Danny Gail Bennett v. The Queen
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CACC001094/1979 Possession of forged banknotes - Crimes Ordinance s. 76(1) - whether evidence justified finding of possession.
----------------- Coram: Huggins, J .A. Date of Judgment: 11 December 1979 ----------------- JUDGMENT ----------------- 1. This Appellant was charged under s. 76(1) of the Crimes Ordinance with possession of forged banknotes. He was in fact alleged to have been in possession of a traveller's cheque and of United States banknotes, the traveller's cheque being within the definition in the Ordinance of a "banknote". 2. I think it is necessary to go into the evidence in some detail. The Appellant and two other men entered Hong Kong by air from Bangkok. They together booked a hotel room and they were found in that room when a raid was made by the police. The door was opened by one of the men and the police found the Appellant and the other man sitting in chairs, the Appellant on the right side and the other man on the left, but they were close together. The Appellant was seen to be holding the traveller's cheque between his hands and he appeared to be examining it. As the police entered he dropped it. The second man was found holding a wallet in his hand with two forged banknotes on top of it, and he was also in possession of a forged note in his shirt pocket. On the table in front of these two men were some genuine notes. That is the basic evidence, for it is not in dispute that some of these notes were forged. The Appellant, as he was fully entitled to do, adopted a policy of silence: he asked no questions of the prosecution witnesses, he gave no evidence himself and he called no evidence. On this appeal he submits to me that there was insufficient evidence to justify a finding of guilty knowledge and insufficient evidence to justify a finding of possession. 3. First, as to the guilty knowledge, it is submitted on behalf of the Crown that the manner in which this Appellant was holding the traveller's cheque, the fact that he was examining it and the manner in which he dropped it are in themselves indicative of guilty knowledge. Further, they rely upon the conversation which then ensued between the Detective Inspector in charge of the raiding party and the Appellant. It was pointed out to the Appellant that he had dropped something, to which he replied: "It is not mine, I only have American Express traveller's cheques." He was asked: "What is that then I saw you drop it on the chair when we entered the room?" The reply was: "I don't know, it is not mine." When he was asked: "If you were not examining it, how did you know what it is?", the Appellant did not reply. He repeated the answer that he had given before, that the cheque was not his. Undoubtedly this evidence was of the barest kind. Nevertheless, I think there was just sufficient evidence in all the circumstances to warrant the conclusion reached by the magistrate that the Appellant knew that these were forged notes and that he was examining this particular traveller's cheque to ascertain whether it was a sufficiently good counterfeit. 4. As to the second point, I think there is more substance in the submission which the Appellant has put to me. There is no doubt that the magistrate was fully justified in concluding that the Appellant was in possession of the note that he was holding, but Mr. Adams is forced to accept that the evidence of constructive possession before the learned magistrate to exist was extremely thin. I put it to counsel that one can readily conceive of the possibility that the Appellant was considering the acquisition of these notes from the other man. I am not saying that that was the position, but it is a possibility. If that possibility were the truth, then there was no evidence to show that possession of the other notes, which were clearly in the custody of the 1st Defendant, either being held in his hand or resting in his pocket, had been acquired by the Appellant. It may be that he would at a subsequent point of time, if the police had not come, have been in possession of them, but that is neither here nor there. In my judgment there was not sufficient evidence to justify the conclusion that the Appellant was in constructive possession of the notes found on the 1st Defendant. Nevertheless, he was in possession of the traveller's cheque and that is sufficient to support this conviction. 5. That being so, the appeal against conviction must be dismissed. 11th December 1979. |