[17] Further, it was contended that the judge had misunderstood the evidence of Mr Leung when he said that it had been his evidence that the applicant was not present at the meeting in the morning of 22 March 2011 at the offices of other solicitors.[18]  In fact, Mr Leung said that the applicant was present at the morning meeting and that he had seen her sign the loan agreement.[19]

22. Of the judge’s determination that Mr Leung was reluctant to admit that he had given investment advice to Mr Cheung, the Court was invited to note the differences in their evidence.  Of the meeting at the Regal Hotel of 21 March 2011, Mr Leung said “I did not give any advice” to Mr Leung as to the project being a good investment.[20] By contrast, Mr Cheung answered in the affirmative the suggestion that he had discussed investment prospects with Mr Leung at that meeting.[21]

23. Next, it was contended that the judge was wrong to find that Mr Leung’s evidence that, whilst he had seen the applicant hand over Exhibits P1 and P3, he had not seen her sign those documents was “wholly consistent with the findings of the handwriting expert”.[22] The judge had failed to consider why, if the applicant had handed over those documents to Mr Leung, she had not signed the documents herself.

24. Of the judge’s finding that the applicant knew that Exhibit P16, which it was admitted had been seized from a drawer in the applicant’s bedroom, was a false document, it was contended that there was no evidence that the applicant knew of its existence and/or had knowledge of its falsity.  The judge erred in inferring from the fact that the document was in her possession that she had knowledge of its falsity.

A consideration of the submissions

25. Having regard to the admitted falsity of Exhibits P1 and P3, the nub of the prosecution case in respect of Charges 1 and 3 was the evidence of Mr Leung that, when called upon to provide proof of capital, on 4 March 2011 the applicant had handed to him Exhibits P1 and P3.  Mr Leung dismissed the suggestions made to him in cross-examination that his discussions in respect of business matters were with Mr Wang, rather than with the applicant.[23] In face of the suggestion that those documents and Exhibit P10 had been handed to him by Mr Wang rather than the applicant, he said “No, its passed to me by Ms Woo in person.”[24]  Clearly, it was Mr Leung’s evidence of the two meetings of 4 March 2011 that was of crucial importance.

26. As noted earlier, the judge was incorrect to state that Mr Leung had testified that the applicant was not present at the meeting on the morning of 22 March 2011 when the loan document was signed.  To that extent, such concerns as he expressed arising from that fact as to his reliability were not justified.  There was no dispute by any of the persons who testified as to the morning meeting that the applicant was present.  That, was hardly surprising since the purpose of the meeting was for her to sign a loan agreement with Mr Cheung.  The document bore both of their signatures.  Earlier in his reasons for verdict the judge had stated the evidence correctly:[25]

“ On 22 March 2011, PW1 to PW4 went to a solicitor’s office in Lippo Centre in Admiralty and met with the defendant, Djohan Pangestu and Wang Tsung-hsi. There, the defendant and PW2 signed a loan agreement (P29),the two business associates of the defendant, Wang Tsung-hsi and Djohan Pangestu also signed as guarantors.”

27. Whilst, on its face, the judge’s statement that Mr Leung said that the applicant was not present at the meeting on the morning of 22 March 2011 was a slip, he was correct to say that Mr Leung had testified that the applicant was present at the afternoon meeting on 22 March 2011.  There was a conflict in the evidence of Mr Leung and Mr Man on that issue.  A measure of the lack of importance to be attached to the issue was the fact that there was no cross-examination of Mr Leung in respect of his testimony that the applicant was present at the afternoon meeting.  The judge said, “She was absent in the afternoon when Exhibit P24 was signed at the office of Erving Brettell.”[26] Exhibit P24 was an ‘Irrevocable Payment Instruction’ signed by Mr Wang and Mr Cheung and provided for payment to the latter.  The presence or otherwise of the applicant at that meeting was irrelevant.  So, even if the evidence of Mr Leung was not accepted as to the presence of the applicant, that was a matter of little consequence.

28. The judge’s determination that Mr Leung was reluctant to admit that he had given some investment advice to Mr Cheung is to be viewed in the context of the latter’s evidence on the matter:

“ Q. …did you discuss with Mr Leung some investment prospects?

A. Yes.

Q. And what did Mr Leung tell you about the investment project that he was -- investment prospects that he was referring to?

A. Actually I trusted what Mr Man said. Mr Man said that Leung had very -- Mr Man said Leung had some very good investments.

……………

Q. Did Mr Man give you any details of this investment?

A. At that time he told me that, Leung had taken out a large pile of documents.

Q. Let’s be quite clear on this. Mr Man told you this, did you see these documents?

A. Yes.

Q. So Mr Leung showed you these documents, did he?

A. A pile of documents, but I did not know how to go through them because they were in English.

Q. Can you recall anything about these documents?

A. I could see that the papers bore something like the logos of the bank. One of them seems to be HSBC and the other seemed to be BOC.

