HKSAR v. Morano David Jr Guevarra

CACC 316/2019

[2020] HKCA 773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 316 OF 2019

(ON APPEAL FROM DCCC 215/2017)

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BETWEEN

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REASONS FOR JUDGMENT

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1.The applicant was tried in the District Court before HH Judge Dufton (“the judge”) on a charge of “using false instruments”, contrary to section 73 of the Crimes Ordinance, Cap 200. He was convicted and was sentenced to a total term of 3 years’ imprisonment. He seeks leave to appeal against his conviction and his sentence.

2.At the hearing of the application I granted him leave to appeal in respect of his conviction but refused him leave in respect of his application for leave to appeal against his sentence.  These are the reasons for my decision.

A. The prosecution case

3.The prosecution case against the applicant was straightforward. On 29 October 2018, the applicant, a Philippino national who had arrived in Hong Kong the previous day, visited the The Hongkong and Shanghai Banking Corporation Limited (“HSBC”) at No 1 Queen’s Road Central.  He was accompanied by three other persons.  They were a Malaysian male surnamed Tang, a Taiwanese male surnamed Li and a Chinese female surnamed He. 

4.At the bank the applicant presented a number of false documents to an employee of HSBC, Miss So (“PW1”) in order to procure from HSBC a certification as to his savings with the bank.  He claimed there was USD500 billion in an account under his name and whose number he provided.  The false documents are particularized in the charge as including (i) one “SAFEKEEPING RECEIPT No. HSBC-698822” dated 12 January 1983 (“P1”), (ii) 4 cards (“P2”) and (iii) 12 documents (“P3”).  P1 to P3 all bore the applicant’s name on them which on their face concerned the sum of “USD500,000,000,000.00” and purported to be issued by HSBC for the applicant’s benefit.  Their falsity was not in dispute. 

5.The prosecution called only one witness, the HSBC employee, PW1. PW1 gave narrative evidence of her contact with the applicant, the conversation she had with him and the documents he produced to her that are particularized in the charge.  In respect of these documents, PW1 also gave opinion evidence as to their falsity, having been accepted by the judge as being possessed of the necessary expertise to do so. 

6.PW1 testified that she joined HSBC in 1992 and at the time of the offence she held the position of assistant manager.  It was her evidence that at around noon on 29 October 2018 she was asked to attend to four walk-in patrons who were in the reception area on the 5^th floor.  PW1 then invited them to an interview room located on that floor.  Inside the interview room she spoke to the applicant in English and verified his identity by checking his Philippines passport.  There was no dispute that Tang, Li and He were present in the room.   

7.PW1 said that the applicant told her in English that he represented a “Philippines frontline organization” and showed her P1 to P3 and requested HSBC to issue to him a certificate to prove the amount of savings that he had in the bank.  He also produced a colour print of a gold plate (“P21”) and ten other documents that were said to be from the Philippines, the United States and the United Nations (“P7 to P16”), with a view to establishing that he was doing charity work.     

8.PW1 twice conducted a check on the bank’s computer system in the reception and the meeting room to see if the applicant’s name and the account stated on P1 to P3 could be found.  She said that the account did not exist but she could not recall if that was also the case in respect of the applicant’s name. 

9.It was an admitted fact that subsequently the police were called and the applicant was arrested inside the interview room on the 5^th floor at about 13:10 hours.  Under caution, the applicant replied in English that “It is totally Mr Tang’s idea” and added that “It’s Mr Tang asking me to bring those documents to HSBC today.”  In addition to P1 to P3 the police seized documents in the applicant’s briefcase and in his hotel room. 

