HKSAR v. Mohammad Faiz Mohammad

CACC000253/2000

CACC 253/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 253 OF 2000

(ON APPEAL FROM DCCC 369/2000)

__________________

_______________________________

Coram: Hon Stuart-Moore Ag. CJHC, Mayo VP and Stock JA in Court

Date of Hearing: 7 December 2000

Date of Judgment: 7 December 2000

______________

J U D G M E N T

______________

Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted after a trial in the District Court before H.H. Judge Yuen of an offence contrary to s 100(1) and an offence contrary to s 105 respectively of the Crimes Ordinance, Cap. 200.

2. Particulars of the respective offences were as follows:

"1st Charge
Particulars of Offence

MOHAMMAD Faiz Mohammad, on the 29th March 2000, in Hong Kong, had in his custody or control 92 pieces of $100 denomination United States of America currency notes, which were, and which he knew or believed to be, counterfeit of currency notes, intending either to pass or tender them as genuine or to deliver them to another with the intention that he or another shall pass or tender them as genuine.

2nd Charge
Particulars of Offence

MOHAMMAD Faiz Mohammad, on the 29th March 2000 in Hong Kong, without the consent in writing of the Monetary Authority, imported 92 pieces of counterfeit $100 denomination United States of America currency notes into Hong Kong."

3. The applicant now seeks leave to appeal against these convictions.

4. S 100(1) of the Crimes Ordinance reads:

"1) A person who has in his custody or under his control any thing which is, and which he knows or believes to be, a counterfeit of a currency note or of a protected coin, intending either to pass or tender it as genuine or to deliver it to another with the intention that he or another shall pass or tender it as genuine, commits an offence and is liable on conviction on indictment to imprisonment for 14 years."

5. S 105 of the Crimes Ordinance reads:

"A person who without the consent in writing of the Monetary Authority -

(a) imports, lands or unloads a counterfeit of any currency note or protected coin; or

(b) exports a counterfeit of any currency note or protected coin, commits an offence and is liable on conviction on indictment to imprisonment for 10 years."

6. The facts of the case were very simple.

7. Two police officers approached the applicant at the MacDonald's fast food outlet at Tai Po Market on the evening of 29 March 2000. They identified themselves and informed him that they wished to undertake a search on him. One of the officers found a "lai see" packet in each of his trousers' pockets. When these were opened they were found to contain 92 US$100 notes which the officer suspected might be counterfeit. The applicant was taken back to Tai Po Police Station.

8. Efforts were made to obtain the services of an Urdu to English interpreter. These efforts were unavailing. The officer who gave evidence that he was satisfied that the applicant spoke and understood the English language asked him if he would agree to the interview proceeding without the assistance of an interpreter. The applicant consented to this.

9. A lengthy interview then took place when the applicant made a cautioned statement. The questions were written by the police officer and the answers by the applicant.

10. In the statement the applicant admitted that he had obtained the notes from a Pakistani man in Shenzhen and that for a reward of $920 he would take the notes and deliver them to another Pakistani man called Idris at MacDonald's at the Tai Po Market. He was aware of the fact that the notes were counterfeit.

11. At the trial the applicant objected to the admissibility of the cautioned statement on the ground that his command of English was insufficient to enable him to understand what was going on and that inducements had been offered to him if he answered the questions put to him.

12. The applicant did not give evidence on either the special or general issues.

13. In her reasons for verdict the Judge gives reasons why she was satisfied that the applicant did have a sufficient command of English and why she was satisfied that the statement was voluntary. She accepted the evidence of the police officers and was satisfied that the contents of the cautioned statement were true. Also she was satisfied that the requirements of the two sections had been met and she convicted the applicant as charged.

14. It should however be observed that when the Judge set out the ingredients of s 100(1) she failed to make reference to the requirement of knowledge on the part of the applicant that the notes in question were counterfeit. It is however perfectly clear from the circumstances of the case that the applicant did have this knowledge.

15. There are two grounds of appeal. The first is that in all the circumstances the Judge should not have admitted the cautioned statement and the second relates to a misunderstanding it is claimed occurred at the conclusion of the prosecution case.

16. In this connection it is probably helpful to include the draft ground prepared by counsel who represented the applicant at his trial.

"2. A material irregularity occurred in the course of the trial so that the judge ought to have ordered a re-trial.

a) Following the judge's ruling on the admissibility of the record of interview the defence indicated to the court that no evidence was called on the general issue on behalf of the defence.

b) Defence counsel made a closing speech.

c) At its conclusion the judge asked prosecuting counsel for a Reply.

d) After the Reply the judge indicated that she would give her ruling on the submission of no case to answer after the adjournment. No submission of no case to answer had been made by the defence.

e) Following the adjournment the judge ruled that there was a case to answer.

f) Defence counsel then indicated that there was a clear misunderstanding between the Bench and the Bar. Both counsel had been acting on the basis that no submission of no case to answer had been made and that the defence was calling no evidence on the general issue.

g) The judge offered to allow the defence to re-open its case and to call evidence if it so wished.

h) The appellant was thereby forced to reconsider his decision whether or not to give evidence at a stage of the proceedings when it was inappropriate for such decision to be made.

i) The appellant was forced to make that decision in the knowledge that the judge had failed to appreciate the nature of his counsel's closing speech.

j) It follows that in her consideration of the arguments in the closing speech she had been applying the wrong principles and criteria.

k) As a consequence the appellant was bound to form a sense of grievance and belief that he could not receive a fair trial. This further affected his freedom of choice in deciding whether to accede to the judge's offer to allow the defence to re-open its case."

17. There is nothing in the first ground of appeal. As has been stated the Judge gave convincing and satisfactory reasons for being satisfied that the applicant's knowledge of English was sufficient in the circumstances. Nothing has been said to justify us in interfering with her assessment of the position. Also she was satisfied that the police officers were truthful and reliable witnesses. This would also indicate that there was no merit in the suggestion that any inducement had been offered to the applicant.

18. On the second ground it is difficult to see how the applicant suffered any prejudice.

19. It is significant that counsel representing the applicant at the trial appears to have been less than helpful even on his own reconstruction of events. It would appear that he was fully aware of the misunderstanding which had arisen when the court adjourned. Common sense and his duty as a barrister would indicate that he should have immediately appraised the Judge of the fact that the submission which had been made was not a submission of no case to answer.

20. However on counsel's draft a decision had already been made that the applicant would not give evidence on the general issue. The Judge did however offer the defence to re-open the case. That offer was declined. No prejudice has been suffered by the applicant and this ground also fails.

21. Before us the applicant claimed that he had misunderstood what counterfeit notes meant. It is perfectly clear from the background circumstances that this makes no sense at all. The convictions were in no way unsafe or unsatisfactory and this application is dismissed.

Representation:

Mr R G Turnbull, SADPP of the Department of Justice, for the respondent

Mohammad Faiz Mohammad, applicant in person