HKSAR v. Ngo Han Luong
Read the full judgment text of DCCC 262/2016 on BabelCite. This District Court judgment was delivered on 21 March 2017.
1. The defendant, Ngo Han Luong appeared before me facing three charges:-
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DCCC 262/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 262 OF 2016 ------------------------------
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--------------------------------------- REASONS FOR VERDICT --------------------------------------- BACKGROUND 1.The defendant, Ngo Han Luong appeared before me facing three charges:-
2.The defendant pleaded not guilty to all charges. 3.Charge 1 concerned 3 instruments allegedly used by the defendant on the 19 May 2015 at the Nathan Road Branch of the Bank of China, the 3 instruments in question, produced as P1(1)-(3) are:-
4.Charge 2 and 3 concerned 38 instruments allegedly possessed by the defendant on or about 6 June 2015. It is the prosecution case that the defendant had these 38 instruments on his mobile phone. 5.The 38 instruments in question, produced as P2(1) to (38) are:-
THE PROSEUCTION’S CASE 6.The prosecution’s evidence against the defendant is based on:-
7.The prosecution’s case against the defendant in respect of Charge 1 is that on 19 May 2015, the defendant turned up at the Nathan Road branch of the Bank of China (BOC) and presented P1(1) to (3) to PW1 and 2 of BOC. P1(1) to (3) purportedly showed that Santander Bank would pay 5 million Euros into the defendant’s bank account held at BOC. P1(1) to (3) were false instruments. It is the prosecution’s case that the defendant knowingly used P1(1) to (3) to induce BOC to accept the documents as genuine so that he could withdraw the 5 million Euros, to the prejudice of BOC. 8.In respect of Charge 2, it is the prosecution’s case that the defendant, on 6 November 2015, ie the day of his arrest, had in his custody or under his control 38 false documents (P2(1)-(38)), which he knew or believed to be false, with the intention that these documents would be used to induce others to accept them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice. The prosecution’s case in the alternative (Charge 3) is that the defendant had, without lawful authority or excuse, in his custody or under his control these documents which he knew or believed to be false. 9.There is no dispute between the parties that the defendant, born on 12 October 1973, is a German passport holder, he was educated in Germany to university level. At all material times he worked and lived in Shenzhen. He has a clear record. 10.PW1 Ricky Wong Wing Ki worked as a Financial Planning of BOC at its branch at Nathan Road. PW1 gave evidence that in early 2014, the defendant went to the bank and asked PW1 about remitting money to Hong Kong. After the meeting in early 2014, the defendant had some telephone contacts and email exchange with PW1, which evolved around the subject of remittance. PW1 never saw the Defendant again until 19 May 2015, when the defendant turned up at the bank with the original copies of P1(1) to (3). 11.Before the defendant turned up at BOC on 19 May 2015, he had sent an email to PW1 attaching P1(3) asking PW1 to check the cashier’s order of the Swift. P1(3) purported to show that the defendant was the recipient of 5 million Euros. PW1, in a telephone conversation, asked the defendant to bring along the documents to his branch in person. 12.On 19 May 2015, the defendant attended PW1’s branch and presented the original copies of P1(1) to (3) to PW1 and asked PW1 “How can you help me to handle this?” As PW1 was not sure how to process the banker’s draft, ie the original of P1(1), he asked the defendant why he was not the payee on the banker draft. The defendant pointed out to PW1 that according to the Swift (the original of P1(3)), the bank had already authorized the deposit into his account and he was the receiver. 13.PW1 referred the defendant’s case to a specialized department of BOC. Then PW2 Ms. Kelly Lee Lai Fung of the Operation Department took over from PW1 and she spoke to the defendant. She took photocopies of the original copies of P1(1) to (3) and the passport of the defendant. She kept the photocopies and returned the originals to the defendant. 14.PW2 was adamant that the banker’s draft she took photocopy of, ie the original copy of P1(1) was an original banker’s draft, not a photocopy. 15.When PW2 spoke to the defendant, the latter asked whether the banker’s draft could be deposited into his account and PW2’s response was that as the banker’s draft was not in the defendant’s name, it could not be deposited. The defendant said the Swift report, ie the original of P1(3) evidenced that the local bank had already transferred the money to him. PW2 suggested to the defendant that he could do it by way of telegraphic transfer, the defendant replied that the charge for making a remittance from that place into the account in Hong Kong would be very expensive. PW2 further suggested that the defendant could ask his company to make out a banker’s draft in his name, ie with him as the payee for a deposit into his account. The defendant said he would talk to his company upon his return. The defendant asked PW2 if she would talk to her supervisor to see if the banker’s draft could be deposited. At some stage, the defendant told PW2 that the money was commission money. 