HKSAR v. OMAR BIN HAJI IBRAHIM AND OTHERS

DCCC 1147/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1147 OF 2012

----------------------

----------------------

------------------------------

Reasons for Verdict

------------------------------

The charge

1.  D1-D3 appeared before me together with two other defendants (D4-D5) and they all pleaded not guilty to a single charge of using false instruments, contrary to section 73 of the Crimes Ordinance, Cap 200.

The summary of prosecution case

2.  The subject-matter of the false instruments is two cashier orders (exh. P1(1) & P1(2)) each in the sum of US$2 billion purportedly issued by Nanyang Commercial Bank (“NCB”) Ltd dated 2 November, 1995.

3.  The charge alleged that on 6 September, 2012, D1-D5, together with two other persons namely, JURFY and YETTY OCTAVIA MOECHTAR (“YETTY”) used instruments which were and which they knew to be false, with the intention of inducing two NCB staffs, namely NG chun-yi (PW1) and LAM Tak-chuen (PW2) to accept them as genuine, and to thereby induce them to act to their detriment.

4.  It is never disputed that the two cashier orders were false instruments(see para. 1 of the Further Admitted Facts). In fact, the prosecution all along contends that as the errors and problems on the face of the two instruments were so plain and obvious that the defendants “would not have not known or not believed the cashier orders are forged.”

5.  In the morning at about 10:00 am on 6 September, 2012, according to the two employees of the bank, PW1 and PW2 as captured by the CCTV cameras installed inside the bank premises, a group of 8 male expatriates (including D1 to D5), entered the NCB head office situated at No 151 Des Voeux Road, Central.  D1 approached PW1, a female customer service officer of NCB at counter whilst the rest of the males sat on the sofa in the lobby.  D1 told PW1 that he had two cashier orders of very large amounts which needed “cash management’.  PW1 asked to see the cashier orders and D1 went back to the group of males and he later came back to the counter with D2 and the male JURFY to meet PW1.  D2 took out the cashier orders from the inner pocket of his upper garment.  Upon examining the two cashier orders, PW1 became suspicious as to their genuine nature.  In particular, PW1discovered that the cashier orders were issued back in 1995 and there were also obvious spelling mistakes appearing on the writing of the cashier orders.  PW1 then invited the group to wait at the meeting room and at the same time, she reported the matter to her manager PW2.  PW2 later went into the meeting room and met the group there.  D1 told PW2 in English that he wanted to do some “cash management” and they wanted to open an account to deposit the cashier orders. PW2 was later shown the two cashier orders and a certificate (exh. P2) by D2 who took them out from an envelope. Upon examining the two cashier orders, PW2 found them to be highly suspicious and forged.  He told the group that he wanted to photocopy the two cashier orders for record purposes.  He invited D1 to come with him to do the photocopying. After photocopying, he returned the original cashier orders. The group was waiting in the meeting room when PW2 spoke to one Miss Li, another manager of NCB, and after a brief discussion, in the end, they agreed to report the matter to the police. Subsequently a group of uniform police officers from the Central District arrived at NCB and arrested the group of males including D1 to D5.

6.  A Joint Venture Agreement (“JVA”) (exh. P17) was seized from D1 after his arrest. According to the JVA, D4 was a party of the JVA and JUFRY was the other party. The execution of the JVA was witnessed by D1 and another unknown person.  The parties to the JVA agreed to enter into a joint venture for the purpose of executing and undertaking a new money trading project in which JURFY was required to provide and ensure a bank draft facility of US$4 billion in NCB be deposited or transferred to the HSBC account of a company set up by D4 for the project.

7.  After arrest, under caution, D1 stated that “I am not part of the group that produce the two fake bank drafts and I am looking and monitoring for my uncle behalf.”  In the subsequent video recorded interview, D1 remained silent to nearly all the questions put to him.

