HKSAR v. Bolanos Brudencio Jao

CACC 10/2020

[2021] HKCA 712

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)

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BETWEEN

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Before: Hon Macrae VP, Zervos JA and Anthea Pang JA in Court

Date of Hearing: 12 May 2021

Date of Judgment: 12 May 2021

Date of Reasons for Judgment: 23 August 2021

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R E A S O N S   F O R   J U D G M E N T

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Hon Anthea Pang JA (giving the Reasons for Judgment of the Court):

Introduction

1.The appellant pleaded not guilty to a charge of using a false instrument[1] and stood trial before HH Judge Stanley CHAN (“the judge”) in the District Court.  The particulars alleged that, on 9 April 2018, the appellant produced a “Slip Key Deposit Box” bearing his name and the date “25 July 1983”, purportedly issued by “HSBC HK” in the sum of US$943,000,000,000 (“the deposit slip”) to a staff member of the Hongkong and Shanghai Banking Corporation Limited (“HSBC”), with the intention of inducing her 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.On 30 December 2019, the appellant was convicted by the judge and was sentenced to 4 years’ imprisonment. 

3.On 17 January 2020, the appellant filed a Notice of Application for Leave to Appeal against conviction and sentence.  On 4 December 2020, both leave applications were granted by a single judge.[2] 

4.On 12 May 2021, we dismissed both appeals at the end of the hearing, saying that we would give our reasons in due course.  This we now do. 

The prosecution case

5.On 9 April 2018, the appellant, a Filipino national who entered Hong Kong on 2 April, went to HSBC in Central with another Malaysian man.  The two men were received by an assistant branch manager, Ms Yuet.  The appellant then presented the deposit slip, claiming that it related to a “heritage”, and repeatedly requested to meet the regional head of HSBC Global Private Banking, a Ms Tan.  According to Ms Yuet, the appellant asked to see Ms Tan because he would like the deposit slip to be confirmed[3]. The Malaysian male, at times, assumed the role of an interpreter, speaking in Chinese although it was unnecessary because Ms Yuet and the appellant were communicating in English. 

6.The police were eventually called and the appellant was arrested when he was leaving.  The Malaysian male, however, left the building before the police arrived. 

7.HSBC confirmed that no account was held with their bank in the appellant’s name and passport number; and that, in any event, the account number on the deposit slip was not a valid account with HSBC. 

8.Dr Oliver Chan (“Dr Chan”), a psychiatrist called by the prosecution, had interviewed the appellant on seven occasions with the average duration of 30 minutes each and had prepared an expert report which was before the judge.  He also gave oral evidence in court. 

9.According to Dr Chan, the appellant reported no history of psychiatric illness.  He was able to elaborate in detail on his alleged relationship with the late President Marcos and the inheritance of “943 quadrillion US dollars”.  Dr Chan opined that the appellant “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, as his belief happened to be originated from some existing documents or persons.”[4]  In his testimony, Dr Chan explained that “overvalued ideas” were beliefs or ideas that could be understood given the person’s experience or context.[5] 

10.In cross-examination, Dr Chan accepted that he could not rule out the possibility of the appellant suffering from a delusional disorder. 

The defence case

11.The appellant elected not to testify but called one defence witness, Dr Gabriel Hung (“Dr Hung”), a psychiatrist.  Dr Hung had had one interview with the appellant on 21 December 2018 for 1½ hours and he then prepared his report.  He also testified at trial. 

