HKSAR v. Ra Hyun Bin and Others

CACC 353/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 353 OF 2008

(ON APPEAL FROM DCCC NO. 1039 of  2007)

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Before: Hon Hartmann JA, Wright and Saw JJ

Date of Hearing and Judgment: 26 June 2009

Date of handing down Reasons for Judgment: 17 July 2009

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REASONS FOR JUDGMENT

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Hon Wright, J. (giving the judgment of the Court):

1.At the conclusion of the hearing of the applications we dismissed the application by each applicant for leave to appeal the conviction as well as the application by the second applicant for leave to appeal the sentence. We indicated that we would hand down our reasons for our decision: these are they.

2.The applicants sought leave to appeal their convictions by HH Judge Stanley Chan in the District Court: each was convicted, after trial, of one joint charge of using a false instrument contrary to s. 74; the first and third applicants were convicted of a further joint charge whilst the second applicant was convicted of a further charge of possession of a false instrument contrary to s.75(1), both of the Crimes Ordinance, Cap. 200 (“the Ordinance”). Each of the first and second applicants was sentenced to serve a period of 3 years 6 months imprisonment on each charge, concurrently, whereas the third applicant was sentenced to serve a period of 3 years imprisonment on each charge, concurrently: only the second applicant sought to pursue an appeal against sentence.

THE APPEALS AGAINST CONVICTION

The evidence

3.The prosecution case was factually uncomplicated: the first applicant first arrived in Hong Kong on 30 July 2007; the following day he opened a bank account in his own name with HSBC, depositing $10,000 and then departed Hong Kong; he again arrived in Hong Kong on 21 August 2007 and, around 4 pm that day, together with the second and third applicants met a customer service officer, Ms HO Siu Kuen, who was referred to as PW1, employed by HSBC, in its main branch. It is convenient to use the judge’s summary of the evidence of PW1 to describe what happened after they met:

"9.    [The second applicant] addressed PW1 as "Miss" in Cantonese and then spoke in Putonghua when introducing [the first applicant] to her. [The first applicant] took a seat first. Both [the first and the second applicants] were seating at the table while [the third applicant] was standing. [The second applicant] told PW1 that [the first applicant] is a Korean and was an account holder with HSBC. [The second applicant] gave her [the first applicant’s] passport and a bank card. [The second applicant] also said [the third applicant] was the interpreter [the first applicant] .... [The second applicant] then gave PW1 a document which was purported to be a standby letter of credit ("S/LC") (Exhibit P21) issued by HSBC. The amount stated in the S/LC was €5 billion with [the first applicant] as the beneficiary. [The second applicant] then showed another document with the heading MT799 SWIFT (Exhibit P22) to PW1. [The second applicant] requested the bank to send out a telex with the details and in the format as shown in the documents. The document was addressed to Chan Nga-chi, Mandy of the Aberdeen Branch of the Standard Chartered Bank (HK) Limited. [The second applicant] did not speak to other persons when making the request. [The second applicant] also showed PW1 a template (Exhibit P23) which showed a draft of a SWIFT message text. He told PW1 that the first document was a copy and asked her to follow the template to type out the details to be addressed to SCB. PW1 was told that she could take it that there was €5 billion at the HSBC and all she needed to do was to send a text SCB. PW1 told him that she could not do so as the document was just a copy and the bank did not provide such a service of sending out a telex for clients in this way. PW1 spoke to [the second applicant] in Cantonese. [The second applicant] spoke to [the third applicant] in Putonghua while [the third applicant] spoke to [the first applicant] in Korean. After [the third applicant] spoke to [the first applicant], [the first applicant] said in English "London, London". PW1 assumed what [the first applicant] meant was that the original copy of the document was in London. [The third applicant] also spoke to PW1 in Putonghua that they communicated by e-mail. If the original copy was required, it could be made available. PW1 understood the Putonghua spoken by [the third applicant]. In return PW1 also spoke in Putonghua to all three applicants saying that she could not process without the original copy and the bank could not send out a telex. PW1 could not find this huge sum on the bank's computer record. She asked him if it was all right to make a phone call to Mandy Chan of SCB. At that time, PW1 was pointing at [the first applicant] and said in Putonghua that if he had such a big sum it would be better to call Mandy Chan.... [The second applicant] burst out quickly in Cantonese saying that there was no need to make such a phone call. [the second applicant] was a bit nervous when he uttered these words. [the second applicant] rejected PW1 suggestion without consulting [the first applicant].... PW1 told [the second applicant] that she would consult her supervisor. In reply, [the second applicant] said in Cantonese that if she did not know how to handle, she should consult others.

...

11.   ... PW1 was certain that S/LC was given to her by [the second applicant]. PW1 noticed that [the first applicant] and [the third applicant] did communicate when she asked [the first applicant] questions. [The second applicant] did say that the documents came from London and if the bank wanted the original, they could make them available.... PW1 also noticed that there was a purple coloured folder in which...  [she] estimated that there were four colour copies...

