HKSAR v. Orosa Elena Severino
Read the full judgment text of DCCC 273/2018 on BabelCite. This District Court judgment.
1. The Defendant has pleaded not guilty to one count of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200.
Cited by 2 cases · Cites 2 cases
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DCCC 273/2018 [2018] HKDC 1308 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 273 OF 2018 -----------------------------------
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---------------------------- Reasons for Verdict ---------------------------- Background 1.The Defendant has pleaded not guilty to one count of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200. 2.The Defendant is accused of presenting to Mr. NG Cheuk-hin (PW1), a counter service officer working in the Hankow Road Branch of Hang Seng Bank Limited (“the Bank”), a false instrument, namely, a “Cashier’s Check” numbered 8530143 dated 9 October 2017 (Exh. P5), on 18 October 2017 and asking PW1 to deposit the amount on Exh. P5 (i.e. US$2,000,000,000.00) into an account with Hang Seng Bank numbered 786-31955-883. The prosecution case is that the Defendant at the material time knew or believed that Exh.P5 to be false, and when she presented it to PW1, she did it with the intention of inducing PW1 to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice. 3.It appears at the outset that the Defence do not dispute that she had at the material time appeared in the particular branch of the Hang Seng Bank and presented the alleged false instrument (Exh.P5). There is no objection to accept Mr. Fung Shing-kei (PW2) and Dr. Chim Lai-chu, Joyce (PW3) as an expert witness. In other words, there is no dispute that Exh.P5 was a false instrument under the definition in Section 69 of the Crimes Ordinance. The main issue in this case is therefore the state of mind of the Defendant. 4.The Prosecution have called one more prosecution witness, Ms. Lau Yee-kei WDPC13792 (PW4) concerning background investigation of the case regarding the 786-31955-883 account. The Evidence 5.There is a set of Admitted Facts (MFI-1) which introduces the relevant CCTV footage of the Bank (Exh.P7) with screenshots reproduced as Exh.P8(1-9). 6.It is also admitted that the Defendant was arrested on the same day at the Bank and she was then taken to T.S.T. Police Station for further investigation during which the Defendant gave two written cautioned statements produced in this case as Exh.P1 and Exh.P2. 7.There is a Transaction Advice (Exh.P6) and it is admitted that when the Defendant presented the Cashier’s Check (Exh.P5) to PW1, she also presented this Exh.P6 to PW1. 8.The Prosecution also rely on a Chemist report of PW3. The gist is that having examined Exh.P5 against a sample cashier’s check (Exh.P9), PW3 concluded that Exh.P5 was a forged document. The Chemist Report is produced and marked as Exh.P10. Evidence of NG Cheuk-hin (PW1) 9.PW1 testified that when the Defendant appeared at Counter Number 1 in the Bank where PW1 was working, the Defendant presented Exh.P5 and Exh.P6 to him and requested to deposit the amount printed on Exh.P5 into an account specified on Exh.P6 i.e. 786-31955-883. 10.PW1 then processed the request but since the amount exceeded the authorisation limit he had, he took Exh.P5 and went to seek assistance from his supervisor. At that juncture, PW1 discovered that the surface of Exh.P5 was different from the usual cashier’s check. PW1 further identified in court some salient features of Exh.P5: a) the paper quality is different; b) the Hang Seng Bank logos on the left top corner and the left bottom corner of Exh.P5 are blurred and a bit elongated; and c) a Taipei address appears on the left bottom corner but the Hang Seng Bank do not and did not have a branch in Taipei. PW1 later on supplemented that the cashier’s check for US dollars is different from that for HK dollars and the written figures would not be typed up in the way as shown on Exh.P5. 11.When PW1 left with Exh.P5, the Defendant was told to wait and according to Exh.P8, the photos on pages 3 and 4, the Defendant was accompanied by another lady and they waited at a reception desk in the Bank as depicted. PW1 said a report was made to the Police at a later stage. As far as he knew, the Defendant remained until the Police had arrived at the Bank. 12.PW1 accepted under cross-examination that the money would not be transferred without the Bank first checking with the issuing Bank. However, when it was asked that no matter how good a forged cashier’s check might have been, it still would never result in the money being transferred because the issuing bank would be able to deny that they have ever issued it, PW1 said “I don’t know”. Evidence of FUNG Shing Kei (PW2) 13.Mr. Fung (PW2) is called as an expert. 14.PW2 is the Deputy Manager of the Check Processing Unit of Hang Seng Bank. He has been working in the area involving check processing for 10 years. His duties involve check settlement and authenticity verification of check. For authenticity verification of check, he has had 5-6 years of experience. One of the methods is to compare a subject check with a sample authentic check. In this case, he has compared Exh.P5 against the authentic sample (Exh.P9) which he confirms that Hang Seng Bank would not issue any cashier’s check in US dollars other than in the form of Exh.P9. 15.In his evidence, PW2 pointed out that: -