12.Dr Hung stated that the appellant claimed to be related to the late President Marcos, although he had never met or spoken to the late president.  The appellant maintained that President Marcos was still alive and gave details about his substantial wealth held in HSBC London and insured by Lloyds Bank.  According to the appellant, only the “trusted persons” would be able to verify it.  He also elaborated on the purpose of his visit to Hong Kong in that he was authorised to take out the interest accumulated in the account and to invest it, jointly with a Canadian billionaire, in a “very very confidential” trading project under the Belt and Road Initiative.  It was arranged by a Malaysian man, the representative of the Canadian billionaire, for him to come to Hong Kong to have a meeting with the billionaire.  The appellant told Dr Hung that he went to HSBC on the day in question to enquire if Ms Tan could put his money into the trading program.  Contrary to what Ms Yuet told the court, the appellant said to Dr Hung that he had never asked the HSBC staff to verify or check anything.[6] 

13.Dr Hung put forward three diagnostic possibilities in his report, namely (i) malingering/lying; (ii) no psychiatric diagnosis either because the appellant was just foolish to believe what he had been told or what he said was actually true; and (iii) delusional disorder.  Dr Hung took the view that (iii) was the most likely possibility.[7]

14.Dr Hung explained that while he could not rule out the possible diagnosis of malingering/lying, he recalled no apparent contradiction or inconsistency in the course of his assessment and that, 

“In addition, the fluency of his answers, the amount of detail given, the facial expressions and hand gestures together with his level of confidence and conviction in his beliefs suggest that he was not malingering or lying.”[8]

15.In conclusion, as the appellant held those beliefs about the “heritage” of the late President Marcos “very strongly”, despite constantly being challenged, Dr Hung considered that such beliefs were best described as delusions[9]. Further, Dr Hung considered that the appellant could have developed this disorder at least three or five years prior to the present offence. 

16.Dr Hung added that there was not any doubt in the appellant’s mind that the deposit slip was a real document when he presented it to the bank. 

Reasons for Verdict

17.In respect of the psychiatric evidence, the judge found Dr Hung’s analysis not convincing but took the view that more weight could be given to Dr Chan’s opinion because he had observed the appellant over a period of time.  The judge also indicated that he had serious doubts about the appellant’s versions of events and noted apparent discrepancies between the respective versions given to Dr Chan and Dr Hung. 

18.Having considered the evidence in the round, the judge concluded that the appellant, who had no history of suffering from any psychiatric illness and who had flown all the way to Hong Kong to present the forged document, was not suffering from delusional disorder at the material time and that the irresistible inference was that the appellant uttered the forged document with the necessary mens rea.  Although the appellant’s motive remained unknown, the judge found that he did know or believe that the document was false. 

Mitigation

19.In mitigation, defence counsel put emphasis on the age of the appellant (70 years old at the time of sentence) and his health condition (suffering from heart enlargement which resulted in shortness of breath, hypertension and high cholesterol).  He also stressed that the bank had suffered no actual loss. 

Reasons for Sentence

20.After referring to HKSAR v Mazhar Taha Ahmed Elmansouri[10], the judge concluded that the amount involved in a false document was a relevant sentencing factor, noting that the sum appeared in the deposit slip was astronomical.[11]

21.This, together with the judge’s finding that there was a certain degree of international element and that the appellant came to Hong Kong to commit the offence, prompted the judge to adopt a 4-year starting point.  Since the judge found no valid mitigating factors, he imposed the said term accordingly. 

Appeal against conviction

22.While Mr Andrew Bullett complained at the appeal hearing that the judge misdirected himself in relation to certain aspects of Ms Yuet’s evidence, the major thrust of his submissions was that the judge failed to properly evaluate the psychiatric evidence. 

23.In particular, Mr Bullett contended that, whether it was merely an overvalued idea as suggested by Dr Chan or whether it was delusional disorder as suggested by Dr Hung, both experts gave evidence that they found the appellant to have believed the deposit slip to be genuine.  The judge, however, did not deal with this observation of the appellant’s belief in his Reasons for Verdict, thus rendering the conviction unsafe. 