16.PW2 returned the originals to the defendant after she learnt from the specialized department that the genuineness of the documents could not be confirmed and the genuineness of the banker’s draft could only be known at the clearing or settlement stage. 17.It is the evidence of PW1 that the defendant had spent some 2 hours, and possibly more at his bank on 19 May 2015. As for PW2, she had spent about half an hour with the defendant on the day in question. 18.PW3 Fung Kwok Leung, the Fraud Investigation manager of the Fraud Investigation Division of BOC gave evidence that there was no record of the Swift report (P1(3)) in BOC’s record. PW3 checked and found that there was no such 5 million Euros in the defendant’s bank account with BOC, hence it was impossible for BOC to pay the defendant money of the money did not exist in his account. 19.PW3, as PW2 did, testified that a Swift report is a document between bank, in other words, it is an interbank communication and individual customers would not have access to a Swift report. 20.PW4 Fok Shui Kwok, Anthony gave evidence about the falsity of the HSBC documents in question. For P2(22) and (26) to (28), PW4 said these documents were not issued by HSBC UK only because his UK colleague of HSBC had told him so in the course of PW4’s enquiry into the matter. The video recorded interview 21.The defendant told the police, inter alia, in his video recorded interview:-
Case to answer and the defendant’s election 22.At the conclusion of the prosecution’s case, I found that the defendant has a case to answer on all charges. 23.The defendant elected not to give evidence and not to call any witness. THE DEFENCE CASE Charge 1 24.From the explanations given by the defendant in the video recorded interview, it is the defence case that the defendant did not know or believe that P1(1) to (3) were false, it follows that he did not have the requisite intention. Charge 2 and 3 25.The defendant was never cautioned, nor was he asked any question about P2(1) to (38) in the video recorded interview. 26.Mr Cheng SC took issue with the following matters:-
CLOSING SUBMISSIONS 27.I am grateful to Mr Cheng SC for the detailed closing submissions. The standard and burden of proof 28.The prosecution brought the charges against the defendant, it is for the prosecution to prove all elements of each offence beyond reasonable doubt. The good character of the defendant 29.The defendant has a clear record. He is less likely to commit the crimes under complaint. He is more likely to tell the truth in the exculpatory parts of his video recorded interview. DISUCSSION Charge 1 The Falsity of P1(1) to (3) 30.From the statements of Mr Derek Gibson, Branch Manager of Hong Kong Branch of Banco Santander, SA, I have no difficulty in finding P1(1) to (3) were not issued by Banco Santander Bank SA and/or Santander Bank, P1(1) to (3) were false instruments. Using 31.I find PW1 to PW3 all credible and reliable witnesses. I accept their evidence as true and reliable. 32.From the evidence of PW1, I find it proved that the defendant had used P1(1) to (3) on 19 May 2015. PW1’s evidence that the defendant had used P1(1) to (3) at the Nathan Road branch of BOC on 19 May 2015 is supported by the evidence of PW2. Knowledge 33.In paragraph 1 of the prosecution’s opening, it is the prosecution’s case against the defendant that he used P1(1) to (3) to induce BOC to accept the documents as genuine so that he could withdraw the 5 million Euros, to the prejudice of BOC. 34.It is not the prosecution case that the defendant, knowing P1(3) was false and BOC would in no way pay him 5 million Euros when there was no such money in his account, did not really want to get the money from BOC, but just want to have P1(1) deposited, so that he could get some written proof from BOC that a cheque in the amount of 5 million Euros was deposited into his account. It is the prosecution’s case that the defendant wanted to withdraw the 5 million Euros with the use of P1(1) to (3), not that he wanted to get some written proof from the bank so that he could use the written proof to swindle others. 35.Mr Chau, in his opening stated frankly that as no admission was ever made by the defendant that he knew P1(1) to (3) to be false, the prosecution is asking the court to infer from the facts that the defendant used the documents and tried to induce BOC to accept them as genuine and act to the bank’s prejudice that the defendant knew at the time that P1(1) to (3) were false instruments. 36.In my judgment, if the defendant knew that the Swift report was false , that there was no transfer of money and the 5 million Euros did not exist in his account, it is inherently improbable that he would ask BOC to deposit P1(1) into his own BOC account for the purpose of withdrawing the 5 million Euros. The defendant was not a layman in the sense that he is a well-educated man in his forties, he received university education in Germany and he had worked as a middlemen for companies seeking to borrow money. He would be extremely naïve to think that he could withdraw the 5 million Euros when he knew the money did not even exist. 