The Queen v. Nariemil Manalarg Quijano

DCCC000079/1982

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 79 of 1982

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Coram: His Honour Judge Bokhary

Date: 23 August 1982

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REASONS FOR VERDICT

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1. On the night of February 11, this year, the Defendant, a Filipina then aged 29, was stopped by Immigration Officers at Kai Tak Airport shortly after her arrival from Manila. Among other things which the police found in her luggage were a fifty dollar note in United States currency and 13 traveller's cheques also in that currency. The police suspected that the bank note was counterfeit and that the traveller's cheques had been stolen or unlawfully obtained. The Defendant was arrested. As far as the bank note is concerned, the Defendant is charged with possession of a forged bank note, contrary to section 76(1) of the Crimes Ordinance, Cap. 200. This is the 4th charge. As far as the traveller's cheques are concerned, she is charged with possession of goods reasonably suspected of having been stolen, contrary to section 30 of the Summary Offences Ordinance, Cap. 228. This is the 5th charge.

2. The Defendant also faces 3 other charges, being the first 3 charges. They are all of obtaining property on a forged document, contrary to section 75(a) of the Crimes Ordinance, Cap. 200. These charges arose out of what it is alleged the Defendant did during a visit to Hong Kong in November last year. They are all very similar. The case for the Crown is that on the 18th, 20th and 21st respectively of that month, the Defendant went into shops in the Mandarin Hotel, Prince's Building and Percival St. in Causeway Bay respectively and purchased a pair of ladies' boots, a shirt and two pairs of spectacles respectively, and that each time she paid for such items with counterfeit traveller's cheques in the sum of US$100, which she knew were counterfeit, and obtained change as well as the items purchased, thus defrauding the victims of such items and change. The 3 traveller's cheques (one of which she used on each of these 3 occasions) are the documents mentioned in the first 3 charges.

3. I will say at once that I am satisfied that the 3 traveller's cheques mentioned in the first 3 charges and the bank note mentioned in the 4th charge are all counterfeit and, therefore, forgeries. Of course, whenever I say that I am satisfied about any part of the Crown's case I mean that I am so satisfied beyond reasonable doubt. As that aspect of the case was not seriously in dispute, I do not propose to recite the evidence by which the Crown proved that the bank note and travaller's cheques to which I have just referred were forgeries.

4. As far as the first 3 charges are concerned, the next question is whether or not the Defendant made the purchases to which I have referred. I am satisfied that she did. One of the shop assistants, the one in the shop in Percival St., picked out the Defendant at an identification parade, which I am satisfied was a proper and reliable one. He also identified her in Court. The other two shop assistants did not. But each of the 3 shop assistants said that the customer produced what was supposed to be her passport when she paid for her purchases by traveller's cheque, that he/she wrote the number thereof on the back of the traveller's cheque given to him/her, and that the customer was the person shown in the photograph in such passport. Each of the traveller's cheques does indeed have such number, namely, 1333137 written on the back thereof. A Philippines passport in the name of a Miss Rosario Quijano bearing that number was found by officers of the Commercial Crimes Bureau following the Defendant's arrest. I am satisfied that the Defendant verbally admitted to Detective Woman Inspector Wan Mui-ling (who then held a lower rank) that this passport belonged to her cousin, Rosario Quijano, that she had had her own photograph put in it, and that she had used it in connection with the purchases in question. I should mention that I excluded the record of an interview between Detective Woman Inspector Wan and the Defendant conducted in English on the basis that their ability to understand each other in English was open to reasonable doubt. After my ruling, evidence was adduced which leaves me with no such doubt with regard to the later interview at which these verbal admissions were made.

5. What remains to be considered is the mental element. The mental element in the case of the first 3 charges is made up of intent to defraud and knowledge that the documents in question were forgeries. Knowledge of this sort can be inferred from surrounding circumstances if, and only if, the only reasonable inference is the existence of such knowledge. In the circumstances which I have described, which includes the admissions to which I have referred, I am satisfied that the only reasonable inference is that the Defendant knew that the traveller's cheques mentioned in the first 3 charges were forgeries. This leaves intent to defraud. To defraud is to deprive by deceit. The only reasonable inference is that by giving the shop assistants the forged traveller's cheques the Defendant falsely and dishonestly represented that they were genuine. This satisfies me that there was the necessary deceit. The only reasonable inference is that the shop assistants gave the Defendant the goods and change in question because they were so deceived, as she expected and intended. This satisfies me that there was the necessary deprivation brought about by the Defendant's dishonest acts and, accordingly, the necessary intent to defraud.

6. I should add that, quite apart from the process of reasoning which I have just gone through, I am satisfied that the Defendant had in fact verbally admitted outright to Woman Detective Inspector Wan that she had on the occasions mentioned in the first 3 charges used the forged traveller's cheques to purchase items knowing that such traveller's cheques were counterfeit.

7. This brings me to the 4th charge. The Defendant, who did not give evidence (save as to the record of interview which I excluded) wrote this in the answer-to-charge form in respect of this charge:-

'The $50 was given to me by my friend Miss Lee from Taiwan who owns blackmarket and she told me to keep so that I can compare the real whenever I buy dollars and I didn't know that it's aganst (sic.) the law to carry.'

