HKSAR v. Maristela Rhea Nerissa Curbi and Another

DCCC 20/2021

[2021] HKDC 1358

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 20 OF 2021

________________________

________________________

________________________

Reasons for Verdict

________________________

1.Both defendants are jointly charged with three offences, the same offence: passing or tendering a counterfeit currency note, contrary to section 99(1)(a)  of the Crimes Ordinance, Cap 200. Both defendants are accused of committing this offence together on three separate occasions in three separate shops on the same date, 20 June 2020.

2.Briefly, the prosecution alleges the defendants in one day handed over to 3 separate cashiers a $500 Hong Kong currency banknote tendered as genuine but in fact was and which they knew or believed to be a counterfeit of a currency note.

3.There is CCTV footage from all 3 locations which captured the defendants together at the material times.

4.The prosecution relies on the comprehensive Admitted Facts as well as individual video recorded interviews that were not challenged.  The prosecution alleges both were equally cuplable and acted jointly to commit these offences.

5.The defence case is that the defendants did tender or pay for food and services with three counterfeit $500 notes on the same day, but they did not know nor at the material time believed the notes were anything but genuine.

6.The only issue in this case is whether the defendants had the requisite knowledge or belief that they had passed or tendered counterfeit notes.

Undisputed facts

7.The prosecution case was covered in the Admitted Facts (P11).  It was admitted that on June 20, 2020, both defendants were together when the 1^st defendant tendered a counterfeit HK$500 note to a cashier in McDonald’s for one ice cream and received HK$489.50 change.

8.They were also together when she tendered about two hours later another counterfeit HK$500 note for a haircut and some hair treatment oil, and received HK$312 in change.

9.On the last occasion, nearly two hours later, they were together when the 1^st defendant again paid for food in a different McDonald’s and made payment or tendered as genuine the third HK$500 note and received HK$413 in change.

10.All three HK$500 notes passed or tendered for payment were counterfeit.

11.In more detail, it was admitted that on 20 June 2020, at around 4.46 pm, both defendants were together at a McDonald’s shop counter at 355-361 King’s Road, North Point, where the 1^st defendant paid for an ice cream with a counterfeit HK$500 note (P1)  and received change of HK$489.50. Later that day, a manager checked the cashier register and found that that note was counterfeit.  The shop’s CCTV (exhibit P2)  captured the 1^st and 2^nd defendant at the counter.  These are the unchallenged particulars of Charge 1.

12.That CCTV footage (P2)  captured both defendants together earlier than that, at this counter, buying an ice cream with a HK$10 note at 4:32 pm, according to the time of that camera.  The 1^st defendant bought a single ice cream and received change in the form of coins.  Then, 3 minutes later, they both appeared at the window again to buy another ice cream for HK$10.50, which the 1^st defendant paid for with the first counterfeit HK$500 note. 

13.It was admitted that, on the same day at about 6:45 pm, both defendants were inside a hair salon at 278-288 King’s Road, North Point.  The 1^st defendant had a hair cut whilst the 2^nd defendant sat in the salon waiting for her for most of the time.  The 1^st defendant paid for the hair cut and some hair product totalling HK$188 with the counterfeit HK$500 note (P3).  She received change of HK$312.  Later that day, the shop-owner checked the accounts and discovered that counterfeit note.  The CCTV footage from the salon (exhibit P4)  captured the 1^st and 2^nd defendant inside the salon.  These are the unchallenged particulars of Charge 2.

14.It was admitted that, later at about 8.40 pm, both defendants went to another McDonald’s at 460-470 King’s Road, North Point, where the 1^st defendant paid for food with the third counterfeit HK$500 note (P5)  and received HK$413 in change.  Later that night, a manager checked the cash register and found that counterfeit note.  The CCTV from that McDonald’s (exhibit P6)  captured the 1^st and 2^nd defendant inside the restaurant, their actions and interactions.  These are the unchallenged particulars of Charge 3.

