HKSAR v. RAMBUYON NOEL ENTERINA

DCCC 544/2018

[2019] HKDC 649

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 544 OF 2018

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Reasons for Verdict

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1.  The defendant pleaded not guilty to one count of using false instruments. After trial, I now deliver the reasons for verdict as follows.

The Prosecution case

2.  The facts of the case are not complicated. The defendant is a Filipino national who departed the Philippines on 5 February 2018 and arrived in Hong Kong on the same day [see the departure chop and the visitor permit appeared in copy of the defendant’s passport, Exhibit P10].

3.  On 6 February 2018 at about 4:25 pm, the defendant went to Travelex Currency Exchange store in Central and presented a bundle of 50 pieces of Thomas Cook Travellers Cheques, each at the face value of USD $1,000. The defendant was arrested at the scene.  His record of interview was voluntarily made. Both the staff of Travelex and the government chemist confirmed that these Travellers Cheques are counterfeit.

The Defence

4.  Although the defendant did not give evidence in court, the defence’s position is that the defendant did not know the Travellers Cheques are false as the cheques were given to him by his sister who got the cheques from his late father. The defendant came to Hong Kong to check if the cheques were genuine or not. He did not have the intention to encash these cheques.

The trial

5.  Pursuant to section 65C of Criminal Procedure Ordinance, the following facts are admitted:-

(1) The defendant has a clear record in Hong Kong.

(2) The identity of the defendant is not in dispute.

(3) From 27 September 2001, Thomas Cook Financial Services Limited changed its name to Travelex Financial Services Limited.

(4) At about 4:25 pm on 6 February 2018, the defendant went to Travelex Currency Exchange Store in Central.

(5) PC 19984 seized 50 Thomas Cook Travellers Cheques at the face value of USD $1,000 each [Exhibit P1] from the Travelex Currency Exchange Store.

(6) On 7 February 2018, the police took a total of 10 photographs and the album is exhibited as P2.

(7) A record of interview was voluntarily taken from the defendant on 7 February 2018. The record of interview is exhibited as P3 and the translation thereof as P3A.

(8) The chain of evidence in relation to the above said exhibits is not challenged.

PW1 - Lim Ming-yee Lai

6.  At the material time, PW1 was working at the counter of the exchange store. The defendant appeared in the store at about 4:25 pm on 6 February 2018. The defendant talked to PW1’s colleague, Lily Wong (PW4), who was sitting next to PW1. The defendant said to PW4 that he wanted to change the Travellers Cheques into Hong Kong dollars and then gave a bundle of Travellers Cheques to PW4.

7.  PW4 passed the bundle of Travellers Cheques to PW1 and asked if the same are genuine or not. PW1 told PW4 to ask for the identity paper of the defendant. The defendant presented his Philippines passport [copy of which is Exhibit P10]. PW1 said, right from the beginning, she and her colleague spotted that these Travellers Cheques are fake.

8.  PW1 knows that Thomas Cook did not issue Travellers Cheques in the denomination of USD $1,000. Staff of Thomas Cook were trained to verify Travellers Cheques and were given guidelines [Exhibit P5] for such purposes. They can verify the authenticity by looking at 6 features of the Travellers Cheques which include watermark, the quality of the paper, the printing etc. They can also verify it by means of accessing to online check or making a call to the hotline in order to obtain an approval code.

9.  PW1 knows that the prefix of the serial number ND denotes USD $50. Given the quality of the paper, the faded printing and the words are not embossed, PW1 has no difficulty to say on the spot that the bundle of 50 Travellers Cheques so provided by the defendant are counterfeit.

10.  On top of that, usually when a customer buys the Travellers Cheques, he is required to sign the cheques right away [the first signature]. And if the holder of the Travellers Cheques wants to encash the cheques, he is also required to countersign the cheques in the presence of the staff of the exchange store. She noticed that there is no first signature appeared on all the Travellers Cheques.

11.  The defendant was asked about the purchase receipt of these Travellers Cheques. The defendant replied that it was lost. The defendant was asked who was the owner of these Travellers Cheques and the defendant said it belonged to his deceased father who passed away 2 years ago.

