R. v. FATEH MOHAMMAD (alias HABIB SHAH)

IN THE COURT OF APPEAL

1994, No. 220
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against his conviction for his role in a conspiracy to utter forged banknotes or to adopt the terminology of the new legislation delivering counterfeit banknotes.

2. There were four charges in the case. The first two related to a conspiracy to forge US$ banknotes and the third and fourth related to the action taken to dispose of the notes. The first and second defendants were charged with the first two charges and the second, third and fourth defendants were charged with the third and fourth charges. The applicant was the third defendant.

3. The first defendant pleaded guilty to the charges he was charged with. The Crown offered no evidence against the fourth defendant and he was acquitted. That left the second defendant and the applicant.

4. The trial last 18 days. The counterfeiting operation was a substantial one. There was a printing press in a factory at Shatin which printed US$100 bills and US$20 bills. These banknotes were of a sufficiently high quality to be described as good forgeries and it would seem that a number of them did circulate.

5. A salient feature of this case was that one of the conspirators Mr Leung Bing-wing gave evidence for the prosecution. Indeed he could be described as being one of the principal witnesses. Duffy J who was the trial judge warned the jury in strong terms of the dangers of placing reliance upon such testimony and the need for corroboration.

6. Mr Leung was an important witness as he was to a large extent the link between the two conspiracies. According to his evidence his role was to find "customers" to take the notes and get them into circulation. Evidence was given that HK$100 was paid for the US$100 bills. He was able to give and did give detailed particulars concerning the participation of other parties to the conspiracy and their involvement therein.

7. The other striking feature of this case was the fact that the ICAC had placed members of the conspiracy under surveillance and indeed one of their operatives Mr Ramshaw acted in the scheme as a purchaser of notes.

8. He gave evidence to the effect that on two occasions he received counterfeit notes from the applicant.

9. More specifically Mr Ramshaw gave evidence that he went together with an informant using the name "Bob" to the applicant's restaurant in Happy Valley on 21 July 1992 and in exchange for HK$17,000 obtained a package containing 100 counterfeit US$100 bills. The notes were received from an employee of the applicant.

10. On the second occasion, namely on 28 September Mr Ramshaw had direct contact with the applicant. The applicant said that he could supply US$100 bills and may be able to obtain US$20 bills. A price of HK$100 per US$100 bill was agreed and arrangements were made for a meeting the next day outside the restaurant. He attended at the appointed time. The applicant emerged from the restaurant and signalled to Mr Ramshaw to follow him. They went down an adjoining lane and Mr Ramshaw gave him HK$15,000.

11. The applicant pointed to a package which Mr Ramshaw then picked up. It subsequently transpired that the package contained 100 US$100 notes. Mr Ramshaw's evidence was substantially corroborated by the evidence of one of his colleagues Mr Valiant who went to observe the transaction.

12. The applicant was not legally represented at the trial. However a thorough perusal of the record would indicate that everything necessary was done by the trial judge to ensure that the applicant's interests were adequately protected.

13. All of the evidence was before the jury and it will be appreciated that unless the jury completely rejected Mr Leung and the ICAC officers' evidence it was almost inevitable that the applicant would be found guilty as charged.

14. At one stage instructions were given to Mr John Wright, to represent the applicant on this appeal. Amongst the court papers are perfected grounds of appeal and a skeleton argument.

15. The applicant was asked whether he wished to adopt the grounds proposed and he accepted the invitation. He was also invited to expand on them.

16. Two grounds of appeal were advanced by Mr Wright. The first was that the trial judge had permitted the introduction of some hearsay evidence. The complaint made was that some of the evidence given by Mr Ramshaw at pages 196-199 of the transcript was hearsay in that he gave evidence as to what "Bob" had said. However what Bob was alleged to have said was clearly in furtherance of the conspiracy if believed and on the authority of The Queen v. Au Shui Yuen Cr.App.No. 470/92(unreported) such evidence is admissible in a case such as this. A further complaint in relation to hearsay evidence was that no objection was made when Mr Ramshaw first attended at the said restaurant and asked Mr Ashfaq, an employee of the applicant, whether the package which contained counterfeit notes had been given to him by the applicant. He had replied in the affirmative. This reply was hearsay. As Mr Ashfaq was not a conspirator this hearsay evidence was not admissible. However having regard to the overwhelming evidence in this case we have no hesitation whatever in exercising the proviso as the jury would inevitably have come to the same conclusion that they did even if this evidence had not been admitted.

17. The second ground is that when the trial judge referred to evidence which had been admitted pursuant to s65C of the Criminal Procedure Ordinance he referred to admissions made by the defendants and did not alert the jury to the fact that the applicant who was acting in person had not admitted any of the evidence referred to.

18. None of the evidence referred to was material so far as the applicant was concerned. The oversight was not prejudicial to the applicant and it is inconceivable that this would have adversely affected the jury in their deliberations. There is no substance in either of these grounds.

19. In the written skeleton argument he submitted to the court Mr Wright referred to an error made by the trial judge in his summing-up. The judge directed the jury that there was evidence that Mr Ramshaw had on two occasions obtained counterfeit notes from the applicant. This was not correct. On the first occasion Mr Ramshaw did not get the notes directly from the applicant. It is however evident from Mr Ramshaw's evidence that the applicant was aware of the fact that notes had been provided to Mr Ramshaw on a previous occasion. In the conversation Mr Ramshaw had with the applicant on the second occasion there is a discussion about the notes where a comparison is made of the quality of the notes being provided on that occasion with the quality of the notes on the previous occasion. It is accordingly clear that although the judge was wrong to give the direction he did this was a matter of insignificance as it is clear from Mr Ramshaw's evidence if it was believed that the applicant was fully aware of the fact that counterfeit notes had been provided to Mr Ramshaw on a previous occasion. Accordingly the misdirection did not constitute a material irregularity.

20. Before us the applicant alleged that the ICAC had not brought written proof into the court to support their case against him. He also alleged that written documents belonging to him had been misappropriated by the Commission. Notwithstanding the lengthy period of time which has elapsed this allegation has never been substantiated. He made a number of other allegations against members of the ICAC but these were vague and unsatisfactory. These allegations do not take matters any further so far as this appeal is concerned. For the reasons given earlier we do not consider that this conviction to be in any way unsafe or unsatisfactory and the application is accordingly dismissed.