15.There are also screenshots taken from various CCTV footage, in the main, to identify the defendants (P7). Identification is not in issue. P10 is another photograph album, photographs of the banknotes and the 3 premises involved in Charges 1 to 3.

16.The defendants were both arrested together on 16 July 2020 by PW1 and PW2.  PW1 later that day conducted a video recorded interview with the 1^st defendant and interpreters (P8, 8A and 8B).  PW2 afterwards also conducted a video recorded interview with the 2^nd defendant and the same interpreters (P9, 9A and 9B).

17.In these interviews, the defendants admitted the facts, explained how they came to be together and had possession of counterfeit HK$500 notes, but both denied knowing or believing at the material times, meaning the times the notes were passed over as payment for goods or services, that they were not genuine.  These interviews were made voluntarily and not challenged.

18.The prosecution called the arresting officers of the 1^st and 2^nd defendants, PW1 and PW2 respectively.  Their evidence of the arrests and subsequent conduct of video recorded interviews was not challenged.

The video recorded interviews

19.Both defendants were asked how they came to be in possession of counterfeit HK$500 notes and both said money was received from a sale of a pair of shoes:  four HK$500 notes totalling a sale price of HK$2,000. That is, however, where the similarities in their statements end.

20.The 1^st defendant said under caution that the 2^nd defendant sold a pair of his own shoes to a male stranger for $2,000 and arranged the exchange at a Wan Chai MTR exit.  The 2^nd defendant was given the 4 notes in exchange for the shoes and later that same day, on 3 separate occasions, when there was a need to pay for goods or services, the 2^nd defendant gave the 1^st defendant on each occasion a HK$500 note to tender as payment.

21.The 1^st defendant said that the sale of the 2^nd defendant’s shoes was arranged through her Carousell App, which is an online community marketplace platform that allows you to buy and sell goods.  When asked for details of her account, she said she had deleted this App after the sale of these shoes and she does not recall any details of her account or user name.

22.The 2^nd defendant said under caution that it was the 1^st defendant who sold a pair of shoes belonging to her mother to a girlfriend for HK$2,000.  He could not provide details of that friend.  He said when they later realised the notes were counterfeit and tried to call her, they were unsuccessful.

23.The 2^nd defendant said that, at the sale of the pair of Alexander McQueen shoes, the 1^st defendant took the money and kept the money.  He had never physically handled any of that money nor did he give her any notes in each of the 3 shops.

24.Both said that they did not realise or know that the four HK$500 notes were counterfeit until they were left with one.  The 1^st defendant said that she did not know until she handled the 4^th note, that it appeared and felt fake, so, out of fear, she threw it away.

25.The 2^nd defendant said that the 1^st defendant threw away the 4^th note after it was rejected by another cashier at a McDonald’s, although he could not remember when or where.  Both said they were unable to repay the shops or the hair salons, so did not go back to those premises.  They had already spent the change received from the 3 premises.

26.In the 2^nd defendant’s interview, he does stress that he did not handle the money after the sale of the shoes nor did he himself tender any money to any cashier although he was with the 1^st defendant at all material times.  He stresses that, in all of the CCTV footage, only the 1^st defendant can be seen tendering or passing money for payment, not him.

27.On the other hand, the 1^st defendant admits she does tender or pass over the money on all 3 occasions, but just prior to payment she was given a HK$500 note on each occasion by the 2^nd defendant.

28.In CCTV footage of the hair salon (P2)  and the second McDonald’s shop of the day (P6), the 2^nd defendant can be seen twice handing her something surreptitiously just before she makes payment.  In fact, in the hair salon at 6:52 pm, according to the CCTV camera timer, the 2^nd defendant gives the 1^st defendant what looks like a note, which she puts in her wallet before she turns around to pay the salon owner with a note she then takes out of that same wallet.

My findings

29.The defendants are jointly charged and the prosecution say they committed these offences together, but the evidence against them must be considered separately, meaning they do not stand or fall together. 

