HKSAR v. Chung Kwok Yuen, Robert and Another

DCCC887/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 887 OF 2009

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Reasons for Sentence

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1.Defendants, both of you were convicted after trial of a single offence of jointly conspiring to use false instruments, contrary to sections 73, 159A and 159C of the Crimes Ordinance, Cap. 200.

2.I do not intend to repeat the facts, which are well known to the court, having been dealt with extensively in my verdict. Suffice it to say that the false instruments involved were 2 forged cashier orders, each drawn purportedly on the Hongkong and Shanghai Banking Corporation in €100 million each. You involved yourselves in a criminal gang attempting to pay those instruments into an account of the Hang Seng Bank.

3.Both of you are of hitherto clear record and I am very willing to accept that this is not only in Hong Kong but throughout the world or any countries which you have attended.

4.In view of your ages, your clear records and the purported ill health of D2, I ordered probation officer’s background reports which are before me. Those reports are extremely helpful in marshalling the facts regarding your domestic circumstances and your pasts.

5.Also for you, D2, I took a medical report. That shows that there is nothing specifically wrong with you at this point in time, though I will refer to that at a later stage and make a concession in your favour.

6.D1, on your behalf, Mr Yeung entered mitigation. He said that this offence was out of character and that there was nothing to actually show that you had been promised or expected to receive any profit from the venture. He referred me to the part that you had played and said that you had clearly not properly examined the documents, which on the face of them were obvious forgeries. Also, he said your involvement in the scheme came at a relatively late stage. He also asked me to take into account the difficulties that your family would have in visiting you from Canada and that given your age it was unlikely that you would re-offend in any way. I should add that I have also taken into account what is said in the probation officer’s background report.

7.Mr Ma then offered mitigation on behalf of you, D2. He referred with respect to your advanced age and whilst the medical report showed there was nothing specific, he did refer me to paragraph 3 of the probation officer’s report which did make reference to various ailments which I take as being associated with old age.

8.D2, you have written a letter and in that letter expressed certain points in mitigation. In that letter, you accept that this took place because of your wish to earn easy money and that you were misled by the others. You express your remorse for your part in this plot. You express an understandable wish to be released as soon as possible to join your son and grandchildren in Korea.

9.Mr Ma properly referred to your clear record and again referred to your advanced age. Mr Percy, with his accustomed fairness, conceded that advanced age could be a mitigating factor where perhaps some degree of mercy can be shown.

10.I turn now to the sentence. Both of you were, in my opinion, convicted on the clearest of evidence. D2, I do note that you seem to acknowledge to some extent your involvement in the offence. D1, as is your right you maintain your original position.

11.The most alarming aspect of this case is the enormity of the sums involved. These cashier orders are drawn in the amount of €100 million each. On the face of them, they are drawn on the Hongkong & Shanghai Bank in London and I accept as contended by defence that they are not the most sophisticated of documents.

12.However, the evidence as I understand it - and Mr Percy seems to accept this - is that the amount would never and could never have been credited to any account. Firstly, the persons approached at the bank lacked the necessary authority to accept such an amount helping in the process of cashing the orders; and secondly, on their evidence, it is clear that even if someone with the necessary authority had accepted those orders, at the very best, a receipt would have been issued and the orders themselves referred to the Hongkong and Shanghai Banking Corporation in London where the forgery would have been discovered and therefore no account would ever have been credited with that amount.

13.Therefore, it seems to me the reality of the situation that any loss to the bank or any person would in reality have been minimal if at all quantifiable. This puts in context this scheme which was, in itself, inherently dishonest.

14.Also, taking into account the evidence, it is clear to me that both of you played very minor roles in this operation. In fact as matters turned out, you were the dupes; not innocent dupes but dupes, left behind to face the music when those more deeply involved fled the scene.

15.D1 and D2, I do take into account and note what Mr Yeung said. But it is my opinion that you were dazzled by the promise of easy money, the promises being fuelled by foolishness on each of your parts.

16.I note that you, D1, are 63 and you, D2, are 75. Despite the medical report, D2, I am prepared to accept what Mr Ma has urged, that you are suffering from ailments associated with your advanced years. I note that both of you are of clear record and, as I have already said, I accept that is throughout the world. Whilst this does not mitigate the situation, I do note that your families are not local.

17.In all the circumstances and taking into account the points in mitigation I have mentioned, I will be as lenient and merciful as I possibly can, given the seriousness of the offences. The starting point I take is one of 30 months.

18.In respect of you, D1, I can find no reason to depart from that. I do not regard 63 as being able to justify a reduction. Therefore, you will go to prison for 30 months.

19.However, in respect of you, D2, I do find that your age does warrant the hand of mercy and therefore I give a discount of four months. You will go to prison for 26 months.

20.Finally, I would like to record my thanks to counsel for the prosecution and defence for their assistance in this matter.