24.Evidence relating to the state of mind of a defendant, for example, his belief or his intention at the material time, would generally come from the defendant.  Where a defendant chooses not to testify and when there is an absence of such direct evidence adduced by the prosecution, whether in the form of a mixed statement or a confession, the tribunal of fact would need to determine what his intention and/or belief was by the drawing of inferences from the proven facts.  If, after assessing all the evidence, the tribunal could be sure of a culpable mind on the part of the defendant, then the mens rea is proved.  If, on the other hand, there is evidence that the defendant might have had an innocent mind, or even in the absence of such evidence, if the tribunal could not be sure that the necessary mens rea is proved, then the defendant is to be acquitted. 

25.In the present case, there was nothing from the evidence led by the prosecution that the appellant might have had an innocent belief at the time.  It follows that when the appellant chose not to testify, there was simply no evidential basis to suggest that the appellant believed or might have believed the deposit slip to be genuine.  Of course, that was not the end of the matter because the prosecution would still need to prove, on the evidence adduced, that the appellant had the necessary mens rea.  However, the significance of an absence of such evidence is that the experts’ assessment/opinions would then have no foundation. 

26.It is not disputed that both experts had been given an elaborate story by the appellant on which they then formed the view that the appellant believed the deposit slip to be genuine.  In other words, both experts had acted upon the appellant’s assertions made to them as evidence of the existence of his professed belief at the time.  However, without the appellant’s evidence, what the two psychiatrists had heard from him remained mere assertions on his part.  Such assertions were never given by the appellant in the witness box under oath and were never tested by way of cross-examination.  In R v Turner (Terence)[12], Lawton LJ commented that, “It is not for this court to instruct psychiatrists how to draft their reports, but those who call psychiatrists as witnesses should remember that the facts upon which they base their opinions must be proved by admissible evidence.  This elementary principle is frequently overlooked.”[13]

27.If there had been evidence as to the appellant having an innocent belief or that he might have had such a belief at the time of the offence, then it would seem unobjectionable for the psychiatrists to be called to assist the court as to whether, in their expert opinion, the appellant who held such a seemingly bizarre belief was suffering from a psychiatric illness, thereby negating the necessary mens rea, or whether no psychiatric symptoms were detected.  However, given the complete absence of any evidence on the appellant’s innocent belief at the material time, it would seem questionable whether the evidence of the two psychiatrists should have been admitted at trial.  Clearly, the experts could not take the place of the tribunal of fact and could not determine for the court whether the appellant indeed had such innocent belief or might have had that belief.  To ask the court to rely on the experts’ findings that the appellant believed the deposit slip to be genuine is tantamount to asking the court to make a second-hand assessment of the appellant’s assertions.  This is obviously inappropriate. 

28.It is also noteworthy that when Dr Hung explained why he ruled out the possible diagnosis of malingering/lying, he referred to there being no apparent contradiction and to the appellant’s demeanour[14]. This kind of assessment should normally be left to the fact-finder and is not one to be decided by an expert.[15]

29.Therefore, when viewed in the proper context, Mr Bullett’s complaint about the judge not having properly dealt with the expert evidence is, with respect, misconceived.  As observed, it would seem doubtful whether such expert evidence should have been allowed in the first place.  Even assuming that the evidence was admissible, it should not be forgotten that the experts were not there to tell the court whether the appellant indeed believed or might have believed the deposit slip was genuine but only that if the appellant had or might have had such a belief, then whether, on their assessment, the appellant might or might not be suffering from a psychiatric condition.  Such evidence might then assist the court in determining if the requisite mens rea for the offence had been proved. 

30.It was also submitted, in the course of argument, that the appellant might have been taken in by his own fantasy or that he might have been taken advantage of by the true perpetrators of the offence.  In our view, neither of these submissions was of assistance to the appellant. 

31.Firstly, there was not a shred of evidence before the judge as to the circumstances under which the appellant came to be in possession of the false deposit slip.  If it were suggested that his delusion got him into making a false document and coming all the way to Hong Kong to present it at a bank, then it would not only be a mere suggestion on the part of counsel but also a rather fanciful one as well. 

