HKSAR v. Song Chang Moo

DCCC1218/2009

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1218 OF 2009

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Reasons for Sentence

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1.The two defendants have been convicted after trial of a charge of conspiracy to use false instruments, knowing or believing them to be false, the instruments being two bank drafts purportedly issued by JP Morgan for US$2.8 million and $10 million respectively, and a letter of confirmation purportedly issued by JP Morgan. I do not propose to go into the facts of the case once again as these have been detailed in my reasons for verdict, save to say that the two defendants, together with others not named in the charge, entered into a conspiratorial agreement to present two bank drafts to JP Morgan as genuine and, having opened up an account, benefit financially from the cleared funds.

2.This sort of offence, in my judgment, is becoming ever more prevalent in Hong Kong. Hong Kong is a major international banking centre not only in the Far East but worldwide, and by their actions the defendants strike at the very heart of the integrity of this important industry.

3.Both counsel for D1 and D2 have stressed in their mitigation that no financial loss was suffered by JP Morgan as a result. Whilst I accept this to be the case, this submission ignores the potential loss to the bank had the account been opened and the funds been mistakenly credited, however unlikely that scenario may have been.

4.With regard to the 1st defendant, he is 47 years of age and a Korean national. He has a clear record. I have read the letters of support which have been submitted on his behalf, and I take into account all that has been said by way of mitigation. I have not found helpful, however, the case of HKSAR v Ng Jit Man, CACC137/2005 and CACC125/2005, supplied to me by Mr Lau on behalf of the 1st defendant, who points out that a sentence of 18 months’ imprisonment imposed on the appellant for a charge of using a copy of a false instrument contrary to section 74 of the Crimes Ordinance was upheld.

5.This case was entirely different factually from the present case and, in fact, involved the appellant receiving a global sentence of 4½ years imprisonment in respect of five charges. In addition, Mr Lau has completely omitted to point out that the Court of Appeal, in dismissing the appeal against sentence of 18 months’ imprisonment on the 1st charge, adopted what the learned trial judge had said, that is that he had taken into account that the defendant in respect of that charge was not to directly benefit from the use of the false documents. This is entirely different from the situation in the present case.

6.Taking everything into account, I am satisfied that a sentence of 3 years’ imprisonment is appropriate, and I sentence the 1st defendant accordingly.

7.With regard to the 2nd defendant, I find that he is in a different position to that of the 1st defendant. Whilst he clearly played an important role in this criminal conspiracy by principally acting as the link or go-between between the original source of the false draft for US$10 million and the 1st defendant, I am satisfied that the level of his criminality in relation to the offence, vis-à-vis the 1st defendant, is less. From the evidence that I have accepted, it seems that he stood to gain 3 per cent of the US$10 million. Whilst clearly a very significant sum by any standards, it falls a long way short of what the 1st defendant stood to gain had the fraud on the bank materialised.

8.In sentencing the 2nd defendant, I take everything that has been said on his behalf into account by way of mitigation, and I am satisfied that a sentence of 2 years’ imprisonment is the proper sentence.

9.This defendant is 79 years of age. Indeed he will be 80 in December. His wife is 74 years of age. He’s been in Hong Kong since his arrest in July of 2009, and I am told and accept that his business as a result has been severely compromised. However, it is his age that concerns me the most, and for this reason I am prepared to take an exceptional course and suspend this sentence of 2 years’ imprisonment for a period of 18 months.

A1's application for leave to appeal against conviction to Court of Appeal allowed and the conviction quashed and the sentence set aside. Please refer to CACC235/2010 dated 4 July 2011