HKSAR v. Jajbir Singh and Others

DCCC 23 & 156/2019 (Consolidated)

[2020] HKDC 1086

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NOS. 23 & 156 OF 2019

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REASONS FOR VERDICT

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Procedural History

This case first came before me for plea on 18 October 2019 (for D1 to D3 only). D1 to D3 pleaded guilty to certain charges according to their respective agreements with the prosecution. D1 and D3 also indicated their willingness to give evidence for the prosecution against D4. Hence, their sentencing was adjourned until the conclusion of D4's trial.

2.D2, owing to the sentence which she was likely to receive and with the consent of counsel for both sides, was sentenced by me on 28 October 2019.

3.D4's trial was originally fixed for 3 February 2020 (with 4 days reserved).  Due to the outbreak of the coronavirus, court proceedings were generally suspended for a few months since 29 January 2020.  As a result, D4's trial was refixed to 5 October 2020.

4.D1, D3 and D4 are jointly charged with an offence of "Conspiracy to make counterfeit notes" (Charge 5).  D4 pleaded not guilty to the charge; whereas D1 and D3 had already pleaded guilty to Charge 5 in October 2019.  This trial is about D4 in respect of Charge 5 only.

The Prosecution Case

5.The offence in Charge 5 took place in Room 2310 ("the Room") of iclub Hotel in Ma Tau Wai ("the Hotel").  The offence came to light in the afternoon on 5 July 2018.

6.According to Mr. Tsang (PW3), Assistant Housekeeping Manager of the Hotel, he went to the Room at 2:30 p.m. on 5 July 2018 after being informed by his staff that it was messy.  He saw pieces of paper with images of Hong Kong banknotes printed on them lying on the floor amongst other trash.  He also saw a similar piece of paper in the toilet bowl.  He then saw a printer underneath the bed.  PW3 commented that the Room was not big.  It is consisted of a bathroom and a sleeping area in which a bed was placed.  He confirmed that the Room had a TV set, but was unable to recall in the witness box if there was a sofa, a desk or any chairs since the furniture setting of each room type varies.

7.The Police was alerted.  About 5:00 p.m. on the same day, a printer[1] (Exhibit P1) and pieces of paper with images of a HK$1,000 note and a HK$500 note[2] (Exhibits P4 to P6[3]) were seized from the Room.  A McDonald's receipt[4] (Exhibit P7) and 3 7-Eleven receipts[5] were also seized.

8.Police investigation revealed that about 8:30 p.m. on 3 July 2018, D4 checked into the Hotel pursuant to his reservation.  He was assigned the Room for 1 night and was given 2 key cards.  About noon on 4 July 2018, D4 extended his stay for another night.  He paid for the 2^nd night with a genuine HK$1,000 note with serial number ER843531[6] (Exhibit P2).

9.CCTV footage of various locations in the Hotel showed who went to the Room at what time and when he/she left.  The CCTV footage of the Ground Floor Lobby of the Hotel showed who carried the printer to the Hotel and who carried it upstairs to the Room. The check-in process and the extension of stay procedure were also captured.

10.Fingerprints of D4 were found on a piece of paper with an image of HK$1,000 note printed on it (Exhibit P5), a McDonald's receipt (Exhibit P7) and the handle of a drawer in the Room[7].

11.D1 and D3 gave evidence regarding D4's role in the commission of this offence.  In gist, D3 claimed that whenever she was in the Room, she was sleeping most of the time since she was tired and heavily pregnant with D1's child.  She said she saw D4 testing the printer trying to print banknotes.  She also saw D4 teaching D1 how to print.  D1 claimed that D4 was the mastermind.  He alleged that D4 asked him to buy the printer, and that D4 paid for the printer and the Room as well.  D1 said they were making counterfeit banknotes to be used for buying drugs.

The Defence Case

12.D4 elected to give evidence but did not call any witness.

13.According to his passport (Exhibit D1), D4 was born in October 1994.

14.D4 claimed that he came to Hong Kong from Mexico in July 2014[8] to stay with his father, who is American.  As a visitor, D4 knew all along that he was not allowed to work or study in Hong Kong.  He was arrested on 30 December 2018 at Tuen Mun Ferry Terminal when he was about to go to Macau with his father[9].  He explained that he would go to Macau every 3 months for an hour or so to renew his permitted stay in   Hong Kong.  At the time of the offence, D4 was residing with his father at the Harbourfront Hotel in Hung Hom on a long-term basis.

15.D4 claimed that he first met "Gary" (D1) when eating chicken at a street corner a week before 2 July 2018.  Regarding Charge 5, D4 said in the evening on 3 July 2018, D1 called him asking him to come downstairs since D1 was outside the Harbourfront Hotel.  D4 went downstairs.  D1 was with an Indian male; they had a printer box with them.  D1 showed D4 his mobile phone and asked D4 to book a hotel room for him.  D4 did so and 3 of them took a taxi to the Hotel.  D4 said D1 gave him cash to pay for the Room upon check-in.  D1 also gave him the genuine HK$1,000 note (Exhibit P2) to extend his stay.

16.D4 agreed with all the CCTV footage of the Hotel which depicted him.  He said he did not know why D1 brought a printer with him to the Hotel.  D4 claimed that he did not know the people who went into the Room except D1.  D4 said he watched TV in the Room and D1 talked to others.  D4 claimed that he had nothing to do with what D1 and others did in the Room.  D4 accepted that he saw banknotes being printed, but thought it was some kind of a joke (i.e. D1 and others were frolicking) because the quality of the images printed was horrible.  D4 denied having brought a laptop computer with him to the Hotel.  He said D1 produced those banknote images using a cell phone or an original note.  He only saw a printer and paper being used to print those counterfeit notes[10].

