HKSAR v. MAHMOOD WAJID

DCCC 1101/2020

[2022] HKDC 665

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1101 OF 2020

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REASONS FOR VERDICT

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1.  The defendant faces one charge of “Having custody or control of counterfeit notes”, contrary to section 100(1)  of the Crimes Ordinance, Cap 200.

Background

2.  Police officers entered Flat B, 1 floor, 227 Cheung Sha Wan Road, Sham Shui Po, on 7 April 2020 in execution of a search warrant.

3.  An envelope with 73 one thousand Hong Kong dollar counterfeit notes inside was found in the flat.

4.  2 fingerprints matching that of the defendant were found on 2 of the notes.

The Issues

5.  The issues in this case are whether the prosecution can prove beyond reasonable doubt that (1)  the notes were in the defendant’s custody or control (“the issue of possession”); (2)  that the defendant knew or believed them to be counterfeit notes when he had such custody or control over the notes (“the issue of knowledge”); and (3)  he intended to pass them on as genuine or for another to do so (“the issue the intention of the defendant’s possession”).

6.  It is the prosecution’s case that, based on circumstantial evidence, the only reasonable inference is that all 73 notes were in the defendant’s custody or under his control; that the defendant knew or believed them to be counterfeit notes; and that he intended either to pass or tender them as genuine or to deliver them to another with the intention that he or another should pass or tender them as genuine.

7.  It is the defendant’s case that other reasonable inferences not adverse to the defendant’s interest can also be drawn based on the same set of circumstantial evidence. As such, the court cannot rely on the ones adverse to the defendant’s interest, and must find the defendant not guilty of the offence.

Prosecution evidence

8.  The prosecution called 2 live witnesses.

9.  PW1 DPC 9790 Mr Ma was one of the Police officers who carried out the operation on the day.  He was in plainclothes and wearing a face mask when he reached the doorway of Flat B, 1 floor, 227 Cheung Sha Wan Road (hereinafter as “the flat”)  at about 18:35 hours, when it so happened that a South Asian male opened the door (the one with the words “Wellcome to” written in red near the peep hole in photo 4 of exhibit P5)  from inside the flat and came out.  The man was not wearing a mask.

10.  PW1 announced in English that he was a Police officer, whereupon the male immediately turned around to return to the flat, closing the door.  Mr Ma found the defendant’s action described above suspicious and so he said he broke into the flat.  The search warrant to the flat was executed by his colleague.

11.  According to Mr Ma, this man who opened the door was later arrested and is the defendant in court.  He said he was able to recognize the defendant through his hairstyle and built when he saw the defendant again inside the flat.

12.  It was put to PW1 by Mr Allen in cross-examination that he had mis-identified the person who opened the door as the defendant, since the opening and shutting of the door happened very quickly.  Mr Ma disagreed.

13.  PW1 was the first who entered the flat, where he saw the defendant, 2 other South Asian men, and one South Asian woman.  Mr Ma did not record the other people’s names in his witness statement, and could only remember the defendant’s name.

14.  At around 18:45 hours, PW1 was informed by a colleague of another team that a “target person” had been stopped on the street outside the building of the flat.  The man was brought up to the flat and handed over to PW1 for further inquiry.

15.  PW1 confirmed in cross-examination that the target person was named Sangari Deepak, and that he was the person whom PW1 was interested in in relation to counterfeit banknotes.

16.  PW1 arrested Deepak and searched him.  Deepak was holding a bunch of keys in his right hand.  One of the keys opened the first wooden door of the flat.  This caused PW1 to believe that Deepak was the person who lived in the flat.

17.  It is admitted fact that DSPC 33779 (PW2)  then conducted a search inside the flat and found an envelope containing counterfeit notes on top of a ceiling wooden beam inside the toilet, as shown in photos 16 to 21 in exhibit P5.