12.  PW1 used the KYC [Know your customers] approach and asked the defendant where did he come from. The defendant said he came from Mindanao in the Philippines. The reaction of the defendant was calm. 

13.  PW1 understands that since 2008, Thomas Cook had stopped producing Travellers Cheques and Thomas Cook had been taken over by Travelex. In the past years, there has been less exchange of Travellers Cheques. PW1 reiterated that Thomas Cook did not produce Travellers Cheques of USD $1,000.

14.  The footage of the CCTV [P6] installed in the exchange store was played whereby PW1 identified herself, her colleague Lily Wong and the defendant.

15.  Under cross-examination, PW1 said the defendant talked to Lily Wong (PW4) when the defendant entered the shop. PW1 considered herself multi-tasking. She could hear the dialogue between the defendant and Lily Wong when PW1 was handling another lady customer. 

16.  It was suggested to PW1 that the defendant said, “I want to enquire if these cheques were still active in the system.”  PW1 disagreed and said the defendant only asked, “Do you change Travellers Cheques?” Lily Wong replied, “yes”. PW1 agreed that without the signature on the Travellers Cheques, they cannot be encashed. A customer can only exchange Travellers Cheques to the maximum amount of $20,000 per day. There is a different procedure if the owner of the Travellers Cheques was a deceased person. In that case, the holder of the Travellers Cheques cannot cash the cheques at the ordinary exchange store but can only do so in the USA.

17.  PW1 was of the view that the design or format of the Travellers Cheques provided by the defendant was used since 1985.  PW1 handled exchanges of Travellers Cheques about 2 to 3 times in 2018 and even less in 2017. Travelex does not have any office in the Philippines.

18.  When the defendant handed over the bundle of Travellers Cheques to Lily Wong, Lily Wong considered them fake already and hence she alerted PW1. PW1 told Lily Wong to double check and also made a report to the police. Lily Wong also asked the defendant to show his passport. At a later stage, they turned off the amplifier device at the counter so that the defendant could not hear what they said behind the counter. The staff were trying to delay the defendant so that police officers could arrive in time. The defendant did approach Lily Wong again asking how long it would take to process the cheques.

19.  At one stage before the arrival of the police officers, PW1 spoke to the defendant in Tagalog asking where did he come from and who owned the Travellers Cheques. When PW1 asked where was his father, the defendant said his father passed away already.  PW1 agreed that in her witness statement, which was written in Chinese, she did not mention about the role of Lily Wong in this matter. PW1 said the defendant mentioned that his father died and he had left the purchase receipt in the Philippines.

20.  PW1 said usually even though the Travellers Cheques are issued in US dollars, they would only give Hong Kong dollars to customers if the cheques are encashed.

PW2 - Chan Yu-shun

21.  He started to work for Thomas Cook since 1998 and later Travelex. He was the retail sales manager overseeing the daily operation of Travelex stores in Hong Kong. In late February 2018, he provided CCTV footage of the relevant period of time to the police. In March 2018, he provided a genuine copy of the Travellers Cheque at the face value of USD $100 [Exhibit P8] to the police.

22.  Staff of Travelex would be provided training to verify Travellers Cheques. There are training materials available online, and staff can obtain approval code through online website or through a telephone hotline which is manned 24 hours in the UK.  All the Travellers Cheques needed to be signed. He has never seen a Travellers Cheque issued by Thomas Cook at the value of USD $1,000. The company also issued verification guidelines, P5.

23.  Under cross-examination, PW2 said he cannot say if the design of the Thomas Cook Travellers Cheques has the MasterCard logo all along. But it is necessary for the buyer of the Travellers Cheques to sign the cheques first. He did not consider it necessary to send the Travellers Cheques so seized back to the UK for verification as they can say that the cheques are fake already.  After all, no approval code was given.

PW3 - PC 19984 Lui San-ming

24.  He was instructed to go to the exchange store in Pedder Street in Central to investigate a case. He seized a bundle of 50 pieces of Travellers Cheques [Exhibit P1]. He made enquiry with the defendant in simple English. The defendant said the said Travellers Cheques belonged to him and also said words to the effect that he intended to exchange these cheques. The defendant also said his father gave the cheques to him and his father passed away 2 years ago.