Q. Did anyone tell you what these documents contained and what they were about?

A. About the proof of capital contained therein. Probably the proof of capital; a lot of them.

Q. And how much was involved, were you told that?

A. Many zeros. Cannot recall how much.

Q. And were you told who these documents belonged to, who the accounts were -- who the accounts involved belonged to?

A. There’s a Miss Woo.

Q. So what were you told about this investment?

A. Well, that Mr Leung said I could engage in some sort of involvement in the upper part and there would be quite a lot ... engage in some kind of participation involvement in the upper part and there could be a very substantial return.

Q. So how much money were you being asked to put in at this business?

A. US$1 million.

Q. And were you told what that was to be used for?

A. That person said it’s to be used for difference in the exchange rate or currency exchange rates -- currency exchange rate for the bank.

Q. If -- you had already been told or you had been shown documents which seemed to show that this lady, Madam Woo, had a great deal of money in her bank account, were you told why she needed a million dollars US to effect this exchange?

A. I did ask this question and that Mr Leung said that in respect of that sum of money in the account, it could only be exchanged but not withdrawn.

Q. So if you put up this $1 million US, what was going to be your benefit?

A. There would be a lot of or a great sum of return and he told me in respect of all the returns, they would be dealt with in a solicitors’ firm in Hong Kong.

MR KWOK: Famous.

INTERPRETER:  Sorry.  “They would be dealt with in a famous solicitors’ firm in Hong Kong.”

Q. And once this -- this $1 million, was that simply to be given to Miss Woo, or was it a loan, or what was the agreement?

A. At that time he said it’s to be a loan, but there would be guarantee.

Q. So do I understand you correctly that there would be -- you were lending -- the proposal was you should lend this lady a million dollars US, that you would get back a million dollars US and a further profit on top of that?

A.   One should put it this way.  After I have taken out this 1 million, there would be a very good return.  And….. if this very good return could not be achieved, I would be given an interest.”

29. On Mr Cheung’s account, it appears that such advice that he received from Mr Leung was in respect of the loan, rather than the railway project.  It appears he was encouraged to view the loan as a profitable project.  Of course, in the result it was anything but a profitable project.

30. On any view, those matters were of very limited relevance to the issue of whether or not Mr Leung was accurate and reliable in testifying that the applicant had handed to him Exhibits P1 and P3 at separate meetings on 4 March 2011.  That, was the crux of the case in respect of Charges 1 and 3.  In any event, the judge specifically referred to those matters before having regard to the crucial testimony of Mr Leung.  Of that evidence, the judge determined:[27]

“ As to whether the defendant was the person who handed P1 and P3 to PW1, I am convinced that PW1’s recollection on this important issue is both true and reliable. He has a clear recollection that when he received P1 and P3 from the defendant, the two signatures, which appear to be those of the defendant, were already there. He has a clear recollection that the defendant did not sign P1 and P3 in his presence. PW1’s evidence on this issue is wholly consistent with the findings of the handwriting expert.”

31. I am satisfied that there is no merit in the submissions that the judge erred in determining to accept Mr Leung’s evidence in that respect.  Clearly, given that the applicant was the driving force of the proposed project, proof of her assets was vital to advancing the project.  Mr Leung’s testimony of what he sought from the applicant in proof thereof and the circumstances in which that proof was provided to him was entirely consistent with what was to be expected of a middleman who would then seek to find investors.

Charge 2

32. As noted earlier, it was an admitted fact that P16, the letter apparently on the letterhead of HSBC dated 12 January 2011, was a false instrument which did not describe the true state of the applicant’s bank account with HSBC at that time.  Of the truth, the judge noted, “on that date the account had a balance of less than HK$4,000.” [28]  Further, the judge noted that the account in question was the same account described in Exhibit P3.[29]  In the result, the judge concluded that the applicant knew that Exhibit P16 was a false instrument.  Having regard to all the circumstances, in particular the undisputed evidence that the letter had been found in the bedroom of the family home, which the applicant occupied with her husband and two children the judge said:

“ The only inference I can draw from the evidence before me is that the defendant was aware of the existence of P16.[30] P16 was under the defendant’s control and custody, and she was the one who possessed P16.

The defendant must have known that she did not have a balance of US$200 million in her HSBC account when in fact the account had a balance of less than $4,000.  When a person only has less than $4,000 in his/her bank account on a certain date, he/she must know that a bank statement which purportedly states that he/she had a balance of US$200 million in that account on that date is false.  In the present case, the inference is all the more obvious when the account was slowly run down until 3 March 2011, when the balance was zero and the account was closed.”

33. Clearly, the inferences adverse to the applicant, drawn by the judge, were compelling.  In my judgment, there was no merit in the submissions to the contrary.