18.  According to the evidence of PW2, once he was inside the toilet area, it took him about 5 minutes before he spotted the envelope.  He had to stand on a stool in order to reach the envelope on the beam, which was about 2 meters above ground.  PW2 said he guessed from what he could see through the opened end of the envelope that what was inside “belonged to the pattern of banknotes”.

19.  The counterfeit notes were counted in front of the target person Mr Deepak.  PW1 then proceeded to arrest and caution Deepak for the possession of the 73 counterfeit banknotes because he believed that Deepak was in possession of the notes.

20.  It is admitted fact that the defendant was arrested by a different Police officer (DPC9603)  for ‘Having Custody or Control of Counterfeit Bank Notes’ at 19:25 hours that same day inside the flat.

21.  PW2 was only cross-examined on the presence of a set of dumbbell and some fitness equipment.  He confirmed that there was a dumbbell inside the flat, as can be seen in photo 9 under the wooden bench.  He agreed that the photo shows other fitness equipment next to the dumbbell.

Summaries of s 65B witness statements

22.  The witness statements of the fingerprints expert, Sergeant 34917 Mr Li, and the counterfeit expert, Senior Inspector Tse, were admitted into evidence under s.65B of the Criminal Procedure Ordinance, Cap 221.

23.  The contents of their witness statements are summarized in paragraphs 7 to 10 of the Admitted Facts.  It is not disputed by the defendant that the 73 notes were counterfeit notes and that on two of them were found his fingerprints.

24.  The witness statements of PW7 and PW8 were also admitted into evidence pursuant to s 65B.

Father of the owner of the flat

25.  PW7, Mr Mok, is the father of the owner of the flat and was responsible for its tenancy matters.  He was approached by a female named Lu Hong (PW8)  on 11 April 2019 to rent the flat.  They viewed the flat together and Lu agreed to rent the flat from 11 April 2019 to 20 April 2020 at a monthly rental of $11,000.  PW7 received cash of $33,000, being 1 month’s rental plus 2 months’ deposit on the same day.  Lu told PW7 that she, her husband, and her younger brother will be living in the flat.

26.  PW7 received rental payments on time from May to August 2019.  They were all made in cash handed over by the younger brother of Lu.

27.  In September 2019, since PW7 had not received any rental for the flat, he went up there to see what was going on.  When there, he saw two South Asian males, who claimed that their boss, Lu’s younger brother, had allowed them to live there temporarily.

28.  PW7 immediately contacted Lu over the phone, who said that she had given the flat for her younger brother to stay with his subordinates, and that she knew nothing else and then hung up.

29.  From September 2019 onwards, PW7 did not know what to do about the flat, and he had not received any rental for the flat.

30.  As at 14 April 2020, the date of the witness statement, PW7 had not been able to get back in touch with Lu or her younger brother.

31.  PW7 had, on 25 February 2020 made another witness statement to the Police in relation to some gambling paraphernalia being found in the flat.

32.  PW7 intended to rent out the flat again after the expiry of the tenancy agreement with Lu on 20 April 2020.

The tenant Ms Lu Hong

33.  The Police did manage to get hold of Lu Hong and she made a witness statement on 19 May 2020.

34.  Lu said she rented the flat from PW7 in April 2019 after she had a quarrel with her husband and wanted to move out from their matrimonial home in Tai Wai.

35.  After renting the flat, Lu’s younger brother, who was a mainlander, came to stay with her at the flat.  Less than a week had passed when Lu and her husband had made up and she moved back to Tai Wai, leaving her younger brother to live in the flat.

36.  As far as Lu was aware, her brother was living alone.  For the following 3 to 4 months in 2019, it was her brother who paid the rent and she did not pay any attention to that.

37.  In August 2019, Lu’s younger brother told her that he was going back to get married in the mainland and that he will be moving out of the flat in a few days Lu had a quarrel with him because she did not like his girlfriend and he had had two previous marriages.  Her brother ignored her and insisted on going back.  They had not contacted each other since that quarrel.

