HKSAR v. MOHAMED HASSAN ISMAIL EMARA

CACC90/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 90 OF 2004

(ON APPEAL FROM DCCC 1037 OF 2003)

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REASONS FOR JUDGMENT

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Hon Burrell J (giving the reasons for judgment of the Court) :

1. On 20 February 2004 the applicant was convicted in the District Court after trial of two offences by Judge Wright.  He was sentenced to a total of 2 years’ imprisonment.  The two offences, both contrary to the Crimes Ordinance, Cap.200 were firstly, delivery of a counterfeit banknote without lawful authority or excuse on 23 August 2003 (s.99(2)) and secondly, having custody or control of a counterfeit banknote without lawful authority or excuse on 4 September, (s.100(2)).  He had a co-defendant at trial (D1) who was also convicted under s.99(2) and of another offence with which the applicant was not charged.  He now seeks leave to appeal those convictions.  At the conclusion of the hearing of the application we refused leave to appeal.  We now give our reasons.

2. For each offence the prosecution had to prove three ingredients.  For s.99(2), (i) had the applicant been a party to a “delivery” (ii) of a counterfeit banknote which he knew or believed to be counterfeit and (iii) had he lacked any lawful authority or excuse to do so at the material time?  For s.100(2), (ii) and (iii) are the same, but the first ingredient is proof of possession of the counterfeit.

THE FACTS

3. An outline of the material facts, as found by the judge, is as follows.

4. The applicant was one of the three men who went to the 3^rd floor of the HSBC main building in Central on 23 August 2003.  The applicant delivered a counterfeit US$1 million note (P1) to a bank official and asked if it could be authenticated.  Further discussion ensued during which the applicant stated that P1 was a bond not a banknote.  He also produced another document (P5) on which the words “Worldwide Peace Foundation Bond” were written in Chinese characters (not written by the applicant) in connection with his assertion that the note was a bond.

5. The applicant then confirmed to a more senior bank employee that he and D1 wished P1 to be verified.  She told the men that P1 would have to be sent to the US Government and that it might take several weeks.  A verification form (P2) was produced by the bank official which the applicant refused to sign but he and the others did write their names and telephone numbers on it.  They were told that if P1 were found to be genuine they would receive a letter from the US Government, if it were counterfeit it would not be returned.  They all left the bank together.  After they had gone the two bank employees reported the matter to their Security Department and to the police.  These are the outline facts relating to the s.99(2) charge.

6. The s.100(2) charge, which the applicant also faced, related to the events of 4 September.  On that day the applicant returned to the bank, following a telephone call he had made the day before.  The police were waiting for him and he was arrested.  He was found to be in possession of two sheets of four one-sided US$1 million banknotes with the same serial numbers as P1.  Also in his possession, although not referred to in the particulars of the charge, were another US$1 million banknote and a US$1 billion banknote.  He did not deny possession of these items.

7. The applicant at trial did not dispute that the notes were all counterfeit.  The issues at trial were (i) did he know or believe they were counterfeit, (ii) had “delivery” (on 23 August) and “possession” (on 4 September) been proved and, if so (iii) did he have a lawful excuse to deliver and possess the notes?

8. At trial a record of interview with the police was admitted into evidence without challenge.  The applicant also elected to give oral testimony.

NOTICE OF MOTION

9. By a Notice of Motion dated 2 August 2006 the applicant sought leave to rely on evidence which was not produced at the trial.  In the affirmation in support he explained the reasons that the evidence was not produced before the trial judge.  The Notice raised six new matters.  They were :

(i) failures by his solicitor and barrister at trial;

(ii) the production of a surveillance video from the HSBC at the material time;

(iii) evidence of emails and phone calls between himself and a Mr Dallas Drake;

(iv) evidence of his previous employment as an interpreter;

(v) evidence concerning theft of his money while in custody;

(vi) two affirmations from Mr Dallas Drake.

DEFENCE CASE

10. The applicant’s case was that his role at the bank premises was no more than that of an interpreter and that it was not he who handed anything over to the bank employee.  He said he was a respectable businessman and family man who had met D1 in Chengdu in the PRC in August 2002.  He had been asked to go there to help with interpretation.  He was shown P1.  He said he realized that the US Government had never issued US$1 million banknotes but he was told it was a bond, not currency.  He said that at first he was suspicious about its authenticity but, after spending 11 days in Chengdu, he thought it might be genuine.

11. Later when in Hong Kong D1 contacted the applicant again and persuaded him to go with him to the bank as his translator.  They and a third man duly attended the bank on 3 August.

12. Thus the defences were :

(i) it was not the applicant who actually ‘delivered’ P1 to the bank employee;

(ii) the applicant did not know or believe the exhibits were counterfeit banknotes.  He had been told they were “bonds” (relevant to both charges 1 and 3);

(iii) the delivery (charge 1) and possession (charge 3) were with lawful excuse.

