HKSAR v. Bolanos Brudencio Jao

DCCC 545/2018

[2020] HKDC 131

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 545 OF 2018

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Reasons for Verdict

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1.The defendant pleaded not guilty to one count of using a false instrument, contrary to section 73 of the Crimes Ordinance Cap 200. After trial, I now deliver the reasons for verdict as follows.

The Prosecution case

2.The facts are not complicated. On 9^th April 2018 (Monday), the defendant together with a Malaysian male went to the headquarters of the HSBC in Central. They approached the reception counter and asked to see the regional head of the global banking team. PW1 Yuet, assistant manageress, was tasked to meet the defendant and the Malaysian male. They communicated in English and at times the Malaysian male acted as an interpreter and talked to PW1 in Cantonese. The defendant presented a deposit slip, entitled ‘slip key Deposit Box Cash Dollar Deposit’ in the face value of US$943 billion, purportedly issued by the HSBC.

3.PW1 was of the view that the said deposit slip is not genuine, and after consulting the operation department, she made a report to the police.

4.Police officer PW2 attended the scene and arrested the defendant in another room on the 5/F of the main office building of HSBC.

5.The following facts are admitted by both parties pursuant to section 65C of Cap 221 (Exhibits P7 and P8A):

(1) At 2:20 pm on 9^th April 2018, the police officer took a photograph of the deposit slip P1 and the photograph is produced as P2;

(2) At 12:25 pm on 9^th April 2018, the defendant was arrested for the offence of uttering a false document;

(3) The defendant is a Filipino national and entered Hong Kong on 2^nd April 2018 and was permitted to remain in Hong Kong till 16^th April 2018;

(4) The defendant is the holder of the Philippines passport number P1181004A issued on 12^th December 2016, a copy of the relevant data page of the passport is produced as P3;

(5) No loss was suffered by HSBC;

(6) The defendant has a clear record.

PW1 Ms Yuet Tsang-wan Mary

6.She joined the HSBC in 1980 and was the assistant branch manageress of the bank at the material time. At about 10:30 am on 9^th April 2018, PW1 was asked by the staff of the reception counter in the main office to see two males who requested to see the regional head of the private global banking department.

7.PW1 met the defendant and another male in a meeting room. One of the males was carrying a ‘thin flattened briefcase’. She believed the other male is a Malaysian who can speak Cantonese. PW1 talked to the defendant in English. The defendant took out one document from the bag and told PW1 that it was the heritage given by his mother. PW1 suspected that it was not the bank document.

8.The defendant insisted to see the head of the global private banking and told PW1 that she had no knowledge of the document he presented. A photo of the document is enclosed in photo album P2. The amount depicted in the document is US$934 billion.

9.The defendant wanted to confirm this document. PW1 did not ask for an explanation from the defendant as she believed that the document is not genuine. PW1 has not seen such document before. She also checked the computer record and found no such an account under the defendant’s name. The other male at times tried to interpret what was said by the defendant in Chinese even though the defendant was speaking in English.

10.PW1 said the defendant’s demeanour was normal. The defendant insisted that he should see the head Ms Tan, a higher rank to confirm the document. The defendant even said he was not surprised that PW1 did not know anything about this document. PW1 told them that the document is not a banking document.

11.PW1 informed the operational team and eventually the police arrived in about 20 to 30 minutes. The defendant was located inside the bank building. PW1 also identified a copy of the defendant’s passport (P3).

PW2 PC23696 Tsang Tsz-king

12.He was tasked to go to the main office of HSBC and was received by PW1. He was shown a document P1 and PW1 doubted about the authenticity of the document. PW2 located the defendant in another room on the 5/F in the building.

PW3 Dr Oliver Chan

13.The Defence does not challenge Dr Chan’s expert status. He interviewed the defendant on seven separate occasions, with each interview lasted about 30 minutes. Dr Chan’s medical report on the defendant is exhibited as P4 and the defence expert report dated 17^th January 2019 as DP1. Dr Chan was of the view that the defendant exhibited some unusual over-valued ideas. Dr Chan adopted his report as his evidence in court, P4.

14.In his report dated 2^nd September 2019, Dr Chan reported that the defendant said he was not known to any psychiatric service before, although he was once arranged to see one by the solicitor during his earlier period of remand (paragraph 3 of the report).

15.The defendant also gave his version of events to Dr Chan, and said “the purpose of this visit was to find a Canadian trader who could help manage an inherited account that he said was assigned by the late Filipino President Ferdinand Marcos because he was his uncle. He said President Marcos was not actually dead but he was turned ‘low profile’…” (paragraph 4 of the report).