38.  Lu said she visited PW7 Mr Mok in person at the end of August 2019, telling him that she will not rent the flat anymore because her brother had returned to mainland China.  Lu claimed to have terminated the tenancy with PW7 verbally, and that Mr Mok had forfeited the $22,000 rental deposit.  She had no idea what happened afterwards.

39.  Lu told the Police that she had never rented the flat out to any people of South Asian ethnicity.  She did not know if her brother had done so because she had never been back to the flat after moving back to Tai Wai.  She did not know if her brother knew any South Asians.  She claimed that her brother had not worked in Hong Kong. 

40.  At the end of the prosecution case, a no case submission was made.  I ruled that there was a case for the defendant to answer.

The defendant’s case

41.  The defendant fully understood his rights and elected not to give evidence, nor to call any witnesses.

42.  The fact that the defendant has not given evidence proves nothing, one way or the other.  It does nothing to establish his guilt.  On the other hand, it means that there is no evidence from the defendant to undermine, contradict or explain the evidence put before the court by the prosecution.  It remains, of course, for the prosecution to prove beyond reasonable doubt their case against the defendant.

43.  The defendant is someone of clear record.  This is something to be considered in his favour in relation to his lower propensity to commit a crime when considered against someone with a previous criminal record.

44.  Although the defendant did not give evidence in court, his clear record is still relevant and should be considered favourably against him on the matter of credibility regarding what he said in his video recorded interview, which has been admitted into evidence.

Summary of the defendant’s video recorded interview

45.  It is admitted fact that the defendant had participated in the video recorded interview voluntarily and that the contents have been accurately recorded in the produced disk.

46.  The defendant’s video recorded interview contains both incriminating parts and explanations.  I must consider the whole of the statement in deciding where the truth lies, bearing in mind that the incriminating parts may likely to be true – for why else would he have made them, and that less weight may be attached to his explanations, for they were not made on oath, have not been repeated on oath, and have not been tested by cross examination.

47.  At the beginning of the interview, the defendant made allegations of how the people who entered the flat at 6 pm had beat him up, that he vomited blood, that he was still in pain and his request to be taken to the hospital was denied.

48.  The officer asked if the defendant wished to see a doctor and the defendant said he will do the interview first and then he will see the doctor.

49.  The defendant was asked why he was at the flat and he said that since all the game centers and gymnasiums were closed due to the virus, he went there to work out and had done so for the past week or 10 days.  He claimed that the flat was rented by the uncle of his friend, and there were exercise equipment there.

50.  The defendant would work out for half an hour to one hour and then go home, which was near the McDonald’s restaurant near Golden Arcade in Fuk Wah Street.  The defendant told the officer that he is a Form 8 Recognizance holder, and that is where his International Social Service Assistance welfare were sent to.  The address stated on the defendant’s Form 8 was “2/F, 139 Fuk Wah Street”.

51.  The defendant agreed in the video recorded interview to take the officers to his home, where he said all his belongings, such as clothes, footwear etc were there, in his room, where he sleeps

52.  The defendant said that on the day of his arrest, he had received his ISS welfare and then went to the flat to work out.  He knocked on the door and someone whom he only knew by face and not by name came to open it.  There were friends seated inside, chatting to each other. He did not know how many people were there.

53.  The defendant started to work out and was at the flat for about half an hour.  He was about to leave to go home after working out when he was arrested.

54.  The Police officer asked who this friend was and the defendant said the friend is named Waqas and he lives in Tuen Mun.  The defendant has his phone number in his mobile phone.  The defendant said Waqas is also from Pakistan, they both lived in Sham Shui Po, and they would sometimes meet.

55.  The defendant then said that he meant that Waqas’s uncle lived in Sham Shui Po, and the defendant and Waqas lived in Tuen Mun.

56.  The defendant was asked how he came to know Waqas’ uncle and the defendant said the uncle lived in Sham Shui Po, that’s how he knew him.  The uncle is from Pakistan and the defendant also from Pakistan, that’s why the defendant knew him.  He had known him for about 4 years.

