HKSAR v. Fu Kwok Wing
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DCCC 78/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 78 OF 2013 ----------------------
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--------------------- Reasons for Verdict --------------------- 1.The defendant faced three charges but the 1st charge was dismissed when the prosecution offered no evidence before the trial. Charge 2 is the offence of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200, and charge 3 is possessing false instruments, contrary to section 71(1) of the Crimes Ordinance. The date of the offences is 21 September 2012. 2.The prosecution say the defendant took a forged Bank of China cheque into a branch and used it with the intention of inducing a staff member to accept it as genuine, hence charge 1. The prosecution also say the police found two fake documents, first an HSBC banker’s draft dated 2010 for the sum of US$15.5 million payable to the defendant and an HSBC certificate of deposit dated 25 August 2012 for US$5 million again in favour of the defendant. These documents were found at the defendant’s home upon a home search. Prosecution say he had the intention to use them to induce someone to accept them as genuine, hence charge 3. 3.The issue is the defendant’s credibility and whether or not he had the prerequisite elements as well as the requisite intention. 4.It is not challenged, the two forged documents were found in the defendant’s home and it is not challenged he entered a Bank of China branch by appointment with a forged cheque in his possession. The prosecution case 5.On 20 September 2012, the defendant entered a branch of the Bank of China on Hennessy Road. He had made an appointment the day before with PW1 on the telephone. She suggested he came in personally as she could not help him over the phone with his enquiry. The defendant was a customer that regularly communicated with her, often unnecessarily. 6.PW1, Miss Mak, a customer manager, was busy that morning on the 20th and asked PW2 to see the defendant to assist him with his enquiries. The defendant produced a photocopy of a forged Bank of China cheque and asked Miss Wong, PW2, if it could be honoured or “mark it good” which is a banking term and service provided. This photocopy is Exhibit P1. Miss Wong, PW2, asked for the actual cheque which was payable to the defendant in the sum of HK$26,000, Exhibit P2. The defendant gave it to her. She left her office suspecting the cheque was a forgery and informed her superior as well as the police. There is no challenge it was a forgery or that he gave her the cheque as well as a copy of the cheque. Miss Wong said the defendant told her it was a debt owed to him. 7.After his arrest at the bank, the defendant was taken home for a house search. Exhibits P4 and 5 were found in his home. These are the two forged instruments. Exhibit P6 is a photo album taken by the police of the state of his home inside. P7 is a sketch of his home. There was no actual evidence where P4 and P5 were found in the vicinity of his home. However, as I have said, there is no challenge they were found there or that they were forgeries. 8.The admitted facts were exhibited as P9 and P11. 9.The prosecution called the two staff members of the Bank of China, PW1 and PW2. PW3 was the arresting officer who went to the bank after PW2 had reported the matter to the police. He seized Exhibit P1 and P2 and heard the defendant’s explanation. The defendant told him that he had received P2, the cheque, by registered post collecting it from North Point Post Office. The envelope he picked up was Exhibit P10B and obviously sent from China. Inside Exhibit P10B was P10A, a brown envelope addressed to the defendant. The defendant told PW3 that the cheque came in the brown envelope. PW3 agreed that the defendant told him a Nigerian male called Stanley Lawson arranged a loan for him in Beijing and sent him this cheque by registered post. The defendant also told him, PW3, that Stanley Lawson communicated with the defendant by e-mail. The defence case 10.The defendant elected to give evidence. He is 67 years old. He is in poor health. In 2006 he was diagnosed with Parkinson’s disease and is on medication. He lives alone and has a poor memory. From the photographs, I can see his home is a mess and he obviously does not look after himself very well. He had a left eye cataract operation on 24 December 2012 and his doctor, a Doctor Janice Cheung gave evidence that he has very severely affected vision in his right eye. She explained he needed to be as close as 1 metre to an object in order to see it. She said he has cataracts in fact in both eyes and other diseases that affect the back of his eyes. He effectively only uses his left eye and he has poor sight in that eye as well. 11.The defendant gave evidence of his working life and said he worked in Nigeria on oil pipelines for a few years between 1990 and 1994. He and two partners set up a business there. He left with the business being owed a lot of money by the Nigerian authorities. He said years ago a Nigerian male called Samuel Lawson contacted him and said he was from the Petroleum Department of Nigeria and he knew of the defendant’s company