...

13.   When cross-examined by counsel for [the second applicant]... PW1 disagreed with the suggestion that the telex was supposedly to be sent to SCB by HSBC London office... PW1 disagreed adamantly to the suggestion that the service that the applicants requested was to send a message to HSBC London and it was for the London office to send a message to the Aberdeen Branch of SCB....

14.   ... PW1 asked for the telephone number Mandy Chan of SCB. At that time PW1 was pointing at [the first applicant] but looking at [the second applicant]. She thought as it was a big transaction, they should have the contact number of Mandy Chan. However, the applicants did not provide the number. PW1 failed to reach Mandy Chan through the hotline.

15.   When cross-examined by counsel for [the third applicant], PW1 said [the second applicant] introduced [the first applicant] to her. [The third applicant] acted as an interpreter between the first and second applicants. PW1 did speak to [the third applicant] directly in Putonghua when she asked where the document came from and was there an original copy.... [The second applicant], however, responded immediately without discussing [the first applicant] and [the third applicant] when PW1 suggested making a call to Mandy Chan. [The second applicant] said there was no need.... PW1 said she quite often spoke in Cantonese first and then repeated the answers or responses in Putonghua because of [the second applicant] and [the third applicant] could understand Putonghua..."

4.PW1 consulted her superior whose testimony was that she immediately realised that, for reasons she gave, the Standby Letter of Credit was not a genuine HSBC document.

5.Chan Nga-chi, Mandy of the Aberdeen Branch of the Standard Chartered Bank (HK) Limited was the third prosecution witness. She testified that she had no knowledge at all of the standby letter of credit nor any idea why her name appeared on the MT799 SWIFT document shown to PW1.

6.There was evidence produced by virtue of the provisions of s. 65B of the Criminal Procedure Ordinance, Cap. 221, by the manager of the Financial Intelligence Unit, Security and Fraud Risk, Europe, of HSBC, that all of the documents seized and produced in court which purported to have been made by HSBC were not so made and were false.

7.It was an admitted fact that the three applicants were arrested at HSBC and then taken back to Waterfront Police Station. When the briefcases of the three applicants were searched there various documents were found which gave rise to the additional charges.

8.In the briefcase of the first applicant, one "Confirmation Letter" dated 10 August 2007; one "Confidential Memo" similarly dated; one "Standby Letter of Credit" in the sum of €5 billion; and one "Letter of Authentication" dated 10 August 2007, were located. These documents related to Charge 4.

9.PW4, DPC 2635, gave unchallenged evidence as to finding seven documents in the briefcase of the second applicant, namely, two "Confirmation Letters" dated 10 August 2007; two "Confidential Memos" similarly dated; one "Standby Letter of Credit" in the sum of €5 billion; one "Letter of Authentication" dated 10 August 2007 and one "confidential letter", similarly dated, addressed to the first applicant, which were produced, respectively, as Exhibits P1 to P7 inclusive. Those documents were admitted by the second applicant to be false instruments. These documents related to Charge 2.

10.Similarly to the discovery of documents in the first applicant's briefcase, in the third applicant's briefcase were found one "Confirmation Letter" dated 10 August 2007; one "Confidential Memo" similarly dated; one "Standby Letter of Credit" in the sum of €5 billion; and one "Letter of Authentication" dated 10 August 2007. Those documents were produced, by agreement, as Exhibits P8, P9, P10 and P11 respectively and were admitted by the third applicant to be false instruments. These documents related to Charge 4.

11.When being interviewed by the police and, again during his testimony, the first applicant asserted that these documents were "his" and that he had given them to the third applicant to carry on his behalf as his, the first applicant’s, briefcase was too small to contain them. The first applicant denied, however, having given any similar documents to the second applicant.

12.Each of the "Confirmation Letters" and each of the "Letters of Authentication" found in the various briefcases referred, by way of serial number, to the Standby Letter of Credit for €5 billion produced to PW1.

13.Also found in the briefcase of the third applicant was a document entitled "Investment Agreement and Management Contract between France Falali Technology International Group Limited (Trader) and Mr Ra Hyun Bin (Investor) - dated this day of 21st of August 2007" (Exhibit P12). In addition, in each of the second and third applicant’s briefcase there was found a "Letter of Intent", relating to Exhibit P12 and purportedly emanating from the first accused: they were produced respectively as Exhibits P13 and P14.

14.It was the first applicant’s position both during his interview with the police and his testimony in court that that was a genuine agreement which he had concluded to empower France Falali to "manage" the €5 billion which was the subject matter of the Standby Letter of Credit and that he had no knowledge or belief that any of the HSBC documents was other than genuine. For the sake of convenience, we note that, unrepresented in this appeal, he persists in this line, simply repeating in the lengthy and detailed document which he compiled that he had committed no offence and had been wrongly convicted.