57.  The defendant said the uncle had rented the flat for about a week, before that the flat was a ‘game centre’.  The uncle rented the flat after the centre closed down.  The defendant used to visit the game centre to play.  It was his friend’s apartment a year ago before it was a game centre. The defendant had been playing there continuously for 4 to 5 months.

58.  The defendant said everyone in the whole of Sham Shui Po knew about the game centre and many people used to go there to play.

59.  It was 10 days ago, when the defendant was there to play, that the uncle told the defendant that the game centre had closed down and that the uncle had rented the place.  Since then, in the past 10 days, the defendant had been there to work out for probably 4 to 5 times.

60.  The defendant would work out and then chit chat and gossip with the people there, and then go home.

61.  The defendant referred to the uncle as ‘chacha’, which is what people called him out of respect.  He was relatively old.  The defendant thought the uncle lived at the flat and that it was his house.  The defendant suggested for the Police to ask the landlord since the uncle must have shown his identity documents to him.

62.  The officer asked if ‘uncle’ was in the flat when Police appeared.  The defendant said he was not, since uncle had gone down to get some stuff.  The defendant said the Police better asked the landlord how to contact uncle, and he did not have the contact number of him in his mobile phone.  Uncle was also not there when the defendant first arrived at the flat that day.

63.  The defendant said there were dumbbells at the flat, that he trained chest, muscles, legs, and there were rods and everything.

64.  Before the Police began to show the counterfeit banknotes to the defendant, he said that they were not his, that “they themselves put it there”. The officers asked if the defendant had anything to say about the notes, the defendant replied that he did not know anything.  He did not know who put them in the flat.

65.  The officer then asked if the defendant touched the notes, to which the defendant replied, “No, I told them yesterday to check the fingerprints.  If my fingerprints are there on these, arrest me.  I am here for exercise only, please let me go.”

66.  The defendant said he had never seen the counterfeit notes.  He did not know anything about the money in the envelope, and had no idea who put them in the flat.

67.  When asked if he had something to say about all 73 of the counterfeit notes, the defendant said “No”.  There is to be no adverse inference against the defendant for him exercising his right to silence.

Findings

Credibility of witnesses

68.  Save for one matter dealt with below, I find PW1 and PW2 credible and reliable witnesses.

69.  The one matter is this.  According to the Admitted Facts, it was PW2 DSPC 33779 who broke into the flat under the authorisation of the search warrant.  PW2 was not asked about the breaking in either in his examination-in-chief or cross-examination.

70.  Yet, it is PW1’s evidence that he was the one who broke into the flat.  His evidence is in direct contradiction to what was admitted.

71.  This discrepancy is relevant to PW1’s identification of the defendant as the person who opened and then shut the door.  Since under s.65C an admitted fact is conclusive evidence of the fact admitted, my consideration of PW1’s evidence must be on the basis that PW2 was, in fact, the person who broke into the flat.

72.  If PW2 was the person who broke into the flat, and since it is not PW1’s evidence that he had moved away to allow PW2 to do the breaking in after the defendant had closed the door, and since there is no evidence from PW2 that he had seen the defendant opening and shutting the door, it follows that PW1’s evidence about the defendant opening and then immediately closing it whereupon he proceeded to break into the flat is irreconcilable with PW2’s evidence and the admitted facts, and hence unreliable.

73.  That being the case, I find that the prosecution have failed to prove that it was the defendant who had come to open the door for PW1.

74.  As to the evidence of PW7 Mr Mok and PW8 Ms Lu, I note one obvious discrepancy between their evidence.

75.  Lu said she had terminated the tenancy agreement in person with PW7 in end of August 2019, who had forfeited the $22,000 rental deposit.  PW7 made no mention of such an encounter with Lu.  Either one of them could have been lying or unreliable on this point.