16.Under cross-examination, PW2 agreed that the work of his unit would include checking with the issuing bank to see if the issuing bank had issued the check. PW2 also agreed that if the check is not genuine, the issuing bank would not honour the check no matter how good the forgery was because the issuing bank would have found out that the subject check had not been issued. Evidence of CHIM Lai-shu, Joyce (PW3) and the Expert Report Exh.P10 17.PW3 was called to produce Exh.P10 and she confirmed the contents stated therein. The references of DEC 49 and DEC 50 in her report are Exh.P5 and Exh.P9 respectively. 18.In her report, Dr. Chim said, inter alia, “Examination revealed that the colour, design and ultra-violet fluorescent properties of the questioned cashier’s check were different from those of the control sample.” (see para.2 on page 2 of Exh.P10) She also said “microscopic examination of (Exh.P5) revealed that it was inferior in printing quality” and “a border edge (an area without printing) was found along the top edge of (Exh.P5)” (see para.3 on page 2 of Exh.P10). Her conclusion was that Exh.P5 is a forgery. Other Evidence and the Cautioned Statements 19.WDPC13792 (PW4) is the statement taker for PW1. Her evidence deals with the investigation the Police had taken regarding the company registry of the intended “payee” of Exh.P5, namely, Great Billion HK Limited (“Great Billion”). The investigation revealed that one of the registered persons, a Madam Lo Yue Ching, had ceased to operate the company and the registered addresses of the company either did not exist or had been occupied by apparently other shop or company. PW4 also confirms that according to Madam Lo, the subject bank account numbered 786-031-955-883 with the Bank was opened by her when she started the business, but in 2011, the business was sold to and taken over by one of her then clients called KUMARI Parveen. Ever since she had no connection with the company. There are two other names in the relevant company registry and one of them is KUMARI. However, the information on the registry was limited, and as a result, the Police were not able to locate any of them. 20.As to the cautioned statements, in gist, the Defendant told the Police that it was her friend in the Philippines, a Mr. Randy Songodanan (“RANDY”), who had asked her to help deposit the check in Hong Kong. The Defendant agreed and the check was arranged to be given to Veronica (“VERONICA”), another friend of the Defendant who happened to come to HK, to pass it to the Defendant. She further explained that RANDY wanted to do business with a company called “Great Billion HK Limited”, which is the “payee” named on Exh.P5, and the amount had to be deposited into a Hang Seng Bank account of Great Billion. Also, the Defendant said she was used to seeing large amounts on spreadsheets she prepared in the past in connection with the business of her boss. No Case Submission 21.On behalf of the Defendant, Mr. Hemmings submits that section 70(1)(f) of the Crimes Ordinance, which deals with the meaning of “prejudice”, does not apply and since the Prosecution could not rely on the other parts of that section, there should not be a case to answer. 22.Having listened to both parties’ submissions in court, I have ruled that there is a prima facie case and there is a case for the Defendant to answer. I shall come to the relevant analysis shortly when I deal with the law in the section below. The Defence Case 23.The Defendant elects to give evidence. 24.The Defendant has a clear criminal record. 25.The Defendant was born in 1960 in Philippines and was being brought up in the USA. She was a graduate in BS Management of the San Francisco State University. She then worked until 1990’s but at the material time, she worked again to help a person called Jack (“JACK”) to do paper works which include processing spreadsheets. 26.The Defendant came to know RANDY through JACK. She received the request from RANDY to help deposit a check into an account of Hang Seng Bank in HK a few weeks before 17 October 2017 and later on she received an attachment to an email that RANDY had sent her. From this attachment, she knew about the bank account number and the amount of the check. This attachment was produced as Exh.D1. The Defendant also knew that the account belonged to Great Billion. She said RANDY had also given her a contact point in HK - the owner of Great Billion, a Mr. Mannish (“MANNISH”), and a lady called KUMARI Parveen who was the Managing Director of Great Billion (this lady is referred to “KUMARI” but this is not necessarily the KUMARI on the company registry as the information in it was limited). 27.On 17 October 2017, the Defendant went to the airport in HK to receive VERONICA. At the airport, VERONICA gave the Defendant an envelope. The Defendant opened it and took out a cashier’s check (Exh.P5) to have a look. Inside the envelope there were 6 other documents. These documents are what were referred to as supporting documents in Ans.7 of the 2nd cautioned statement of the Defendant (see Exh.P2) but these documents did not include Exh.D1. At the airport, the Defendant did not take these documents out from the envelope. She just flipped through them briefly. 