HKSAR v. Ooi In-heong and Others

DCCC962/2009

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 962 OF 2009

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Reasons for Sentence

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1.I found the respective defendants guilty after trial of various offences on the indictment. As is stated in my verdict, the principal offence or Charge 1, the conspiracy to defraud Morgan Stanley, was the offence that concerned all five defendants. I have found that the defendants, who are all foreign nationals, had come to Hong Kong for the purposes of committing a crime and that was the principal offence in Charge 1 of conspiracy to defraud Morgan Stanley.

2.The 1st and 2nd defendants are father and son respectively from Malaysia, and the 3rd to 5th defendants are women from the Philippines. I found that the Filipino ladies had travelled to Malaysia in furtherance of this conspiracy and then came to Hong Kong to join the 1st defendant. The 1st defendant had presented a dud $1 billion cheque to Morgan Stanley in Hong Kong to deposit into his Morgan Stanley account. He had used a bogus investment agreement to support that cheque and to lend credence to the fact that there were resources and funds available upon presentation of that cheque.

3.I found that all the defendants played a part in the investment agreement. That is the document headed “Private Investment Agreement.” I found the 3rd and 4th defendants had signed this agreement. The 5th defendant’s passbook was attached to the agreement. The 1st defendant had taken the agreement to Morgan Stanley, and the 2nd defendant had drafted it. I found that the defendant knew the $1 billion cheque was a dud cheque.

4.I also found that the 2nd and 3rd defendants had presented another dud cheque of $25 million to the Bank of China in Hong Kong, which they knew to be false and that the 1st and 3rd defendants had conspired together to tender the counterfeit 1 million euro note to Morgan Stanley.

5.I also found that the 2nd, 3rd and 4th defendants had possessed false instruments which were categorised as forged bank drafts. In respect of the 2nd defendant, they were images found in his computer.

6.I was satisfied that the defendants combined together as a group of fraudsters to commit their crimes in Hong Kong against Morgan Stanley and the Bank of China. I found that D3 was the supplier of the cheques used for the purposes to defraud financial institutions, that D2 was the organiser and architect of the documents behind their fraud. In those circumstances, I found that the 1st to 3rd defendants played a key role in the conspiracy to defraud, and D4 and D5 played a lesser but still significant role in facilitating the conspiracy to defraud.

7.The full facts are set out in my verdict which I shall not repeat here.

8.I have taken into account the mitigation advanced by the counsels for each and every defendant. Mr Andrew Bruce for the 1st and 2nd defendants has referred me to character references for the 1st and 2nd defendants. The 1st defendant is 55 years of age and of clear record. He is a businessman, married and supporting two families. D2 is 27 years of age, is a university graduate, is not married in the eyes of the law but is married in the eyes of his country, Malaysia.

9.As for D3, Miss Ody Lai mitigated on her behalf. She is 45 years of age of clear record. She has received education up to second year college in the Philippines and worked as a property agent in the Philippines. She is married and lives with her husband and children.

10.For D4, Mr Martin Richmond mitigated on her behalf. She is 52 years of age, is of clear record. She received education up to first year of college in the Philippines and worked as a property agent in the Philippines. The defendant is a widow, and under tragic circumstances, she lost her son and husband and is the sole supporter of her family.

11.As for D5, she is 49 years of age, again of clear record. She has completed college education in the Philippines and ran a business in advertising photography. She is married and lives with her husband and daughter in the Philippines. Tragically, her husband is a longterm sufferer of kidney disease and at its last stage, and she has expressed remorse for her role in this offence. She is the only one out of the defendants who has indicated to this court that she took part in the commission of the 1st charge, the conspiracy to defraud Morgan Stanley, as she needed money for the huge expenses of her husband, and that was the only way to earn quick, easy money.

12.Mr Bruce and the counsels’ to the other defendants main point in mitigation as I see it is that there was no loss of property. Mr Bruce has helpfully referred me to the case of HKSAR v Lim Ban Hoong & Ma Ping CAAC465 of 2007 where in that case Hartmann J said at paragraph 20 that there are no guidelines for offences of conspiracy to defraud; each case must of course be decided on its own facts. In that case, however, a starting point of 39 months was appropriate although the court was referred to two other cases where a starting point for similar offences of 3 years was approved.

13.In this case, there was elaborate planning by the defendants. This was not a spur‑of‑the-moment scheme. There was an international dimension. The defendants involved came from Malaysia and the Philippines. They had come to Hong Kong specifically to carry out their crime. There were productions of false documents to Morgan Stanley. The defendants were found in possession of substantial amounts of false documents to verify the two cheques of $1 billion and $25 million. The scheme was planned, it appears, in Malaysia but to have been practised in Hong Kong. It was an audacious scheme, one perhaps, I agree with counsel, probably never able to succeed.

14.The credit slip of the $25 million cheque deposit was faxed immediately to China after its deposit, and that was or could have been viewed as a clear case of someone creating an impression the bank account was healthier than it otherwise was, particularly when the defendants knew they were uttering a cheque which was false.

15.As was referred to in the case of Lim Ban Hoong at paragraph 19, Hartmann J stated that the judge in that trial was correct to ignore what Mr McGowan described as the sheer improbability of the scheme as a mitigating factor. Therefore, no loss of property is not taken into account in mitigation.

16.Although I hear particularly Mr Bruce’s submission that the likelihood of a glitch in the system is a very low probability, I must accept there is always the likelihood of a glitch and one cannot possibly get away from the fact that what was practised here was a fraud on Morgan Stanley and the Bank of China.

17.I have taken into account all that counsel have said in mitigation on behalf of the defendants. I bear in mind that the defendants have played different roles in the conspiracy charge related to Morgan Stanley. In these circumstances, I pass the following sentences on the defendants as follows. Please stand up, Defendants. I bear in mind of course all their clear records.

18.On Charge 1, D1, D2, D3 are sentenced to 3 years’ imprisonment; D4 and D5 to 2 years 6 months’ imprisonment; on Charge 2, D1 and D3 to 2 years’ imprisonment; on Charge 3, D2 and D3 to 3 years’ imprisonment; on Charge 4, D2 to 18 months’ imprisonment; on Charge 5, D3 to 18 months’ imprisonment; on Charge 6, D4 to 18 months’ imprisonment.

19.In sentencing the defendants, I take into account the principle of totality and I consider the following terms to be the overall terms of imprisonment for each of the defendants. 3 years 4 months for D1, that would mean 4 months of the 2‑year sentence of Charge 2 is to run consecutive to Charge 1, the remaining term to run concurrently.

20.D2, 3 years 6 months’ imprisonment, 4 months of Charge 3 to run consecutively to Charge 1, 2 months of Charge 4 to run consecutively to Charge 1, all remaining charges to run concurrent to each other, making a total term of 3 years 6 months.

21.D3, total term of 3 years 10 months’ imprisonment, 4 months of Charge 2, 4 months of Charge 3 and 2 months of Charge 5 to run consecutive to Charge 1, all remaining terms to run concurrent to each other.

22.D4, 2 years 8 months' imprisonment, 2 months of Charge 6 to run consecutive to Charge 1.

23.For D5, there is only one charge, so 2 years 6 months' imprisonment.

(Discussion re sentence for D4)

24.So, Defendants, just to repeat to you once again, D1, total term: 3 years 4 months; D2, 3 years 6 months; D3, 3 years 10 months; D4, 2 years 8 months; D5, 2 years 6 months.