15.Each of the first and third applicants was interviewed by the police: the records of those interviews were produced without objection. The second applicant declined to be interviewed. The judge briefly summarised the content of the interviews in these terms:

"23.  [The first applicant] claimed that the S/LC in question was a donation made to a charitable organisation called World Orphans Charity (WOC) in Korea. He was entrusted to receive the donation on behalf of WOC and named as the beneficiary on the S/LC as he happened to be a board member of WOC. Because of the huge amount of the donation, France Falali was entrusted to manage the funds.  [The first applicant] was acquainted with one Qiao of France Falali. Qiao introduced [the second applicant to the first applicant[. In 2006, [the first applicant] came to know [the third applicant] who became his interpreter.

24.  ... on 11 August 2017 [the first applicant] went to Shenzhen and met Lee Hwan Joon who gave him the documents and told him that same were received from a Thai person. Later, on 21 August 2007 [the first applicant] came to Hong Kong with [the second and third applicants] with a view to verifying the S/LC with HSBC. [The first applicant] said he did not understand English and Chinese. He entrusted [the second and third applicants] to be his interpreters.

25.  [The first applicant] further claimed that he did not know what [the second applicant] told the bank staff. He had no idea why [the second applicant] produced the copy S/LC to the staff and did not know [the second applicant] asked the staff to send a Swift message to SCB. [The first applicant] denied that he had given the documents to [the second applicant]. [The first applicant]  maintained that the false documents came from Lee whom he trusted. He did not doubt the authenticity of the documents.

26.  [The third applicant] said that he was introduced to [the first applicant] by a friend in August 2006 and was told that [the first applicant] was a CEO of an IT company. In mid-August 2007, [the first applicant] called and asked [the third applicant] to go to Shenzhen with him to act as his interpreter. On 19August 2007, [the third applicant] met [the first applicant, the second applicant and Qiao] in a hotel in Shenzhen. [The third applicant] noticed that they were dealing with some documents in the hotel room but... paid no attention to them as he was watching TV. [The third applicant] claimed that he later became aware that the documents were issued by HSBC and that [the first applicant] needed to go to the bank as he was the authorised person so named. [The third applicant] learned that [the first applicant] was the investor in a project and that [the second applicant] was responsible for managing the project. While on the way to Hong Kong, [the first applicant] gave some of the documents to [the third applicant] custody because [the first applicant's] bag was not big enough. They went straight to HSBC upon arrival.

27.   Inside the bank [the second applicant] spoke to the bank staff in Punti and produced the documents. [The third applicant] understood that [the second applicant] was requesting the bank staff to verify the documents. [The third applicant] recalled that the staff said they were not originals. [The first applicant] explained that the originals were kept in London and said copies produced were from e-mails sent from London. [The first applicant] mentioned to [the third applicant] that the S/LC was authorised by WOC and that [the first applicant] was designated to use the funds for charity purposes. [The third applicant] believed Qiao was [the first applicant’s] partner.”

16.The judge rejected submissions that there was no prima facie cases for the applicants to answer in respect of Charges 2 to 5 whereafter the first applicant testified, whilst the second and third applicants elected to remain silent.

17.The judge summarised the first applicant’s evidence in some detail but, save for one aspect to which we shall return, it amounted to this: he was simply an innocent dupe who was prepared to assist a charity, WOC, by having a donation which it was to receive paid into a bank account in his own name which he had opened for that purpose with a deposit of HK$10,000 from his own resources and then to arrange for France Falali to manage those funds. He had been introduced to a Miss Lee by a mutual friend; Miss Lee initially said that she had a friend who was to donate US$100 million to WOC but that she had "some credit problems" with HSBC and "was not qualified" to open an account with it - as a consequence she asked him to do so. He explained that the account was opened in his personal name and not in that of WOC because Miss Lee had expressed that as being the intention of the donor. Although he had received Exhibits P8 to P11 he claimed he had not understood their content and was surprised when he made enquiries of his nephew who explained that the documents were for trading purposes and not donation purposes. This, it may be noted, was well prior to the visit to Hong Kong on 21 August 2007. It was Qiao who had told him, the second applicant and third applicant to come to Hong Kong, the purpose being to "confirm" the set of documents. They went to HSBC where the second applicant showed some documents to the staff member although he, the first applicant, was unaware of the nature of those documents: he was especially unaware that they were in all respects identical to the documents with which he had been provided as he had not provided copies to the second applicant. He had never thought that the documents provided to him had been false and, indeed, did not even appreciate that the amount referred to in those documents was €5 billion as opposed to the originally contemplated lesser sum of US$100 million. He had not understood what was being said during the meeting at HSBC with PW1, because the third applicant had not translated for him. There was nothing to alert him to the fact that this was other than a genuine transaction in which he was involved on behalf of a charity.

