HKSAR v. Bolanos Brudencio Jao
Read the full judgment text of CACC 10/2020 on BabelCite. This Court of Appeal judgment was delivered on 4 December 2020.
1. The applicant was tried in the District Court before HH Judge Stanley Chan (“the judge”) on a charge of “using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap 200. He was convicted after trial and was sentenced to a total term of 4 years’ imprisonment. He seeks leave to appeal against his conviction and his sentence.
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CACC 10/2020 [2021] HKCA 25 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 10 OF 2020 (ON APPEAL FROM DCCC 545/2018) ________________________ BETWEEN
________________________ Before: Hon McWalters JA in Court Date of Hearing: 4 December 2020 Date of Judgment: 4 December 2020 Date of Reasons for Judgment: 7 January 2021 ________________________ REASONS FOR JUDGMENT ________________________ 1.The applicant was tried in the District Court before HH Judge Stanley Chan (“the judge”) on a charge of “using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap 200. He was convicted after trial and was sentenced to a total term of 4 years’ imprisonment. He seeks leave to appeal against his conviction and his sentence. 2.At the hearing of the application I granted the applicant leave to appeal against both his conviction and sentence but was subsequently told that the applicant decided to abandon his appeal against sentence. However, that ultimately did not happen and awaiting his decision on that issue caused delay in the handing down of this judgment. The prosecution case 3.On 9 April 2018, the applicant, a Filipino national who had entered Hong Kong on 2 April as a visitor and was permitted to remain in Hong Kong till 16 April, visited the Main Building of The Hong Kong and Shanghai Banking Corporation Limited (“HSBC”) at No 1 Queen’s Road Central with another Malaysian man and was seen by a member of the bank’s staff (“PW1”). The Malaysian man at times assumed the role of interpreter although assistance to the applicant was unnecessary as the applicant understood English. He would occasionally interpret what the applicant was saying into Chinese for PW1’s benefit but, again, this was unnecessary as PW1 spoke English. 4.The applicant presented a document (P1) to PW1, claiming that it represented a “heritage”[1], and repeatedly requesting to see the “Regional Head” of the HSBC global private banking with a view to the bank confirming P1. P1 bore the heading “Slip Key Deposit Box Cash Dollar Deposit” and purported to have been issued by HSBC on 25 July 1983. It asserted an extraordinary face value of US$943,000,000,000. It also bore the applicant’s name and the account number “555734231551”. 5.The police were called and the applicant was arrested for the present offence. The Malaysian man fled the building before the police arrived, and has not since been apprehended. 6.The falsity of P1 was established by the banker’s affirmation (P10) of a Mr Tang (“PW6”), the manager of the Operations Department of the HSBC, in which he confirmed that (i) no bank account was held with the HSBC in the applicant’s name and passport number; and (ii) the account number on P1 was not a valid account with HSBC. 7.The main dispute at trial was whether the applicant knew or believed P1 to be false and whether he intended to induce PW1 to accept it as genuine “and by reason of so accepting it to do some act to her own or any other person’s prejudice.”[2]. 8.Dr Oliver Chan (“Dr Chan”), a psychiatrist called by the prosecution, had interviewed the applicant on seven occasions during his remand at Siu Lam Psychiatric Centre. Dr Chan prepared a medical report dated 2 September 2019 (P4) which he adopted as his evidence. 9.In P4, Dr Chan stated that the applicant was able to elaborate in detail about his alleged relationship with the late President Marcos and his inheritance of “943 quadrillion US dollars” insured at Lloyd’s Bank in London. At the end of his report, Dr Chan formed the view that the applicant appeared to have “an overvalued idea regarding the alleged inherited account”, however, in the absence of corroborative information or further material facts, he could not conclude that it was delusional, as his belief “originated from some existing documents or persons”. In his testimony Dr Chan explained that “overvalued ideas” were “beliefs or ideas that could be understood given the person’s experience or context”[3]. 10.In cross-examination, Dr Chan agreed that the applicant believed what he was saying “but it was not of the delusional level …because the origin of his belief was actually from some documents or person’s account that he was relying on”. He said the applicant seemed to have fixated ideas about something, but he could not conclude that the applicant was suffering from a delusional disorder without the documents on which the applicant relied being proven to be false. In the end, he accepted that he could not rule out that the applicant was suffering from a delusional disorder. The defence case 11.The applicant elected not to testify but called one defence witness, Dr Gabriel Hung (“Dr Hung”), a psychiatrist who had visited the applicant once on 21 December 2018 during his remand at Stanley Prison and had prepared a medical report dated 17 January 2019 (DP1) which he adopted as his evidence at trial. 12.In DP1, Dr Hung reported that the applicant made a number of extraordinary claims to him and elaborated on the purpose of his visit to Hong Kong which he said was to take out the interest that had accumulated in the account, as stated on P1, which he was prepared to invest in a confidential trading project under the Belt and Road Initiative, jointly with a Canadian billionaire. 