37.The defendant has a clear record, he is more likely to tell the truth in the exculpatory parts of his video recorded interview. I have considered the contents of the video recorded interview which I see as a mixed statement given by the defendant not long after his arrest. In my judgment, some of his answers do not make business sense to me, eg there was no written agreement on the commissions to be received by the defendant, that the defendant would believe Kaptan would ask him to deposit a cheque for the amount of 5 million Euros into his account when he was only entitled to 100,000 to 200,000 Euros of the amount. On the other hand, notwithstanding some of his answers were incongruous, I find that there is an overall air of frankness in the video recorded interview and I cannot exclude the possibility that what the defendant said in his exculpatory explanations is true, in gist, he was cheated and deceived by Kapyan. The behavior/conduct of the defendant at BOC on 19 May 2015, that he spent some 2 hours at the bank, and during his stay, he spent some 30 minutes with PW2 explaining to PW2 that P1(3) showed the money had been transferred to his account goes some way to support his claim of innocence. In my judgment, if the defendant knew the Swift report was false and he knew the money had not been transferred to his account, it made no sense for him to explain persistently to PW2 that the money had been transferred to him as BOC would check to find out for sure if a transfer had been made. 38.In my judgment, the conduct of the defendant at the bank on 19 May 2015 was suspicious but the evidence fails to satisfy me beyond reasonable doubt that the defendant knew or believed that P1(1) to (3) were false instruments. Charge 2 and 3 The falsity of P2(1) to (21), P2(23) to (25) and P2(29) to (38) 39.I found that the evidence of PW4 is both credible and reliable. 40.I also attach full weight to the various produced under section 65B. 41.From the evidence, I am satisfied beyond reasonable doubt that P2(1) to (21), P2(23) to (25) and P2(29) to (38) were false instruments. POSSESSION Knowledge of the existence of the false instruments 42.It is an admitted fact that the false instruments were extracted from the 2 mobile phones seized from the defendant (P49 and P50). 43.In order to prove possession, the prosecution must prove that the defendant knew that the false instrument existed in P49 and P50. 44.I agree with the defence submission that items may exist on a person’s mobile phone without that person knowing of their existence, eg unread email or unopened attachments. 45.PC 8774 explained in his 2nd statement (P15) the details including, the storage location of 21 case relevant documents which he extracted from the black Sony mobile phone. He set out the file names which required his further elaboration in paragraph 3 of P15. In Annex A to P15, he set out the details of these 21 documents. 46.It is an admitted fact the 2 mobile phones (P49 and P50) were in safe custody of the police until they were delivered to the police laboratory for forensic examination. In my judgment, the fact that P49 and P50 were in safe custody of the police does not preclude the possibility that the false documents in P49 and/or P50 may have come into existence after they were seized, eg the false documents were sent to the defendant’s phone after 6 November 2015. There is no evidence that the phones were kept in such a way, eg they were kept at an insulated place or container, that it was impossible for the false documents to be sent and received by the phones after 6 November 2015. 47.In Annex A, there is a column titled “Modified –Date/Time”. PC 8774 did not explain, however, what the dates and times mean. If the “Modified –Date/Time” of file “1226” (Item no 1) “2014-08-13 01:36:00 (UTC+ 8)” means the file was received by the phone, or even opened/accessed in 2014, evidence should be led, I cannot infer from the information set out in the 2 statements, in the absence of further evidence to explain the details contained therein, that the false documents were already on the phones when the defendant was arrested on 6 November 2015 and his 2 phones seized. 48.There is no evidence to show when the false documents first appeared in P49 and/or P50. There is no evidence for the court to infer, given the time that the false documents had existed in the phone, the defendant must have had assessed, seen, handled or processed the false documents. In my judgment, even the prosecution could establish that the false documents existed on the phone before the defendant’s arrest on 6 November 2015, without the benefit of evidence showing when the false documents first appeared in P49 and/or P50, I cannot preclude the possibility that they remained unread emails or unopened attachments. I appreciate the defendant worked as a middle-man making introductions for companies which seek to borrow money, hence one would expect the defendant would read the emails and attachments in question. The longer the time these false documents had remained on the phones, the stronger the inference that the defendant had read them. However, in the absence of evidence explaining when the false documents first existed on the phones, I cannot make a positive finding that the defendant knew of the existence of the false documents. 49.The defendant, when he was interviewed by the police, was not asked about the false documents which formed the subject matters of Charge 2 and Charge 3. 50.I find that on Charge 2 and Charge 3, the prosecution fails to prove beyond reasonable doubt that the defendant possessed the false documents in question. VERDICT 51.For the reasons given, I find the defendant not guilty of all charges.
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