APPLICATION TO ADDUCE MORE EVIDENCE TO THE COURT OF APPEAL

13. Before considering the grounds of appeal our first task was to decide whether or not to accede to the applicant’s notice of motion to adduce evidence which had not been before the trial judge.  We declined the motion on the grounds that, in the circumstances of this case, it could not afford any ground for allowing the appeal and that it was not necessary in the interests of justice.

14. The new evidence was from two new sources :

(a) A surveillance tape

15. A CCTV at the bank had filmed D1, D2 and the third man for 23 minutes at the counter on the 3^rd floor talking to bank staff.  The applicant complains that his lawyers took no steps to have it produced at trial (this is disputed by his then solicitors).  Mr James McGowan, counsel for the applicant, informed the court that the relevance of the tape was to show that the evidence of PW1 and PW2 (two of the bank staff) was, at least, suspect, when they said that it was the applicant who handed over P1 and P5 (a pink piece of paper with Chinese writing on it) at the counter.  Also, it is said, a viewing of the tape would support the applicant’s case that his role was no more than as a mere translator at the time.  Mr McGowan concedes that the tape does not show the entire incident.  The film starts after the three men arrived at the counter.  How long after is not known.

16. In refusing to view the tape we had in mind three matters.

(a) The judge had made a finding that the three men were acting in concert.  It was a joint enterprise.  That being the case evidence relating to who actually handed P1 or P5 to which prosecution witnesses was not material.  In any event, the applicant does not rely on the film to show that it was not him who handed P1 to a staff member but merely to provide evidence that there is no film of him handing over the note.  However the film started after they first arrived and is therefore an incomplete record of the event.

(b) The judge’s finding of a joint enterprise on the evidence before him (to which we refer later) was unassailable.

(c) The matters upon which the judge relied to find a joint enterprise are unaffected by the soundless recording of 23 minutes of the incident.  No allegation of incompetence on the part of his lawyers can therefore be justly made arising out of the non-production of the tape at trial.

(b) The evidence of a Mr Dallas Drake and communications between the applicant and Mr Drake

17. As part of his defence that his role was no more than as an interpreter in a request for authentication from the bank, the applicant wished to adduce evidence that he had contacted a Mr Drake on this very issue.  Mr Drake was apparently an Australian citizen currently living in the Philippines, who was described as a financial advisor.

18. We declined to hear Mr Drake’s evidence and declined to consider certain emails between the applicant and Mr Drake on the basis that, at trial, the fact that the applicant had made these contacts formed part of the evidence and was not challenged.  Mr Drake’s evidence that he had received them took the applicant’s defence, in reality, no further.  Mr McGowan accepted that in such circumstances the absence at trial of the evidence sought to be adduced now, could not be regarded as incompetence on the part of his lawyers at the time and, in any event, did nothing to weaken the prosecution case nor to strengthen the defence case.  Although not formally abandoning this part of the Notice Mr McGowan very properly indicated that he would “not push the point”.

19. It was also pointed out by Mr Kevin Zervos SC, counsel for the respondent, that some of the emails predated the applicant’s first involvement in this incident and thus point to the applicant’s involvement in authenticating dubious banknotes over and above his role as a mere interpreter.

The remaining grounds of appeal

(1) Grounds 1 to 3

20. Mr McGowan advanced grounds 1 to 3 together.  In substance they amounted to a complaint that the judge should not, on the whole of the evidence, have found that the applicant, at the material time, knew or believed the exhibits were counterfeit notes, should not have found that the applicant had no lawful excuse to do what he did and should not have found that the applicant’s role was anything more than a mere interpreter.

21. In short, he submitted that being a mere interpreter for another person who was requesting authentication of a banknote that might have been genuine is lawful conduct and that, on the evidence, the judge should not have ruled out this scenario.

22. The starting point for this argument must be the judge’s finding relating to the applicant’s state of mind at the time.  He said

“30.  I am satisfied that each Accused knew or believed that Exh. P1 was a counterfeit of a currency note at the time they jointly delivered it to Hong Kong Bank.  This is the only inference which can be drawn from the evidence.  That inference is reinforced by their very conduct in describing it to the bank employees as a “bond” or “debenture” for they could hardly pretend this to be a genuine banknote.”

23. This finding was preceded by a recital of the evidence which led him to this conclusion.  The only basis upon which Mr McGowan sought to persuade this court that the above finding should not have been made by the trial judge was that he had been wrong to conclude that the applicant was a party to the joint enterprise.  If, it was submitted, the applicant was a mere interpreter and no more, he could not be a party to the unlawful delivery of the counterfeit note.