28.The two women then went to the hotel. The Defendant recalled she had taken out the check and the 6 documents from the envelope and she took pictures of them in order to send the pictures to MANNISH by whatsapp that night. This was done upon the request of MANNISH. The Defendant said her understanding was that she was to keep these 6 documents and the validated deposit slip she would obtain once she had done the check depositing step. She thought KUMARI might collect all these documents from her at a later stage. 29.The Defendant did not keep the envelope. Instead, on the next day, 18 October 2017, she went to the Bank with VERONICA and the envelope was brought to the Bank by VERONICA. When they had arrived at the Bank shortly before 11 a.m., the Defendant asked for the envelope from VERONICA, and the Defendant took out Exh.P5 and the other documents in order to fill in a form which is now Exh.P6 in this case. The Defendant confirmed that the account number and the figure of $2b were her hand writings. The Defendant said she had in total looked at the check (Exh.P5) for 3 times – approximately 1 minute at the airport, 1 min at the hotel and less than 5 minutes at the Bank. 30.The Defendant then proceeded to deposit the check at the counter in the Bank. She confirmed the depiction of her in the photos (Exh.P8) and explained that after she had presented the check and made the request to deposit it into the account stated in Exh.P6, she was asked to wait. She and VERONICA were waiting at a reception desk (see page 3 of Exh.P8) and at a later stage, a male manager of the Bank made enquiry with her. It was 11:37am as depicted in the top photo on page 4 of Exh.P8. She said she told the manager about where she got Exh.P5 from and the story about it. She and VERONICA stayed in the Bank until the Police had arrived. She was arrested and later she was admitted to police bail. 31.The Defendant also testified that when she was held up in the Bank, she had communications with MANNISH by using whatsapp. She had informed MANNISH that the Bank had a lot of questions. However, none of these communications was about the authenticity of Exh.P5. 32.The Defendant denied having knowledge of the forgery and she had no suspicion about the authenticity of Exh.P5 either. After the arrest, she had contacted MANNISH and the latter told her that he would contact KUMARI to help her. However, KUMARI did not contact the Defendant. She tried to contact KUMARI but in vain. The Defendant contacted JACK and asked JACK to contact RANDY to send her the bail money for the Police. 33.The Defendant said that she presented Exh.P5 on 18 October 2017 for no reward. It was done as a favour to RANDY out of friendship. 34.Under cross-examination, the Defendant revealed that RANDY was an engineer but at that time he was unemployed. As she understood, RANDY wanted to do business with Great Billion and he had to deposit the sum of money mentioned in Exh.D1, which the Defendant agreed is a substantial sum of money. 35.The Defendant said she knew what the figure was when she got Exh.D1 but she did not spot the discrepancies between the numeric figures and those in words i.e. the numbers were “$US2,000,000.00” but the words are “UNITED STATES Two Billion Dollars”. She did not wonder how RANDY had such sum of money at his disposal because she was so used to seeing all these numbers in the spreadsheets and it was not unusual for her. She was told that the money was in HK from a Hang Seng Bank account related to Marcos, the ex-president of Philippines, and RANDY knew someone who worked with the group of the Central Bank of Philippines to issue Exh.P5 but the main concern was that she was asked to deposit the check and whether she could do it for him, therefore she did not probe any more than she was told. 36.As to the purpose or nature of the business RANDY wanted to do with Great Billion, she was only told the money would “be used for trade” but she knew that it had nothing to do with JACK or the antique business. 37.When she was waiting inside the Bank, the Defendant agreed that she had constant communication by whatsapp messages with MANNISH. Mr Kelly cross-examined the Defendant as to why she did that when all she was required to do was to deposit a check which she believed to be genuine. The Defendant explained that she did not know who to give the validated deposit slip if she had done with the depositing. When it came to the contents of whatsapp messages, the Defendant said MANNISH asked her for “any updates” which was followed by the following replies by her:
38.The Defendant explained what she meant by saying in text “as you instructed” was that she just told the Bank to deposit the check into the account. Mr Kelly questioned that the Defendant did not need any instructions from MANNISH to deposit the check when she already knew that beforehand and the Defendant simply answered “yes”. Mr Kelly repeated the question and asked her why did she have to tell MANNISH “(the bank) have a lot of questions” and say “but I answered as you instructed”, the Defendant said “his instructions were just deposit into his account” and that was what she told the bank manager. 39.When the Defendant was asked why she did not ask RANDY to come to HK himself and do the deposit, the Defendant said “I don’t think (RANDY) has any funds to come here”. When she was asked why did she not ask RANDY to arrange the check to be given to MANNISH or KUMARI directly, the Defendant said “I think RANDY wanted to make sure that I made the deposit”. As to why, the Defendant said there was no reason. 40.Also, the Defendant said it did not come to her mind that MANNISH or KUMARI could collect the cheque at the airport because “RANDY is a friend. I gave him as a favour as simple as that”. 41.On the other hand, the Defendant confirmed she had the HK (telephone) number of KUMARI and she could ask KURAMI before 17 October 2017 if she could come to the airport and the Defendant agreed that she did not do so. The Law 42.Section 73 of the Crimes Ordinance, Cap 200, reads as follows:
43.The prosecution must prove the Defendant used the cashier’s check Exh.P5. The presentation of the check at the Bank and the request to the staff to process it squarely fall within the meaning of “using”. In fact, the Defence do not take issue of this element of offence. 44.Secondly, the Defendant must know or believe it to be a false instrument. This is the main issue in this case. In this regard, I have reminded myself that proving a suspicion is not enough and similarly proving the existence of reasonable grounds that would give rise to a belief of falsity is also not enough. 45.The prosecution also need to prove the double intention. First, an intention to induce PW1 or the Hang Seng Bank to accept Exh.P5 as genuine, and secondly, the Defendant intended PW1 or the Hang Seng Bank by reason of having accepted the document as genuine would do or not do some act to his own or the Hang Seng Bank's prejudice. 46.As mentioned above, the Defence take issue of proof of “prejudice” in light of the evidence of PW1 and PW2 as the issuing bank would not have honoured the check no matter how good the forgery is, and therefore, so the Defence say, the presentation of a forged cheque could never have resulted in any prejudice to PW1 or the Bank or the issuing bank under the definition of section 70(1)(f), in particular, the words “having accepted” are used in that subsection. 47.In my consideration, it is important to note that section 73 uses the words “to do or not to do” as opposed to “having done or having omitted to do”, and so it clearly refers not to an actual prejudice having resulted from an act or omission but an intended act or omission the offender intended to induce the actor to do to his or her own or other’s prejudice. 48.Section 70 of the Crimes Ordinance deals with the meaning of “prejudice” and “induce”. Section 70(1) says:
Subsection (5):
49.Section 70 is a provision to define what “prejudice” in section 73 means and obviously it would not qualify the operation of section 73 without doing it in clear terms. Should the legislation require the proof of actual prejudice, as opposed to an intention to induce someone to do an act or omission which will result in prejudice if that person had been so induced, section 70(1) would be written as: “…an act or omission induced is to a person’s prejudice …” and in this way the words “intended to be” would not be there. Therefore, it is immaterial at all if the Check did not go through all the procedures or that the issuing bank would no doubt deny the transfer when it came to their part to honour the check. 50.To complete the explanation, sections 70(3) and (4) are out of the question in the present case and one can see from reading sections 70(1)(a) and (5) that “loss” is only one form of prejudice. 51.For section 70(1)(f), the way it is worded also shows clearly that no actual prejudice has to exist or be proven. The focus of section 70(1)(f) lies on the performance of duty and clearly PW1’s duty includes processing a check and this must fall within the meaning of “the result of his having accepted … in connection with his performance of duty”. 52.Processing a check involves many steps and each of them is a performance of duty of PW1. This process must include the steps that follow the receiving of a check from a customer at the counter. PW1 had identified that the figure on Exh.P5 had exceeded his limit and proceeded to consult his senior. This must be a result of his having accepted for a moment that the check was genuine. However, the words “having accepted” in the provision does not refer to the actual acceptance if one pays attention to the words “if it occurs will” in sub-section (1). The prosecution case does not have to come to that stage of actual acceptance. 53.That said, very often, the intended act or omission could have been already induced and the performer might have started to perform, like processing the check in the present case. As long as the intention of an accused was to induce a bank teller to process a forged check (with all the other elements of offence already existed), it matters not that the process was interrupted or became unsuccessful. It is also immaterial that the processing of the false check had not come to the end or the usual final stage. The offence had been committed and completed at the time of the actus reus, i.e. using, provided the knowledge or belief and the double intention had also existed at that time. The second limb of the double intention requires the proof of an intention to bring upon a real prejudice according to subsection(1)(a)-(f) because of the use of the word “will” instead of “might” in section 70(1). 54.I have also carefully considered the case of HKSAR v Kwan Hin Kee CACC 190/2005 which discussed the ingredients of this offence requiring proof of a “double intention” on the part of the Defendant and the meaning of “prejudice” in Section 70 of the Crimes Ordinance. The Court of Appeal said in paragraph 19:
55.The Court of Appeal in that case had also identified in the preceding paragraphs the acts “so induced”. However, it is clear the Court of Appeal in that case was to deal with the arguments on the second limb of intention. The fact that the evidence did prove that there were acts “so induced” to support the conviction is mere an evidential aspect to prove the intention of the applicant and, in my judgment, the use of the word “and” in paragraph 19 did not introduce, as a matter of law, a requirement of proof of actual prejudice or the actual existence of the act or omission as a result of the performance of duty. 56.In HKSAR v Wong Wai CACC265/1997, the Court of Appeal dismissed an application for leave to appeal against conviction by applying the proviso. In that case, the applicant advanced an argument that the trial judge had erroneously failed to identify any prejudice the bank in that case would suffer (see para.7). The Court of Appeal was of the view that it was a misdirection when the trial judge held that there was no evidence to establish the specific prejudice. However, the Court of Appeal expressly rejected the argument that “a prejudice under (section 70) only arose if the receipt was issued as a result of the bank’s “having accepted the CTD’s” as genuine in connection with “its performance of any duty” and that, as the bank was under no duty to accept the CTDs for safe keeping, the acts of the applicant and the other offenders could not constitute prejudice as defined”. (see para.8) 57.In coming to the conclusion that in the circumstances of that case that prejudice was made out in accordance with section 70, the Court of Appeal said (continued at para.8):
58.Again, the subject element is the intention of the accused. 59.Finally, in HKSAR v Wah Lap Wai CACC39/2015, an unreported judgment in Chinese, dated 11 December 2015, an application for leave to appeal, Pang JA expressly rejected a similar argument of lack of prejudice and confirmed the applicability of s.70(1)(f) (see paragraphs 39-43). 60.In the present case, the evidence of presentation of Exh.P5 to PW1 by the Defendant coupled with the request to deposit the sum of money into the account specified in Exh.P6, as a matter of law, must support the elements of using and the double intention. The alleged intention of the Defendant was not to cause any loss or other forms of prejudice to PW1 or the Bank governed by the other subsections under section 70 but an intention to induce PW1 to process Exh.P5 in his capacity of a counter service officer of the Bank, which, in my judgment, squarely falls within subsection (f). 61.At any rate, I am satisfied that there is evidence to prove that PW1 had been induced by the presentation of Exh.P5 to perform his duty in processing a cashier’s check, to which subsection (f) would apply. 62.The question of having or not a case to answer is a matter of law and since the applicability of subsection (f) or generally the notion of prejudice is also a matter of law, the parties in the present case were invited to address this Court at the time when the prosecution closed their case. Whilst I disagreed with the prosecution that an intention to cause a potential prejudice is sufficient, however, having carefully considered the submissions of both parties, I found there existed a prima facie case against the Defendant for the reasons I now set out under this heading. 63.The central issue in this case is whether the prosecution have proved beyond all reasonable doubt that the Defendant at the material time knew or believed that Exh.P5 was a false instrument. A Consideration of the Evidence and my Findings of Fact 64.I now turn to my findings. 65.The Defence do not challenge the credibility or reliability of the prosecution witnesses or evidence. Independent from that, I also find that the prosecution witnesses truthful and reliable. I accept their evidence and give full weight. 66.I hasten to add one observation: in so far as the findings of falsity of Exh.P5 in the evidence of PW2 and PW3 are concerned, I have no doubt that most of them would only be apparent to the eyes of an expert or people from the banking or relevant industry. It would be unreasonable to apply those findings to consider the knowledge or belief of the Defendant. I would therefore approach the issue of knowledge or belief from the angle of a lay person in the shoes of the Defendant i.e. the undisputed fact that she was an adult who was brought up in the USA and who had received university education with certain working experience in the past and at the material time. 67.In other words, I have not relied on the findings of PW2 and PW3 to impute knowledge or belief of falsity of Exh.P5 on the Defendant. 