8.  D2 and D3 both gave explanations to the police in their records of interviews.  I do not intend to repeat their answers in great details and simply adopt para. 7 & 8 of the Prosecution’s Opening of a summary of what they had stated in their records of interviews with the police (exh. P8 & P10).  Those were agreed to be voluntary statements and the content of the certified English translation were agreed to be accurate.  In those interviews, D2 and D3 made no admission to the charge and they were thus exculpatory statements.  I shall refer to their explanation to the police as and when they are relevant to my analysis of the case against them.

9.  After due consideration of the evidence, the prosecution had already reconsidered its position and decided to offer no evidence against D5 at the outset of the trial.  At the close of the prosecution case, counsels for D1-D4 had all made submissions of no case on behalf of their respective client.  I ruled that there was no case to answer in respect of D4 but there is a case to answer in respect of the charge against D1-D3.  I gave a detailed reason for my ruling in respect of the charge against D4.  Each of the three defendants (D1-D3) elected not to testify.  Nor did they call any witness to testify on their behalf.  In the final submissions, Mr Poots, counsel for D1, and Mr Raffell, counsel for D2-D3, largely adopted their no case submissions and reiterated that there must be a reasonable doubt as to the knowledge and intent of the defendants.

The case of D1

10.  In essence, in his half-way and final submission on behalf of D1, Mr Poots relied on what D1 had told the police under caution of his role in the matter after his arrest; that he was never in possession of the forged instruments and that there is no evidence that D1 had ever seen or examined these two instruments.  MrPoots criticized both PW1 and PW2 of their faulty memories of the incident inside NCB in light of the indisputable CCTV footage.  In particular, he pointed out that it was not D1 who showed the cashier orders to PW1 at her counter as she had claimed in examination-in-chief.  In cross-examination, it was put to PW1 that D1 told her that a group of people wanted to see the bank manager to check some bank draft documents and do some “cash management” or “money management” of a large amount after that, if everything is OK.  PW1 answered “yes, more or less.”  Under cross-examination by Mr Raffell for D2 – D3, PW1 said she was not 100% sure of what was said to her and when pressed that she missed what D1 had said about wanting to check documents, she said “perhaps I forgot about that, it’s possible.” She told the court that she made a note of what was being said but she did not keep the note.  In re-examination, she told the court that she was not sure if D1 had asked the manager to check the cashier orders.  She said it was possible that it was mentioned but she qualified this answer by saying that it was only a small possibility.

11.  Mr Poots also pointed out that PW2 said he could not remember if D1 had said similar words to him about what he wanted to do with the cashier orders when he spoke to him in English in the meeting room but he went on to agree that what was put to him as said by D1 was possible.  He described the role of D1 as being that of an interpreter.

12.  All in all, Mr Poots emphasized that the evidence of both bank officials does not show that D1 knew the instruments were false and neither does it show that he induced them to accept them as genuine.  Mr Poots submitted that while both PW1 and PW2 were sure that D1 mentioned the word “cash management” or “money management”, it was not at all clear what the word “cash management” or “money management” was meant by D1 or understood by both witnesses and whether the word includes the meaning of the opening of a bank account.

13.  Arguing for the prosecution, Mr Sadhwani replied the no case submission by Mr Poots that D1 made no mention of his role as an interpreter in his reply to police under caution.  He submitted that there was no reason for him to approach PW1 alone if he was merely an interpreter.  On the other hand, D1 was an integral part of the group that presented the cashier orders to the two bank officials.  Mr Sadhwani relied on the fact that D1 was one of the three men seated in front of PW1 at her counter and he was in close proximity when D2 presented one of the cashier orders to PW1.  He said D1 “must therefore have had a clear view of the cashier order.  It would and must have been plain and obvious to him that even on the face of it, the said cashier order could not have been genuine.”  Regarding the events of photocopying of the cashier orders by PW2, Mr Sadhwani again relied on the fact that D1 had handled those cashier orders when they were passed to PW2 for the purpose of photocopying.  He submitted that it can still be said that “D1 was still standing in close proximity and in the thick of the action”.  D1 again had the opportunity then to see and view the cashier orders and he would have known just by looking at them that they were forged.