76.  Since neither had been called to give evidence, this difference in their testimonies had not been, and cannot be, resolved.

77.  Nevertheless, regardless of the discrepancy on the circumstances of the termination, I find that the landlord and tenant relationship between Lu and the owner of the flat had ended by September 2019.

78.  The remaining parts of their witness statements are not contentious.

79.  As for the defendant’s credibility in relation to his video recorded interview, I will deal with them below when necessary.  I proceed now to deal with the 3 issues identified above.

The issue of possession

80.  The following is adapted from the Specimen Directions issued by the then Judicial Studies Board in relation to what amount to possession of an object:-

“A person is in possession of an object if it is in his actual physical custody, e.g. in his hand or in his pocket, or is otherwise within his control e.g. kept in his desk or in his bedroom, and he knows it is there and has the intention to exercise custody or control over it.

Possession does not equal ownership. One may possess an object even though one does not own it.

An object may be possessed by more than one person at the same time. If two or more people agree to keep a pool of articles or a particular product in one place and that any of them may go there to take or move some of the articles as and when they see fit, then all are in control of the product in the sense that I have described control, and all are in possession of it.

But a person’s mere presence in the vicinity of an object is not of itself possession of it. If a person is invited for dinner to a friend’s home, he is not in possession of the objects in that home simply because he is there and knows that the objects are there. The objects are not in his physical custody and he has neither the intention nor the authority to exercise control over them.”

Deemed possession

81.  Since the counterfeit notes were not found on the person of the defendant, the prosecution seek to rely on section 102 of the Crimes Ordinance, Cap 200 to establish that the defendant was in deemed possession of them. Section102 reads as follows:-

“Where under this Part it is an offence for any person to have in his custody or under his control anything which is, and which he knows or believes to be, a counterfeit of a currency note or of a protected coin, a person shall be deemed to have such thing in his custody or under his control, notwithstanding that it is not in his personal custody or possession, if he knowingly and wilfully has it in the actual custody or possession of some other person, or in any building, lodging, apartment, field or other place, whether open or enclosed, whether occupied by himself or not, and whether the instrument or thing is in such custody, possession or place for the use of such person or for the use or benefit of another person.”

82.  In other words, if the prosecution can prove beyond reasonable doubt that the defendant “knowingly and wilfully” had the counterfeit notes in the flat, then he is deemed to have had them “in his custody or under his control” although they were not found on his person.

83.  The question then is, what are the evidence that would allow the court to draw the only reasonable inference that the defendant had knowingly and wilfully had the envelope with the counterfeit notes inside on top of the beam in the flat.

The defendant’s fingerprints

84.  The prosecution regard the 2 fingerprints lifted from 2 of the counterfeit notes as the cornerstone of their case against the defendant.  They say their presence, when considered together with the circumstantial evidence that the defendant had access to the flat in the period before the finding of the notes, would allow the court to draw the only reasonable inference that all 73 notes were under his control or custody.

85.  In paragraph 2 of their closing submissions, the prosecution ask the rhetoric question of “Why would anybody let him touch the counterfeit bank notes”, and assert that “It cannot be the case that he had inadvertently touched the two notes”.  Having done that, they proceeded directly to submit that the only reasonable inference to be drawn from the fingerprint evidence is that the defendant had control or custody of all 73 notes.

86.  The prosecution did not explain why they say no one would let the defendant touch the counterfeit notes, nor how the defendant could not have inadvertently touched the notes.

87.  Similarly, the Prosecution did not explain in their opening submissions how they will seek to persuade the court to draw the inference that the defendant was in possession of the counterfeit notes.  They merely set out the background of the seizure, the arrest, what the defendant said in his video recorded interview, the presence of the 2 fingerprints, and then jumped straight to the conclusion that the defendant was the person who had put the notes on top of the beam.