13.Dr Hung put forward three diagnostic possibilities in his report that might explain the applicant’s extraordinary claims and his apparent belief in those claims. The three diagnostic possibilities were:
14.Dr Hung expressed the opinion that (i) was unlikely because the applicant’s versions did not disclose any apparent contradiction or inconsistency, and because of the level of his confidence and conviction in his beliefs. The second diagnostic possibility was unlikely because the applicant did not appear to suffer from any mental retardation or developmental disorder that would have affected his intellectual functions and his claims were too extraordinary and implausible. That lead Dr Hung to consider delusional disorder, as the most likely diagnostic possibility. 15.Dr Hung reached this conclusion because the applicant held those beliefs about the heritage of late President Marcos “very strongly” despite constantly being challenged. He found that “his delusions are interconnected and have developed into an extensive and complex system”[4], leading to his belief that he was chosen to assist President Marcos in applying the interest in the HSBC account for the project. Thus, Dr Hung concluded, he “fully believed that the document that he presented to HSBC on the day of the alleged offence was real”[5] and expressed the opinion that as a result of holding his belief the applicant “lacked the mens rea for the alleged offence, as he did not know or believe that the document was fake.”[6] 16.In his testimony, Mr Hung agreed that what the applicant said during the interview sounded very bizarre and explained that his assessment would be to determine if he suffered from a delusion, a form of psychiatric illness, or he was just having an overvalued idea. Dr Hung said, he had tried to shake or challenge the applicant’s claims, and found that the applicant was able to come up with other explanations for his beliefs which showed how solidly he believed in them, to the extent that he was suffering from a delusional disorder instead of having just an overvalued idea or a fixed belief. Dr Hung assessed that the applicant could have developed this disorder at least three or five years prior to the present offence. 17.Under cross-examination, Dr Hung agreed that the applicant’s belief could be due to delusion, or that he was simply being over trusting in what other people told him. He added, if P1 was found to be false, then he would take the view that it would more likely to be a delusion than an overvalued idea, or that the applicant was just trying to fool him or lie to him. In the end, Dr Hung concluded that the applicant “fully believed it was real”, and that “there was no element of doubt in him that this was 100 percent real document” when he presented it to PW1[7]. The judge’s Reasons for Verdict 18.The judge did not find Dr Hung’s opinion or conclusion convincing as he had only interviewed the applicant once without using any independent external instruments and/ or tests. Dr Hung could only make his professional assessment based on what the applicant told him, which was even described by him as “bizarre”. The judge held that more weight would be given to Dr Chan’s opinion as he had visited the applicant on seven occasions over a longer period of time. 19.The judge expressed serious doubts as to the version of events given by the applicant to Dr Chan and Dr Hung respectively. In rejecting the applicant’s versions to both doctors as incredible, the judge reasoned as follows:
20.Having considered [31] and [33] of the Court of Appeal judgment in HKSAR v Chen C F James & Ors[8], the judge said:
The judge’s Reasons for Sentence 21.The judge said he would not speculate on the applicant’s motive for the crime but noted that he was not acting alone. He saw little in the way of matters that could mitigate the applicant’s culpability, although he noted the applicant’s age and state of health. He accepted that the crime had little likelihood of success and that HSBC suffered no loss. Nevertheless, he regarded the amount involved and the fact that the crime involved an international element with the culprits coming to Hong Kong to commit the crime as relevant. 22.Finally, he noted that in a similar case[9] the Court of Appeal upheld a sentence of 5 years’ imprisonment and he said he considered also what had been said by the Court of Appeal in HKSAR v Ra Hyun Bin & ors[10]. 23.The judge said he would adopt a starting point of 4 years’ imprisonment and there being, he said, “virtually no valid mitigating grounds”[11] available to the applicant, that was the sentence he imposed. The Perfected Grounds of Appeal 24.Mr Andrew Bullett, counsel for the applicant, raised two grounds of appeal in support of the leave application. 25.In his Ground 1, Mr Bullett argued that the judge failed to properly evaluate the evidence of the prosecution expert, Dr Chan, in three major aspects. 26.He said, firstly, the judge failed to direct himself as to Dr Chan’s opinion that the applicant believed P1 was genuine, either because he was suffering from a delusional disorder, or merely having an overvalued idea. In fact it was Dr Chan’s opinion that the applicant firmly believed in what he said to him during their meetings, in particular as to the genuineness of P1. 27.Secondly, Mr Bullett argued that the judge erred in rejecting, without giving reasons, the respective diagnoses of the applicant by Dr Chan and Dr Hung of the applicant’s “overvalued idea” and/ or delusional disorder. Arguably, their opinions only differed in that Dr Hung formed the view that the applicant was suffering from delusional disorder, whilst Dr Chan was unwilling to go this far. Mr Bullett said, it was unclear in the Reasons for Verdict whether the judge appreciated that the two experts were actually in agreement at least as to the applicant’s firm belief in the genuineness of P1, which he failed to deal with it at all in the Reasons for Verdict. 