68.The Defendant is a person of clear criminal record. I have reminded myself the relevant principles on credibility and propensity in accordance with the requisite directions set out in the authority of Tang Siu Man v HKSAR [1998] 1 HKC 371. 69.I have reminded myself of the prosecution’s burden of proof to prove beyond reasonable doubt all the ingredients of the offence. On the other hand, the Defence or the Defendant has no duty to prove anything. 70.The Defendant elected to give evidence in court and testified that the contents of her cautioned statements were true. After careful consideration, I have no hesitation in rejecting the Defendant’s evidence as inherently implausible. 71.The Defendant was not a close friend of RANDY and the Defendant did not even have his contact number when he did have one. The Defendant had to ask her own boss JACK to contact RANDY, also by phone, to request RANDY to send her the bail money. How would it be plausible that the Defendant did not even obtain the telephone number from RANDY when she was dealing with US$2b for him such that she could consult or obtain instructions from RANDY when there was such a need in the process bearing in mind that there was no person between RANDY and the Defendant as JACK was not involved at all in this matter before the arrest. 72.Veronica took the check all the way from Philippines to HK. The Defendant must have impressed upon RANDY that Veronica was a reliable person to be handed with the check which is such an important document, so in their mind, Veronica would properly deliver the envelope to HK with or without opening the envelope or having her being told that there was a check. Whatever the arrangements were and the knowledge of Veronica was, in such a case, there is simply no reason why Veronica was not simply asked to deliver the envelope to KURAMI directly, bearing in mind that she was the Managing Director of Great Billion, who was in HK at the material time. There is simply no conceivable reason why the Defendant would say “I think RANDY wanted to make sure that I made the deposit”. As the Defendant herself agreed in the witness box, there was no reason. 73.It is also incredible for the Defendant to say “I don’t think (RANDY) has any funds to come (HK)”. When she said “I think”, it clearly suggests that it was not what she was told by RANDY. Objectively, no matter whether RANDY had US$2b himself or that he was handling a source of such an amount merely for someone else, it would be absurd to think that RANDY had no money to pay for the trip where he can do the deposit and meet with the business partner(s) in HK. Assuming that RANDY had all the reason not to come, it could not be because of what the Defendant had thought i.e. lack of funds. I am of the view that the answer the Defendant gave was an exoneration to justify the seemingly unnecessary involvement of her by someone to do the simple task of presenting a check in this case. 74.The Defendant did not seem to care about what was written on Exh.D1. “Two billion US dollars” was miswritten as “US$2,000,000.00”. There are three such mistakes on Exh.D1. The discrepancies were apparent and obvious. I do not believe it would skip her attention when the sum of money had to be one of the most important aspects for her to pay attention to in all the circumstances of her being entrusted to handle the task. She had Exh.D1 well before 17 October 2017. She did not note these discrepancies. RANDY did not bring this matter up either. 75.Quite apart from the above, when the Defendant was waiting inside the Bank, the Defendant did not at any stage contact RANDY. She did not try to contact JACK to help contact RANDY either. She had constant communication by whatsapp messages with MANNISH who was in India, but yet, there was not any with KUMARI who was in HK. In all the circumstances, there is no conceivable reason for the Defendant to say “as you instructed” in the context of her message communications with MANNISH at the material time. I agree with Mr. Kelly that this text message was totally out of place and any instructions should have come from RANDY. 76.The Defendant said she was used to seeing big figures on the spreadsheets. However, the business RANDY wanted to do business with the money had nothing to do with antique trading or JACK’s field of trade and therefore whatever impression she might have got from her experience in reading big figures, the handling of the check this time was different. 77.On behalf of the Defendant, Mr. Hemmings submitted that it would be an affront to common sense that the Defendant would have deposited the check if she knew or believed it was a forgery. 78.He also submitted that the Defendant remained in the Bank for very long time and that coupled with her body language suggests the Defendant was not having particular concerns at the material time about the authenticity of Exh.P5. There was no motive on her part and the Defendant had received no reward. It was all done out of friendship with RANDY. 