HKSAR v. Bernhard Goetzmann
Read the full judgment text of DCCC 1020/2014 on BabelCite. This District Court judgment was delivered on 4 May 2015.
1. The defendant pleads not guilty to one charge of possession of false instruments with intent, contrary to section 75(1) of the Crimes Ordinance.
Cites 4 cases
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DCCC 1020/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1020 OF 2014 ____________
REASONS FOR VERDICT 1.The defendant pleads not guilty to one charge of possession of false instruments with intent, contrary to section 75(1) of the Crimes Ordinance. 2.The particulars of the offence read:
3.The prosecution case in summary is that (i) the defendant was in possession of the two instruments when he was stopped at the airport when leaving Hong Kong on the evening of the 13th October 2013; (ii) the instruments were not issued by J.P. Morgan and Barclays Bank and were therefore false; and (iii) that the only inference to draw from the evidence is that the defendant knew or believed they were false and that the defendant intended they would be used to induce somebody to accept them as genuine and intended that person by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice. Defendant acting in person 4.The defendant is a German citizen and has conducted his defence in person. A German interpreter was provided who has interpreted the proceedings in German. The defendant cross-examined the witnesses in English and throughout the trial addressed the court in English. 5.The Director of Legal Aid was not satisfied the defendant’s financial resources did not exceed the limits specified in the Legal Aid Ordinance and therefore refused Legal Aid on the 16 December 2014. By virtue of Rule 8(2) of the Legal Aid Rules that decision may not be disturbed. In these circumstances a District Judge cannot grant legal aid. On the first day of trial I asked the defendant whether he wished to be legally represented. The defendant said he wished to proceed unrepresented. 6.Before asking the defendant to enter his plea to the charge I ensured all papers had been served on him and that he had them with him in court. The court record shows that the transfer bundle was served on the defendant on the 2 December 2014. Mr Dunn informed the court additional evidence was served on the defendant on the 10 March 2015 and that a list of unused material had also been served on the defendant. All that was outstanding was the service of the witness statement of Madam Lo Wai Ching (PW16) which had been taken two days earlier. 7.The defendant confirmed he had received the bundle and additional evidence together with the list of unused material, all of which he had brought to court. Further the defendant said that he understood the papers and did not require them to be translated into German. The defendant however required copies of some of the documents on the list of unused material. The case was therefore stood down so copies of all documents on the list could be provided together with a copy of the statement of Madam Lo and the prosecution opening (marked “MFI-1”). 8.On resumption of the hearing the defendant informed the court he had received all the documents. The defendant said that he did not require any further time to consider them and that he was ready to proceed. The defendant said the charge was confusing and asked whether he could plead to part of the charge as he thought there was two charges possession of the instruments and using the instruments. 9.I explained that section 75 of the Crimes Ordinance created two offences, namely possession of false instruments with intent to use the instruments and second possession of false instruments without lawful authority and excuse. The defendant being charged under section 75(1) with possession of false instruments with intent to use I explained, with reference to the actual wording of the charge, the elements of the offence the prosecution had to prove. 10.The elements of the offence that the prosecution must prove are that:
11.The defendant having asked if he could plead guilty to part of the charge I explained that he could plead guilty to one instrument or he could plead guilty to possession without lawful authority and excuse. In this regard I also explained the elements of the offence of possession without lawful authority and excuse and the difference between the two offences. 12.After the defendant said he understood the elements of the offence the charge was read to him in both English and German. The defendant pleaded guilty to possession and not guilty to possession with intent to use. I asked the defendant if by pleading guilty he was accepting the instruments were false. The defendant replying he did not know they were false I entered a plea of not guilty to the charge. 13.I then explained the trial procedure to the defendant. As the trial proceeded I explained each stage of the proceedings to the defendant including how to cross-examine witnesses; the right to give evidence and call witnesses and how to make a final submission, for which the defendant was given a week to prepare. 14.Before considering the evidence there are two other preliminary matters which require addressing. First reference in the prosecution opening to the defendant having a previous conviction and second reference to a previous investigation by the Commercial Crime Bureau concerning the transaction referred to in the SWIFT message (exhibit P4). Reference to a previous conviction in the prosecution opening 15.In the prosecution opening reference is made at paragraph 3 to the defendant having surrendered his German passport as a condition of bail in criminal proceedings for which he stood trial in the District Court in July 2013. Madam Lo Wai Ching (PW16), who works in the District Court Registry, testified that on transfer of the case from the Eastern Magistracy to the District Court on the 8 April 2013 she received two passports. The passports were then kept by Madam Lo in a cabinet and remained in her custody until she produced them in court on the 31 March 2015. 16.The two passports numbered C4KR13595 & C4KR79V6J have been marked exhibits P21A & P21B. As will be seen later the prosecution rely on the passport numbered C4KR13595 (exhibit P21A) as being the same passport used in connection with both Toma and Profit Trend. 17.Paragraph 3 of the opening goes on to state that the defendant absconded during trial and was convicted and sentenced to imprisonment in his absence. PC 5470 (PW4) testified that on the 13 October 2013 having discovered from the consul that the defendant was a wanted person arrested the defendant at the airport. DPC 6849 (PW14) testified that on the 29 July 2014 he went to Shek Pik Prison where he seized the two instruments from the prisoner’s property of the defendant. 18.Apart from this no evidence has been adduced relating to the defendant absconding and being convicted in his absence. In reaching my verdict I have disregarded entirely the reference to the defendant having been convicted in his absence and sentenced to imprisonment and put out of my mind the evidence that the defendant was in prison when the police seized the two instruments (see Attorney General v Siu Yuk Shing [1989] 2 HKLR 97 as applied in HKSAR v He Pingsheng & another CACC 98/2006). Reference to a previous investigation by the Commercial Crime Bureau 19.In cross-examination the defendant asked DPC 6849 (PW14), a police officer with the Fraud Section 2D of the Commercial Crime Bureau (“CCB”), whether he was aware of a prior investigation by the CCB concerning the transaction referred to in the SWIFT message (exhibit P4). DPC 6849 said he was unaware of any prior CCB investigation. 20.In his final submission (marked “MFI-3”) the defendant again refers to a previous investigation by the CCB. After explaining to the defendant I could only decide the case on the evidence adduced in court I asked the defendant whether he had the police report number in order to assist the defendant in trying to obtain the details of any prior investigation there may have been. 21.The defendant said the number was on his iPad seized by DPC 6849 on the 29 July 2014. The defendant was given access in court to his iPad however after several hours of checking his emails the defendant was unable to find the number. The defendant said he did not wish to take any other steps to try and obtain the police report number. 22.Mr Dunn also informed the court there was no record in the CCB of any investigation or knowledge of the SWIFT message prior to DPC 6849 seizing the instrument from the defendant’s prisoner’s property on the 29 July 2014. 23.In the circumstances I adjourned to consider my verdict. I advised the defendant if in the interim he was able to locate the number he could inform the court. The defendant has today told the court he is still unable to find the police report number and does not wish to pursue this matter further. Evidence 24.After reading the opening Mr Dunn submitted a trial bundle (marked “MFI-2”), containing nineteen documentary exhibits. A copy of the trial bundle was given to the defendant. Mr Dunn then submitted the banker’s affirmation (exhibit P12) pursuant to section 20 of the Evidence Ordinance, Chapter 8. I explained the provisions of section 20 to the defendant and asked whether he wished to question the maker of the affirmation. The defendant replied there was “no need”. Mr Dunn then submitted pursuant to section 18 of the Evidence Ordinance certified true copies of documents from the Companies Registry (exhibits P13-P19) relating to Toma and Profit Trend. I explained the provisions of section 18 to the defendant. The defendant had no objection to the production of the documents. 