HKSAR v. Kamarulzaman Bin Annuar

DCCC 1270/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1270 OF 2011

----------------------

-------------------------

Reasons for Sentence

-------------------------

1.The defendant, a Malaysian national, was convicted after trial of two charges of having possession of false instruments with intent contrary to Section 75(1) of the Crimes Ordinance. The false instruments in question are 291 purported American bills of 2 denominations only ($100,000 and $1 million) and an HSBC Certificate of Balance (the Certificate) showing a US $50 billion deposit in the account under the names of the defendant and another person.

2.A total of 8 bills consisting of 7 of the denomination $100,000 and one $1 million were first found on his person (in his wallet) when the defendant, who was about to leave Hong Kong for Macau, was stopped at the Macau Ferry Terminals on 17^th August 2010, which forms the subject matters of charge 1. The defendant also carried with him at that time a USB memory stick containing photographic images of huge pile of the bills.

3.The rest of the bills were discovered at his residence in Kowloon when the police conducted a house search later in the day. Apart from the bills, the police also found the Certificate purportedly issued by HSBC, which forms the subject matters of charge 2.

4.The $100,000-dollar bill was the largest denomination note ever printed by the US Government. They were only produced at the time of the Great Depression in 1930s for the sole purpose of bank-to-bank transfers and were never released into general public circulation. Insofar as the 1 million-dollar bills are concerned, they never existed.

5.It is worth noting that the defendant was not charged with a section 100 offence (of Crimes Ordinance) which deals with counterfeit notes because American bills of such denomination ($100,000 or $1 million) are not currency notes and they have never been in general public circulation as legal tender, therefore the defendant instead faced a section 75 offence which relates to false instrument.

6.The defendant testified at trial, for the purpose of sentence; suffice it to say that the court rejected his evidence except where he spoke of his financial background, namely, he owned a Singapore-registered finance company which engaged in corporate financing and his occupation as a finance advisor.

7.The purported American bills and the Certificate of Balance are false instruments, and the court found him to have knowledge of their falsity at the time of taking possession of them. Given his financial background, the court further found that he possessed of those false instruments with the intent to cheat others out of their money.

8.The defendant, aged 46, is a person of previous good character. Defence counsel tells the court that the defendant used to be a financial advisor but has been out of job since he was arrested.

9.Counsel for prosecution has submitted the authority, Hu Wanxia CACC 337/2008, for the court’s consideration in sentencing. Hu’s case is about Section 100 offence, the subject matters are counterfeit RMB 100-yuan notes and in that case there is evidence to show that the offender had actually used some of the counterfeit money in certain convenience stores. It is clear from the judgment that the appellate court took a very serious view of crimes relating to counterfeit notes (section 100 offences) and opined that a sentence of 6 years after trial would not be considered inappropriate by the court in the future.

10.Defence counsel urged the court not to follow the authority in the present case because the purported American bills were not currency notes.

11.I agree with defence counsel’s submission that Hu’s case is not applicable to the present case. Hu’s deals with counterfeit RMB notes which actually find their way into our financial system through the means of making purchase in the local shops, the appellate court there speaks of the dangers of undermining people’s confidence and the protection of businessmen from financial loss, which in my view are lacking in the present case.

12.The one-million-dollar American bill, which never existed, can hardly find its way into any financial system; while the $100,000-dollar bill, though it had been issued in 1930s, its use was only confined to the banking sector, in other words, none of it was in general public circulation, I would have thought that the fakes of the present case neither.

13.Having said that, I have not lost sight of the fact that the face value of the false instruments found in the possession of the defendant, be it the American bills or the HSBC Certificate of Balance, is significant. Given his engagement in the financial field as a financial advisor with his own finance company, I have no doubt in my mind the defendant was targeting the wealthy but gullible people; if succeeded, the losses could have been substantial to the third party. 

14.There is not much put forward by way of mitigation, defence counsel did emphasize the fact that the defendant had not committed any offence before. On the evidence before the court, I do not think that the defendant, being a foreigner, has spent a significant part of his life here in Hong Kong and thus in my view his clean record does not carry much weight when it comes to sentencing.

15.For the reasons given above, for charge 1 I take 12 months as starting point; for charge 2 3 years. As the defendant was convicted after trial, he is not entitled to any discount of a guilty plea.

16.As far as mitigation is concerned, I see nothing which would justify a reduction of the sentence. Given the court’s findings that the subject matters of charge 1 were used as a sample of a larger quantity- the subject matters of charge 2, it would only be fair in the circumstances to order the terms to run concurrently, the total term is therefore one of 3 years.