88.  Ms Sujanani, in her reply to the defendant’s submissions of no case to answer, mentioned that their strongest evidence against the defendant is the 2 fingerprints found on the 2 notes.  She said the fingerprints identified the defendant as the person who had control or custody of those notes She referred to the evidence of how PW2 had to stand on a stool to access the envelope and how it was hidden on top of the beam in the toilet area.

89.  Ms Sujanani also pointed to the defendant’s admission made in his video recorded interview, of how the defendant said he had visited the flat regularly for the past 4 to 5 months, thus establishing that he had access to the flat and the toilet area where the envelope was found.  She said that since the defendant had access to the flat, “he had the opportunity to put something or to hide those notes in the toilet”.

90.  At the end of her reply, Ms Sujanani confirmed the following as a correct summary of the prosecution’s position, which is that the prosecution is saying that, since the defendant had access to the flat and that two of his fingerprints were found on two of the notes, it is the only reasonable inference that he was the person who put the envelope with the notes inside there, and hence he knowingly and wilfully put it there, and therefore, although the notes were not found on his person, by the operation of s 102, the defendant is deemed to have been in possession of the notes for the purpose of s 100(1).

91.  I do note that the presence of the fingerprints suggests that the defendant might have been in contact with the two notes, and that the defendant might, therefore, have lied in his video recorded interview about not having touched them.

92.  Yet, the fact that the defendant might have lied does not mean that the defendant is guilty of the offence without more.  Similar to the scenario mentioned in the Specimen Directions of someone in a friend’s home, the fact that someone might have touched something does not necessarily mean that the person had that something in his custody or control.

93.  Although it is highly suspicious that two of the counterfeit notes had the defendant’s fingerprints on them, I find for the following reasons that it is not the only reasonable inference that the defendant had the 73 notes under his control or custody, or that he had knowingly and wilfully had them inside the flat.

94.  First, there is no evidence as to the placement of the two notes among the stack of counterfeit notes.  The counterfeit expert and the fingerprints expert reports are both silent on this.  It is not known if the two notes were next to each other in the stack, or had been mixed up with the rest of the notes.

95.  According to the evidence of PW2, one end of the envelope was already open when he found it, and he could see the stacked edge of the notes inside when the envelope was still on the beam.  Since the envelope was not sealed, one cannot be sure if the defendant had come into contact with the two notes after they were put in the envelope, or if it was the defendant who had put them inside the envelope.  If the placement of the two notes in the stack was known, one may be able to draw inferences, but since their placement is not known, nothing can be inferred.

96.  Secondly, there is no evidence as to how the defendant’s fingerprints came to be left on the two notes.  More specifically, there is no evidence as to whether the defendant had all 73 notes in front of him or just the two notes when he came to be in contact with them.  If it is the latter, then there would be no evidence as to whether the defendant knew about the remaining 71 notes.  If the defendant did not know about the 71 notes, then he could not have been in possession of them.

97.  Thirdly, there is no evidence as to who had placed the envelope on top of the beam.  The defendant was not the only person who had access to the flat.  According to the defendant’s video recorded interview, he used to chat with other people in the flat.  It is also not disputed that upon entry, Police officers found the defendant and 3 other people inside the flat.  They would all have had access to the toilet area.  The defendant’s fingerprints were not the only prints found on the notes, there was another set of 2 unidentified fingerprints, raising the possibility that someone else could have had contact with the notes, and it could have been that person who placed the notes on top of the beam.

98.  There is no evidence as to how long the envelope had been on the beam in the toilet area of the flat.  There is no evidence as to when the defendant’s fingerprints might have been left on the two notes.  The fingerprints expert Sergeant Li’s witness statement is silent on this point.

99.  According to his video recorded interview, the defendant did not reside at the flat.  No key of the flat were found on the defendant.  There is no evidence that the defendant was lying about his residence, which was stated on his Form 8 as being somewhere other than the flat and in Fuk Wah Street.

100.  Based on PW8 Lu’s evidence, it would appear that the flat had been taken over by someone from August 2019 onwards.  Based on PW7’s evidence, as in September 2019, he found 2 South Asian males residing in the flat.