25.The prosecution called all sixteen witnesses set out in the list of prosecution witnesses submitted to court. For ease of reference the same witness number was adopted. The defendant elected not to give evidence and no witnesses were called on his behalf. No adverse inference is drawn against the defendant for remaining silent. That is his right. This proves nothing one way or the other. 26.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout. The defendant has to prove nothing. I direct myself that I must be sure of the guilt of the defendant before I can convict. 27.I remind myself that when drawing inferences from the evidence the inference must be the only reasonable inference to draw from the proved facts. If from the facts proved there is a reasonable inference to draw against the defendant as well as one in his favour the adverse inference cannot be drawn. 28.I have carefully considered all the evidence and the submission of the defendant. I accept the evidence of the prosecution witnesses. Possession of the instruments 29.As noted earlier in pleading to the charge the defendant said he was in possession of the two instruments. The defendant did not challenge the evidence the two instruments were in his possession when he was arrested at the airport on the 13 October 2013. Apart from DPC 6849 (PW14) the defendant asked no questions of the witnesses who testified as to the custody of his property from the time of his arrest to the seizure of the two instruments by DPC 6849 from tamper evident property envelope TPE C0128393 (exhibit P20) on the 29 July 2014. 30.I can therefore briefly summarise this evidence. On the 13 October 2013 the defendant was arrested at the airport by PC 5470 (PW4). After retrieving the defendant’s luggage which the defendant had already checked-in PC 5470 took the defendant together with his luggage to the airport police station. On arrival PC 5470 reported to the Duty Officer Sgt 20026 (PW7). The defendant was then kept in a cell from where he could see his luggage. 31.At 02:40 hours on the 14 October Sgt 20026 instructed PC 46861(PW5) and PC 10333 (PW6) to search the defendant. The officers conducted a body search and a search of the defendant’s luggage. The defendant’s property was then sealed in tamper evident property envelopes. A computer record was made of the property seized which was then printed out on Pol. 39 “Detained Person Property Receipt (exhibits P6-P8) and signed by the three police officers and the defendant. 32.The police officers specifically identified the tamper evident property envelope TPE C0128393 (exhibit P20), which is item No. 11 on the receipt. They could not however recall whether the personal papers placed in the envelope were found on the body of the defendant or in his luggage. 33.After the search was completed the property was handed over to Sgt 20026 for his safe custody. Having checked all the property was correct Sgt 20026 placed the property in the Strong Room of the police station. On the morning of the 15 October PC 9552 (PW8) collected the property from the Strong Room. After checking all the envelopes were present, including item 11, and none had been opened or tampered with in any way PC 9552 escorted the defendant to the District Court. 34.After attending court PC 9552 escorted the defendant to Lai Chi Kok Reception Centre where he handed over the defendant and his property, including item 11, to Assistant Officer Li Tim Shing (PW9) of the Correctional Services Department. This is recorded on page 2 of Pol. 39 (exhibit P6) as taking place at 14:24. The defendant signed Pol. 39 to acknowledge receipt of his property which signature was witnessed by PC 9552 and AO Li. 35.In the presence of the defendant and PC 9552, AO Li checked the property recorded on Pol. 39 was correct. When checking AO Li did not open any of the sealed tamper evident property envelopes. Items of clothing (Nos. 18-23 & 26) were returned to the defendant and cigarettes and a lighter (Nos. 13 & 16) discarded because the defendant was not allowed these in prison. The defendant signed Pol. 39 to acknowledge the clothing had been returned and the cigarettes and lighter discarded. 