32.Alternatively, if it were suggested that the appellant was being preyed on by others, then the perpetrators would first need to know about the appellant’s assertion of his connection to President Marcos before they could use that connection to lure the appellant into believing that he was somehow chosen as the beneficiary of President Marcos’ inheritance and in the meantime, they had to prepare the forged deposit slip, buy the air ticket for the appellant to travel to Hong Kong and provide accommodation for him here between 2 and 9 April 2018. 

33.If there was such an elaborate plan, then the only advantage that they could get from it, it would appear, was to try their luck with the bank and that, if the forged deposit slip was discovered, the appellant would be their scapegoat.  This is again a suggestion without evidential foundation and, in any event, an implausible one.  Further, it is noted that neither the deposit slip nor the “Certificate of Authenticity” bears the name of President Marcos, the connection to whom would appear to be the starting point on which the said perpetrators worked on the appellant. 

34.Returning to the main complaint made by Mr Bullett, we have no hesitation in saying that the ultimate question of whether or not the appellant actually believed or might have believed that the deposit slip was genuine was a matter for the judge and he was perfectly entitled to ignore the findings/assumptions made by the two experts in the present case.  The criticism that even Dr Chan opined that the appellant had an overvalued idea did not help.  An overvalued idea is another way of putting a “firm belief”.  Whether or not the appellant had or might have had that firm belief was a matter for the judge after considering all the evidence. 

35.When examined in context, the minor slip the judge made when relating the evidence in his Reasons for Verdict did not affect the correctness of his conclusion.  The conviction was neither unsafe nor unsatisfactory and we dismissed the appellant’s appeal against conviction accordingly. 

Appeal against sentence

36.The appellant finished serving his term on 7 December 2020 but he insisted to continue with his appeal against sentence in respect of which he acted in person.  The appellant adopted the grounds raised by Mr Bullett at the leave stage which were that the judge had failed to take into account the low risk of loss, if any, to the bank and the personal background of the appellant. 

37.In sentencing, the judge said,

“7. I would not speculate the motive of the defendant coming to Hong Kong all the way from the Philippines to utter this ‘obviously false’ document to a bank staff. He was not acting alone. There is no evidence as to how the defendant paid for the flight, who paid for the defendant’s accommodation and the expenses in Hong Kong, what was the role of the Malaysian male and the so-called Canadian billionaire, and what was the benefit or reward that the defendant can get. …”[16]

38.It is therefore obvious that the judge considered the present case a joint enterprise and one involving some degree of planning in which the appellant, a foreigner, had flown all the way to Hong Kong to commit the offence. 

39.On the other hand, the judge also noted that,

“9. I have no doubt to say that, given the huge sum of money involved US$943 billion, there was little likelihood of success and naturally the bank suffered no loss.”[17]

40.The judge then referred to HKSAR v Mazhar Taha Ahmed Elmansouri[18] and HKSAR v Ra Hyun Bin & Ors[19] in which the amount of money involved was said to be a relevant sentencing factor. 

41.In our view, the matters identified by the judge: the joint enterprise, the degree of planning, the large amount involved and the international element are clearly factors in aggravation of the commission of the present offence and the judge was entitled to take those into account when considering the appropriate sentence.  Insofar as the alleged low risk of loss to the bank is concerned, the judge was alive to it but took the view that such did not act as a mitigating factor.  In respect of the appellant’s personal background and health condition, again, the judge was informed of all those matters but did not consider any of them to be of substantial mitigating value.  Such was a view which the judge was entitled to take. 

42.The sentence is robust but we do not consider it manifestly excessive.  We therefore dismissed the appellant’s appeal against sentence. 

Mr Derek Wong, SPP of the Department of Justice, for the Respondent

Mr Andrew Bullett, instructed by M/s Morley Chow Seto, assigned by the Director of Legal Aid, for the Appellant (for conviction only)

The Appellant appeared in person for sentence