16.The defendant was able to say the name of the HSBC Head of Asia Pacific as Tan Siew Meng. The defendant said this was a secret account which was set up in 1983. Dr Chan also remarked that no corroborative information from his confidants were available. Dr Chan remarked that the defendant “spoke coherently and relevantly and went in elaborative details about his relationship with President Marcos”. The defendant even showed Dr Chan a number of documents and said US$943 quadrillion has been insured at the Lloyd’s Bank in London. (paragraph 5 of the report)

17.At the end, Dr Chan was of the view that the defendant “appears to have an overvalued idea regarding the alleged inherited account, but in the absence of corroborative information or further material facts, it could not be concluded whether it is of delusional level or not.”

18.Dr Chan had seen the report prepared by the defence expert Dr Hung. Dr Chan said his conclusion was based on the seven interviews with the defendant and he could not say the defendant was suffering from delusional disorder. Dr Chan did not list out those documents that were presented by the defendant.

19.Under cross-examination, Dr Chan said the defendant seemed to have fixated ideas about something, but as there were no further facts, he could not say the defendant was suffering from delusional disorder. He is in no position to confirm the authenticity of the so-called ‘certificate of authenticity’ shown by the defendant. Dr Chan maintained that the word ‘quadrillion’ in his report (paragraph 5) was the actual word used by the defendant. As the defendant complained that he had insomnia, Dr Chan prescribed some medication to the defendant but the medication has nothing to do with delusional disorder.

PW4 PC7695 Lam Hin-sung

20.In response to a report, he went to the main office of HSBC in Central. The staff of the bank told him that one of the males had left the building. Later he was able to locate the defendant in the bank building. PW4 made enquiry in English and the defendant replied in English too. At that time, the defendant was carrying a black sling bag.

PW5 PC16906 Tse Chi-man

21.He was the exhibit officer of this case. He escorted the defendant to go to the Room 1217 on the 12/F of Grandview Hotel in North Point and seized some documents therefrom. PW5 did not locate any laptop. Inside the room, there were two other Asian males.

PW6 Tang Wan-pong

22.He was the manager of the Operations Department of the HSBC and his banker’s affirmation from the HSBC was admitted under section 22A of Cap 8. It is marked as P10.

23.PW6 confirmed no bank account was held with the HSBC under the defendant’s name with the passport number P1181004A and that the account number 555734231551 is not a valid account with the bank.

24.Under cross-examination, PW6 confirmed that his search was confined to the local database and covered the period before 1980s. PW6 confirmed that he had not seen any document with the title ‘slip key deposit box’ before, and it was not a document produced by the HSBC.

Statement under s65B

25.The statement of the Immigration Department Tung Tin-yeung dated 13^th September 2019 was admitted under s65B of the Criminal Procedure Ordinance (P9). From the record, the defendant entered Hong Kong on 2^nd April 2018 at 8:33 am.

Half-time submission

26.After the close of the Prosecution case, Defence counsel submitted there was no case to answer and tendered a two-page submission.

27.It was accepted that the defendant did use an instrument as he presented P1 to PW1 but the defendant did not admit the instrument was false. It was submitted that, from the facts of the case, it cannot be inferred that the defendant knew or believed that the instrument was false. It was further submitted that “there was no evidence of any prejudice to the HSBC as all the defendant requested was to see the head of global private banking, Ms Tan. There is no evidence as to what he intended beyond asking to see Ms Tan to look at a document.” 

28.Hence, it is submitted that there is insufficient evidence to show any prejudice or intention by the defendant to cause prejudice to PW1 or HSBC or anyone else.

29.After considering all the evidence presented by the Prosecution and hearing the submissions made by both counsel, I ruled that there was a case to answer for the defendant, even though the defence insisted that there was a possibility that the defendant was suffering from a delusional disorder and hence did not know or believe that the instrument was false. I ruled that there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon the Prosecution evidence.

The Defence case

30.The defendant elected not to give evidence but called Dr Hung as the defence expert witness.

DW1 Dr Hung Bing-kei Gabriel

31.His expert report dated 17^th January 2019 was tendered and marked as DP1. He was approached by staff of the Legal Aid Department this year to interview the defendant and “to conduct a psychiatric evaluation on the defendant to assess his state of mind at the date of the alleged offence and at present”. The defendant was assessed in the presence of a solicitor and an interpreter.

32.The defendant told Dr Hung about his background and the information regarding Marcos’ money and said Marcos told him that he had accumulated something over US$25 quadrillion during his presidency and the Philippines is the richest country in the world (see paragraph 11 of the report DP1).

33.The defendant also offered his version of events leading to the present offence which involved President Xi of China and a ‘trusted man of Marcos’. The defendant was told by a Malaysian male to come to Hong Kong in April 2018 to meet a Canadian billionaire. That billionaire did not appear and the defendant met Tan Yeu Sing, the assistant of that Malaysian male.