36.After checking AO Li recorded the property in the CSD computer and printed out a list for the defendant to sign (this list has not been produced in evidence). All the property, including item 11, were then placed in a transparent bag, zipped up and handed over to Principal Officer Ku Wing Kwong (PW10). 37.PO Ku placed the property in the CSD Strong Room. Whilst in the Strong Room the sealed tamper evident property envelopes were not opened or tampered with. The property remained in the Strong Room until the 18 October when the defendant was handed over to a colleague from the escort and support group for transfer to Shek Pik prison. The escorting officer Assistant Officer Law Chi Choi (PW11) did not have much recollection of escorting the defendant on that day. 38.On arrival at Shek Pik prison Assistant Officer Tam Ka Ming (PW12) checked to see there had been no damage to the prisoner’s property bag and that the seal of the bag had not been tampered with. In the presence of the defendant the bag was opened and the property checked against a copy of the inmate property list (exhibit P9) which AO Tam printed from the computer. When checking the property AO Tam did not open the police tamper proof evident envelopes. 39.Having checked the property was correct and all the police tamper evident property envelopes were sealed, including item 6 (which contained exhibit P20) the defendant and AO Tam signed the list. AO Tam then handed over the property to Principal Officer Yau Yiu Huen (PW13), who signed on the list and kept the property in the prison Strong Room. On the 21 October the list was amended to provide a more accurate description of items 1 and 15 (see exhibit P10). 40.On the 29 July 2014 DPC 6849 (PW14) together with Ag Sgt 3493 went to Shek Pik prison. DPC 6849 executed a search warrant to inspect the defendant’s property. In the presence of the defendant PO Yau cut open the tamper evident property envelope (exhibit P20). DPC 6849 seized four documents from the envelope namely, one Time Certificate of Deposit (exhibit P1); a twelve page Asset Enhancement Agreement (exhibit P2); two pages of e-mail messages (exhibit P3) and a two page SWIFT notification (exhibit P4). DPC 6849 also seized a USB device and an iPad. DPC 6849 made a list of the items seized (exhibit P11) which was signed by DPC 6849 and PO Yau. The defendant was not willing to sign. 41.On the 16 September DPC 6849 went to the airport police station and seized the Detained Prisoner Property Receipt in triplicate (exhibits P6-P8). On the 17 October DPC 6849 went to Shek Pik Prison and seized thetamper evident property envelope (exhibit P20). 42.I accept this evidence. I am satisfied so I am sure that the defendant was in possession of the two instruments when he was arrested at the airport on the 13 July 2013; the two instruments were found at 02:40 hours the next day during a search of the defendant and his luggage; they were sealed in tamper evident property envelope TPE C0128393 (exhibit P20); and remained sealed until seized by DPC 6849 on the 29 July 2014. Falsity Time Certificate of Deposit (exhibit P1) 43.Tam Siu On (PW1) an investigator with J.P. Morgan Chase & Co (“J.P. Morgan”) whose position was Vice President of Asia Pacific Region, Global Security and Investigations, gave evidence as to the falsity of the Time Certificate of Deposit (exhibit P1) purportedly issued by J.P. Morgan. 44.Mr Tam had worked for J.P. Morgan for 10 months having previously been in the police force for 34 years. Mr Tam’s duties included fraud investigation which involved looking at documents purportedly issued by J.P. Morgan to see if they were genuine. To ascertain whether documents were genuine Mr Tam would check whether such services were offered by the bank and if so whether the appearance and chop were the same as those issued by J.P. Morgan. This would sometimes involve comparison with genuine documents and checking the signatures on the documents. During the 10 months working with J.P. Morgan Mr Tam had checked the authenticity of about 30 documents. 45.On this evidence I was satisfied by reason of his working experience in J.P. Morgan that Mr Tam could give expert evidence as to the authenticity of documents purportedly issued by J.P. Morgan. Further only someone who worked inJ.P. Morgan and understood the operations of the bank could give evidence as to the authenticity of documents purportedly issued in their name (see HKSAR v Ng Jit Man CACC 137/2005). 46.Mr Tam was of the opinion that the certificate of deposit was not issued by J.P. Morgan because the Asia Pacific Region does not have that kind of product. In answer to the court Mr Tam explained that there is no retail banking in the Asia Pacific region and therefore the Asia Pacific Region does not have certificates of deposit. Mr Tam said that certificates of deposit are however issued by J.P. Morgan in the United States but not in the form of a certificate like exhibit P1. The Singapore and Hong Kong offices will on behalf of private bank clients accept certificates of deposit from J.P. Morgan Chase Bank National Association in the United States. These are known as affiliate time deposits. 