10.On 30 October 2018 the applicant made a video record of interview (“VRI”), the admissibility of which was not in dispute.  In it he said he was a businessman in the Philippines and that he had arrived in Hong Kong with all the documents two days ago at Tang’s invitation, a person whom he had come to know only on 25 October 2018.  Tang told him that the purpose of the visit to HSBC was to “validate” his documents, but he did not intend to withdraw any money from HSBC on the strength of them. He maintained that inside the meeting room, it was Tang who asked him to produce the documents and it was Tang who handed them to PW1 to check.  He said he was given the documents in question, and therefore access to the funds stated on them, under the authorization of the late President Marcos of the Philippines who died in 1989, but he did not know if they were genuine.  He would not have taken them outside the Philippines unless someone had invited him to do so and had validated them.  He said he took them out in order to seek funding for some construction projects from parties who were willing to provide funds once the validity of the documents had been confirmed.  He said that all the other documents found in his possession were of a similar nature and the purpose for which they were brought to Hong Kong was the same.

11.The applicant said that prior to his trip to Hong Kong, Tang had reassured him both in emails and phone calls that the bank had already checked his documents and there was no problem with them. 

12.The main disputes at trial were whether the applicant was the person who actually presented the false documents to PW1, as opposed to Tang, and if so, whether he knew the documents were false and intended PW1 to accept them as genuine so that a certification could be issued in respect of his finances.

B. The defence case

13.The applicant elected not to testify and did not call any witness.  He relied on the explanation given by him under caution that he did not know if the documents in his possession were genuine and he was only taking them to Hong Kong for “verification” on Tang’s invitation and his reassurance that HSBC would not take any issue with any of them. 

14.Mr Hemmings in his closing speech submitted that the applicant did nothing to “induce PW1 to accept the documents as genuine” and only produced the documents in response to her further enquiry.  It was also submitted that HSBC could never have been prejudiced by the applicant’s act at all because the account did not exist and it was not in dispute that the applicant did not want to make any withdrawal at that time. 

C. The judge’s Reasons for Verdict

15.The judge reminded himself that the prosecution was required to prove the following elements of the offence, namely (i) the falsity of the instruments particularised in the charge; (ii) the applicant used them, knowing or believing them or any of them were false; (iii) he used them or any of them with the intention of inducing the bank staff to accept them as genuine; and (iv) by reason of accepting them intended the staff of HSBC to do or not to do some act to her own or any other’s prejudice. 

16.In respect of element (i), the judge accepted the evidence of PW1.  He found that P1 to P3 must be false.  The judge also considered that as the documents found in the applicant’s briefcase and in his hotel room were almost identical to the subject matter of the charge, they were relevant to the applicant’s knowledge or belief at that time and to his answers in his video record of interview. 

17.In respect of element (ii), the judge again accepted the evidence of PW1 that it was the applicant who presented the documents to her but not Tang.  He rejected the applicant’s explanation in the VRI, in particular his claim that the late President Marcos had authorised the transfer of USD500 billion to the applicant and that he was given the documents so as to enable him to fund construction projects worldwide.

18.Given the very substantial amount of all the instruments in his possession, which on their face totalled USD3 trillion, the judge found the applicant’s explanation, that he only brought them to Hong Kong at the request of Tang for verification, to be not credible.  He referred to HKSAR v Chen C F James & Others[1] and found that a person with some common sense would have been alerted that documents in relation to such an astronomical amount were “too good to be true” and “could not have been genuine”.     

19.In respect of element (iii), the judge also accepted PW1’s evidence that the applicant had requested a certificate from HSBC as to the savings that he had in an HSBC account. 

20.In respect of element (iv), the judge rejected the defence submission that as the account did not exist at all and the applicant did not intend to make withdrawals, HSBC could never have been prejudiced by accepting the documents as genuine.  The judge found that, had PW1 accepted the false documents in the present case as genuine and issued the certificate to the applicant, it would have been “in connection with her performance of her duty working in the bank” within the meaning of section 70(1)(f) of the Crimes Ordinance, Cap 200 as such PW1 and the bank would have been prejudiced.  Further, it would follow that obtaining such a certificate from a reputable bank would enable the applicant to persuade others to lend or advance money to him on its strength.         