30.In reaching my verdict, I have reminded myself of the burden and standard of proof.  The burden of proof is on the prosecution.  Neither defendant has anything to prove.  I must be sure of the guilt of each defendant on each charge separately and beyond a reasonable doubt before I can convict.

31.The defendants did not give evidence, produce evidence nor call any witnesses.  The fact that neither defendant elected to give evidence nor call witnesses is neither here nor there.  No adverse inference can be drawn against either defendant for remaining silent.  The defendants elected, as is their right, not to give evidence.  This proves nothing one way or the other.  It certainly does not establish guilt.  Other than the denials and explanations in each defendant’s video recorded interview, no positive case has been put forward by either.

32.The prosecution does rely on the facts proved and evidence admitted to cumulatively point to an irresistible inference of knowledge or belief on the part of each defendant beyond a reasonable doubt.

33.Defence counsel both submit that the prosecution has failed to prove knowledge or belief.  The evidence proved does

not allow the court to draw the only reasonable inference.

34.I remind myself that, when drawing inferences from evidence, a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If, from the facts proved, there is a reasonable inference to draw against a defendant as well as one in his favour, the adverse inference cannot be drawn.

Conclusion

35.I have heard full submissions from both defence counsel.  Written submissions are MFI-1 and MFI-2.  Both submitted that there is not enough circumstantial evidence to point to an irresistible inference that the defendants individually knew or believed that the HK$500 note tendered on those 3 occasions were counterfeit.  Both gave credible explanations to the police and both acted very naturally as opposed to furtively in the CCTV footage from the 3 premises. 

36.The prosecution must prove that the notes were counterfeit and that they were tendered or passed as genuine tender.  Those elements went unchallenged and have been proved beyond a reasonable doubt.

37.I repeat that the only issue is the last element, and that is whether the defendants, when the 1^st defendant tendered each counterfeit note, both had knowledge or belief that the note passed on each occasion was counterfeit.

38.The defendants have each given an explanation in their video recorded interviews of how they came to be in possession of those notes.  Both give different versions of how they came to be in possession of those notes.  The 2^nd defendant, in addition, stresses he was never in possession physically but was nevertheless with the 1^st defendant at all times.

39.I reject what they both said in their interviews as incredible, unreliable and fictional.  Of course, I do not make that finding because they have given two different versions.  What one defendant says under caution in these interviews is not evidence against the other.  I certainly do not find their explanations incredible because they gave differing accounts.

40.The evidence is that they went on a spending spree with 3 counterfeit notes within a few hours in 3 separate locations, 2 of which were McDonald’s.  I am sure McDonald’s was targeted because the place and cashiers are busy.  Moreover, they did not spend much and netted a significant amount of clean money in the form of change.  This is what a guilty person would do; that is, spend the notes quickly in busy places to avoid scrutiny or detection, and get as much clean tender as change as possible.  This is damning evidence against both defendants. 

41.The CCTV footage of the 2^nd and 3^rd charges clearly shows the 2^nd defendant give the 1^st defendant something that looks like, in particular in the hair salon, a note just before payment was due. This action alone would not be enough to prove guilt, but when I add it to the fact that the 1^st defendant then immediately went on to pay with counterfeit notes and told the police that the 2^nd defendant had given her a note to pay with on each occasion, I am satisfied that they both knew that the HK$500 notes on each occasion were counterfeit and both equally culpable. 

42.I am satisfied so that I am sure that the evidence, cumulatively and considered together, allows me to draw the only reasonable inference that I can draw, and that is both defendants knew or believed that the notes tendered were counterfeit.

43.In reaching my decision, I have considered the submissions by counsel for both defendants.  Nevertheless, I am sure the prosecution has proved all elements of the offence and proved beyond reasonable doubt that both defendants jointly committed all 3 charges.

44.Accordingly, the 1^st and 2^nd defendants are convicted as charged.