47.In addition Mr Tam explained that the stamp on the certificate purporting to show that the certificate was issued by the “Asset Management Dept” was not a chop of J.P. Morgan. Mr Tam explained there was a line of business called asset management but not a department called “Asset Management Dept”. Mr Tam also explained that the chop of J.P. Morgan would not have the Chase logo in the middle. 48.In cross-examination Mr Tam said that because the certificate of deposit was not issued by J.P. Morgan it was not necessary for him to check the signaturesor the internal website of J.P. Morgan in order to verify whether the instrument was genuine. In answer to the court whether certificates of deposit were issued in 2010 Mr Tam replied that the Asia Pacific region had never issued certificates of deposit or used a chop with the Chase logo in the middle. 49.I accept the evidence of Mr Tam that the Time Certificate of Deposit was not issued by J.P. Morgan. On this evidence I am satisfied so I am sure that the Time Certificate of Deposit (exhibit P1) is a false instrument. SWIFT transaction record (exhibit P4) 50.Jonathan Morley Merrett (PW15) the Vice President of the Compliance, Investigations and Whistleblowing (UK) Department of Barclays Bank gave evidence as to the falsity of the SWIFT transaction record(exhibit P4) purportedly issued by Barclays Bank. 51.Mr Merrett had worked for Barclays Bank since 2006. During these nine years Mr Merrett’s duties involved investigating potential fraud on the bank, including examining documents purportedly issued by Barclays Bank. Prior to working for Barclays Bank Mr Merrett had worked for 18 years investigating fraud on behalf of other banks and organisations. Mr Merrett was also previously the Assistant Director of the Chamber of Commerce, Commercial Crimes Services which provided fraud prevention services to banks, financial institutions and international traders. 52.Mr Merrett had given expert evidence in his capacity as the Assistant Director of the Chamber of Commerce, Commercial Crimes Services and on behalf of Barclays Bank and the National Westminster Bank. Mr Merrett had also co-authored a book titled, “Preventing financial instrument fraud, the money launderer’s tool.” 53.On this evidence I was satisfied by reason of his working experience in Barclays Bank Mr Merrett could give expert evidence as to the authenticity of documents purportedly issued by Barclays Bank. 54.Mr Merrett explained SWIFT was a telephone communication system used by the bank to transfer encrypted messages about the transfer of money. Mr Merrett was of the opinion the SWIFT message was not issued by Barclays Bank and that the message was exactly the format of fraudulent messages seen on a daily basis. 55.First Mr Merrett pointed out that the authorized officers named on the message, namely Christopher George Lucas and Rich Ricci were very senior bank officers who would not be expected to authorise such a message. 56.Second the wording of the message was not the wording used by Barclays Bank. Mr Merrett specifically referred to three sentences in the message. Mr Merrett said that the sentence, “This guarantee is subject to the Uniform customs and practice for documentary credits (1993 revision) of the International Chamber of Commerce, Paris (France) and publication number ICC 500-600” was a contradiction because a guarantee is not a documentary credit. Further Mr Merrett said that the ICC has not issued a publication numbered 500-600 and that the ICC only issued number 500 which was superseded in 2007 by number 600. 57.The sentence “We hereby confirm that the funds are good, clean, cleared and of none criminal origin and are from legal sources” was a phrase Mr Merrett said had become synonymous with fraudulent documents. Mr Merrett said neither Barclays Bank nor any major bank uses this phrase because it is not possible for a bank to confirm the source of the monies received is from non-criminal sources. 58.Mr Merrett said that the phrase “this guarantee is divisible…” is a phrase the ICC informs financial institutions to ignore and is one which is not used by Barclays Bank. 59.In answer to the court Mr Merrett said that the address of Barclays Bank shown on the message as No 1 Churchill Place was that of the head office of Barclays. In the message this address is correctly spelt twice and misspelt three times as No 1 Churchhill Place. Further Mr Merrett explained that only a branch would issue such a message and not the head office. 