Conclusion

34. There being no merit in the grounds of appeal, the application for leave to appeal against conviction was dismissed.

Sentence

35. The judge sentenced the applicant to 6 years’ imprisonment in respect of Charges 1 and 3 and 2 years’ imprisonment in respect of Charge 2.  He ordered all those sentences to be served concurrently.

Grounds of appeal against the sentence

36. In the grounds of appeal against sentence, it was submitted that the judge’s stipulation of a starting point for sentence of 6 years’ imprisonment in respect of Charges 1and 3 was manifestly excessive.

Reasons for Sentence

37. In stipulating a starting point for sentence of 6 years’ imprisonment for Charges 1 and 3, the judge said :

“ The present case is a very serious case of using false instruments. With the use of P1 and P3, the defendant succeeded to swindle HK$7.8 million from PW2, Mr Cheung. Mr Cheung at the end suffered a total loss of HK$6.3 million.”

38. Further, he noted that the applicant had acted together with two other persons.  Then, he went on to find:

“ The crimes committed by the defendant were premeditated and were executed with great care. The evidence shows that the defendant benefited from the crimes. The moneys deposited into the designated account were used by the defendant.”

39. Finally, he said that he had regard to the fact that:

“ The defendant is not a person of clear record. In fact, the criminal record of the defendant shows that she is a seasoned fraudster.”

A consideration of the submissions

40. No issue was taken in respect of the judge’s description of the applicant as being a “seasoned fraudster”.  No doubt, the judge had regard to the fact of her convictions for offences of dishonesty, namely in 2002 for six offences, for which she had been sentenced to a total of 3 years’ imprisonment and in 2004 for 10, for which she had been sentenced to a total of 2 years’ imprisonment.

41. The judgment of this Court in HKSAR v Mazhar Taha Ahmed Elmansouri [31] is of no assistance to the applicant.  As Fok JA, as Fok PJ was then, pointed out:

“ the citation of individual cases for the purposes of comparing sentences is of limited assistance since the particular sentence in anyone case must depend on the individual facts of the case.” [32]

42. In that case, albeit that it described the sentence as “on the high side”, this Court did not interfere with a sentence of 5 years’ imprisonment imposed on the applicant after trial for an offence contrary to section 73 of the Crimes Ordinance, Cap. 200 in which the false instrument used was a bank draft of US$4 million.  Whilst on the one hand the case concerned an aggravating factor, namely an international element, absent in this application, on the other hand there was no loss, whereas in the instant case Mr Cheung lost $6.3 million.  Moreover, it is clear that, having obtained US$1 million, the applicant set about using a substantial amount of those monies immediately for her own personal benefit.  Further, the applicant was appropriately described by the judge as a “seasoned fraudster”.

Conclusion

43. In the result, I was satisfied that there was no merit in the submission that the imposition of a total of 6 years’ imprisonment on the applicant was “manifestly excessive”.  Accordingly, the application for leave to appeal against sentence was dismissed.

[1] Appeal Bundle, page 14, paragraph 2.

[2] Appeal Bundle, Exhibit P20.

[3] Appeal Bundle, page 14, paragraph 3.

[4] Exhibit P21, Bankers’ affirmation.

[5] Exhibit P10.

[6] Exhibit P13.

[7] Exhibit P29.

[8] According to the evidence of Mr Leung, the applicant was present when Exhibit P24 was signed (see Appeal Bundle, page 84 O).  According to the evidence of Mr Man, the applicant was not present at the solicitors’ firm (see Appeal Bundle, page 144 A).

[9] Appeal Bundle, Exhibit P30.

[10] Exhibit P16.

[11] Appeal Bundle, page 15.

[12] Appeal Bundle, page 17, paragraph 3.

[13] Exhibit D1.

[14] Appeal Bundle, page 126 E-J. 

[15] Appeal Bundle, page 124 H-N.

[16] Appeal Bundle, page 29 F-G, paragraph 44.

[17] Appeal Bundle, pages 143 R - 144 F.

[18] Appeal Bundle, pages 28 T - 29 B, paragraph 43.

[19] Appeal Bundle, pages 81 P - 82 G.

[20] Appeal Bundle, page 127 H-K.

[21] Appeal Bundle, page 93 I-J.

[22] Appeal Bundle, page 29 S-U, paragraph 47.

[23] Appeal Bundle, page 124.

[24] Appeal Bundle, page 126 H.

[25] Appeal Bundle, page 26 Q-T, paragraph 29.

[26] Appeal Bundle, page 29 C, paragraph 43.

[27] Appeal Bundle, page 29 Q-U, paragraph 47.

[28] Appeal Bundle, page 43 T-U, paragraph 108.

[29] Appeal Bundle, page 44 C-D, paragraph 109.

[30] Appeal Bundle, page 44 G-O, paragraphs 110-111.

[31] HKSAR v Mazhar Taha Ahmed Elmansouri (CACC 165/2012; reported, 15 October 2013).

[32] HKSAR v Mazhar Taha Ahmed Elmansouri, paragraph 70.