28.Lastly, it was contended that the judge erred in directing himself that the appellant’s versions to the two experts contained significant discrepancies and as a consequence concluding that the applicant’s accounts to the two experts were incredible. Mr Bullett submitted that the judge did not identify clearly what all those discrepancies were but in any event, if understood properly, there were no discrepancies in the versions the applicant gave to Dr Chan and Dr Hung. As such, in rejecting the applicant’s account, the judge relied on a mistaken view of the evidence which amounted to a material irregularity. 29.Further, Mr Bullett argued that in any event the judge should not have focused upon whether the applicant was lying to Dr Chan and Dr Hung, but rather whether the applicant actually believed P1 to be genuine. Clearly Dr Chan did not consider in his assessment the possibility of “lying” nor was he asked about this possibility in his testimony. Only Dr Hung addressed this possibility and he formed the view that the applicant was not lying. For the judge to find that the applicant had the necessary mens rea, he would have had to first reject the opinions of both Dr Chan and Dr Hung and this he did not do. 30.In his Ground 2, Mr Bullett complained that the judge had misdirected himself as to the evidence of PW1 in certain respects. 31.His Ground 3 related to the appeal against sentence and complained that the judge failed to properly take into account the non-existent or low risk of loss to HSBC and the applicant’s clear record, age and health. Discussion 32.I am satisfied that the grounds of appeal against both conviction and sentence are reasonably arguable. 33.In respect of conviction, the only live issue in this trial was whether the applicant had been proven beyond reasonable doubt to have had the requisite mens rea at the time of the offence. Whether his extraordinary claims were true was not a live issue; only whether he believed them to be true. 34.Indeed, his claims were so patently absurd that, arguably, no “sane” person would believe them. To a lay person, anyone thinking that a bank would accept these documents as genuine would have to be wholly lacking in reason and common sense. The applicant’s claims about the documents were clearly incredible but, as I have indicated, that was simply not the point. 35.It is not clear to me that the judge fully appreciated this fact or fully appreciated that on the question of whether the applicant believed in the genuineness of the documents the psychiatrists were in agreement. The area where they disagreed was how they would each characterise, in psychiatric terms, this wholly other worldly belief that the applicant harboured in respect of the genuineness of the documents. Dr Hung said it was delusional whilst Dr Chan hesitated to go this far because the applicant’s belief was based upon documents he had been shown and assertions that had been made to him in respect of them by people he trusted. In psychiatric terms this provided a “rational” basis for the belief that would prevent it from properly being regarded as delusional. 36.In my view it is reasonably arguable that the evidence of the psychiatrists that the applicant was not lying to them cannot be ignored on the basis that it is not a matter of expert evidence for the psychiatrists, but rather a finding of fact to be made by the tribunal of fact. The psychiatrists had been asked to express an opinion on the applicant’s mental state. They could not do that without forming a view as to whether he genuinely believed in the matters he was asserting. This was simply because, as Dr Hung explained, lying is one of the possible diagnoses. 37.In order to reach a view that the applicant suffered from a delusional disorder, or other psychiatric condition, the two psychiatrists had to exclude the possibility that he was simply lying to them about the beliefs he held. Their interviews with him were intended to probe and challenge his assertions in order to determine whether he genuinely believed them. 38.In my view, it is reasonably arguable that, in these circumstances, their opinions should have carried some weight with the judge, especially as he had to determine the same issue but without the benefit of having seen and heard the applicant testify in front of him. Despite labouring under his disadvantage, the judge appears to have given only cursory consideration to their opinions. 39.In respect of sentence I was of the view that it was reasonably arguable that it was wrong to treat this offence as being similar to others where a lengthy prison sentence was imposed. This crime never had any chance at all of any level of success. The worst possible harm that could befall the bank was that the time of its staff would be wasted. I was of the view that it was reasonably arguable that a more individualised sentence was appropriate for both this offender and his offence. Disposition 40.For these reasons I granted the applicant leave to appeal against his conviction and sentence.
Mr Derek Wong SPP, of the Department of Justice, for the respondent Mr Andrew Bullett, instructed by Morley Chow Seto, assigned by DLA, for the applicant [1] Appeal Bundle page 72 D – H. [2] From the Particulars of Offence of the applicant’s charge at page 1 of the Appeal Bundle. [3] Appeal Bundle page 74 D - E. [4] Appeal Bundle, page 41. [5] Ibid. [6] Appeal Bundle, page 41, [15.3]. [7] Appeal Bundle pages 113 K – 114 B. [8] CACC 377/2005, unreported, 3 May 2006. [9] HKSAR v Mazhar Taha Ahmed Elmansouri, CACC 165/2012, unreported, 15 October 2013. [10] [2009] 5 HKLRD 315 [11] Appeal Bundle, pages 25T-26A, [13]. |
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