60.I accept the evidence of Mr Merrett that the SWIFT transaction record was not issued by Barclays Bank. On this evidence I am satisfied so I am sure that the SWIFT transaction record(exhibit P4) is a false instrument. Knew or believed were false Time Certificate of Deposit (exhibit P1) 61.The Time Certificate of Deposit states the monies were deposited on the 30 November 2010 by Toma Australia Investment Limited (“Toma”) represented by Anatoly Ivanoff and Bernhard Gotzmann. The passport numbers are also stated on the certificate, the passport number of Bernhard Gotzmann being the same number as the passport surrendered to court (exhibit P21A). 62.Toma was incorporated on the 7 September 2006 (see exhibit P13). On the 30 March 2011 the defendant became a director of Toma (see exhibit P14). On the 30 August the same year the defendant ceased to be a director (see exhibit P15). The Appointment of Director (exhibit P14) was signed by both Bernhard Gotzmann & Anatoly Ivanoff. The identification of Bernhard Gotzmann was by his passport,the number of which is also the same number as the passport surrendered to court. 63.MrTo Siu Chor (PW3) of To & Ho Corporation Service Limited, which offered secretarial services including the setting up of companies testified that The Appointment of Director (exhibit P14) and a copy of the passport of Bernhard Gotzmann (exhibit P5) were brought to his office. Mr To said his dealings concerning Toma were with Anatoly Ivanoff and that as far as he remembered he did not meet Bernhard Gotzmann. 64.Taking into account:
I am satisfied so I am sure the only inference to draw is that the defendant knew or believed the Time Certificate of Deposit was a false instrument. In addition I find inherently improbable the defendant would be given a Time Certificate of Deposit bearing his name without him knowing or believing the instrument was false. SWIFT transaction record (exhibit P4) 65.The SWIFT message is dated the 20 December 2011 and states that Barclays Bank on behalf of Foresight Financial Services Inc is to make payment of €500,000,000.00 in favour of Profit Trend Investment Limited and credited to bank account number 954530005197 held with the Industrial & Commercial Bank of China. 66.Profit Trend was incorporated on the 13 July 2011 (see exhibit P16). On the 12 November 2011 the defendant became a director of Profit Trend (see exhibit P17). The Appointment of Director (part of exhibit P17) is signed by Bernhard Gotzmann. The identification of Bernhard Gotzmann was by his passport,the number again being the same number as the passport surrendered to court. 67.The submission of the documents to the Company Registry was undertaken by Mr Ong Hong Lu (PW2) the managing director of Songya Accounting & Secretarial Limited who were appointed secretary of Profit Trend (see Appointment of Secretary which is also part of exhibit P17). Mr Ong was acting on the instructions of Mr Leung Kwok Choi who from time to time referred clients to him. Mr Leung instructed Mr Ong to search for available companies and provided Mr Ong with the information about Bernhard Gotzmann. 68.Mr Ong was not asked to identify the defendant in court but confirmed that he met Bernhard Gotzmann on the 12 November 2011 when he signed Form D2A: Notification of Change of Director; Appointment of Director and Appointment of Corporate Secretary (exhibit P17); Form R1: Notification of Change of Address of Registered Office (exhibit P18) and Form SC1: Return of Allotments (exhibit P19). At that time a photocopy of Bernhard Gotzmann’s passport was given to Mr Ong the photo of which Mr Ong said was of the same person who signed the documents. About two weeks later Mr Leung took away all the documents relating to Profit Trend from which time Mr Ong had nothing further to do with Profit Trend. 69.On the 5 December 2011 the defendant and Pat Io Weng applied to open a General Company Account for Profit Trend with the Industrial & Commercial Bank of China. (“ICBC”). Pat Io Weng was a shareholder of Profit Trend (see Return of Allotments, exhibit P19). 70.A current account; a savings account and a multi currency account were opened. The multi currency account is number 954530005197 the same account number on the SWIFT message. In opening the bank account the company documents for Profit Trend were submitted together with the passports, the number of the defendant’s passport again being the same number as the passport surrendered to court (see paragraphs 12-16 of the banker’s affirmation, exhibit P12). 