25.  Upon cross-examination, PW3 said he did not make any record of the conversation at the scene as there was no interpreter at the time and he had not cautioned the defendant. But PW3 did make a record of the arrest. He made a post-entry back in the police station. PW3 disagreed that he did not talk to the defendant at the scene. The demeanor of the defendant at the time was ‘relaxed’.

PW4 - Lily Wong

26.  She is a Filipino national and came to Hong Kong in 1991.  She joined Travelex in 2010 as a saleslady responsible for currency exchanges.

27.  At the material time when the defendant approached her over the counter in the store, the defendant asked if they changed Travellers Cheques. PW4 said Yes. The defendant then showed her a bundle of Travellers Cheques and told PW4 to change them to Hong Kong dollars.

28.  Immediately, PW4 suspected that these Travellers Cheques are counterfeit after inspecting the quality of printing, the watermark and the use of the ultraviolet light. PW4 showed the Travellers Cheques to her colleague. She asked the defendant for his passport. PW4 pretended to be busy so that they could make a report to the police. She told the defendant that he needed to wait as it took time to get the approval code. At one stage, the defendant asked how much more time they needed.

29.  Under cross-examination, PW4 said the police did not take a witness statement from her as the police approached her colleague PW1 who can speak Cantonese. PW4 admitted that she does not remember the details of what happened on the day. She accepted that they won’t accept Travellers Cheques if the owner of the same passed away already and the cheques need to be sent to their head office. But she said the defendant did not mention that. PW4 also disagreed that the defendant was just making enquiry at the time. She remembered that the defendant wanted to change the cheques into Hong Kong dollars. PW4 was of the view that the defendant thought he could exchange the cheques. When asked about the purchase receipt, the defendant said he did not have it, and he was not the owner of the cheques. She did not know that the defendant’s father passed away 2 years ago.

Statement of the Government Chemist Dr Pang Chi-ming [Exhibit P9]

30.  He compared the 50 pieces of Travellers Cheques seized from the defendant with the controlled sample. The chemist is of the view that the questioned Travellers Cheques are found to display inferior printing quality and were printed by inkjet printing method. The watermarks on the questioned cheques were simulated by printing. The chemist came to the conclusion that the 50 pieces of the questioned cheques are forged.

Cautioned statement of the defendant taken on 7 February 2018 [Exhibit P3, with the English translation as P3A]

31.  It was said, when cautioned through a Filipino interpreter, the defendant said, “I will remain silent, so please do not ask me anything.”

32.  Later, in the Q & A part, the defendant said he was at Travelex Exchange, Pedder Street, Central, enquiring if he could clear Travellers Cheques [Answer 6]. Travellers Cheques are not accepted in the Philippines [Answer 7]. At the time of his death, the defendant’s father gave the Travellers Cheques to the defendant’s sister who gave the same to the defendant in Mindanao [Answer 9 and Answer 11]. This was the first time the defendant came to Hong Kong [Answer 15]. The defendant refused to answer some of the questions.

33.  There was no half time submission. The defendant elected not to give evidence nor did he call any defence witness.

Analysis of evidence

34.  All along it is the duty of the Prosecution to prove the case beyond reasonable doubt. The defendant has no duty to prove anything. The defendant has a clear record in Hong Kong. That means legally speaking he has a low propensity to commit any crime and evidence in any form which is in the defendant’s favour should be treated favourably. The fact that the defendant elected not to give evidence is his right. The court cannot criticise or treat the defendant in a biased or prejudiced manner. That said, without the defendant’s evidence, he cannot then attack or challenge as the first person himself the evidence produced by the Prosecution.

35.  It is not disputed that the defendant is the holder of the Filipino passport [copy thereof is P10] and he presented the bundle of 50 pieces of Travellers Cheques to PW4. It was said the defendant asked to exchange the Travellers Cheques. PW1 said that the defendant did mention about his father being passed away 2 years ago, but PW4 said she heard nothing about it. When asked, the defendant failed to produce the purchase receipt of the Travellers Cheques.

36.  Both PW1 and PW4 are clear that the defendant at the time were not making any enquiry but actually asked the Travellers Cheques be exchanged. In his cautioned statement, the defendant did not reiterate that he was making any enquiry at the time.