D. The judge’s Reasons for Sentence

21.The judge found that although there might have been little likelihood of success in getting the certificate, there was a degree of planning and preparation in the commission of the offence.  The judge also noted that there was present the aggravating factor of the applicant coming to Hong Kong to commit a crime and that he was also in possession of false documents purportedly issued by the United Nations, the World Bank, the International Monetary Fund and the Federal Reserve certifying that the sum of US$500 billion belonged to the applicant. 

22.The judge referred to the Court of Appeal decision in HKSAR v Mazhar Taha Ahmed Elmansouri[2] and noted that in that case the Court of Appeal upheld a sentence of 5 years’ imprisonment whilst cautioning against over-reliance on other cases for comparable sentencing purposes.  He also took into account that there was little likelihood of success in the applicant’s plan and no actual loss to HSBC and that the applicant had a clear record in Hong Kong.  The judge sentenced him to 3 years’ imprisonment.   

E. The grounds of appeal

23.The applicant was unrepresented in the present application.  In documents filed with the court the applicant alleged that Mr Hemmings did not carry out his instructions in his cross-examination of PW1.

24.As directed by the court on 10 March 2020, the applicant filed an affirmation which set out the details of his allegation against Mr Hemmings.  The applicant stated that as soon as he saw PW1 testify at his trial, he realised that PW1 was not the bank staff to whom he spoke and with whom he dealt prior to his arrest on 29 October 2018.  He described what then happened as follows:

“… After the first part of her [PW1’s] statement, I called the attention of the interpreter and told him about the wrong person who appeared as witness. He said I have to tell my counsel which I did. But my counsel that moment prevented me by telling me that said PW1 was not consistent on her statement, then he asked me – do you want me to tell the judge that she is not? I replied - if it will favour us, it’s up to you, so cross-examination continuous. I believed that moment my counsel was expecting more wrong statements from the said witness (PW1). But later, it turned out my counsel had failed to voice out the issue to the court to pursue that said PW1 was a false person during the cross-examination.”

25.In reply, Mr Hemmings filed an affirmation dated 25 May 2020.  Mr Hemmings in his affirmation agreed that PW1 was not the first staff with whom the applicant had dealings on that day.  In accordance with PW1’s own testimony, the group of 4 were first seen by her colleagues who then referred the matter to her for further handling.  However, those colleagues were never identified by PW1. 

26.Mr Hemmings then addressed the allegation of the applicant saying:

“5. After the conclusion of my cross-examination of PW1, at approximately 4.15 pm, I asked the judge for a short break to see if there were any other matters the Appellant wished me to put to the witness. At that time, the Appellant told me that PW1 was not the person who had interviewed him at the bank. This was the first time the Appellant had made such an assertion.

6. I then advised the Appellant that the issue in the case was not the falsity of the documents but whether he knew the documents were false. I also advised him that since he was charged with using false instruments, PW1’s evidence that the documents had not been produced until she asked him the source of the funds was evidence in his favour. I asked him whether, in the circumstances, he wished me to put his latest instruction to the witness. The Appellant said he would leave the matter to me. Finally, the Appellant confirmed that he would elect not to give evidence.

7. Having carefully considered the matter I was of the view that putting the Appellant’s latest instruction to PW1 would be both pointless and inappropriate in the circumstances because (a) she would certainly have denied it, and (b) the Appellant had confirmed that he would not give evidence. Moreover, I did not consider it in the interests of my client to make an unsubstantiated suggestion to PW1 that she had perverted the course of public justice and committed perjury.

8. At no time between the conclusion of PW1’s testimony and the conclusion of the case did the Appellant make any complaint about the way I had handled the case.” (Emphasis added.)

27.Mr Mok, the solicitor for the defence in the trial also made an affirmation and adopted therein what Mr Hemmings had stated in his affirmation. 

28.The applicant on 11 June 2020 filed a 21-page document setting out his grounds and arguments in support of the present application.  He repeated that PW1 was not the bank employee with whom he dealt on that day yet Mr Hemmings failed to inform the judge of this.  He accused PW1 of lying on oath and fabricating evidence against him out of “her imagination of events that did not exist”.  Accordingly the judge wrongly accepted her evidence in full. 

