HKSAR v. Mazhar Taha Ahmed Elmansouri

DCCC1309/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1309 OF 2011

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Reasons for Sentence

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1.I convicted the defendant, after trial, of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200.

2.The particulars are that, on 28 April 2010, together with a Chinese lady called Xiao, he used a false bank draft, dated 18 April 2010, in the sum of US$4 million, payable to a company called Dolibat Developement Company Limited, which he knew to be false, with the intention of inducing the Bank of Communications Company Limited in Hong Kong to accept it as genuine and to their prejudice.

3.The facts are that, at 1.40 pm, on 28 April 2010, the defendant, an Egyptian male, who was then aged 48 years of age, and a female mainlander called Xiao attended the central branch of the Bank of Communications on Des Voeux Road in Hong Kong.  There they claimed to be husband and wife and asked to open a company account for Dolibat Development Company Limited. 

4.The defendant presented his Egyptian passport and Xiao her two-way permit.  They submitted a business registration certificate for Dolibat, together with a change of name which showed that the company name had been changed from DOT.BNS High Tech (Hong Kong) Company Limited to Dolibat on 7 January 2010.  The registered address of the company was at Chong Ming Building in Cheung Sha Wan Road, which later turned out to be a false address. 

5.The defendant handed to the bank staff a false bank draft the subject of these proceedings.  It was dated 18 April and it was in the sum of US$4 million, and it was made payable to Dolibat Developement Company Limited.  There was, however, a spelling mistake in the word “Development” in that there was an extra “e” between the “p” and the “m”.  The draft purported to have been issued by the Dubai branch of the Samba Financial Group (“Samba”), and was payable to a branch of Citibank in the USA. 

6.The drawer of the original draft was a Mohammed Asaad Bin Ameen Said, (“Said”), who had been a customer with Samba since February 2008.  The original draft remained under the control of Said.  The original draft had been requested in the name of Dolibat Development Company Limited, but there was a mistake made at the bank in that they misspelled the word “Development”.  The original draft was collected on behalf of Said by a person who has been referred to in these proceedings as a Mr Ahmed. 

7.On 11 May the defendant and Xiao returned to the Wong Tai Sin branch of the bank, and on this occasion they produced a companies registration document which showed the name of the company had been changed so as to coincide with the name on the false banker’s draft, and they asked that the draft be cashed as soon as possible, and they asked for 12 accounts to be opened, four in each of their names and four in the name of the company. 

8.On 19 May the defendant and Xiao returned to the bank, and both chopped a company chop with the new company name on the back of the false draft.  The bank staff were suspicious as to the provenance of the draft.  Enquiries were made with Samba, and it was confirmed that the draft was false. 

9.The matter was reported to the police.  The defendant was arrested on 26 June 2011 when he arrived in Hong Kong from Macau.  When he was interviewed he denied the offence.  He admitted presenting the draft but denied that he knew it was forged.  He claimed that he received the draft in relation to a genuine business transaction. 

10.The defendant in the trial gave evidence to that effect, and I rejected his evidence.  I was sure that the defendant had not come into possession of the false draft in the circumstances in which he described to the court. 

11.In mitigation I was told that the defendant is now 50 years of age, has a clear record.  He is married to Madam Xiao on the mainland, and they have a young daughter.  I was told, in mitigation, that the defendant does have a genuine business background.  Prior to 2010 his business activities were quite successful.  It was urged upon the court that, due to the downturn generally in business, along with many other persons, the defendant’s business declined.  It was urged upon the court that this offence was committed over two years ago. 

12.There was no application for stay in these proceedings, and clearly the time lapse has not been the fault of the defendant.  It emerged in evidence that the defendant in fact passed through Hong Kong in June 2010 on a return journey to the mainland and was not detained on that occasion.  He was arrested on 26 June 2011 when he came to Hong Kong voluntarily. It was not a question of the defendant being sent back from the mainland to Hong Kong. 

13.I am told that the defendant has been under enormous pressure since his arrest.  He was in custody from 26 June until his release on bail in October 2011.  When granted bail he was subject to severe restrictions which meant that he has been unable to return to the mainland to visit his family.  His wife, who is obviously a suspect in these proceedings, has not visited Hong Kong.  And, in any event, she suffers from ill health.  I am told that she moved back to the Sichuan Province with her daughter and lives with her mother.

14.Counsel conceded that the amount of money involved in this case is huge.  It is in excess of HK$31.2 million.  However, he urges in mitigation that the mere size of the cheque meant that the chances of successfully negotiating the cheque at the bank were slim.  He also pointed out that all the bank witnesses called had reservations about the draft, and the name of the payee was incorrect. 

15.It was also urged that there was no element in this case of breach of trust.  However, this court remains ignorant of the true circumstances in which the defendant came by this draft.  There is obviously an international dimension to this case.  Not only does it involve a middle-Eastern bank; there were foreign nationals involved.

16.In connection with the draft itself there was a genuine draft issued by the Samba Bank.  Clearly, what drew attention to this draft was the misspelling of the word “Development”, which was a mistake made by the Samba Bank. 

17.The instrument used was a banker’s draft, and this was an attempted fraud on the bank.  I found the defendant to be a glib and resourceful liar.  He is a confidence trickster.  Had this been a case which involved a breach of trust for cases involving sums in excess of 15 million, the appropriate sentence is in excess of 10 years. 

18.Counsel has pointed out this is not a breach of trust case and there is no tariff for this particular case.  But, in my view, given the significant aggravating features which were present in this case, a substantial sentence of imprisonment is called for. 

19.Having considered all the circumstances of the offence I have decided to impose a sentence of 5 years’ imprisonment.