Mr. Dale, who presented the case for the Crown with complete fairness, invited me to give what the Defendant there wrote whatever weight I thought fit. He submitted, however, that (i) I should not attach any credence to this explanation because it does not make sense to use a forgary as opposed to the genuine article to detect other forgeries and that (ii) in any event, that explanation did not constitute lawful authority or excuse within the meaning of the defence built into the section under which this charge is brought, namely, section 76(1) of the Crimes Ordinance, Cap. 200. The absence of such authority or excuse is a negative averment; and once the Crown has satisfied me, as it has, that the Defendant has committed the prohibited acts, the burden of proving, on a balance of probabilities of course, the existence of such authority or excuse falls on her. As to Mr. Dale's point that it does not make sense to use a forgery to detect forgeries, there is, I think, an answer to it. If the Defendant was given to believe that counterfeit from a particular source was fairly common, it is not unlikely that she would use such a forgery to detect other ones from the same source. The Defendant's explanation has this to say for it: first, it was made at an early stage and, secondly, it is made in a rather candid context since she admits, albeit obliquely, knowing that the bank note was a forgery. Of course, I have came to certain conclusions with regard to the forgeries the subject-matter of the first 3 charges. But the Defendant is entitled to have the 4th charge considered separately. Doing this, I feel driven to hold that what she wrote in the answer-to-charge form is probably true. Accordingly, I have to consider whether or not it constitutes lawful authority or excuse within the meaning of section 76(1). It was not suggested by Mr. Wong, who appeared on behalf of the Defendant, that it could constitute authority; and he was quite right not to so contend because it clearly cannot constitute any form of authority whatsoever. The question is whether it can constitute lawful excuse. These words 'lawful authority or excuse' appear in the provision on which section 76(1) is based, namely, section 8(1) of the Forgery Act, 1913. In my judgment, the expression has the same meaning in both sections. I am grateful to Mr. Wong for drawing the case of Reg. v. Wuyts (1969) 2Q.B. 474 to my attention. That was a decision of the Criminal Division of the Court of Appeal in England lealing with the meaning of the words "lawful excuse" as they are used in section 8(1). What had happened there was this: Wuyts was a mini-cab driver who had been paid by a passenger late at night with two £5 notes, which he discovered were forgeries. After work, he went to a friend's flat to sleep, leaving the notes in an allas under the front seat of the car. The next day the owners of the car took it away so that Wuyts had no further access to the notes. He was charged with an offence under section 8(1). His defence was that he had intended to surrender the notes to the police but had not had time to do so. It had to be admitted on his behalf that he had not done so at the earliest opportunity. The learned trial judge directed the jury that there as no evidence on which they could find that Wuyts had any lawful excuse for retaining possession of the notes after he had discovered that they were forgeries. The jury convicted; and Wuyts appealed. The Court of Appeal allowed the appeal. Delivering the judgment of the Court, Widgery, L.J. (as he then was) said this at P. 1479B - D:-

'In the view of this court, the construction put upon section 8(1) of the Forgery Act, 1913, by the judge was too narrow. The court does not propose to attempt anything in the nature of a definition of the phrase 'lawful authority or excuse'; but the court recognies that the passing of forged banknotes was made a felony by the Act of 1913, and that it is at common law the duty of any citizen to assist the police in the prosecution of a felony. Accordingly, it seems to us that if an accused person in the position of this defendant is able to prove on a balance of probabilities that he had retained possession of them solely in order to place them before the police authorities so that the previous possessors of the notes might be prosecuted, in our judgment, if that is shown on a balance of probabilities, that amounts to a lawful excuse.'

8. The Defendant in the present case was, on her own account, deliberately retaining the forged bank note indefinitely for the purpose of detecting other forgeries. In my judgment, that cannot constitute lawful excuse within the meaning of section 76(1). It might amount to reasonable excuse; but that is not the same thing. Widgery, L.J. went on to make that clear immediately after the passage which I have quoted.

9. I come now to the 5th and final charge. The total value of the 13 traveller's cheque mentioned in this charge, which traveller's cheques were all in the name of other persons, came to U.S.$1,000. I am satisfied that from the time the police first discovered these traveller's cheques among the Defendant's luggage up to the present moment they had and have a reasonable suspicion (albeit for changing reasons and with varying degrees of intensity) that they were stolen or unlawfully obtained in this sense: The reasonable suspicion was that the traveller's cheques were obtained abroad, probably in the Philippines, in such circumstances as would constitute theft or other unlawful obtaining as those terms are known to the law of Hong Kong and, probably, the place abroad where the traveller's cheques were obtained. Does the existence of such suspicion so activate section 30 of the Summary Offences Ordinance, Cap. 228, as to oblige the Defendant to give an account, to the Court's satisfaction, of how she came by the traveller's cheques upon pain of conviction under the section if she fails so to do? It is no small matter to say in any given case that the Courts of Hong Kong have acquired jurisdiction to punish, even in the most indirect way, acts committed abroad. It is arguable that section 30 can have that result in instances such as the present. But that is not enough for the prosecution's purposes. The following passage at p. 244 of the 7th ed. of 'Maxwell on the Interpretation of Statutes', which were quoted with approval by the Lord Chief Justice in delivering the judgment of the Court of Criminal Appeal in Rex. v. Chapman (1931)2 K.B. 606 at P. 609 applies:-

'Where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the Legislature which has failed to explain itself.'

I do not know if the Legislature would regard my decision on this point as being against it. Be that as it may, it is in favour of the Defendant. In my judgment, she is not required to give an account of how she came by the traveller's cheques mentioned in 5th charge.

10. In the result, I am satisfied beyond reasonable doubt that the Defendant is guilty of the 1st, 2nd, 3rd and 4th charges; and I convict her thereon. I acquit her on the 5th charge.

Representation:

Mr. Dale, Crown Counsel, for the Crown.

Mr. D. Wong (instructed by Messrs P.C. Woo & Co.) for the Defendant.