14.  Mr Sadhwani also submitted that given what was said in evidence, in all likelihood, D1 had only asked PW1 and PW2 for money or cash management and not checking to be done to the cashier orders.

15.  In my judgment, while it was true that it was D1 who initiated the talking to the various bank officials of NCB and requested for service of about “cash management” or “money management” of the two cashier orders, the totality of the evidence established by the prosecution could not conceivably give rise to an only and irresistible inference against him that he knew the two cashier orders to be false.

16.  It is now clear from the evidence that at the material time, D1 did not possess those two cashier orders.  Indeed, he is the nephew of D4 who is a signatory of the JVA.  The JVA has also been mentioned by other defendants in their interviews with the police such as D3 and D4.  The existence of the JVA is also not a bare assertion and is established by the seizing by the police of a hardcopy (exh. P17) following the arrest of D1.  To say that D1 must therefore knew that the cashier orders were false because he was in close proximity and was “in the thick of actions” was but a sweeping generalization of the role played by each defendant and was thus stretching the principle of “joint enterprise” too far.  I need only to repeat what I said about the prosecution’s approach to D4 in D1’s case, namely “guilt by association”.

17.  It is abundantly clear that what the prosecution now submits is exactly just that.  The above submissions by Mr Sadhwani totally ignore what D1 had said after he was arrested under caution that he was not part of the group that produce the two fake bank drafts and that he was monitoring for his uncle behalf.  In his interviews, D4 said that he was a party to the JVA and it was under those circumstances that he came to be involved or implicated in the events of NCB.  I accept that D4’s association or involvement in the present case was equally consistent with his role and business interest in the JVA.  As one of the signatory of the JVA, D4 has every reason to be concerned with the validity and authenticity of the cashier orders.  The setting up by D4 of the BVI company pursuant to the terms of the JVA has also been confirmed by the existence of the relevant company documents which was also apparently accepted by the prosecution when they decided to drop the case against D5, the financial consultant of D4.  Exactly because D1 was the nephew of D4 who also spoke better English, it was not impossible that he was there only to assist his uncle to manage the two cashier orders.  After all, that was what all D1 wanted to say about his role in this matter when faced with the allegation by the police.  I have said that the analysis by the prosecution of its case against D4 is overly simplistic and not surprisingly, the same can be said about its approach to D1’s case.

18.  The submission by the prosecution, on the other hand, is also in the realm of speculation.  Despite the various CCTV footages, which clearly showed that the cashier orders were kept by D2 and D1 only had handled it briefly in the sense of passing it onto PW2 for photocopying outside the meeting room, Mr Sadhwani still went further to submit that D1 must have had the opportunity to see and view the cashier orders when there was no evidence that D1 has ever have a close look or examination of the two cashier orders.  The prosecution has in effect invited this court to infer that by merely having had the opportunity to take a look of the cashier orders, D1 should knew or believed that the cashier orders were forged and he must have intended to induce PW1 and PW2 to accept the cashier orders as genuine and for them to act to NCB’s prejudice.

19.  I note that there is some confusion between PW1 and PW2 as to whether D1 has ever mentioned to them about checking of the two cashier orders.  In all fairness, both witnesses could not say for sure that it was not mentioned at all during their conversations with D1 although they did not seem to have any much recollection.  No matter how low the possibility of that being said by D1, as a matter of law, the standard of proof of any fact is beyond all reasonable doubt and it is only right that D1 should be given the benefit of the doubt.  In any event, in my analysis, this is only a red herring despite the controversy.  Looking at it closely, while the fact that D1 did mention to the bank officials about checking of the cashier orders might certainly assist his case, on the other hand, the fact that he failed to mention the same does not necessarily strengthen any inference of his guilty intention.  It would be too naïve to suppose that any bank official would just accept any cashier order as genuine and deposit it into a bank account without checking it anyway.  I also agree with the defence that it is not at all certain what was meant by the phrase “money management” or “cash management”.  How can one say for sure that in the process of the so-called management of the cashier orders, the bank official would not check and verify the instruments, if that has not been mentioned or specifically requested by a customer?  Mr Sadhwani in his submission relied heavily on the inferior quality and the glaring mistakes appeared on the two cashier orders so much so to the effect that even any defendant who have had the opportunity to see and view the cashier orders in question would immediately knew or believed that they were forged.  This argument actually cut both ways.  If that is the case, one wonders why D1 still needed to specifically mention the word “checking” to PW1 or PW2 at all when the cashier order looked so fake on its face and any bank official in his right mind must, as a matter of course, caused it to be checked before it could be properly “managed”.

