HKSAR v. Orosa Elena Severino

DCCC 273/2018

[2018] HKDC 1400

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 273 OF 2018

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Reasons for Sentence

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1.The Defendant has been convicted after a trial for an offence of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200.

2.I shall not repeat the Reasons for Verdict here.  Suffice it to say, the Defendant has been found guilty of the offence for presenting Exhibit P5, a false “Cashier’s Check” marked with the amount of US$2,000,000,000.00, to PW1, a staff of Hang Seng Bank, for making the deposit of the amount into an account with the Hang Seng Bank numbered 786-31955-883 on 18 October 2017. 

3.The prosecution case is straight forward and the Cashier’s Check did not reach the stage of clearance.  The Bank had suffered no actual loss.  There is no evidence about the underlying activities.  I also find that the deposit would be doomed to failure as the issuing bank would be able to terminate the clearance of the cashier’s check. 

4.Primarily, the gravity of the offence in this case lies in the sum of money involved and the impact that the using a false cashier’s check could bring upon the banking system which includes the circulation of what was called a “validated deposit slip” or any form of proof of deposit and the false instrument itself within the system. 

5.There is also insufficient evidence to find that the Defendant was engaged in a sophisticated planning.          

6.Although the names of Randy and Mannish have featured in the evidence and they were described to be people from other countries, I do not find it proven that they existed at the material times and therefore I would not sentence the Defendant with an aggravated factor of international element. Similarly, I do not find it proven that Exhibit P5 was brought to Hong Kong by Veronica to the Defendant and the proven facts would not explain why Veronica would appear in the Bank at the material time.  Therefore, I would not sentence the Defendant on the basis that she was acting in concert with another person in committing the present offence.

7.For the purpose of sentencing, I find it is however clear enough that the offence is a serious one for the mere presentation of a forged cashier’s check to a bank for the purpose of making a deposit of US$2b.

8.The maximum sentence upon a conviction for using a false instrument under the relevant section is 14 years’ imprisonment. 

9.I have considered the case of HKSAR v Mazhar Taha Ahmed CACC 165/2012.  The Court of Appeal acknowledged that the sum of money involved and the international element in the offence are relevant factors to consider in determining the appropriate sentence on a conviction under s.73 of the Crimes Ordinance.  (See para.59) It was also said that the modus operandi of a crime is a relevant matter.

10.I have also referred to the case of HKSAR v Ng Jit Man CACC137/2005 and HKSAR v Chu Wai San CACC311/2006.  There are also a number of other authorities that had been referred to in Mazhar Taha Ahmed, for example, in HKSAR v Lim Ban Hoong CACC465/2007, the Applicants received a starting point of 39 months for an attempt to defraud a bank of over US$108b by false certifications of a written agreement and 30 cheques, each being in the sum of US$3.6b.  There were 3 co-conspirators involved.  The Court of Appeal said they were satisfied that the sentence of 39 months was appropriate.   The offence of conspiracy to defraud carries the same maximum sentence of 14 years’ imprisonment. 

11.Nevertheless, it is important to note that there is no tariff for sentences under the relevant provision “since there are myriad ways the offence may be committed and the appropriate sentence in each case must depend on the particular facts of each individual case” (see para.57 in Mazhar Taha Admed).  I am sure that each case should be viewed in light of the particular circumstances pertaining both to the offence and the individual offender.    

12.I have called for a background report about the Defendant in this case. She was born in Philippines and remains single.  She had engaged in a few ventures as a volunteer in the past.

13.Today Mr Massie represents the Defendant in mitigation.  It is acknowledged that a term of imprisonment is normal.  He stresses that there is no tariff for this offence and asks this Court to impose the most favourable sentence on the Defendant as the chance to have the forged Cashier’s Check to get through the clearing system was zero.  He described that the attempt was a hopeless one.  He further submits that the Defendant has a previous clear record in Hong Kong and the Defendant has gained nothing from the commission of the offence.

14.Whilst I agree with Mr Massie that the Defendant would not in any way succeed in getting the US$2b, the purpose of the commission of such an offence is not limited to the getting of the money.  The mere attempt to obtain a validated deposit slip could have served a criminal purpose.  Similarly, offenders do not only commit an offence for a reward or benefit.  It is only one of the factors to consider in sentencing. 

15.That said, I take that the impact on the Banking system in this case is relatively low.  As noted above, the Bank had not suffered any actual loss either.  I accept that the present case does not belong to the most serious category of the offence, but I do not think any form of sentence other than an immediate custodial sentence is appropriate. 

16.Having carefully considered all the circumstances and mitigations in this case, in particular, the previous good character of the Defendant, I shall adopt 2 years and 6 months as the starting point.  The Defendant is convicted after a trial and she is not entitled to the discount available for an accused who has pleaded guilty.  I also do not see any further mitigation that would warrant further reduction. This sentence is one of the immediate custodial sentence.

17.Consequently, the Defendant is sentenced to 2 years and 6 months’ imprisonment (i.e. 30 months).