HKSAR v. Jarvis Mark Anthony and Another

DCCC 1144 & 1324/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 1144 & 1324OF 2011

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Reasons for D1’s Sentence

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Charges and facts

1.D1 pleads guilty to 1^st, 3^rd and 5^th Charges. Each charge relates to separate circumstances.

2.The 1^st Charge is the use of a copy of false instrument.  On about 28 March 2011, he used a copy of forged tenancy agreement as address proof to open 2 checking accounts and 2 savings accounts with Citibank.  There is no evidence of the actual or prospective use of such accounts from the prosecution. 

3.The 3^rd Charge is conspiracy to defraud.  On 1 August 2011, he agreed to collect US$6,000 cash as the proceeds of a fraud.  Since May 2011, the female victim had been beguiled into paying various installments of a processing fee so as to defreeze money said to be held by the Malaysian government to the account of a friend she had only come to know on the internet.  There is no evidence of the defendant’s participation in the conspiracy prior to 1 August 2011.  She had reported to the police prior to the meeting with the defendant at a restaurant.  Near to the meeting, he had a series of telephone calls with her.  He eventually decided not to approach her at the last moment but depart from the restaurant instead.  He was soon arrested by the police.  After arrest and caution, he denied the offence.      

4.The 5^th Charge is money laundering.  On 22 June 2011, he received US$5,750 with his Bank of China account.  On 24 June 2011, he withdrew US$5,800.  There is no evidence of his actual knowledge of a certain deception that yielded the sum. 

Personal background and mitigation

5.He is 33 years of age, born in Canada and educated up to university level.  He lives in Canada and has no ties in Hong Kong.  He is the sole supporter of 5 children aged from 5 to 14.  He claims to be an electronic product trader.  He had come to Hong Kong on a visitor visa on 7 occasions since March 2011 until the date of arrest.  He spent quite substantial periods in Mainland China via Hong Kong. 

6.His counsel submits that there was no or little link among the 3 offences.  The defendant visited Hong Kong to explore trade opportunities for electronic products.  He got acquainted with a person called Arinze W. Iferyin in Chung King Mansion.  They wanted to start a secondhand mobile phone business in Hong Kong.  Arinze said he had only a temporary visa in Hong Kong but could provide a forged tenancy agreement to the defendant as address proof for opening bank accounts in Hong Kong.  Foolish it was in a way to start a genuine business, the defendant proceeded with the suggestion to use the false instrument before the bank.  He had made a number of business contacts in Hong Kong and Mainland China.  There is some sketchy evidence to that effect. 

7.Defence counsel submits there was no international element in any of the offences. 

8.Prosecuting counsel accepts that it is not proved as an aggravating factor that he came to Hong Kong for the specific purpose of committing crimes and there was no international element, either.     

Sentencing considerations

9.There are no sentencing guidelines for the offences in question.

10.The defence has put forward 3 cases on using a false instrument.  HKSAR v Cheung Yuet HCMA 1097/2006 concerned an insurance agent who filled out a false insurance application for a purported customer.  The sentence of 80 hours’ community service imposed after trial was not appealed.  HKSAR v Lau Ming Chu CACC 225/2004 concerned a university lecturer using a false tenancy agreement to obtain housing allowances.  The sentence of 6 months’ imprisonment suspended for 1 year was not appealed.  HKSAR v Maqbool Araf HCMA 178/2000 concerned a deported defendant who used a false police memo to deceive an immigration officer.  A sentence of 12 months imposed after trial was affirmed on appeal.         

11.The defence has put forward 1 case on money laundering.  HKSAR v Yeung Kin Chai CACC 341/2008 concerned a sum of $500,000.  There was no evidence that the applicant was privy to the fraud which engendered the sum.  The Court of Appeal reduced the starting point from 3 years to 2 ½ years. 

Sentencing this defendant

12.Under the 3^rd and 5^th Charges, he was a frontline foot soldier.  His role was relatively simple and minor.  Under the 1^st Charge, it was a foolish act.        

13.As the starting point, I take 6 months for the 1^st Charge, 12 months for the 3^rd Charge and 9 months for the 5^th Charge.  A one-third reduction has to be given for his pleas of guilty.  There are no other mitigating factors.  The sentences are 4 months, 8 months and 6 months respectively. 

14.Separate incidents warrant separate sentences.  Looking at the overall criminality and the totality of sentences, I make the following adjustment:

(1) 3^rd Charge: 8 months to be served;

(2) 5^th Charge: 3 months of the 6 months to be consecutive to other sentences;

(3) 1^st Charge: 4 months to be wholly consecutive to other sentences.

15.The overall sentence is 15 months.