F. The respondent’s submission

29.Ms Margaret Yu appeared for the respondent and opposed the application.  Ms Yu submitted that it was inherently improbable that PW1 had fabricated the whole of her testimony by claiming to be the person who interviewed the applicant, as she gave a detailed recount of what took place that day.  That being so, and given the applicant’s decision to not testify, Mr Hemmings was entitled to exercise his professional judgment and decide that, tactically, the best way of advancing his client’s interests was by not putting his latest instruction to PW1. 

30.Of the applicant’s appeal against sentence, Ms Yu submitted that there was no tariff for this type of offence.  However, there were aggravating features which would call for a higher starting point including the presence of an international element, the degree of planning and preparation on the applicant’s part that went into the commission of the offence and the fact that the amount on the face of the false instruments was USD500 billion.  Ms Yu submitted the seriousness of the present case was analogous to HKSAR v WU Ping Yang, Jimmy[3] where the Court of Appeal upheld a starting point of 4½ years’ imprisonment for the charge of “using copies of false instruments”, concerning 5 documents purportedly issued by Citibank Singapore in order to allow him to open a bank account with Citibank Hong Kong. 

G. Discussion

31.The Court of Final Appeal said in Chong Ching Yuen v HKSAR[4] that as a general rule, an accused person is bound by the way his counsel conducted his trial, even if some of the decisions made by his counsel involved negligence.  The crucial question was whether the appellant had a fair trial.  The court emphasised that it was unlikely that anything short of a very high degree of defence incompetence would ever reduce a trial to something less than a fair trial.  These principles were repeated with even greater emphasis by the Court of Final Appeal in HKSAR v Li Xiaoxiang[5] when it said:

“27. This Court has on a number of occasions, most recently in HKSAR v Cheng Yim Fung Flora, deprecated the fact and trend of misconceived and inappropriate charges of flagrant incompetence levelled at counsel appearing at trial. It seems that the message has not been understood and that some elaboration is warranted.

28. What appears not to be understood is the number and difficulty of decisions which trial counsel have to make and the wide discretion which must be accorded them in the conduct of criminal (and civil) litigation but for which the machinery of timely advice and efficient but fair litigation would be undermined. Without understanding this, the legal adviser who is engaged to advise upon possible grounds of appeal will inevitably fail to appreciate the limits of counsel error as a ground of appeal. It is precisely to illustrate the limits of that concept that in Chong Ching Yuen v HKSAR, Sir Thomas Eichelbaum NPJ took pains to explain the authority of counsel in regard to the conduct of a trial. By reference to R v Birks, he itemised many of the decisions which counsel in the conduct of proceedings is called upon to make: for example, ‘what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon … all matters within the discretion of counsel and frequently [involving] difficult problems of judgment, including judgment as to tactics’ and that ‘[u]nless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.’

29. The point then made by Sir Thomas Eichelbaum NPJ was that:

‘[48] It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.

[49] Nevertheless, the courts have recognised that in some exceptional instances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice. To describe this ground, the expression ‘flagrant incompetence’ has generally been used …  (Emphasis added.)’”

32.It would appear that on the face of the affirmations that have been filed for the appeal, there is little, factually, that is in dispute.  What happened can be summarised as follows:

(1) after concluding his cross-examination of PW1 Mr Hemmings received new instructions that PW1 was not the HSBC employee with whom the applicant dealt;

(2) Mr Hemmings concluded that putting those instructions to PW1 was not necessary in order to advance the defence case and would be positively disadvantageous to it;

(3) after so advising the applicant, the applicant instructed him that he would leave the matter to him; and

(4) knowing that the applicant would not give evidence Mr Hemmings decided not to put these new instructions to PW1.    

