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Note: In 2007, the three defendants (Defendant 1, Defendant 2, & Defendant 3) were convicted of using a false instrument pursuant to s. 74 of the Crimes Ordinance, Cap. 200 (DCCC No. 1039 of 2007). Defendants 1 & 3 were further jointly convicted, and Defendant 2 was also convicted of possession of a false instrument contrary to s. 75(1) of the Crimes Ordinance, Cap. 200. Defendants 1 & 2 were sentenced to three years, six months imprisonment on each charge, concurrently, and Defendant 3 was sentenced to three years imprisonment on each charge, concurrently. All Defendants sought leave to appeal their convictions, and Defendant 2 sought leave to appeal his sentence.

Defendant 1 opened a bank account at HSBC in his name in the amount of HK$10,000. Several weeks later, he returned with Defendants 2 & 3 and met with a customer service officer. The three produced a standby LC for EUR5,000,000,000, which named Defendant 1 as the beneficiary, along with another document with a SWIFT heading and requested that the service officer send a telex to a specified employee of the Aberdeen Branch of the Standard Chartered Bank (HK) Limited, "effectively confirming that HSBC was in funds to the massive extent referred to in the Standby Letter of Credit". The service officer replied that she could not send the telex because the document was a copy and because HSBC did not offer that service. The opinion was ambiguous about which documents were copies but was clear that all the documents were false. The service officer then suggested that she call the SCB employee, in view of the large amount. Defendant 2 nervously burst out that there was no need, and the service officer told them that she needed to consult her supervisor. The police were subsequently summoned. In the briefcases of all the Defendants, the police found duplicates of the LC along with other documents such as "Confirmation Letters" and "Letters of Authentication". The Defendants were charged with using a false instrument contrary to s. 74 of the Crimes Ordinance, Cap. 200 and possession of a false instrument contrary to s. 75(1) of the ordinance, convicted, and sentenced.

Hartmann, J.A., Wright and Saw JJ., in a per curiam decision dismissed all applications for leave to appeal the convictions as well as Defendant 2's application to for leave to appeal his sentence. Defendant 2 contended specifically that the trial court erred in not requiring the prosecution to prove the identity of the person intended to be induced and prejudiced and also that the ordinance of which he was convicted of violating did not apply to copies of false instruments. In general all Defendants contend that the court erred in making the inference that they knew the documents were false.

In response to Defendant 2's second claim, the court ruled that the ordinance was in fact intended to apply to copies. Relying on precedent, the court ruled that it was unnecessary to require the prosecution to prove the identities of those intended to be induced or prejudiced. The court added furthermore that "there cannot be any sensible doubt as to who it was the inducement was intended to act upon: it was HSBC", commenting that the prosecution was not required to prove that a particular person was to be induced or prejudiced. In regard to the Defendants' claim that the trial court was not justified in drawing the inference that they knew or believed the documents to be false, the court ruled that the totality of the evidence created an irresistible inference and that the trial court judge had not erred in drawing the inference.

In Defendant 2's appeal against the sentence, he urged the court to mitigate his sentence because there was in fact no loss of property. The court ruled that his argument could not "sensibly be regarded as mitigation", noting that the trial judge's robust sentence was indeed just what he intended and that the sentence was not "manifestly excessive".

[JEB/jdc]

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