The verdict

18.The judge noted that there was no dispute as to the falsity of the various documents that had been seized from the applicants or were produced during the meeting at HSBC. He went on, rightly, to observe that the issue central to each applicant was knowledge as to the falsity of the documents. He shortly stated their respective positions as being "[The first applicant] claimed that he had no clue as to what was going on in the Head Office... that he was innocent and could be taken as the victim of this saga.", "[The second applicant] claimed that he had no knowledge of the content of the documents so seized, let alone the falsity." and "... [the third applicant] was acting as the interpreter and had no role to play in verifying the authenticity of the documents. He claimed to be innocent too".  Thus it was that the judge clearly was fully alive to the defence of each applicant.

19.The judge acknowledged that:

"59.  Of course, there is no direct evidence to prove their knowledge, but from the totality of evidence which I am going to elaborate, and that is the only reasonable and irresistible inference that I could draw.

...

68.   Each of the above said matters, if considered in isolation, may not be sufficient to give rise to an irresistible inference of knowledge and belief on the part of each and every defendant that they were using a copy of the instrument. Nevertheless, when their cumulative effects were considered, it could only be concluded that the irresistible inference against the defendants must be compelling"

20.The judge conducted a detailed analysis of the evidence before him. Insofar as the first applicant is concerned, the only applicant to give evidence, the judge rejected the exculpatory portions of his evidence but accepted that portion of his evidence that related to the second and third applicants. He gave cogent and compelling reasons for following this course, an approach which he was entitled to adopt. He considered conflicts between the first applicant’s testimony and the record of his interview with the police, a factor which he was justified in taking into account in considering the overall credibility of the first applicant. He considered not only inconsistencies within the first applicant’s testimony but also, it must be said, the sheer absurdity of some of the evidence tendered by the first applicant: as but one example, the judge was fully entitled to consider as nonsensical the first applicant's claim that he was "unaware" that the documentation related to an amount of €5 billion until he was told this by his nephew after his return to Korea - despite that figure being emblazoned across the head of the Standby Letter of Credit in bold type approximately a centimetre high

21.Arising from the first applicant's evidence the judge found, in regard to the second and third applicants:

"65.  ... [The first applicant] said he did not give instructions to [the second applicant and the third applicant] when they went to the head office on 21 August. From what was said by [the first applicant], [the second and third applicants] were not simply acting as interpreters for [him]. They assumed a bigger role in the scam.

...

67.   [The first applicant] has detailed [the second applicant's] involvement in this crime. [The second applicant] took an active role in communicating with PW1. He presented a copy of S/LC to PW1 and rejected PW1's suggestion to call Mandy Chan outrightly. [The first applicant] said throughout the conversation [the second applicant] did not seek instructions from him. [The second applicant] talked to PW1 independently. It is apparent that [the third applicant] play a less active role when they approached PW1. However, from what was said by [the first applicant] in the box, [the third applicant’s] role was more than an interpreter for [the first applicant] and Ciao. [The third applicant] participated in the meeting in Shenzhen. He called [the first applicant] several times when the latter was in Korea and relayed Qiao’s messages to [the first applicant]. [The third applicant] was stationed in Beijing yet he was free to meet [the first applicant] upon his request. [The third applicant] told PW1 that the party communicated by e-mails and if the originals were required they could be made available. [The first applicant] mentioned that while they were in Head Office of the HSBC, [the third applicant] interpreted for him only for two matters: where were the originals and the extension of validity of [the first applicant’s] passport."

22.The judge went on to indicate that he had considered the issue of "double intention" and expressed himself satisfied that the evidence established both limbs. It followed from his analysis of the evidence as a whole that he was satisfied that the essential elements of the offences contained in Charges 2 and 4 were also proven.

The appeals

23.The first applicant was unrepresented in these proceedings. He expressed a desire to appeal his conviction "... because I have not done such offence before". In his written submission, to which he did not wish to add anything before us, he repeated the evidence which he gave and assertions which he made in the court below. We have taken into account, on his behalf, the matters of law argued on behalf of the other applicants.

24.The second applicant contended that, in regard to Charge 1, the judge erred in finding that the prosecution did not have to prove the identity of the person intended to be induced, the identity of the person intended to be prejudiced and the act to be induced which would cause prejudice – which revisited the judge’s refusal to grant an application for further and better particulars at the commencement of the trial; in regard to Charge 2, that the judge misdirected himself that s. 75(1) of the Ordinance applies to a “copy” of a false instrument, the subject matter of the submission at the end of the prosecution case, and, in addition, in finding that the second applicant had the requisite intent to use the instrument to induce an act or omission; and, in regard to both Charges, that the judge had erred in drawing the irresistible inference that the second applicant had known or believed that the various documents concerned were false instruments.

25.The third applicant asserted, reduced to essentials, that the judge erred in drawing the inference in regard to Charge 1 that he had embarked on a joint enterprise with the first and second applicants and, in regard to Charge 4, that the third applicant knew or believed the documents in his possession to be false.

The second applicant’s appeal

26.It seems to us that by first dealing with the second applicant’s appeal we will dispose of most of the other submissions made by or behalf of the first and third applicants.