37.  Defence counsel submitted that the defendant did not know or did not believe the Travellers Cheques to be false. It was said the defendant made no attempt to conceal his identity by presenting his passport and he waited in the shop until the arrival of the police. It was submitted that the defendant’s behaviour was “consistent with behaviour of ordinary customers”. It was also said “the lack of signature [of the cheques] goes to support the innocence of the defendant.”

38.  I do not accept the exculpatory part of the cautioned statement made by the defendant. The fact that the defendant did not give evidence in court, as I mentioned earlier, provided no direct evidence from the defendant as to his belief, even though the defendant has no duty to prove anything.

39.  In my view, the fact that there was no Travelex in the Philippines does not mean the defendant has to travel all the way to Hong Kong to make the so-called enquiry. He can fly to elsewhere including Qatar. He can make enquiry through many other means, like making phone calls, accessing websites on the Internet. There are bound to be travelling and living expenses incurred when the defendant travelled to Hong Kong. The defendant claimed that when his father passed away, he was in Qatar, and he got the Travellers Cheques from his sister later. Why the defendant’s sister cannot make the enquiry or even come to Hong Kong?  Why his sister passed these cheques to the defendant? Why his late father had these cheques? These questions remained unanswered, and I cannot speculate the reasons thereof.

40.  The fact that the cheques are not signed and that there was no Travellers Cheques in the denomination of USD $1,000 does not help the defendant. Similarly, the fact that it would be virtually impossible to cash these cheques cannot exonerate the defendant’s culpability. He was the one to present these cheques, and as the prosecution witnesses said, the defendant asked to exchange these cheques to cash.

41.  The booklet of Travellers Cheques contained 50 pieces of USD $1,000 cheques which are equivalent to about HK$390,000 [with the exchange rate of US$1 = HK$7.8]. That is quite a large sum of money, even though it was said the maximum amount of cash that can be exchanged per day is HK$20,000. I have no doubt that the defendant at the material time was asking to encash all the cheques, without knowing the maximum amount that one can encash per day.

42.  On the other hand, the fact that PW1, Lim Ming-yee Lai was named in the particulars of the offence does not support the allegation made by the defence counsel that “the wrong person appears to have been named in the charge”. That said, defence counsel did not say the charge is defective per se. The particulars were drafted in the words “...Lim Ming-yee, Lai of Travelex Currency Exchange Limited...” It is clear that Lim was named as the agent of Travelex, and I cannot see any prejudice or unfairness to the defendant. In fact, it is proper for the prosecution just to name Travelex, not other saleslady in the shop, as the person who was being induced at the time.

43.  Defence counsel also suggested there would be no prejudice to Travelex as the cheques cannot be cashed in any event, hence the prejudice as defined in section 70 of the Crimes Ordinance does not exist.

44.  In my view, the judgment of the Court of Appeal in HKSAR v Ra Hyun Bin [2009] 5 HKLRD 315 provides a clear answer to this submission. The Court of Appeal said, at paragraph 68 of the judgment, that:-

“The submission was made on behalf of the third applicant that the prosecution had failed to produce any evidence to establish that by producing the documents in his possession in HSBC, HSBC would have been persuaded to act upon the request made by the first applicant through the second applicant. That is correct in so far as it goes but the argument fails to appreciate that it was the intention of the third applicant that is critical to proof of the offence, not whether or not another person acted upon the documents.”

The court further quoted an English case and approved the saying that, “Whether the make succeeds as he intends and whether prejudice ... in fact occurs is immaterial.”

45.  The primary facts so proved allow me to draw the only reasonable and irresistible inference that the defendant knew or believed that these Travellers Cheques are not genuine, and that he had the necessary intention to induce staff of Travelex to accept them. It would be immaterial whether Travelex would accept these cheques and whether actual prejudice did occur to Travelex. I do not accept that the behaviour of the defendant in the shop would support his innocence. There can be many reasons for his reaction and there is no doubt that the defendant wanted to exchange the cheques into cash.

46.  To conclude, I find the prosecution has proved its case and I find the defendant guilty as charged.