and debt owed. He knew details of the defendant’s company. He said he could help the defendant get what he was owed but that Nigerian officials needed paying first, meaning they were corrupt. Defendant told him he had no money to pay anything upfront but Lawson told him he could arrange a loan on his behalf. He sent the defendant a cheque from Beijing and kept ringing him after it was received to check if the defendant had cashed it or not. 12.The defendant collected the registered letter on 13 September 2012 from the post office. On 19 September, he called PW1 and told her he had received a cheque and asked her to verify if there was money in that account to honour this cheque. PW1 told him she could not do that nor help him over the phone. She told him to bring her the cheque, so he arranged to go the next morning. When he arrived, PW1 was not in her office and PW2 offered to help him. He asked her to check if this cheque’s account had sufficient funds to cover it giving her a photocopy. She asked for the original which he immediately handed over without hesitation. He also gave her his identity card. 13.After some time, the police arrived to arrest him. He told PW1 and the police where the cheque had come from. In evidence he explained why he enquired about this cheque first and did not attempt to deposit it in his account. He also explained why he produced a photocopy before the original. A few months earlier, Sam Lawson had sent him a cheque for the same reason and he deposited it in Chong Hing Bank in June 2012. It was not honoured and he had to pay a penalty of over HK$1,000 because the bank verified the cheque with the banks in the United States of America. He was worried this second cheque would be problematic and he would be penalised again. He did not ask PW1 or PW2 if he would be charged any fee for dealing with this cheque because he did not question the cheque itself but just whether or not the account had the funds to honour it. He thought if there were sufficient funds, he would not be penalised and could deposit the cheque. He denied he asked PW2 to “mark it good” because he did not understand the term or know of that service. He was just worried what happened at Chong Hing Bank may happen again and that is why he called PW1 by telephone to make enquiries. 14.As to the two forged instruments in his home, he explained that another Nigerian had contacted him about the moneys he was owed and said he could help the defendant. This was in about 2008. The defendant asked this man how he knew of the debt and this man emailed him a copy of a Nigerian newspaper which had an article about how the Government owed contractors money. There was a list of creditors and the defendant was named. This man asked the defendant to pay a US$5,000 administrative fee upfront. He posted and emailed two documents to the defendant. This man said the Petroleum Department had an HSBC account in the United States of America with sufficient funds to pay his debts. The documents were in the defendant’s name. The defendant only had to pay US$5,000 to this man and the money would be released to the defendant and transferred to his Hong Kong account. 15.The defendant doubted the veracity of these documents and did nothing about this offer or arrangement. He thought he had thrown away these documents. He had no idea he still had them when he moved house in January 2011. He had no idea exactly where the police found them in his house, they just took away some documents. He never had any intention of using or producing these documents for any purpose. 16.The defendant has no business documents to evidence the debt he is owed by the Nigerian authorities. The defendant worked as a security guard in Hong Kong from 2001 to September 2012 and earned $8,000 until he was arrested. He now survives on CSSA, that is public assistance. The Law 17.These two offences require the prosecution to prove the defendant was using an instrument and possessing an instrument he knew or believed to be false. The prosecution must also prove he used or possessed the instruments with the intention of inducing PW2 for charge 2 and somebody for charge 3 to accept them as genuine and by reason of so accepting them to do or not to do some act to their or any other person’s prejudice. The prosecution must prove all elements of both the charges beyond reasonable doubt. These charges must be considered separately, they do not stand or fall together. 18.The defendant can effectively be treated as a man with clear record. He has a Magistracy Court conviction dating back to 1986 where the sentence imposed was an absolute discharge. 