27.Sections 74 and 75 of the Ordinance provide:

“74.  A person who uses a copy of an instrument which is, and which he knows or believes to be, a false instrument, with the intention of inducing somebody to accept it as a copy of a genuine instrument, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice, commits an offence and is liable on conviction on indictment to imprisonment for 14 years.

75.   (1)    A person who has in his custody or under his control an instrument which is, and which he knows or believes to be, false, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice, commits an offence and is liable on conviction on indictment to imprisonment for 14 years.

(2)    A person who, without lawful authority or excuse, has in his custody or under his control an instrument which is, and which he knows or believes to be, false, commits an offence and is liable on conviction on indictment to imprisonment for 3 years.”

Particularity as to the identity of the person induced/prejudiced and the nature of the act performed or not performed

28.At the commencement of the trial the applicants sought an order that the prosecution provide further and better particulars in respect of the charges, requesting that the identities of the person/s who was/were intended to be induced to accept the copy of a false instrument; of the person/s who was/were intended to be prejudiced; and the act to be induced. The judge declined to make such an order, ruling that it was unnecessary for the prosecution to specify, or as he later found to prove, such identities.

29.Reliance is placed upon a decision of this Court in the Queen v LIN Kuo Liang, David CACC356/1996 as authority for the proposition that the prosecution is obliged to furnish the particulars sought, submitting that "... if it be correct in law that the identities of the person to be induced and/or prejudiced need not be proved, it is doubtful that Litton VP would have said that it was a "... pity that no particulars were sought as to who the "somebody" might have been".  That charge was one under s. 75(1) of the Ordinance.  The appeal was allowed not on the basis of a lack of particularity but because there was a different, definitive, issue which the Court held to be fatal to the convictions.

30.However, if the entire paragraph from which the extract on which the submission is founded is read it will be seen that what precedes the comment relied upon is:

"The charge is good on its face, but it is a pity that no particulars were sought as to who the "somebody" might have been.” [emphasis supplied]

making it abundantly clear that the Court of Appeal accepted that the charge, which does not appear to have contained any of the particulars sought by the instant applicants, was correctly drawn. The authority, in truth, runs contrary to the applicant’s submissions.

31.There was, in any event, more than sufficient to enable the applicants to know the nature and particularity of the charge against them, there being no factual dispute as to the production of the Standby Letter of Credit forming the subject matter of Charge 1 during the meeting at HSBC, no dispute as to the presence of all three of them throughout that meeting and no dispute as to their respective possession of the false instruments which formed the subject matter of Charges 2 and 4.

32.Section 3 of the English Forgery and Counterfeiting Act 1981 contains provisions concerning inducement and prejudice identical to those which appear in ss. 74 and 75 of the Ordinance whilst s. 10(1)(b)(ii) of that Act defines “prejudice” in the same manner as in s. 70 of the Ordinance.   In R v Johnson [1997] EWCA Crim 1864 the court considered a submission that s. 3 of the Act, when read in conjunction with s. 10(1)(b)(ii), makes it necessary for the prosecution, when a charge under s. 3 is brought, to prove the identity of some third person to whose prejudice the document in question would be used, or in relation to whom there was an intention for such use.

33.The court dismissed the appeal, saying:

“Mr Feder submits that… [i]t is necessary for that other person to be identified. If section 3 stood alone, we would have no hesitation in saying that no such requirement can be read into this section. As my Lord has pointed out in the course of the submissions, this is concerned with an intention on the part of the defendant, and it cannot be said that that intention must necessarily have crystalised at the relevant time in relation to some third person identifiable at that time.

However, Mr Feder submits one does get that further requirement on the proper and strict construction of section 10(1)(b)(ii) emphasising, in particular, the words of little (b) "will result" not, as he submits, may result. There, he says, is an indication that an essential part of this charge is that there shall have been not merely an intention, but a firm intention involving some identifiable, and identified, third party.

It is sufficient, we think, to say that in our view that is not the right construction of this section. Given the intended scope of sections 3 and 10(1), it is quite clear that this offence can be made out, even if the identity of some potential third party victim is not established as part of the prosecution case.” [Emphasis supplied]

34.We would respectfully agree with that conclusion which, in our opinion, is not confined simply to the identity of the person who would be induced to rely upon the false instrument but further to the identity of the person who would be prejudiced, if that person were another. Nor do we see any scope for interpreting s. 74 or 75(1) of the Ordinance as requiring proof of the act to be done or not to be done the consequent upon the inducement.

35.On the evidence there cannot be any sensible doubt as to who it was the inducement was intended to act upon: it was HSBC. Nor can there be any sensible doubt that if HSBC had been so induced it inevitably would have been prejudiced - as would any other individual or entity which had subsequent dealings flowing from the operation of the inducement of HSBC. Much was made in submissions of the significance of the text of the proposed SWIFT telex and the evidence of PW2 as to the manner in which any such telex would have been treated. That proposed telex did not form any part of the first charge. Its sole evidential significance was to demonstrate the intention of the applicants to proceed with their scheme, assuming that they were able to persuade HSBC to act on the false Standby Letter of Credit.