71.Initially the defendant was the only authorized signatory of the bank account. On the 21 December 2011 application was made to add Pat Io Weng and Wong Ko as authorized signatories. This was accepted by the bank with the effective date of change being the 11 January 2012 (see paragraphs 17-19 of the banker’s affirmation, exhibit P12). 72.Mr Merrett explained that if the SWIFT message was genuine he would expect the money to be transferred within 1-2 days. The bank statements for December 2011 show there was no deposit in any of the three accounts for the sum of €500,000,000.00. The only deposit was in the savings account when a cheque in the sum of HK$5,000 was deposited on opening the account. Specifically with regard to the multi currency account number 954530005197 there was no transaction movement in December. The only transactions were in January 2012 when two sums of US$ were deposited and withdrawn from the account (see paragraphs 22-24 of the banker’s affirmation, exhibit P12). 73.As noted earlier when the police seized the SWIFT message from the defendant’s property on the 29 July 2014 they also seized from the same tamper evident property envelope (exhibit P20) a twelve page Asset Enhancement Agreement (exhibit P2) and two pages of email messages (exhibit P3). The Asset Enhancement Agreement dated the 20 December 2011 and signed by the defendant refers to available funds of €1,000,000,000.00 to be transferred by Barclays Bank to Profit Trend in two payments, each of €500,000,000.00. 74.One of the copy email messages bears the date 21 December 2011 and is addressed to [email protected], the same email address used by the defendant when opening the bank account for Profit Trend (see ICBC-1(2) to the banker’s affirmation, exhibit P12). The emails each attach a copy of a SWIFT message purportedly issued by Barclays Bank relating to payments of €500,000,000.00. According to the top of each copy the emails appear to have been printed on the 21 September 2012. 75.Taking into account:
I am satisfied so I am sure the only inference to draw is that the defendant knew or believed the SWIFT message was a false instrument. 76.Further I find inherently improbable that in the circumstances of the case persons embarking on a criminal enterprise involving these false instruments would entrust the defendant with the instruments unless the defendant was party to the criminal enterprise knowing or believing that the instruments were false. Intention to use the instruments to induce someone to accept them as genuine and by reason of accepting them to do or not to do some act to their own or any other person’s prejudice (the “double intention”) 77.Taking into account the defendant was carrying the two instruments with him when he was leaving Hong Kong the only inference to draw is that he was carrying them intending that they be used to induce somebody to accept them as genuine and intended that person by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice as that term is defined in section 70 of the Crimes Ordinance, for example to show that the defendant had had substantial wealth so that he may cheat others out of money. 78.If the defendant did not intend to use the instruments to induce somebody to accept them as genuine and thereby intend that person by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice there would be no reason for the defendant to be carrying them with him when leaving Hong Kong. 79.In drawing this inference I have taken into account that the false certificate of deposit was dated November 2010 with a maturity date of December 2011; the false SWIFT message was also dated December 2011. The fact the defendant was found in possession of the two false instruments when he was arrested in October 2013 almost 22 months after the maturity of the false certificate of deposit and the date of the false SWIFT message does not cause me to doubt this is the only inference to draw. 80.In reaching my verdict I have considered each instrument separately. I have carefully considered the submission of the defendant (marked “MFI-3”), in particular that there is no evidence he knew or believed the instruments were false or that the instruments were used. For the reasons already given I find these matters do not cause me to doubt the findings I have made. Further actual use of the instruments is not required only an intention to use them. 81.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence, which cause me to doubt the findings I have made. 82.I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt. The defendant is convicted as charged.
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Cases cited in this judgment
Further hearings and rulings under DCCC 1020/2014