24. Thus, an earlier finding of the judge had to be challenged.  It was :

“Joint delivery

18.  There is no doubt in my mind that a proper appreciation of the evidence of LEUNG and TSANG shows beyond peradventure that the two Accused, and the third man, acted jointly in delivering Exh. P1 to the bank.  There can be no sensible alternative conclusion: the role played by the 2^nd Accused as translator/interpreter when dealing with LEUNG was vital to the outcome of the proceedings; his handing over of Exh. P1 and P5 to LEUNG shows his participation; moreover, once TSANG, who spoke Mandarin to the 1^st Accused, became involved there was no need for the 2^nd Accused to continue to act as interpreter had that been his only role yet he continued to involve himself actively in the discussions; the fact that discussions were held between the three men when in the presence of both LEUNG and TSANG demonstrates the commonality that existed between them.  I am entirely satisfied that the evidence establishes a joint venture between them and that they, collectively, delivered Exh. P1 to TSANG.”

25. The evidence in support of this unassailable finding comes not only from his involvement at the scene (including, for example, his direct involvement in conversations with the bank staff about the time it would take for the authentication, whether or not the note would be returned to them and what other documentation might be provided, added to which they all wrote their names and phone numbers on a piece of paper when asked to do so) but also from the applicant’s record of interview.

26. His record of interview was admitted into evidence without challenge.  The record contains a number of answers which are consistent with the applicant being linked to the verification role over and above the interpretation role; for example “I could help him find buyers for some old Treasury Bonds”, “I tried to talk them into sending the paper to the Federal Reserve Board” and “I am merely a middleman” (and not “I am merely an interpreter”).

27. In short, we are satisfied that the applicant’s task, on appeal, to upset the judge’s findings that he knew or believed the notes were counterfeit and that it was a joint enterprise to which he was a party, is hopeless.  Further it should not be overlooked that the judge rejected the applicant’s account of his involvement.  As for his story about how he became involved, the judge said (and cannot be criticised for so saying) “I am entirely satisfied that these events are entirely fictional”.  As for the totality of his evidence he said :

“I do not propose to set out each of the contradictions and untruths: they are legion and will be immediately apparent on even a cursory reading of the record.  One or two brief examples will suffice to illustrate the appalling quality of the evidence.”

28. Based on all the above, the defence of being “with lawful authority or excuse” does not arise on the facts of this case.  If he was a party to the request for authentication of a note which he knew or believed was counterfeit, such a request must fall outside any possibility of it being “with lawful excuse”.  Circumstances in which a note, known to be a forgery, could be lawfully delivered would be limited to situations such as handing it in to the police or to a bank for disposal or to a forensic scientist.  These men did not want to part with it, they wanted it back preferably with some sort of formal bank document or letter.  Mr McGowan asserts that to submit a note merely to ascertain whether or not it is counterfeit is to act with lawful excuse.  That must be so if there is a genuine and honest search for the truth of the matter.  But that was not this case, and the mere mouthing of a request for authentication does not turn a dishonest presenter of such an instrument into an honest one.  The judge found that the applicant and the others were acting dishonestly and there can thus be no question of reasonable excuse.

(2) Ground 4

29. The applicant complains that he was deprived of a fair trial because of the incompetence of his trial counsel.

30. Much of this ground is related to the applicant’s request to adduce further evidence with which we have already dealt.

31. There are additional complaints that certain matters were not put to prosecution witnesses and also that those witnesses should have been, but were not, cross-examined on certain discrepancies in the evidence.  It is not necessary to recite these complaints in detail.  We have considered them, they are minor, they are not of material significance, they would not have affected the judge’s findings on credibility of witnesses, they fall well short of any justifiable complaint of incompetence and they do not cause this court any concern that the applicant may not have had a fair trial.

32. Finally, on ground 4, a complaint is made that the judge did not deal fully enough with the applicant’s good character.  The judge said

“Each of the 1^st and 2^nd accused is previously of good character.  I keep that in mind throughout on the bases I am so required.”

33. The judge used the plural “bases”.  He thus had in mind all limbs of good character, namely positive good character, credibility and propensity.  There is no need for him to recite the evidence in support.  There is no merit in this complaint. 

(3) Grounds 5 to 9

34. Nothing requiring separate consideration emerged in these grounds.  They refer to “failure to consider discrepancies”, “failure to consider the defendants’ cases separately”, “doubts as to the veracity of PW1 and PW2” and “support from the additional evidence”.

35. We are satisfied that such issues have been fully answered by our consideration of and decisions on the Notice of Motion and Grounds 1 to 4.

CHARGE 3

36. Again, no separate consideration of this charge is necessary.  The ingredient peculiar to it is possession, not delivery.

37. The element of possession was not in dispute, although the exhibits were different.  The exhibits were P16 and P16a which were two sheets of high quality forgeries.  One sheet was four scanned copies of one side of P1, the other sheet was four scanned copies of the reverse side of P1. 

38. The arguments in relation to “knowledge and belief” and “lawful excuse” were the same.