34.The defendant was told to go to the HSBC to talk to a senior female executive called Tan Siew Ming. He believed that the document ‘slip key deposit box’ was genuine. The defendant denied that he asked the bank staff to verify anything or to ask for the credit balance. He also denied that he told the bank staff that the account was a legacy from his mother.

35.Dr Hung took the view that he could not rule out the possibility of malingering or lying based on a clinical evaluation and assessment, but “there were no apparent contradictions or inconsistencies noted in the course of the assessment and he appeared [to be] frank, earnest, cooperative and forthcoming”.

36.Dr Hung said the defendant does not appear to suffer from mental retardation or other developmental disorder. Whilst Dr Hung has no means to verify the contents of what the defendant said, but because what the defendant said was extraordinary and implausible, that leads to the possibility of a delusional disorder. Dr Hung then came to the conclusion that due to his delusional disorder, the defendant believed that he was chosen to assist Marcos and the document was real, “as a result, he lacked the mens rea for the alleged offence as he did not know or believe that the document was fake”.

37.Dr Hung said he did not use any independent instrument or tests to do the assessment. He affirmed what he said in the report. Dr Hung said he had no ways to challenge the defendant’s belief including the idea of Marcos’ having US$25 quadrillion. The defendant thought that the sum of US$934 billion belonged to him. Dr Hung took the view that the defendant was suffering from delusional disorder 3 to 5 years prior to the present incident but he understood that the defendant did not take any medication. Nor did the defendant have any history of psychiatrist consultations.

38.Dr Hung said the defendant’s thoughts were well presented and had no hesitations to answer questions. The defendant was even eager to offer explanations and was not evasive.

Analysis of evidence

39.The defendant has no criminal record in Hong Kong. As such, legally he has a good character and has a lower propensity to commit crime. The fact that he elected not to give evidence is his right and there will not be any negative impact on him because all along it is the duty of the Prosecution to prove its case beyond reasonable doubt. The defendant has no duty to prove anything. That said, without his testimony, the defendant could not provide evidence in his own capacity to challenge the Prosecution case, even though the court is entitled to draw any inference which are favourable to the defendant from the evidence tendered by the Prosecution.

40.In his defence, the defendant elected not to give evidence but called his psychiatrist Dr Hung who had interviewed the defendant on one occasion, that is on 21^st December 2018. It is noteworthy to mention that the defendant was arrested on 9^th April 2018 and he was interviewed by Dr Chan (PW3) on seven occasions, from April to September each with about 30 minutes’ duration.

41.Defence expert Dr Hung relied on what was said by the defendant, even though he did consider the stories given by the defendant bizarre. I do not find the opinion and conclusion given by Dr Hung convincing, particularly he only interviewed the defendant once. No independent external instruments and/or tests were used. Dr Hung relied on his professional assessment of what was told by the defendant. Instead, I will give more weight to Dr Chan’s opinion because he had observed the defendant over a period of time and on seven occasions.

42.The defendant did not give evidence in court, and I have serious doubts as to the version of events given by the defendant to both Dr Chan and Dr Hung, the two psychiatrist experts.

43.I think it can be accepted that the death of the late president of the Philippines, Ferdinand Marcos, was known and publicized in 1989. But the defendant insisted that Marcos was still alive. He said he was entrusted by Marcos to handle the secret account. No details can be provided. There was no clue as to how the defendant took the flight to Hong Kong and how did he get in touch with the Malaysian male and/or even the Canadian billionaire. He did not have any bank account with the HSBC.

44.There are apparent discrepancies between what he told PW3 Dr Chan and his defence expert Dr Hung. He told PW3 Dr Chan that the defendant was the uncle of President Marcos and the purpose of the visit was to find a Canadian trader who could help to manage an inherited account (paragraph 4 of Dr Chan’s report, P4). He showed Dr Chan some documents including the ‘certificate of authenticity’.

45.However, the defendant gave a much more elaborated version when being interviewed by his defence psychiatrist Dr Hung. The defendant did not show the certificate of authenticity to Dr Hung but some more documents. He said he had no history of psychiatric illness. He had not spoken directly with Marcos and had not met Marcos personally. The defendant said he cannot take out the principal sum of US$943 billion but he could use the accumulated interest of US$113 billion to invest into the project or ‘trading programme’ involving the Belt and Road initiatives.

46.Given the fact that the defendant has no history of psychiatric illness, I take the view that it is very likely that he fabricated his stories subsequent to his arrest in April 2018. I find the defendant’s versions totally not credible.