20.  After carefully consider the evidence and submissions, from the evidence adduced so far, I find that there is simply insufficient basis of facts upon which the only and reasonable inference can be drawn by the court as to the knowledge or intent of D1 regarding the two forged cashier orders.

The case of D2 & D3

21.  Put simply, the submission by Mr Raffell on behalf of D2 and D3 is that there is insufficient evidence that either of the defendant knew that the cashier orders were false and there is insufficient evidence that they had the intention to induce PW1 and PW2 to accept the documents as genuine or intended that anyone should act upon the cashier orders to their prejudice.  On the other hand, the explanations given by them in both Records of Interviews strongly indicate no intention on their parts to do anything other than authenticate, validate and check the cashier orders to find out if they were genuine and valid.

22.  Mr Raffell relies on Archbold (2011) para. 23-17 and submits that in order to prove the offence, the prosecution has to establish the following three elements of the offence:-

(i) knowledge of falsity on the part of an accused;

(ii) an intention that the document should be accepted as genuine; and

(iii) an intention that someone should so accept and act to their own or another’s prejudice because of that acceptance.

He further points out that there is no direct or inferential evidence of such knowledge and intentions on the part of either defendant.

23.  In developing his arguments, Mr Raffell asks the court to consider that both D2 and D3 had not come to Hong Kong before and they are as such strangers here.  While it is not disputed that D2 possessed the envelope which contained the two cashier orders and the certificate, D3 only took out the cashier orders for a few seconds from the envelope placed before him on the table in the meeting room.

24.  Mr Raffell then took the court to closely examine what his both clients had said about their purposes of coming to NCB regarding the two cashier orders in their Records of Interviews.  Relying on the English case of R v Myers [1997] 3 WLR 532, it was held that a defendant in a joint trial should be allowed to rely on the other defendant’s out-of-court statement to further or support his defence.  He submits that by looking at their answers as a whole, both D2 and D3 by and large told a consistent story that D3 was given the two cashier orders by one Miss Yetty in Indonesia before he came to Hong Kong and they just intended to come to Hong Kong and verify the documents with NCB and they did not know whether the cashier orders were genuine or not.  D3 is a businessman in Indonesia for 15 years and D2 is his grandson.  They had no intention of withdrawing any money and that the cashier orders belonged to Yetty, a retired lecturer and also the sister-in-law of D3 in Indonesia.  If the cashier orders were false, they said they would ask for a letter from the bank and take it back to Yetty.

25.  In reply to the no case submission, Mr Sadhwani again relied on the same old contention that it must have been patently clear to D2 and D3 who had inspected the two cashier orders that they were forged.  He commented that it makes no sense for everyone in the group to go to NCB if they simply wanted the two cashier orders checked by NCB. He said D3 had admitted that the purpose of authentication was not to check whether the cashier orders were genuine, but to check whether the bank still has the money or not.  Thus even if the word “checking” was mentioned, it had nothing to do with checking the authenticity of the cashier orders.  He also said it is most improbable that Yetty would have entrusted D3 with the cashier orders.  He gave some examples in the Records of Interviews and submitted that the explanations by D2 and D3 were sometimes at odds with each other and their answers made no sense at all.

26.  While I have some reservations in accepting in total the versions as stated in their Records of Interviews by D2 and D3, the facts remain that as defendants, they do not have the burden of proving anything in the case.  The burden remains on the prosecution and the standard is beyond all reasonable doubt.  The difficulty of the prosecution in this case is that at the end of the day, there is no direct or inferential evidence that can be established beyond all reasonable doubt that D2 and D3 has the guilty knowledge or intention regarding the two cashier orders.

