HKSAR v. GUINTO PRUDENCIO CABRERA AND ANOTHER

DCCC939/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 939 OF 2008

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Reasons for Sentence

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1.  Defendant 1 has pleaded guilty before me to three counts of using false instruments, contrary to section 73 of the Crimes Ordinance, Cap.200.  D2 has pleaded not guilty before me and was found guilty after a trial on the same three matters.

2.  The Brief Facts admitted by D1 and found now on the case of D2 are that D1 and 2 and others had entered Hang Seng Bank at about 1 pm on 1 September 2008.  Enquiries were made of them and it was indicated that they were there for making an appointment in relation to a fixed deposit.  The four documents in the charges were produced which were Hang Seng documents with a face value of US$7 trillion, a truly astronomical sum.  These were obviously false documents.

3.  D1 had halting English; D2, good English.  There had been discussions with D1 and 2 and PW1 and PW4 about the matter.  D2 had repeated what D1 had told him in respect of the documents.  D1 had asked a time deposit be opened and indicated a billion deposit into new account.  It was also indicated there would be a withdrawal on it.  PW4 had asked D2 what was his relationship with D1, and D2 said that he was “adviser”.  Again, PW4 spoke to D1 and 2 about the documents.

4.  Staff made photocopies of Defendant 1’s passport and the four documents and told both defendants to return the next day.  On the next day, 2 September, at 9 am, both defendants returned to Hang Seng Bank.  They were recognised and told to produce the same documents, which they did.  D2 was giving advice and assisting D1.  Later, police arrived and D1 and 2 were arrested. 

5.  D1 made certain admissions with respect to the matter, including he did not believe the documents were genuine and he had accompanied D2 to the bank for the purpose of verifying the documents.

6.  Further inquiries had revealed that both defendants and others had arrived in Hong Kong on 31 August 2008, the night before.  Both parties had checked into the Regal Hotel at Kowloon, and D2 had used his credit card as security for the payment of incidental expenses for the three rooms for all the guests.

7.  I am told that D1 and 2 both have clear records in Hong Kong, and I do take that into account.

8.  Mitigation has followed today.  Briefly, with respect to D1, I am told that he suffers from diabetes and has high blood pressure.  He is divorced but has a daughter.  I am told on behalf of D1 that with respect to the documents in question, there had been discussions amongst a group of persons, including a girl called Rosita.  D1 was told that the Hang Seng Bank had verified the documents and if he came to Hong Kong with them and presented them, he would be paid something.  He knew the documents were not true.  I am also told in relation to the meeting of that alleged terrorist was met.  D1 was told to go ahead with the matter otherwise he might be harmed.  I do not accept that part of the mitigation.

9.  It is put to me that the sum of $7 trillion is so astronomical, incredible, that it was highly, highly unlikely that the bank would pay out anything on it, so therefore the potential for loss would be, if not nil, very close to nil.  I was furnished a couple of cases to assist me with respect to sentence, which I have looked at.

10.  On behalf of D2 in mitigation, I have also been referred to a case of Ng Jit Man CAAC137 and 125 of 2005 and taken through that case and asked to look at it as a guide only as the facts are different completely to the matter that I have to deal with here, the astronomical sum of $7 trillion being one obvious difference.

11.  The defendant is 62 years of age.  That is D2.  And also, I am told similarly to what I was told of D1 that the sums are so large, so incredible that the potential for loss is very minimal, if any at all, and that it was doomed to fail.  It was an amateurish and foolish enterprise.

12.  The offences, to my mind, are serious ones.  It is true that there was no loss to Hang Seng Bank, but it cannot be said with certainty that there could never have been such a loss.  I am aware that the amounts as stated in the documents were, to say the least, astronomical, being referred to a number of times, some US$7 trillion.  D1 and 2 had gone to the trouble of obtaining the false documentation, including the proof of US$7 trillion held with Hang Seng Bank, and a confirmation letter with respect to same.  There is a potential for loss when the matter is sensibly considered.  D1 had in fact asked for it to be put in a term deposit, a billion deposit, I think he said, and indicated there would be a withdrawal from it.

13.  I have looked at the documents themselves, and it cannot be said that they are so obviously forged as to be a clumsy attempt or an amateurish attempt to deceive the banks which was doomed to failure although I do accept that the figure when looked at is astronomical and would put and did put the bank on almost immediate notice as to the falsity of them.  But there were account numbers, Hang Seng Bank logos and the like on it as well, and I do take all of that into account.

14.  I am of the view that in the light of all the circumstances and the facts here as I find, a proper starting point in the matters is one of 3 years and 6 months’ imprisonment.  Defendant 1 has pleaded guilty to the matters at the outset and therefore he is entitled to a full discount with respect to that.  Accordingly, the 1st defendant will be convicted and sentenced to 2 years and 4 months’ imprisonment on each matter.

15.  With respect to D2, he was found guilty after a trial and therefore he cannot get any discount with respect to the matter that a plea of guilty would have given him.  Accordingly, he will be convicted and sentenced to 3 years and 6 months on each matter.

16.  I do consider them as part and parcel of the same set of circumstances, and for that reason, each of the sentences will be concurrent.