36.The best that may, and all that need, be said concerning the submissions made to us on the question of prejudice is that they were novel.

Does s. 75 apply to a "copy” of a false instrument?

37.The second applicant's second ground of appeal is that the judge erred in law by finding that there was a prima facie case for the applicants to answer on the charge under s. 75(1) of the Ordinance. The basic submission before the judge, which remains unchanged before us, was referred to by the judge in these terms:

"30.  ... it was contended the offence provision under section 75 of the Crimes Ordinance does not apply to a copy of false instrument. The false instrument involved must be the original document. Defendant Counsel relied on the fact that the definition of instrument under section 68 does not cover the copy of a document but only covers, inter alia, "any document whether of a formal or informal nature". It was also submitted that when the legislature made the amendment in 1992 (Ordinance number 49 of 1992) an additional offence provision relating to using a copy of false instrument under section 74 was created.

31.   Accordingly, it was further submitted that one should read the section 68 definition section with the creation of section 74 to infer that the instrument could only cover original document, not a copy thereof."

38.There appears to have been expended a considerable amount of additional effort in connection with this ground which, if we understand the argument correctly, is, in our judgment, flawed by being based upon the misconception that the definition of "instrument" in s. 68(1) of the Ordinance necessarily excludes a copy of a document. What has been revealed by the additional research is that the offence of simply possessing a false instrument, with the requisite intention, is an offence which exists in common law jurisdictions nowhere other than Hong Kong.

39.Section 68(1), in its relevant part, reads:

“"instrument" (文書) means-

(a)    any document whether of a formal or informal nature;

(b)    any postage stamp or revenue stamp;

(c)    any seal or die; and

(d)    any disc, card, tape, microchip, sound track or other device on or in which information is recorded or stored by mechanical, electronic, optical or other means;”

40.We see nothing in that or, indeed, any other section of this Part of the Ordinance which expressly or by necessary implication confines the inclusion of "any document" as part of the definition of "instrument" to the original of a document.

41.It is important to bear in mind that the definition in s. 68 is that of an "instrument" rather than that of a "document" and that that definition itself constitutes a document as but one form of instrument. In the present matter it was only documents that were involved although, as appears from HKSAR v Conway CACC92/2007, to which we shall return, with the advances of technology many other forms of instruments are able to exist.

42.As a matter of logic and common sense, if a document upon which appears data is reproduced by, for example, being photocopied, what is generated by that process is, itself, a further document: it would be that that document contains data in all respects identical to the data contained in the previous document and is thus a duplicate of it, but that does not disqualify it from being a document. We take it that this is what the judge intended to convey when he said "In whatever state or format it was, if the instrument per se was false, it does not matter if that false instrument is the original or a copy thereof."

43.The core of the argument advanced by Mr Ching Y Wong SC on behalf of the second applicant, both here and below, is that, as the legislature has seen fit to create a specific offence, in s. 74, of using "... a copy of an instrument..." as distinct from the offence under s. 73 of using "... an instrument...", it must be taken as having intended s. 73 to refer to and "original" and thus, by simply using in s. 75 the expression"... an instrument...", it must be taken as having intended s. 75 to apply only to an "original": if the legislator had intended s. 75 also to apply to a “copy”, it would have said so in terms.

44.We disagree. It seems to us plain that the legislature perceived it to be necessary to provide for a situation where a copy of a false instrument was made or where it was used for the purpose of being accepted by the person to whom it was tendered as a copy of a genuine instrument as opposed to a genuine instrument itself.

45.This is apparent when one looks at the terms of the sections preceding s. 75: s. 75 appears in §24 above. Section 71 provides:

“A person who makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, ….”

whilst s. 72 provides:

“A person who makes a copy of an instrument which is, and which he knows or believes to be, a false instrument, with the intention that he or another shall use it to induce somebody to accept it as a copy of a genuine instrument, …”

s. 73 provides:

“A person who uses an instrument which is, and which he knows or believes to be, false, with the intention of inducing somebody to accept it as genuine, …”

and s. 74 provides:

“A person who uses a copy of an instrument which is, and which he knows or believes to be, a false instrument, with the intention of inducing somebody to accept it as a copy of a genuine instrument, …”

46.Thus s. 71 creates the offence of making a false instrument and s. 73 creates the offence of using such a false instrument with the intention that someone will accept that false instrument as genuine, while s. 72 creates the offence of making a copy of an instrument which is, as a matter of fact, false and s. 74 creates the offence of using such a copy with the intention that someone will accept it as a copy of a genuine instrument.

47.The actus reus of the offences created by ss. 73 and 74 is the use of the false instrument, or a copy of a false instrument, which use need be accompanied by the stipulated intention. Conversely, s. 75(1) creates an offence the actus reus of which is not the use of a false instrument but the possession of it with an intention to use it with the prescribed intent.