27.  Mr Sadhwani submitted that it does not make any sense for everyone in the group to go to NCB if they just wanted to check if the cashier orders were good or not.  While there is some force in the argument at the first glance, in my final analysis, it equally does not make any sense for everyone in this group to go to NCB to present two forged documents which they all knew or at least believed to be false.  If according to Mr Sadhwani’s analysis, this group of persons, including D2 and D3, knowing full well that the documents were forged and yet they still all turned up at the head office of NCB, the very bank that purportedly issued the documents and induced the bank officials to accept them as genuine documents and acted to the prejudice of the bank.  I find that it was inherently improbable a proposition and totally unrealistic.  I fully agree with Mr Raffell’s submission that the prosecution case that this group of persons just entered NCB with the same guilty knowledge and intention is too simplistic an analysis and is a misuse of the enterprise doctrine and simply not consistent with reality. 

28.  In HKSAR v SONG CHANG MOO, CACC235/2010, the Court of Appeal allowed an appeal for conviction by the District Court of a charge of “Conspiracy to use false instruments”.  The false instruments were also two bank drafts payable to two persons in the name of JP Morgan in the total sum ofUS$3.8 million.  The charge alleged that the applicant, a Korean male, his co-accused and others unknown conspired to represent to the staff of JP Morgan Bank in Hong Kong that the documents were genuine and to thereby induce them to act to their detriment.

29.  In para. 22 of the judgment, the Court of Appeal said this:-

“22. There are other errors in the judge’s reasoning. The fact that there was no date on the US$2,800,000 draft had to be considered in the light of the fact that the applicant himself had told the police he had some reservations about the document’s authenticity and that was why he wished to have them verified. The applicant’s video-recorded interview when read as a whole makes it clear that the applicant wished to open a bank account in the name of Golden Link Investment and to deposit the two drafts into it, if the bank drafts were authentic. He did not assert in the interview that he went to JP Morgan to simply verify the two bank drafts as the judge stated in his reasons for verdict. Throughout the interview his position was that if they were verified then they could be deposited into that account.” (emphasis added)

30.  Similarly, the fact that the two cashier orders were forged and they appeared also to be blatantly false as always contended by the prosecution had to be considered in the light of the fact that both D2 and D3 had told the police in their interviews that they just wish to take the documents to the bank to verify their authenticity.  Of course I understand that there is evidence that D1 has once mentioned about opening an account when he met PW2.  I do not however find that it was inconsistent with the case of both D2 and D3.  Firstly, what was said by D1 to a bank official of NCB in English may not be fully understood by D2 and D3.  Secondly, D1 is the nephew of D4 and it is not difficult to realize that he was there primarily to assist D4’s interest in the JVA but not the interest of D2 and D3.  Thirdly, it is not at all surprising that D1 said something to the effect that an account was to be opened and the cashier orders be deposited into it, if the cashier orders were authentic or if everything is ok.  After all, it seems to me that that was the most natural things to request and there is no evidence that D2 and D3 had communicated their ideas and wishes to D4 or D1 beforehand that they only wanted the cashier orders to be checked.  On the contrary, according to D4’s assertion in the interview, he just met the other persons in the group shortly before entering the bank in the morning and as such,  I could not rule out the possibility of misunderstanding of the cross purposes of the different parties in the group in relation to the handling of the cashier orders.  Lastly, it has also been put to PW2 that D2 had said “No, we want you to validate this” when D1 has mentioned the opening of a bank account inside the meeting room and PW2 was not able to recollect or deny this suggestion and there is no evidence that D3 was aware of what was being said at this stage in the meeting room.

31.  Based on the above analysis, I also find that there is insufficient basis of facts upon which the only and reasonable inference can be drawn by the court as to the knowledge or intent of D2 and D3 regarding the two forged cashier orders.

Conclusion

32.  Accordingly, the charge is dismissed against D1 to D3.