HKSAR v. Bolanos Brudencio Jao

DCCC 545/2018

[2020] HKDC 132

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 545 OF 2018

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Reasons for Sentence

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1.The defendant pleaded not guilty to one count of using a false instrument. After the conclusion of the trial, I convicted the defendant. I have given the reasons for verdict just now and, after hearing the mitigation, I now pass the sentence as follows.

2.The facts of the case are straightforward. The defendant, a Filipino national, came to Hong Kong as a visitor. He went to the main office of the HSBC with a Malaysian male. He presented a document and insisted to see the head of the global banking but to no avail. He left the office but was eventually arrested by the police officer.

3.The defence case is that the defendant was suffering from delusional disorder. To that effect, the defence called a psychiatrist expert Dr Hung to support the “findings” that the defendant was so suffered. That conclusion attempted to challenge the conclusion of findings of the Prosecution expert Dr Chan who said the defendant was not suffering from such a disorder. The defendant maintained that he firmly believed that the document was genuine. He believed that the late President of the Philippines, Mr Marcos, was still alive and the defendant was asked to use the interest incurred by this “deposit”.

Mitigation

4.Not much substantial mitigating grounds were advanced.  The defendant is now 70 years old and had no criminal record in Hong Kong. He is single and was living with his sister back in Manila. He came to Hong Kong as a visitor on 2^nd April 2018. The defendant has a university degree of accountancy and had been working for the family hardware business. He relied on his family for support. The defendant has heart enlargement problems and also had some other health issues including insomnia.

5.Given the defendant’s old age and as a foreigner, the court was reminded of the defendant’s hardship in custody in Hong Kong. It is further submitted that the HSBC suffered no loss as the document was so obviously false.

Sentence

6.At times, for some reasons unknown to many others, some culprits came to Hong Kong to present certain false instruments which, on paper, bear huge amount of money either in US dollars or in Euros, to staff of local banks. 

7.I would not speculate the motive of the defendant coming to Hong Kong all the way from the Philippines to utter this “obviously false” document to a bank staff. He was not acting alone. There is no evidence as to how the defendant paid for the flight, who paid for the defendant’s accommodation and the expenses in Hong Kong, what was the role of the Malaysian male and the so-called Canadian billionaire, and what was the benefit or reward that the defendant can get.

8.In my view, the defendant attempted to exonerate his culpability by alleging that he was suffering from delusional disorder, hence he did not know or believe that the instrument was false. But the defendant did admit that he uttered the instrument. The bank staff also confirmed that.

9.I have no doubt to say that, given the huge sum of money involved US$943 billion, there was little likelihood of success and naturally the bank suffered no loss.

10.In HKSAR v Mazhar Taha Ahmed Elmansouri CACC 165/2012, a case that involved a bank draft in the sum of US$4 million, the Court of Appeal took the view that the amount of the draft (that is the false instrument) was a relevant factor for a judge determining the appropriate sentence for this offence (paragraph 69 of the judgment) and the citation of individual cases for the purposes for comparing sentences is of limited assistance (paragraph 70 of the judgment). In that case, the 5 years’ imprisonment term of the applicant was upheld.

11.That said, I have considered the sentencing consideration enunciated by the Court of Appeal in the abovesaid case and also in the HKSAR v Ra Hyun Bin & Ors [2009] 5 HKLRD 315.

12.For the present case, I consider that it involved certain degree of international element and the defendant came to Hong Kong to commit the present crime. The amount so stated in the false instrument was astronomical, to the tune of US$943 billion. 

13.Taking all factors into consideration, I would adopt a starting point of 4 years. There are virtually no valid mitigating grounds for the defendant. As such, I sentence the defendant to 4 years’ imprisonment.