48.Two conclusions flow from this analysis: first, that the differences in the sections and the necessity for their independent existence is immediately apparent when it is appreciated that the definition of "instrument" extends far beyond just documents; secondly, that whilst there is a necessity for a distinction to be drawn in a situation where a false instrument was made or used compared with a situation where a copy of a false instrument was made or used, no such distinction is necessary when neither was made nor used but simply possessed.

49.It follows that there is no substance in the suggestion that s. 74 - and, logically, although not referred to in argument, s. 72 as well - would be otiose if the reference to "any document" in s. 68 were construed so as to include "copy".

50.The suggestion that the legislature intended to criminalise the possession of a false instrument with the intent to use it but did not intend to criminalise the possession of a copy of that same false instrument with the same intent lacks reality.

51.In our judgment, it is clear that when s. 68 refers to "any document" it was intended to encompass all incarnations of any given document - the original false instrument, any copy made immediately therefrom and any subsequent copies made from a prior copy - and that, consequently, the reference in s. 75(1) to "... a false instrument..." is a reference both to an original and any copy of a false instrument. The judge was correct in finding there was a prima facie case for the applicants to answer.

52.Although it is unnecessary for us to decide this, it also may well be in any event that an instrument created by copying a false instrument would inevitably itself be false by virtue of the definition in s. 69(a)(vii) of the Ordinance:

“For the purpose of this Part-

(a)    an instrument is false if it purports to have been-

…

(vii)  made or altered on a date on which or place at which or otherwise in circumstances in which it was not in fact made or altered; or”

for it could not have been made in the circumstances in which it would purport to have been made.

53.For the sake of completeness, we should refer to the decision in Conway. The issue in Conway was whether the false instrument was, as a matter of fact, an original or a copy. It had been submitted in the trial court that s. 75 could not apply to a copy, an assertion which had not been challenged by the respondent. However, the trial court had not been asked to consider that aspect: consequently, that was not a matter which fell for decision by this Court. It was submitted to us that the trial judge in the instant matter erred in not regarding the Conway decision as being binding upon him as to the question of whether s. 75 applied to a copy of false instrument; that "... this Court's willingness to proceed [in Conway] on an agreed basis on law must mean that such was correct".

54.We said, in Conway, at § 34:

“The question as to whether the files on the applicant’s computer’s hard drive were originals or copies was important because, for perhaps outdated reasons, Part IX of the Ordinance, which deals with forgery and related offences, distinguishes in certain sections between using a false instrument as opposed to a copy of a false instrument.  Mr Egan’s point is that because of this and because section 75(1) and (2) in their terms do not make reference to a copy of a false instrument, that section 75 must refer only to original instruments and that there is no analogous offence of being in possession of a copy of a false instrument.  That proposition was not disputed by the respondent and we proceed on that basis.”

55.It is clear, therefore, that this Court specifically did not decide whether s. 75 applied only to originals as opposed to copies. The judge's approach was correct.

The second applicant's knowledge as to falsity of the documents.

56.The judge was satisfied that he was entitled to draw as an irresistible inference from the evidence before him the fact that the second applicant knew or believed that the documents which were the subject matter of the two charges of which was convicted were false instruments.

57.The basis of the finding was that the three applicants were acting in pursuance of a joint venture.

The joint venture

58.That finding was relevant, too, to his findings in respect of both the first and third applicants. This was an inference which he drew, and in our judgment was entitled to draw, from the totality of the evidence. It is therefore convenient to deal with this aspect in respect of all the applicants to avoid repetition.

59.We do not propose to repeat the lengthy extract from the judge's summary of the events that occurred in HSBC which we have set out in §3 above. It shows that three people arrived together at the bank shortly before closing time: one of their number, the second applicant, introduced the other two, produced the first applicant's passport and bank card and then handed to the member of staff a document claimed to be a Standby Letter of Credit for €5 billion with one of the others, the first applicant, as beneficiary and then produced other documents requesting that a telex be sent to a third party, effectively confirming that HSBC was in funds to the massive extent referred to in the Standby Letter of Credit. That same person, the second applicant, immediately interjected, in what the witness described as a nervous manner, when it was suggested that a phone call he made to the proposed recipient of the telex and did so without consulting either of the others accompanying him.

60.It is important to observe that throughout the discussion between the applicants and PW1 there were interactions and discussions between each of the applicants. This was not simply a situation of the second applicant acting as an agent of the first applicant assisted by his interpreter, a the third applicant.

61.When the police were summoned and thereafter the briefcase  being carried by each applicant were searched a duplicate of the Standby Letter of Credit was found in each briefcase and a number of documents, common to each of the applicants, were also located. The first applicant accepted having given to the third applicant the documents found in his possession, claiming that his briefcase was too small to contain them: the first applicant denied, however, having furnished copies to the second applicant, a denial which the judge rejected.