101.  According to the defendant’s video recorded interview, he had been visiting the flat for 4 to 5 months prior to the interview, which means that he had been there since end of 2019.

102.  PW7 and 8’s evidence tend to support the defendant’s assertion that he was not the only person who had access to the flat.  In fact, based on the evidence, it would not be incorrect to say that it is likely that multiple people had access to the flat at the time of the offence.

103.  Last but not least, according to the evidence of PW1, the Police had a target person when they commenced the operation.  This target person was actually apprehended on the same day on the street right outside the building where the flat was.  The name of this person, a Sangari Deepak, is known.  Deepak was holding the key to the wooden door of the flat in his right hand when he was brought up to the flat and searched.  He was arrested for possession of the counterfeit notes inside the envelope and they were counted in front of him.

104.  It is not known to this court whether Deepak was eventually charged.  The defendant is, however, not facing a joint charge.  There is no mention in the particulars of joint possession of the notes with a person or other persons unknown.  He is being charged as the only person in possession of the notes in the flat, with the intention to pass or tender.

105.  When all the above circumstances are considered together, I find that, based simply on the fact that two of the defendant’s fingerprints were found on two of the counterfeit notes and that he had access to the flat, I am not able to draw the only reasonable inference that the counterfeit notes were under the control or custody of the defendant, or that it was the defendant who had knowingly and wilfully placed the counterfeit notes in the flat.

106.  It is entirely possible that the defendant might have had handled the two notes but was not aware of the other 71 notes.  The defendant might also not have been the person who put the counterfeit notes on the beam.  In fact, based on the finding of the key on his person, between the defendant and Deepak, I would say that it would be a reasonable inference that Deepak was the person who had the counterfeit notes under his control or custody.

107.  Since the prosecution cannot prove beyond reasonable doubt that the defendant had the notes under his control or custody, or that it was the defendant who had knowingly and wilfully placed the counterfeit notes in the flat, it follows that the prosecution cannot rely on the deemed possession provision in section 102.

108.  I must, therefore, find that the prosecution have failed to prove that the defendant had the 73 counterfeit bank notes under his control or custody.

The issue of knowledge

109.  According to the undisputed evidence of the counterfeit expert, the 73 counterfeit banknotes “resembled to such an extent that they were reasonably capable of passing for currency notes of those descriptions.”

110.  As mentioned above, there is no evidence as to under what circumstances the defendant had come into contact with the two notes with his fingerprints.  If the defendant had handled just the two notes alone, it is still possible that the defendant might have believed them to be genuine since the two notes each had a different serial number and were from different banks.

111.  If all 73 were shown to the defendant at the same time, then it would be more likely that the defendant might have noticed the identical serial numbers and it might have been possible to infer that the defendant must have known that they were counterfeit notes.  Yet there is no evidence that such was the case, nor is there sufficient evidence to support any such inference.

112.  As the evidence stand, they are insufficient to allow me to infer that the defendant knew or believed that the two notes with his fingerprints on were counterfeit notes, or that he had also known about the existence of the remaining 71 notes and that he knew or believed they were counterfeit notes.

113.  Ms Sujanani mentioned in her reply to the defendant’s no case submissions that the defendant’s turning around after PW1 had announced his Police identity is evidence in support of the prosecution case.

114.  If I understand correctly, the prosecution is saying that the court can rely on the defendant’s conduct of closing the door as fleeing from the Police, and that this is one of the pieces of circumstantial evidence that would allow the court to infer that the defendant must have known that there was counterfeit notes in the flat.  I find that no such inference could be drawn for the following reasons.

115.  I had already found that the prosecution had failed to prove that the defendant was the person who opened the door.  I find further that, even if I had accepted that it was the defendant who had opened and closed the door, I cannot be sure what the defendant did amounted to fleeing from the Police.