Assessment and Analysis of Evidence

17.The burden of proof is on the prosecution to prove each element of the offence beyond reasonable doubt.

18.I am aware that D1 and D3 are accomplice witnesses and that their respective sentences depend on their performance in the witness box.  I have reminded myself of the dangers in relying on their evidence.

19.D4 has a clear record. I have directed myself on his good character accordingly.

20.I need not elaborate on the evidence of D1 and D3, suffice it to say that I do not believe them, unless when their evidence is supported by independent evidence (eg. CCTV footage).

21.I do not believe D1 because he was obviously not telling the truth or trying to hide the identity of certain people captured by the CCTV footage. Shortly after D4 had checked into the Hotel, the CCTV footage of the Ground Floor Lobby clearly shows that D1 was talking to a Chinese male by the elevators[11]. About a minute later, D1, D4 and that Chinese male went into an elevator to go up to the Room. Yet, D1 claimed that he does not remember who that Chinese male is or what they had talked about in the Ground Floor Lobby, even when he was confronted with the almost undeniable evidence that the Chinese male had spent more than 3 hours in the Room with him[12]. Similarly, D1 claimed that he does not remember the name of the Indian male who accompanied him to purchase the printer at the AEON store at Whampoa. According to the CCTV footage of the Hotel, the same Indian male had in fact spent over 7 hours in the Room in total[13]. Yet, D1 claimed that he does not remember his name.

22.D3's evidence is not of any better quality. She claimed that she spent most of her time in the Room sleeping. She stated that she helped cleaning up the Room before check-out. She said she put the paper in the trash bin; and the tools (such as scissors, ruler, cutting board) in a bag. Someone then took care of the bag. Similar to D1, she is also evasive about the identity of the Indian male who had clearly met up with her outside the Hotel by opening the door for her and carrying her bag[14]. Yet, she claimed that she does not know him and did not meet up with him outside the Hotel. As a juror, I do not find her evidence credible or reliable.

23.Without the evidence of D1 and D3, the remaining evidence against D4 is entirely circumstantial. As a juror, I accept D4's evidence tends to be true in that D1 was the person who orchestrated the "money-printing plan". Although the CCTV footage carries no sound, based on the gestures and demeanour of D1 at the AEON store and the Ground Floor Lobby of the Hotel, I find it possible that D1 was at least playing a leading role, if not the ringleader. Be that as it may, the story does not end here.

24.On the other hand, D4 is not as gullible as he claimed to be. Having just met D1 for a week, D4 was willing to book a hotel room in his own name for D1 and go to the Hotel to check in on a moment's notice. Seeing that D1 had brought along with him a printer in a box, D4 did not bother to find out why. In fact, D4 carried it into the Ground Floor Lobby of the Hotel. He had physical custody of the printer until after check-in and carried it to the Room. Refugee or otherwise, who would bring a printer to a hotel room? D4 did not seem to find it even a bit odd or awkward at all.

25.D4 admitted in his evidence that he saw D1 and others printing banknotes with the printer. He claimed that he thought it was a joke and that they were frolicking. As a juror, I do not accept this explanation. Irrespective of nationality and culture, any reasonable adult in his/her right mind would know that making or using counterfeit banknotes is illegal. I accept that D4 had no duty to stop anyone from committing crimes in the Room. But the Room was rented in his name. In D4's mind, D1 could not book a hotel room without his help. Even though, for the purpose of discussion, D4 might not have known the D1's true purpose of booking a hotel room, he clearly had knowledge of the printing of banknotes when he saw it being done.

26.By allowing D1 and others to use the Room which he rented to print banknotes, D4 became a party to and played a part in the existing joint enterprise[15] (of D1, D3 and other persons unknown). In other words, even D4 might have rented the Room innocently for the 1^st night, he extended his stay knowing for what purpose the Room was being used the 2^nd night.

27.There is no dispute that D4 left the Room around 3:40 a.m. on 4 July and returned around 10:20 a.m. on the same day[16]. He claimed that he went home to sleep. He also claimed that he returned to the Room to clean up and to check out, but was then asked by D1 to extend the stay. I do not know why D4 thought he should return to clean the Room before check out, unless he did not want any incriminating evidence to be left behind. He claimed that he was responsible for checking out, yet he left the Room around 2:40 p.m. on 4 July[17] and did not return afterwards[18].

28.D4 claimed that D1 asked him to book a hotel room for D1 to stay for a night and to chat with him. Yet, according to D4, it turned out that D4 was watching TV in the Room whilst D1 was talking to other visitors and printing banknotes. D4 claimed that he was not happy about it, but he did not do anything to improve the situation.

29.D4's evidence clearly defies common sense. As a juror, I do not find him truthful or reliable. I reject his evidence.

30.Based on the evidence before me, I draw the irresistible inference that at the latest, when he saw banknotes being printed, D4 knew what was going on in the Room and he knowingly allowed D1 and others to continue to use the Room, which was rented in D4's name, to print counterfeit banknotes. Hence, to the least extent, he was a party to the joint enterprise in this capacity. The prosecution has proved the offence against D4 beyond reasonable doubt. I find him guilty of Charge 5.