HKSAR v. WEN GUIZHEN

DCCC 1261/2024

[2025] HKDC 1745

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1261 OF 2024

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REASONS FOR VERDICT

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1.  The defendant pleaded not guilty to a charge of "Passing or tendering counterfeit notes" (Charge 1)  and a charge of "Having custody or control of counterfeit notes" (Charge 2). The subject matters of both charges are respectively 43 and 17 fake RMB100 banknotes.

The Prosecution Case

2.  The defendant holds a Hong Kong Identity Card and an HKSAR passport[1].  She resides and runs her own beauty business in Shenzhen.  On 31 August 2011, she opened a bank account (No.804-634XXX-833)  with HSBC ("the Account").

Charge 1

3.  About 10:30 a.m. on 8 May 2024, the defendant was at the HSBC branch situated at Ground Floor, Sheung Shui Centre (which was designated for Premier customers[2])  to deposit RMB50,000 cash into the Account.  Madam Au (PW1)  was the teller serving her.

4.  According to PW1's evidence, the defendant handed 5 stacks of RMB100 notes to her; each stack was wrapped with a paper strap (but they were not brand new notes).  As explained by the defendant in her evidence later in the trial, it is a common practice for banks in the mainland to wrap a stack of banknotes (even used ones)  with a paper strap (to signify a specific sum).  Sometimes, a bank employee would stamp the paper strap with his/her name chop.

5.  Upon receiving the 5 stacks of banknotes (which PW1 saw the defendant taking out of her handbag), PW1 placed each stack on the counting machine.  PW1 stated that the counting machine could count the number of notes and detect the authenticity of each note.  According to the counting machine, the defendant handed a total of 493 RMB100 banknotes to PW1, of which 43 were "questionable" (the term used by PW1).  PW1 explained that the 43 "questionable" notes were obviously fake because each note has the words "Prop for film and television Prohibited from circulation[3]" printed on it.

6.  PW1 asked a colleague to notify her supervisor.  Meanwhile, both PW1 and the defendant remained seated face to face at the counter engaging in small talk.  PW1 said the defendant did not ask why there was a hold up, and she did not tell the defendant why either.  PW1 also said upon discovering the first "questionable" note in the first stack, she told the defendant "This note has some problems.  May be we need to examine it."  Eventually, the Police arrived at the bank at 11:06 a.m. on the same day[4].

7.  PC 15431 arrested the defendant at the bank at 11:35 a.m. on 8 May 2024 for "Passing counterfeit notes".  Under caution, she denied knowledge of the presence of counterfeit notes (in her RMB notes).

Charge 2

8.  Later on at the bank, the Police found another 100 RMB100 banknotes in the defendant's handbag, of which 17 were obviously fake.  They and the 43 fake RMB notes found earlier all have the same appearance and serial number.  I shall refer to them as "Prop Notes".

The Defence Case

9. The defendant elected to give evidence but did not call any defence witness.

10. She adopted the contents of her video recorded interview (Exhibit P5)  as part of her evidence. She then explained her background, beauty business and personal finance (with supporting bank documents). In gist, the defendant denied knowledge of the existence of the 60 "Prop Notes" amongst the other 533 genuine RMB100 banknotes in her possession. She claimed that all 593 notes were given to her by her clients. She trusted them and did not count or check the notes. It has never happened to her before during her 7 to 8 years in the beauty business.

Assessment and Analysis of Evidence

11. The burden of proof is on the prosecution to prove each element of each offence beyond reasonable doubt. The defendant has a clear record; I have directed myself on her good character.

12. There is a significant distinction between this case and those typical passing of counterfeit notes cases, in which the counterfeit notes were intended to deceive the recipients as being genuine. In the present case, the Prop Notes clearly did not have such a characteristic. Quite to the contrary, the Prop Notes intended to deliver a message "We are fake. Do not use us [as genuine banknotes]."

13. I am aware that swindlers have used "training notes", which are intended for people to practice counting banknotes to improve their speed and accuracy and so labelled, in hurried situations (such as paying for taxi fare or making a small sum purchase at a convenience store)  in order to obtain genuine currency as change. The evidence in the present case, however, strongly suggests otherwise. The defendant was making a cash deposit at a bank and intended to purchase some medicine at Watsons (which she claimed would accept RMB)  for her parents. I consider neither a hurried situation, especially the former.

14. I need not go into the defendant's personal finance; suffice it to say that she appears to be financially sound and is able to send her son to attend university in England. There is also evidence showing multiple deposits (both via live tellers and ATMs)  were made to her bank accounts over the years. I also accept that some of her clients would pay her cash (and in no small sums). In fact, the prosecution has no evidence to rebut the defendant's evidence about her business and finance.

15. As a juror, yes, I find it odd and defying business sense that the defendant did not have a habit of counting the cash received from her clients. Irrespective of how the banknotes were originally presented to her (be they in stacks of 100 notes neatly wrapped with a paper strap or in piles of tens – 9 notes wrapped with one folded note), had the defendant taken a quick glance at them (perhaps by just flipping through each stack)  before presenting them to PW1, she could easily have discovered the "Prop Notes".

16. On the other hand, I cannot ignore the fact that the 5 stacks of banknotes were 7 notes short of RMB50,000, which tends to support the defendant's claim that she did not count them beforehand. As a juror, I would imagine that if the defendant had intended to slip in 43 Prop Notes amongst the other 450 genuine RMB100 notes, she would have at least gotten the number of notes right. Using Prop Notes and having 7 notes short would no doubt attract double attention from the teller, rendering her plan, if there was one, even more likely to fail.

17. As I have explained earlier, in terms of the nature and setting of this case, the Prop Notes are different from those counterfeit notes which swindlers typically want to pass off as genuine banknotes. In other words, the Prop Notes are bound to be discovered by any bank teller (not just PW1). Unless the defendant is a complete fool, she must have known that the 43 Prop Notes would not go into the Account undetected either by machine or by human. As a juror, I ask rhetorically "Was the defendant that stupid to even try this plan?" My answer is "No".

18. I am aware of the counter-argument that may be the defendant did want to try her luck. She was aware of the risk but decided to take it, and that is what swindlers do. In such circumstances, one of the golden rules of criminal trials applies ‒ When a set of facts are capable of supporting 2 or more inferences, the court must draw the one which is favourable to the defendant. In my view, the 2 competing inferences are at least equally strong, if not with the former stronger than the latter. I am unable to reject firmly either one. In other words, I must conclude that the defendant was not imbecilic enough to have knowingly slipped in 43 Prop Notes to deceive PW1. Regarding the 17 Prop Notes found in her handbag, I have reached the same conclusion as well.

19. Based on the reasons stated above, I find the defendant not guilty of Charges 1 and 2.