116.  PW1 was in plainclothes at the time and was wearing a mask.  There is no evidence that he had shown his warrant card to the person who opened the door when PW1 announced himself as a Police officer.

117.  The defendant was a Form 8 holder who had fled his own country to seek asylum in Hong Kong.  If it had been him who had opened the door, it could have just been an instinctive reaction on his part to close the door on a stranger to protect himself.  It is not the only reasonable inference that he closed the door because he knew there was counterfeit notes inside.

118.  Furthermore, there is no evidence that the defendant had done anything to avoid the finding of the counterfeit notes by the Police when he went back into the flat.  He did not immediately rush to the toilet area.  There is no suggestion that he tried to dispose of the counterfeit notes.  It is PW1’s evidence that the defendant, together with the others found in the flat, had all along been cooperative and did not resist the Police.

119.  Therefore, even if it had been the defendant who opened and then closed the door, there could have been an innocent reason for him to do so, and I would not have found that this action would be evidence to enable the court to infer that the defendant knew there were notes hidden on top of the beam, or that they were counterfeit notes.

120.  As such, I find that the prosecution have failed to prove that the defendant knew or believed that the 73 notes were counterfeit bank notes.

The issue of the defendant’s intention of possession

121.  I have already found that the prosecution have failed to prove the defendant’s possession and knowledge of the counterfeit notes and that would have been sufficient for me to decide on the verdict.  For the sake of completeness, I will continue to deal with the issue of the intention of the defendant’s possession of the notes.

122.  Section 100(1)  and (2)  of the Crimes Ordinance state that:-

“(1)  A person who has in his custody or under his control any thing which is, and which he knows or believes to be, a counterfeit of a currency note or of a protected coin, intending either to pass or tender it as genuine or to deliver it to another with the intention that he or another shall pass or tender it as genuine, commits an offence and is liable on conviction on indictment to imprisonment for 14 years.

(2)  A person who has in his custody or under his control, without lawful authority or excuse, any thing which is, and which he knows or believes to be, a counterfeit of a currency note or of a protected coin, commits an offence and is liable on conviction on indictment to imprisonment for 3 years.”

123.  I have included subsection 2 above to illustrate the requirement for the prosecution to prove that, in addition to having been in possession of the counterfeit notes with the knowledge that they were counterfeit notes, the defendant had the intention to pass or tender, or to deliver to another intending for himself or the other to pass or tender as genuine.  The additional act of passing or tendering the notes as genuine render the offence more serious, as reflected in the higher maximum penalty.

124.  The prosecution’s opening and closing submissions are silent on how the prosecution seek to prove this second limb of the offence, that is to say, that the defendant was in possession of the 73 notes intending to “either to pass or tender them as genuine or to deliver them to another with the intention that he or another shall pass or tender them as genuine”.

125.  This second limb is proved in situations where, say, the evidence show that the defendant was on his way to using the counterfeit notes at a supermarket, or that he had passed on the note to some unwitting person for that person to buy something at a supermarket.

126.  There is no such similar evidence in the present case.  It would appear that the prosecution would again rely on the fingerprints as circumstantial evidence to ask the court to infer such intentions on the defendant’s part.

127.  I find that I cannot so infer.  Even if it is assumed that the defendant was in possession of the 73 counterfeit notes with knowledge that they were counterfeits, it would be a reasonable inference that the defendant was watching over the notes until someone else came to collect them.  In this scenario, the defendant would be guilty of s 100(2)  but not 100(1), which is the charge he faces.

128.  I find that based on the evidence as is, I am not able to draw the only reasonable inference that the defendant had the required intention under the second limb of the offence.

Verdict

129.  Since the prosecution have failed to prove beyond reasonable doubt that the defendant had in his custody or under his control the 73 counterfeit notes or that he had knowingly and wilfully had them in the flat; that the defendant knew or believed them to be counterfeit notes; and that he had intended for himself or another to pass them on as genuine, I find the defendant not guilty as charged.