19.The issues are as follows:- In charge 2, can the evidence show he was using the instrument; can the evidence show he knew or believed the cheque to be forged; can the evidence show he intended PW2 to accept it as genuine to her or the bank’s detriment? In charge 3, possession is not an issue but whether he intended to use the forged documents is. He already says he knew or believed they were forgeries. In other words, the credibility of the defendant’s evidence is the crux of this case. If it is believed or casts a doubt on the prosecution’s case then the prosecution will not reach the requisite standard of proof. My findings 20.The prosecution submits the defendant’s evidence is far-fetched and unbelievable. He casts doubt on the story the cheque came from Beijing because it is issued by the Fanling Branch of the Bank of China. He says the defendant’s evidence contradicts PW1 and PW2, such as whether he asked for it to be “marked good” and whether it was a debt owed to him. The defence submit in charge 2 he did not use the cheque, he did not go so far. He did not know or believe it was a forgery and did not have the requisite intention. In charge 3, he did not even know he was still in possession of the two documents and he had no intention to use them to anyone’s prejudice. Defence submit his evidence is plausible, possible and at least casts sufficient doubt. 21.Having reviewed all the evidence and submissions, I can say I find the defendant’s evidence plausible and possible. If he had worked in Nigeria, then he may very well be the target of a scam carried out by Nigerians. These scams are common when a target has never had any connection with Nigeria. If he was targeted and clearly not well-off financially working as a security guard in his 60’s, he may have been tempted to believe this scam. This is not the same as knowing or believing he was using or possessing false instruments. 22.Did he use the forge cheque of charge 2? He approached to PW1 and asked her over the phone if she could check whether a cheque in his possession he got from Beijing could be honoured, asking if that cheque’s account had money in it to honour the cheque. He went into the bank the next day and asked the same thing. If he knew it was forged, would he make such enquiries knowing full well he was asking the bank’s staff to authenticate the cheque and that account? If he had asked for the cheque to be “marked good” the same question applies. To ask for this service is to ask the bank to check that account before that service can be provided. The forgery would be uncovered very quickly when the cheque was scrutinised. If he knew it was a forgery, would he ask the bank to do this? Had he been a fraudster, I doubt he would have dealt with the cheque in this manner. It seems inconsistent with guilty knowledge on his part. 23.I did consider PW1 and PW2’s evidence. The material discrepancy between their evidence and the defendant’s evidence is whether or not he asked PW2 to “mark it good”. I note PW1 said he did not ask her over the phone to mark it good. In fact it was PW1 who thought that was a service that they could provide but did not go into details over the phone. She said she was going to tell him when he came to see her. Before she could do this, he saw PW2. PW2 said she was not familiar with this service despite her experience, in fact it was PW1 who explained it to the police in front of PW2 what it meant and that explanation was recorded in PW1’s statement and signed by PW1 even though it was a statement clearly from both PW1 and PW2. Whether or not he made that request to PW2, both PW1 and PW2 say the defendant told them he had a cheque and he wanted to see if it would be honoured and he wanted to deposit it. 24.I am not satisfied he did specifically ask PW2 to mark it good. I find there may have been some confusion here whether he asked for it or PW1 was going to suggest it. In any event, it is not material. I do not find he used the cheque with the intention of inducing PW2 to accept it as genuine. His requests suggest he wanted to verify the cheque before he deposited it and his explanation is plausible. He had been charged before by Chong Hing Bank and had to pay a penalty. He wanted to avoid such a reoccurrence. PW2’s evidence was that after 10 minutes of taking the cheque from him, he asked her to check if it could be deposited and if not to give him back the cheque. It is possible he said this to avoid any penalties. That possibility creates a lurking doubt in charge 2. Charge 3 25.The defendant gives an explanation about the two forged instruments of charge 3. He explains how he was sent them and for what purpose. He explains he had his doubts. This Nigerian asked for US$5,000 upfront. Samuel Lawson asked for something similar but when the defendant said he could not pay, Samuel Lawson offered to arrange a loan. The forged cheque of charge 2 was meant to be the loan or part of the loan. I do not think the defendant made up these details. 26.The prosecution cannot prove he had the intention to use them to induce somebody to accept them as genuine. The defendant’s evidence does in my finding create a doubt. From the evidence of the both the prosecution and defence, I cannot draw an irrefutable inference that he intended to use them in such a manner or any manner at all. 27.As I said, the defendant’s past Nigerian connection does lend support to the fact he may be the target of such scams. The prosecution suggests he is a knowing or willing participant but there is a possibility he was a target or a victim. A suspicion is not enough. Accordingly the prosecution cannot reach the required burden of proof and prove all elements of charges 2 and 3 beyond reasonable doubt. The defendant is acquitted of charges 2 and 3.
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