HKSAR v. Kui Siu Tong

CACC000051/2001

CACC 51/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 51 OF 2001

(ON APPEAL FROM DCCC 1032 OF 2000)

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Coram: Hon Stuart-Moore VP, Mayo VP and Stock JA

Date of Hearing: 13 June 2001

Date of Judgment: 13 June 2001

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1.On 12 January 2001, the Applicant was convicted in the District Court, following a trial before Deputy Judge McNair, on two charges of passing counterfeit notes, contrary to section 99(1)(a) of the Crimes Ordinance, Cap. 200. He was sentenced to undergo a period of detention in a detention centre.

2.The Applicant now seeks leave to appeal against conviction. He has not pursued a further application in relation to sentence and this is dismissed.

Prosecution's case

3.On the night of 17 July 2000 into the early morning of 18 July 2000, the Applicant, accompanied by another person, deposited ninety-six $100 bank notes into his HSBC bank account, all of which, it was said, were counterfeits. The deposits were effected through an HSBC instant deposit machine (IDM) outside the branch in Canton road, Tsim Sha Tsui. Withdrawals were made from the Applicant's account very soon afterwards through an automatic teller machine (ATM) provided by the bank at the same location. The withdrawals through the ATM were made by using the Applicant's ETC bank card in conjunction with his PIN number.

4.Amongst the bank notes deposited into the IDM during that night were a total of one hundred and twenty-six counterfeit $100 notes, of which the ninety-six paid into the Applicant's account were allegedly a part. All these counterfeits, sharing six serial numbers between them, had been made by scanning six genuine bank notes into a computer and printing the resulting images onto paper using an inkjet printer.

5.These facts were, to a large extent, agreed by admissions under section 65C of the Criminal Procedure Ordinance, Cap. 221.

6.Following his arrest, the Applicant appeared to admit in his first interview, for reasons we shall deal with later, that $100 counterfeit bank notes, to a total face value of $8,100, had been deposited by him into his account through the IDM during that night. Later the Applicant admitted he had deposited only ninety-six $100 counterfeit notes.

Issue at trial

7.One of the main issues at trial was concerned with the Applicant's state of mind, at the time he deposited the counterfeit currency, arising from the accounts he had given in his interviews. The prosecution relied on the inferences to be drawn from all of the circumstances, including admissions in his cautioned statement, to establish the Applicant's guilt. The Applicant himself did not give evidence.

Ground of appeal

8.The sole ground of appeal is that the judge wrongly drew the inference that the counterfeit notes found in the IDM were the notes deposited by the Applicant when, as Mr Chan put it, there was no evidential basis for drawing such an inference.

9.We feel bound to say that we think there was an abundance of evidence from which the judge was entitled to have drawn such an inference. The transactions at the bank occurred between 10.45 p.m. and 2.56 a.m. The notes in question were not good quality counterfeits although they do give a superficial appearance of being genuine. During his interviews, the Applicant himself provided several pointers to his guilt. He described the circumstances relating to the deposit of the notes into his account through the IDM, before his accomplice, who had agreed to purchase his cash withdrawal card, withdrew real money out of the Applicant's account at the ATM.

10.This being said, it is apparent, as Mr Charles Chan on behalf of the Applicant, in his most helpful submission made plain, that the Applicant is very simple-minded. Indeed, the judge made such a finding during the trial. Perhaps the best demonstration of this is that, during the interviews, the police officer conducting the interview had put to the Applicant the amount of money he believed had been fed through the IDM by the Applicant. The figure was $8,100. As it turned out, the information given to the officer had been wrong but by that stage the Applicant had accepted without comment what the officer had suggested and adopted it in his answers.

11.The mistake was corrected in a second interview which took place about twelve hours later when the Applicant accepted that only ninety-six counterfeit notes had been credited to his account. On this occasion, the Applicant said that he had not suspected or believed that they were fakes until after he had made the last deposit and some difficulty had been experienced in the withdrawal of genuine money from his account. Importantly, he had also admitted having had no use for his cash withdrawal card, having lost his job. He had agreed to sell it to a friend for $1,000, although this was later reduced to a promise to pay $500.

12.The judge rejected the Applicant's assertion in his statement that he had not suspected or believed the money was counterfeit until after the notes had been paid into his account. He based his rejection of the Applicant's answers upon the many other circumstances in the case which he accepted and from which he drew the inference that the Applicant had known what he was doing.

13.Of course, as the judge must have done, we have looked at the interview with a considerable degree of caution, bearing in mind Mr Chan's demonstration that the Applicant is by no means bright. The circumstances, nevertheless, strongly indicated the Applicant's guilt and the inferences drawn by the judge cannot be criticised.

Conclusion

14.The application is dismissed.

Representation:

Mr Gavin Shiu, SGC, of the Department of Justice, for the Respondent.

Mr Charles Chan, instructed by Legal Aid Department, for the Applicant.