47.That said, it remains for me to assess the evidence provided by the Prosecution. It is obvious that the document titled ‘slip key deposit box’ cannot be a genuine document. The mere fact that it states US$943 billion will raise the eyebrows of anyone as the sum is more than the GDP of many affluent countries. With the exchange rate of HK$7.8, the sum can amount to well over HK$7,355 billion.

48.The document specifies the defendant’s name and even states the ‘PIN number’. The bank staff confirmed that the document is false and the defendant never held any account with the HSBC. It would also be beyond imagination if the defendant still had the belief that he had an account with the HSBC.

49.The defendant told PW3 Dr Chan that he is not a smoker, not a drinker and was not known to any psychiatric service. The defendant was born in the Philippines and lived with his younger sister and is the seventh among the ten siblings.

50.The defendant also told his psychiatrist Dr Hung (paragraph 10 of the report, DP1) that he graduated from college with a degree in accounting and reported no history of psychiatric illness. He also told Dr Hung more ‘inside story’ relating to the so-called hidden funds by Marcos. But the defendant did not say why he was chosen to do the project.

51.In my view, the defendant’s story is totally incredible even though the version of events was presented in court through the two experts’ reports. Dr Hung accepted that the defendant’s beliefs are best described as delusions. And Dr Hung said because the defendant “holds these beliefs very strongly and when challenged or shaken, he continues to hold such beliefs. His delusions are interconnected and have developed into an extensive and complex system.” Then Dr Hung comes to the conclusion that “based on my evaluation, his current condition fits within the definition of delusional disorder”.

52.I cannot see the logic from his observations to the conclusion. No explanation was given as to why the defendant cannot be regarded as lying and the defendant was just foolish to believe what he was told.

53.It was argued that the defendant just presented the document without asking anyone to verify it. The defendant flew all the way to Hong Kong at 8:33 am on 2^nd April 2018 (a public holiday in Hong Kong) and went to the main office of the HSBC to utter the document on 9^th April. He did not do so on the next day (3^rd April 2018 Tuesday is not a public holiday) upon his entering into Hong Kong.

54.After all, the defendant was talking about a huge amount of money. I would not speculate as to why the defendant went to the bank to utter the document. He insisted to see the head of the global banking Ms Tan, and even took the view that PW1 was not worthy to talk about this ‘secret account’. There was a Malaysian male with the defendant and the male even helped the defendant to do some sort of interpretation.

55.To this regard, I would adopt the observation and consideration of the Court of Appeal in HKSAR v Chen C F James & Ors CACC 377/2005. In that case, the three applicants worked together to ask local banks to store forged ‘US Federal Reserve Bonds’ for them and issue a ‘safekeeping receipt’ in respect of those forged bonds. Amongst the false documents found, there were two Federal Reserve Bond of the USA each with the face value of US$100 million. The Court of Appeal observed, at paragraph 31 and 33, that defence counsel

“argued that if the applicants knew that the bonds were not genuine, it would be foolish for them to approach the banks who might examine the bonds and discover they were not genuine documents, … In our view there is no such thing as a fool-proof fraud. By its nature a fraud consists of falsities which might be detected sooner or later. What the fraudsters were doing was to take a deliberate risk with the hope that their fraud scheme would not be discovered too soon.”

56.I ruled that the only irresistible and reasonable inference from the evidence so presented is that the defendant uttered the forged document with the necessary mens rea. He was not suffering from delusional disorder at the material time when he flew all the way to Hong Kong to present the forged document. The defendant did know or believe that the document is false. His motive remains unknown, but that does not exonerate his culpability.

57.The Court of Appeal in HKSAR v Ra Hyun Bin & Ors CACC 353/2008 (at paragraph 69) adopted the observation of the English Court of Appeal in R v Ondhia [1998] 2 Cr App R 150, in that it was said:

“In our judgment… the clear language… focuses unequivocally on the intention of the maker of the false document. In section 10 [of the Forgery and Counterfeiting Act 1981] itself, the repeated use of the phrase ‘will result’ or the reference to ‘will be the result’ - the future tense - underlines that the intention of the maker of the document at the time when he creates it relates to future events, namely the intended impact on the recipient of the document and the intended result defined in section 10 rather than the achievement of that result. … Whether the maker succeeds as he intends and whether prejudice within the meaning of section 10 in fact occurs is immaterial, save possibly in an evidential sense: provided the jury is directed to consider the double element of necessary intention and the effect of section 10 is explained in the context of the facts of the individual case…”.

58.In my view, that can answer the submission made by the defence in relation to the issue of prejudice or possible prejudice or intention thereof to cause such prejudice to either PW1 or the HSBC. The Hong Kong Court of Appeal made it clear that it was the intention of the offender that is critical to proof of the offence, not whether or not another person acted upon the document.

59.Taking all factors into consideration, I convict the defendant of the offence of using a false instrument.