HKSAR v. Pirelli Pasquale
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Case No. DCCC 203/2009 IN THE DISTRICT COURT OF HONG KONG SPECIAL ADMINISTRATIVE REGION ________________________
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| Present: | Mr. WONG Chun-hin Derek, Public Prosecutor of
the Department of Justice, for HKSAR Mr. Andrew Powner of Messrs. Haldanes for the defendant |
| Charge: | Conspiracy to Defraud |
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REASONS FOR SENTENCE
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1.The defendant pleaded guilty to one count of conspiracy to defraud, the particulars were that he, between 3rd November 2003 and 6th November 2003, conspired together with Antonio Mauro, to defraud David John Andrew Donnelly by dishonestly and falsely represented that: -
(a)- there were 2,000 pieces of gold coins available to be sold to David John Andrew Donnelly; and
(b)- each gold coin was made of 41 grams of 21K gold, thereby to induce the said David John Andrew Donnelly to part with $660,000 US currency.
2.In the afternoon of 3 November 2003 in a hotel, Donnelly, an undercover police officer, met Mauro, the defendant’s co-conspirator, who represented himself to be a pilot with Air Italia, offering to sell to the officer 2,000 pieces of gold coins for US $660,000 (at US $330 each). Mauro boasted about the gold content saying that each piece could melt 37 grams of 24K gold. They met again the following day after having given time to the officer to think about it, Mauro handed the officer a Mexican 50Peso gold coin as a sample, and told him that the deal must be conducted in private and he only accepted cash. Eventually, they had fixed up the deal to be conducted at the officer’s place on 6th November, Mauro told the officer that he would first bring along 1,000 coins for authenticity test, if satisfied, the officer would pay him the cash; they would then go through the same procedure for the remaining 1,000 coins either later that day or the following day.
3.Mauro came with the defendant to the officer’s apartment together with the coins, unaware that the police had their every move captured on video, Mauro put into a jewellery bag 10 coins which were picked out by the officer for test, and then passed it to the defendant; the defendant swapped it with a bag of fake coins while Mauro was distracting the officer. When they were about to go away to have the coins tested, the police took action.
4.The 1,000 coins, the subject matter of the deal, were later tested and 999 of them were found to be counterfeits. Both Mauro and the defendant appeared in court on a deception charge on 8th November 2003 and were granted bail, but they failed to surrender to custody on the return day (1st December 2003). On 25th June 2008, the defendant was arrested in Germany on the basis of Interpol Red Notice issued in May 2008 and extradited from Germany on 26th February 2009.
5.The defendant is an Italian, aged 44, married with 2 children boys aged 13 and 8, and has a clean record. In mitigation, the court was told that the defendant used to own a café back in Italy, but because of the extradition proceedings in Germany, he used all savings on legal expenses, and consequently lost his house and the business (the cafe). This has resulted in severe hardship for the defendant’s family.
6.It was his uncle, Mauro, who offered to buy him a small family car in return for his assistance in the commission of the present offence, now very much regrets his agreement to do so, for it’s having a devastating effect on the family and himself. Counsel submitted that the defendant played no part in the negotiation; he was only assisting the uncle who was the mastermind behind all this. The defendant did not even know the price of coins until his uncle told him.
7.The defendant, as the court was told, has a number of medical problems; a medical report was called which, apart from what the defendant disclosed about his medical history, the examining doctor gives no opinion of his own whether or not the defendant is suffering from anything at the moment. The doctor went on to say that physical examination over his heart, lungs and abdomen revealed no abnormality. In the concluding paragraph, the doctor says, “In recent one week, the defendant complained of feeling scared, unable to sleep at night and worried about things (though he could not name anything in particular)……………... ”
8.It was initially argued by the defence that the charge should have only alleged 1,000 instead of 2,000 coins for there was no evidence to suggest that the defendant had knowledge about the agreement between Mauro and the officer, having heard the indication from the court that the present charge was proper on the facts before the court, defence counsel indicated that he was not pursuing on this point and would leave that matter in mitigation.
9.It is the court’s view that where there is an initial agreement to cheat somebody with a certain amount of coins, an accused joins in the scam at a later stage, he is part of it even though he may not have known every detail of the scam. When it comes to sentencing, his limited knowledge, if accepted, may be a factor of mitigation.
10.It was said that the defendant was only involved in the deal concerning the first batch of 1,000 coins, and had nothing to do with the second batch on the ground that the defendant had not been told of the second deal, and the facts did not show that there was a second deal coming.
11.Looking at the way they cheated the officer, I do not believe that the defendant did not know about the second deal. It is clear from the facts that they needed two persons to do the trick by sleight of hand-Mauro could not let the officer keep the bag of fake coins to take to the test, so he passed it to the defendant; he was distracting the officer to enable the defendant to swap it with the genuine ones. That done, the coins taken for the purpose of examination would be the genuine ones.
12.Given this was the police undercover operation, their plan would probably not be able to get through to the second stage of selling the remaining 1,000 coins, but to determine whether Mauro really meant for the second deal, one should look at it from Mauro’s perspective.
13.If there were not any second deal right from the beginning-say perhaps there were only 1,000 coins Mauro had, then I expect Mauro would say to the officer that he had 1,000 coins to sell to him instead of 2,000, for there would be no point in telling someone more than you could offer. To them, the officer must have appeared to be a person who was easily had; had their plan not been interrupted, I see no reason on their part not to go through the second deal. As for the second deal, Mauro had told the officer that they would follow the same procedure as in the first deal, their trick needed two persons to do, so the defendant’s role was indispensable bearing in mind there were only two persons involved in the conspiracy- putting all this together, my conclusion is that Mauro meant it when he said he had 2,000 coins to offer to the officer, and the defendant must have known about the second deal. I have no doubt he knew the full terms of the scam when he joined in.
14.It was submitted that the defendant only played a minor role in the matter, but what I would say is he played a significant role –without him; the trick would become a difficult feat, if not impossible.
15.The defendant has been on the lam for 5 years, it was submitted that his time spent in custody in Germany or at least part of it should be counted towards his sentence here.
16.From what the court was heard, he spent all his savings on legal costs to contest the extradition proceedings on basis of medical evidence and legal advice received in Germany, undoubtedly that was his rights, but failing that, I don’t think he has any valid reasons to ask the court’s sympathy to give credit to that.
17.I accept that there was no actual loss in the case, but in my view, it had nothing to do with the defendant, it was only due to the prompt action on the part of the police. Unbeknown to them, their scam was doomed to failure from the start because it was closely observed by the police, the evidence against the defendant was overwhelming- the police have the evidence against the defendant on video; having carefully considered all the mitigation put forward, I see nothing of substance except his plea of guilty.
18.The facts are very serious- it was a scam attempting to cheat someone out of US$ 660,000- if uninterrupted, there was every reason to believe that it would be successful. In the instant case, the defendant, acting in concert with another, had actually taken steps to carry out the scam-they came with fake as well as genuine coins in order to cheat somebody, the defendant had swapped the fake coins with the genuine ones for test-what the defendant did was significant in furtherance of the conspiracy.
19.For the reasons given above, I take 4 years as starting point, reduce it to 32 months to reflect his plea of guilty, and I see nothing to reduce the sentence any further, therefore the defendant is sentenced to a term of 32 months.
Dated this 18th May 2009
| Sham Siu-man Deputy District Judge |