62.When the first applicant testified he gave substantial evidence which demonstrated close involvement by the third applicant in the events leading up to the visit to the bank in Hong Kong, his active engagement in the arrangements put in place prior to the visit: events that demonstrate beyond peradventure that the third applicant’s involvement extended well beyond his professed role as mere interpreter. According to the first applicant, the third applicant was well aware of the nature of the documents as well as his, the first applicant’s, dealings with Qiao: the third applicant had been present at several meetings in Shenzhen. The first applicant had paid the third applicant's expenses when they visited Shenzhen.

63.There was no evidence from either the second or third applicants which the judge would have been required to take into account in deciding whether he was able to draw the inference of a joint-venture existing between the three applicants. On the evidence before him that, overwhelmingly, was the irresistible inference to be drawn.

Knowledge or belief of falsity

64.Once the judge had drawn the inference that the three applicants acted together in a joint-venture by presenting the false Standby Letter of Credit to PW1, it was inevitable that he would be satisfied as to the knowledge or belief of each of the applicants as to the falsity of the documents which were found in their respective possession. Moreover, such a finding would be reinforced by the evidence of the first applicant as to their prior dealings, with particular reference to the meeting at which all three of them were present with Qiao in Shenzhen.

65.In the circumstances, we were satisfied that there was no merit in any of the grounds of appeal advanced on behalf of the second applicant in regard to conviction.

The first applicant's appeal

66.Although the first applicant maintains his belief that all of the documents involved in these proceedings were genuine, we are satisfied that the judge correctly drew the inferences as to his involvement and as to his knowledge or belief of the falsity of the documents. He is unrepresented and we have considered his case as broadly as we are able: there is nothing which we perceive as assisting him.

The third applicant’s appeal

67.In his case, too, we are satisfied that the judge was entirely justified in drawing the inference that the third applicant was a participant in the joint-venture and, by extension, that he knew or believed that the documents in his possession were false.

68.The submission was made on behalf on the third applicant that the prosecution had failed to produce any evidence to establish that by producing the documents in his possession in HSBC would have been persuaded to act upon the request made by the first applicant through the second applicant stop that is correct in so far as it goes but the argument fails to appreciate that it was the intention of the third applicant that is critical to proof of the offence, not whether or not another person acted upon the documents.

69.This was emphasised in R v Ondhia [1998] 2 Cr. App. R.150 away the English Court of Appeal was considering s. 10 of the Forgery and Counterfeiting Act 1981 to which we referred in §32 above. The observations of Judge LJ at 158 are as appropriate to a possessor as they are to a maker to whom he referred:

"In our judgement... the clear language ... focuses unequivocally on the intention of the maker of the false document. In section 10 itself, the repeated use of the phrase "will result" or the reference to "will be the result" - the future tense - underlines that the intention of the maker of the document at the time when he creates it relates to future events, namely the intended impact on the recipient of the document and the intended result defined in section 10 rather than the achievement of that result.... Whether the maker succeeds as he intends and whether prejudice within the meaning of section 10 in fact occurs is immaterial, save possibly in an evidential sense: provided the jury is directed to consider the double element of the necessary attention... and the effect of section 10 is explained in the context of the facts of the individual case..."

70.There was no merit in the third applicant’s grounds of appeal.

THE APPEAL AGAINST SENTENCE

71.The second applicant pursued his appeal against sentence submitting that each sentence was manifestly excessive, submitting primarily that "... even if PW1 were in fact induced, no loss of property by anyone could have resulted". That, of course, loses sight of the fact that it was HSBC that it was intended would be induced, not PW1 in an individual capacity.

72.It is abundantly clear that this was not a spur of the moment scheme. It was one that had been planned for some time, according to the evidence of the first applicant, and in some considerable detail. It had involved the production of a substantial number of false documents and not just the documents that would be presented but other documents that could be used to add verisimilitude to them. There was, albeit to a limited extent, an international element involved in that the scheme appears to have been largely pre-planned in the Mainland for execution on a Hong Kong-based bank.

73.It was an audacious scheme which was uncovered largely because of alertness of the staff at HSBC. Despite that alertness the second applicant persisted in his attempts to persuade PW1 to dispatch the telex which, had it been dispatched, may well have set in train a substantial number of subsequent transactions given the nature of standby letters of credit.

74.In the event there was no loss of property. We do not see how that may sensibly be categorised as mitigation.

75.The documents which formed the subject matter of Charge 2 were undeniably part and parcel of the overall scheme. In our judgement, the judge was correct to visit upon possession of those documents the same measure of seriousness with which he regarded the use of a duplicate of one of them in connection Charge 1. He was correct, in the circumstances, to order that these sentences be served concurrently.

76.The sentence is robust. We have no doubt that that was what the judge intended. It is not, in our judgement, manifestly excessive. As a consequence, we also dismissed the application in respect of sentence.

Ms Louisa Lai SADPP, Department of Justice, for Respondent.

1^st Applicant, in person.

Mr Ching Y Wong SC and Mr Kevin Fung, instructed by M/s KM Cheung & Co for the 2^nd Applicant.

Mr Edward Fan, instructed by M/s YC Lee, Pang, Kwok & Yip (DLA) for the third applicant.