HKSAR v. Shamsiah Binti Ismail

DCCC 420/2018

[2019] HKDC 291

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 420 OF 2018

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REASONS FOR SENTENCE

1.The defendant, a citizen of Malaysia and visitor to Hong Kong, stands convicted after trial of one charge of using a false instrument, contrary to section 73 of the Crimes Ordinance[1].

2.Full particulars of the offence are set out in my verdict handed down today.  In summary on 10 January 2018 the defendant went to the Bank of China, Kwai Cheong Road branch in Kwai Chung and used a false cashier’s check in the sum of €1,000,000,000.00 Euros.  The bank staff suspecting the cashier’s check was false called the police. 

3. For the reasons given in my verdict I was satisfied that the defendant knew or believed the cashier’s check was false and that she intended to induce the bank staff to accept the cashier’s check as genuine and by reason of so accepting the cashier’s check as genuine intended the bank staff to do or not to do some act to their own or any other person’s prejudice.

4.In passing sentence, I have taken into account everything said on behalf of the defendant by Mr Tsoi, including that the defendant has a clear record in Hong Kong; has actively been involved in voluntary community service and donations in Malaysia and that the defendant’s father passed away while she has been detained in custody[2].

5.Mr Tsoi submits that the defendant was not the mastermind and that the use of the cashier’s check was amateurish with no likelihood of success. 

6.Although the defendant may not be the mastermind she came to Hong Kong to commit a crime which is a serious aggravating feature of sentence. 

7.Whilst there may have been no likelihood of success there was clearly a degree of planning and preparation in the commission of the offence.  The defendant was in possession of false supporting documents from the Bank of China and Bangko Sentral Ng Pilipinas, purporting to certify the cashier’s check was genuine and agreements purporting to show the money was for a charity.  No doubt had the bank questioned the defendant first before calling the police these documents would have been used to try persuade the bank the cashier’s check was genuine.

Sentence

8.I have considered the decision in HKSAR v Mazhar Taha Ahmed Elmansouri[3]where the Court of Appeal upheld a sentence of 5 years’ imprisonment for using a false bank draft in the sum of US$10 million.  The Court of Appeal also reviewed a number of similar cases where sentence ranged from 2½ years to 4½ years imprisonment.  However the court stressed that “the citation of individual cases for the purpose of comparing sentences is of limited assistance since the particular sentence in anyone case must depend on the individual facts of the case”[4].

9.Taking into account the amount of the cashier’s check was €1,000,000,000.00 Euros; the likelihood of success was low; the bank suffered no loss; the defendant came to Hong Kong from Malaysia to commit a crime and that the defendant has a clear record in Hong Kong and has apparently been actively involved in charity work in Malaysia, I am satisfied the appropriate sentence after trial is 3 years’ imprisonment.

10.The defendant is convicted and sentenced to 3 years’ imprisonment.