33.PW1 testified from 11:40 am on 16 September 2019, and there was a lunch break between 12:46 pm and 2:39 pm.  Her cross-examination did not start until 3:16 pm that day and only lasted for an hour.  Clearly, there was ample opportunity for the applicant to inform Mr Hemmings that PW1 was an impersonator much earlier than he did and, in fact, before Mr Hemmings commenced his cross-examination.  His failure to do so undoubtedly impacts on the credibility of the extraordinary assertion which is at the heart of his new instructions.

34.Mr Hemmings was certainly placed in an unenviable situation for any barrister.  He had no doubt prepared his case and his cross-examination on the basis that PW1 was the HSBC bank staff with whom his client had dealt and to now be told, after he had completed his cross-examination of this witness, that she was an impersonator may well cause him to feel that he was professionally embarrassed.  Furthermore, as a very senior and experienced criminal practitioner he well appreciated that his new instruction was likely to be received by the court with some incredulity and could not possibly be advantageous to his client’s case.  Indeed, the view that Mr Hemmings took of his instructions, as set out in [7] of his affirmation[6], is perfectly understandable. 

35.Nevertheless, the issue for me is whether it is reasonably arguable that this new instruction was not withdrawn by the client and, that being so, in the factual context of the present case, it was not proper for the client to leave it to Mr Hemmings to decide whether he would advance this instruction and not proper for Mr Hemmings to accept this responsibility and to regard his decision in respect of the instruction as merely a tactical decision to be made by him in the exercise of his professional judgment.

36.Factually, the present case was a classic “one against one” situation where PW1 was the only witness for the prosecution to speak of what took place in the interview room on that day.  But, as pointed out earlier in this judgment, PW1 not only gave narrative evidence of what took place at her meeting with the applicant, she also gave expert opinion evidence on the falsity of the documents.  PW1 was the prosecution case.

37.In my view it is reasonably arguable, on the evidence as it presently stands, that the applicant had not withdrawn his instruction.  The question then becomes what should a barrister do when faced with a new instruction that goes to the core of the case against his client but which, in the barrister’s professional judgment, is unfavourable and positively disadvantageous to his client.

38.In answering this question I have been considerably assisted by the comments of the English Court of Appeal in R v Ulcay[7] and of Macrae J, as Macrae VP then was, in giving the judgment of the Court of Appeal in HKSAR v Ho Chung Wah.[8]

39.On the basis of what is contained in those two cases I was of the view that it is reasonably arguable that the only proper course for a barrister is to ask the judge for time so that he can discuss the new instructions with his client and that if, after receiving advice, the client insists on these instructions then the barrister must put them.     

40.Of course I must emphasise that merely crossing the threshold of reasonable arguability does not mean that the ground will succeed and that even if the Court of Appeal was persuaded of its merit, it does not mean that the conviction must be quashed.   

H. The sentence

41.The maximum sentence for the section 73 offence is 14 years’ imprisonment, and there is no sentencing tariff for it as there are myriad ways in which it may be committed. 

42.The applicant was convicted after trial.  He came to Hong Kong specifically for this dishonest purpose and possessed a large amount of false documents at the time of his arrest.  Given the substantial amount on the face of the false documents, had he been successful in obtaining the certification that he sought from HSBC, the harm he might have been able to cause to others could, potentially, have been very substantial.

43.I was not able to detect any error in the judge’s Reasons for Sentence and was not persuaded that there was any excessiveness in the sentence he imposed.

I. Disposition

44.For these reasons I granted the applicant leave to appeal against his conviction and refused him leave to appeal against his sentence.

45.I informed the applicant of his right to renew his application for leave to appeal against his sentence before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal had the power under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 to direct that part of the time he has spent in custody pending the determination of his appeal should not be reckoned as part of the term of his sentence.

46.Finally, I granted the applicant an Appeal Aid Certificate so that he would have the benefit of legal representation at the hearing of his appeal against conviction.  

Ms Margaret Yu SADPP, of the Department of Justice, for the respondent

The applicant appeared in person