79.I reject these submissions. In my judgment, the fact that the Defendant remained in the Bank does not strengthen the credibility of the Defendant or help the Defence case or cast any doubt upon the prosecution case. The Defendant looked normal and unconcerned but I agree with the prosecution that had she tried to escape or in any way acted suspiciously, it would make things worse. It would be a deliberate risk that the Defendant had chosen to take to do the presentation of the check by herself, obviously for reasons known only to her given the common knowledge that there would be CCTV in a bank. The staying was anticipated and was part of the risk she deliberately took. All in all, whilst I do not hold the CCTV or pictures against the Defendant, they do not strengthen her credibility or help the case of the Defence. Similarly, it was a risk that the Defendant had chosen to take whether her true intention was to get a successful transfer of money, which even though was unlikely to happen, or simply to get a Validated Deposit Slip. 80.Despite all the submissions of the Defence, noting again that there is no duty to prove anything on the part of the Defence or the Defendant and if her evidence or case is true or maybe true, it would afford a reasonable doubt, I, having carefully considered her evidence, have no doubt that the Defendant was not telling the truth. I reject all her evidence insofar as any of them suggests that she had no knowledge or belief of the true nature of Exh.P5. In other words, I do not accept that her evidence on any material aspect is true or maybe true. 81.I also reject her words under caution although in reaching the verdict of this case, I have not relied on the inculpatory parts of those statements even though they are “mixed” in nature. Simply put, they do not strengthen the prosecution case. 82.That said, more importantly, the rejection of the evidence of the Defendant or the Defence case does not in any way strengthen the case of the prosecution. The burden remains on the prosecution to prove the charge to the criminal standard of proof. 83.I remind myself that any adverse inference drawn against the Defendant must be the only irresistible inference based on proven facts. 84.Having considered all the evidence and submissions from all parties, I am sure the prosecution evidence points to an irresistible inference that the Defendant knew or believed Exh.P5 was false. I am sure the prosecution can prove this element beyond all reasonable doubt. 85.The Defendant was a working lady who had received university education. The figure of the check alone, the sum of money it purported to represent, would certainly have caused the Defendant to look at it to confirm its authenticity as it was her intention to present it to a bank and the Defendant must have the opportunities to do so before presenting it to PW1. 86.By looking at the check for that purpose, the Defendant must realise that the printing quality of Exh.P5 was poor. It does not require an expert to note that the logo on the top left corner is blurred. Also, the paper quality is unreasonably low that any adult of basic business sense and experience could and would have spotted that it is a forgery in a matter of seconds. In all the circumstances of this case, not only that she was able to find that Exh.P5 was a forgery, I find the only irresistible inference is that she knew or believed that Exh.P5 was a forgery before she presented it on 18 October 2017. 87.In my judgment, whoever has handled this check would know almost instantly that it is a forgery. The fact that PW1 did not spot this out at once upon receiving the check is neither here nor there. PW1 could have been distracted by other steps of processing the check and there is no evidence to say how long after he had physically received the check had he become aware of the difference of it as compared to a genuine check. I have however reminded myself that in this regard what the prosecution have to satisfy me beyond reasonable doubt is whether the Defendant, and not anyone in the world, knew or believed that Exh.P5 was false before she presented the check. 88.I am also sure by presenting Exh.P5 to PW1 and requesting to make the deposit the Defendant intended to induce PW1 to accept Exh.P5 as genuine. There could not be any other intention. 89.I find section 70(1)(f) applies here and is on point. I find it proven that the Defendant intended to induce PW1 to do an act to his prejudice and he had also been prejudiced as PW1 had begun to process the check and had identified that the amount of the check was beyond his authority. To identify if a check is within or outside his authority must be part of the processing work and the performance of his duty as a counter service officer of the Bank. To proceed to consult his senior must be a result of his performance of duty. I am sure the Defendant intended that PW1 to be so induced and prejudiced as defined by section 70(1)(f). And further, PW1 had actually been so induced and prejudiced by the Defendant. 90.To conclude, I am sure beyond all reasonable doubt the Prosecution have proved the double intention required by this offence. 91.Consequently, and despite the defendant’s clear record, I am satisfied that the Prosecution have proved all ingredients of this offence beyond all reasonable doubt. The defendant is convicted as charged.
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