HKSAR v. Budy Herman Bin Muridan

DCCC 828/2019

[2020] HKDC 469

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 828 OF 2019

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of using a false instrument and agreed the facts of the case.

2.The facts are in fact quite straightforward. The defendant on 29 April 2019 went to a branch of HSBC with other people, including a person called Madam Zhao and others.  And on the basis of an inauthentic special power of attorney presented by the defendant, which on the face of it granted the defendant control over an HSBC account of a person called Halil Bin Ibrahim, and on the basis of that the defendant was asking the total sum of US$995 million be transferred to another HSBC account in respect of this person Zhao.

3.The entire set of documents is obviously a forgery, the special power of attorney.  What is of significance in this case is firstly that the referenced bank account does not exist, that the person Halil Bin Ibrahim referenced as well was not a customer of HSBC and that fairly much all the rest of the document contained a number of apparent forgeries including a reference to a balance in an account, a non-existent account,  of some US$8.6 trillion which would certainly be more than the entire reserves in the general gross domestic product of Hong Kong and probably of the United States as well, so the document itself was completely unbelievable, would never be believed by anybody.

4.Nevertheless, the production of the documents and the request to transfer the money a fraud involving what would appear to be a large sum of money.  What that fraud was and how it operated remains speculative at this stage.  Nevertheless, it is a large amount of money involved and the courts must take that seriously.

5.Turning to the defendant himself, he is a Malaysian citizen who arrived in Hong Kong in fact on 28 April 2019.  The purpose of his travel is not set out in the documents I have.  He has a clear record in Hong Kong obviously and is a graduate of civil engineering.

6.His mitigation is as follows, that he has pleaded guilty and is remorseful.  He has been detained for some time now away from his home, that there has been no loss sustained by the bank, and in fact no loss would ever have been sustained by the bank given that the account was never an existing account with the bank.  He believes himself to be, to a certain extent, the victim of a broader event, but he has certainly allowed himself to be involved in this so I do not feel there is a lot of mitigation in that.  He admits his culpability and says he does not escape the reality that the SPA, the special power of attorney, must have been a forgery.  He has written to the court to express his remorse and he has also suffered some injury relating to his back that has been treated whilst he has been in custody in Hong Kong, but it appears to be resolved as best it can at this stage.  The defendant is keen to return to his family in Malaysia.

7.Turning to the approach of the courts to sentencing in these cases.  I have been referred to three cases which appear to me to set out the general approach the courts have taken.  The reference to Court of Appeal cases, HKSAR v Mazhar Taha Ahmed Elmansouri, which can be found at CACC 165/2012, a Court of Appeal case which upheld the sentence of 5 years’ imprisonment for using a false bank draft in the sum in that case of some £10 million.  The Court of Appeal reviewed a number of cases, similar forms of cases, and in those cases the sentences ranged between 2½ years to 4½ years’ imprisonment.  But the court sensibly said that comparative sentencing in these kind of cases is of limited assistance since the particular sentence must depend on the individual facts of each case.  And that case is referred to in another District Court case of HKSAR v Shamsiah Binti Ismail, DCCC 420/2018, where a bank cashier’s cheque in the sum of a billion euros was presented to a bank, and, after reviewing the same range of sentencing, the court settled on a starting point for sentence after trial of 3 years’ imprisonment.  Finally, the other case I refer to is HKSAR v Orosa Elena Severino where a sentence after trial of 2½ years, a starting point for sentence of 2½ years was deemed appropriate, again in a case where the sum of money stated on the documents was of an absurdly huge amount.

8.So what approach should I take in respect of this defendant?  He has pleaded guilty today, he has indicated that plea of guilty throughout, he has saved the court what would probably be a lot of time and effort and that must be acknowledged.  The defendant is here, away from home. On the other side of the ledger is the fact that the defendant has come from overseas and has also involved himself in a series of financial fraud where severe sentences can be imposed.  So each case must be decided on its own facts, on the facts of this case.  I consider the starting point for sentence for this defendant should be one of 2½ years’ imprisonment, that is 30 months.  After deduction for his plea of guilty, that would lead to a sentence of 20 months’ imprisonment.  That is the sentence I will impose.