HKSAR v. AHMED KAZI MUNZURUL

DCCC 444/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 444 OF 2013

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Reasons for Verdict

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1.  The defendant pleaded not guilty to one charge of fraud, contrary to Section 16A of the Theft Ordinance, Cap.210.

2.  The particulars are as follows.

3.  The defendant, between 1 January 2012 and 11 September 2012, in Hong Kong or elsewhere, by deceit, namely, by falsely representing to Tang Chi-shing that:

a) a bank letter purporting to be issued by the HSBC dated 28 March 2012, relating to the financial position in the bank account of Rainbowbrush Limited was genuine; and

b) payment for the goods to be supplied by Millennium Printing International Limited would be made within 45 days of delivery;

and with intent to defraud, induced the same Mr Tang to part with a quantity of children’s stationery and DVDs to the value of US$138,883.92, which resulted in a benefit to himself or in prejudice to the said Tang Chi-shing.

4.  The trial was estimated to take four days and was set down for four days.It began on 2 December 2013.

5.  Mr John Hemmings represented the prosecution on fiat and Mr Mark Sutherland was briefed to represent the defendant.

6.  On day 14 of the trial and just before the prosecution closed its case, the defendant absconded and failed to answer the terms of his bail.  The defendant failed to attend court.

7.  A warrant was issued for his arrest and the trial was adjourned for 15 days. 

8.  The police failed to execute the warrant and I exercised my discretion to continue the trial in the absence of the defendant. I was satisfied he had absented himself voluntarily.

9.  A message was sent to the defendant’s mobile, with a warning that the court may proceed in his absence, but to no avail.

10.  I am satisfied he deliberately avoided court and abandoned his right to be present at his trial.  I allowed the solicitors and counsel to withdraw from further representation.

11.  I will expand with a chronology of events during the course of this trial.

12.  First, I will deal with the prosecution’s case and the facts are as follows.

13.  PW1 was the main witness and was Mr Tang Chi-shing.  He is the assistant manager of Wah Tong Group, but working with its subsidiary company, Millennium Printing International Limited, in Shenzhen, China.

14.  PW1 came to know the defendant in 2011, through the trade shows at the Hong Kong Convention and Exhibition Centre.

15.  The defendant introduced himself to PW1 as a staff member of Rainbowbrush Limited, selling children’s painting and stationery products.

16.  Since then, from that date, the victim and the defendant maintained contact.  They met in early 2012 to discuss possible business arrangements.

17.  PW1 gave evidence that he usually received e-mails from the defendant’s two e-mail accounts and their addresses were info@rainbowbrush.com and kazi@rainbowbrush.com.

18.  The victim, PW1, knew that the defendant was based in Florida, USA.

19.  In early 2012 they reached a verbal agreement to produce some orders.  This company Millennium’s main business was printing and packaging of paper products.  PW1 agreed to provide packaging for the defendant’s products that he in the main supplied.

20.  A finalised order was placed in June 2012, but before that, the defendant negotiated payment terms of 15-per-cent deposit and the balance payable within 45 days of delivery.

21.  PW1 explained that new clients were not normally offered these terms.  They would pay between 50 to 100 per cent upfront before shipment.  Normally, the terms would be COD, Cash on Delivery.

22.  Before PW1 offered such favourable terms to a new client, he required the defendant to provide them with a bank reference letter, one from a Hong Kong-based bank.PW1 needed reassurance as to the financial status of the defendant’s company.  Exhibit P31A is a series of e-mails between PW1, PW2 (who was an employee of the defendant), the defendant himself and others.

23.  On 29 March 2012, the defendant attached a PDF file to an e-mail addressed to PW2, instructing her to forward the attachment to PW1.On 2 April 2012, the defendant himself e-mailed the PDF file to PW1 and copied PW2 on the e-mail.

24.  The PDF file contained a letter from HSBC (Exhibit P28), confirming the defendant’s company maintained an account with HSBC and had since 2009.  The balance of the account, according to the letter, averaged US$2 million.  It was signed by an Andrew Chow and dated 28 March 2012.

25.  In an e-mail dated 6 April 2012 in P31A, addressed from the defendant to PW1 and others, he makes direct reference to the bank reference letter provided whilst negotiating payment terms. 

26.  PW2 confirms she had sight of this letter from the defendant intended for PW1 and his company.

27.  HSBC confirmed the letter is a forgery.PW3, Mr Andrew Chow, formally of HSBC bank, confirmed the letter was not drafted by him and was indeed a forgery.  This was not challenged by the defence.

28.  PW1 and his superiors accepted that this letter, upon receipt, as genuine and proceeded with offering the defendant favourable payment terms, terms that would not normally be offered to a new customer.

29.  Defendant placed two purchase orders, PW21 and 21A, by e-mail.  The goods were to be shipped at different times.  The orders were endorsed with Rainbowbrush Limited’s company chop and a signature. 15-per-cent deposit was to be paid when the orders were placed but only some of it was eventually paid by the defendant and late.PW1, nonetheless, commenced production.

30.  The deposit that was ultimately paid in August 2012 was US$20,000, which was not 15 per cent, but the victim company continued to fulfil the order.

31.  PW1 shipped goods in July, August and September.  The  balance of payment was, therefore, due at the end of October 2012.

32.  PW1 fulfilled one order only and that purchase order was worth $138,883.92.

33.  The second order was suspended when no payment of the balance was forthcoming.  That order was worth $74,367.37.

34.  At the end of October 2012, despite PW1’s best efforts to chase the defendant for payment of the goods shipped and received, he was unsuccessful. 

35.  PW1 contacted the defendant by various means, including e-mail, telephone and Skype.  When he did speak to the defendant, he was told he had to wait for the balance to be paid.  The defendant gave no reason why payment was not forthcoming.

36.  Not long after, PW1 enlarged the bank reference letter (P28) and discovered certain anomalies.  He then went to HSBC bank to check the authenticity of the letter and, as I have said, it was confirmed to be a forgery.  A police report was made.

37.  PW1 informed the police that he knew the defendant would be an exhibitor at a trade show at the Hong Kong Exhibition Centre in January 2013, where he was then subsequently arrested.He was released on bail.

38.  PW2, a Miss Connie Yip, was an employee of the defendant, from approximately January 2012 to December 2012.  She knew of PW1 through her previous positions in the sourcing industry.  She worked for the defendant as a consultant and from home a few hours a day.  The company had no office in Hong Kong.

39.  Miss Yip stopped working for the defendant in about December, because he owed her salary and reimbursements in arrears; to her calculation, HK$54,000.

40.  She was the defendant’s only employee in Hong Kong and she saw him approximately three to four times a year when he came to Hong Kong from Florida for about seven to ten days on each occasion.

41.  She prepared the two finalised purchase orders (P21 and 21A) of June 2012 at the defendant’s request and according to his instructions.

42.  When parts of the orders were shipped, she would ensure the goods were delivered to the right client and that they received the goods.  She heard of no direct complaints about the quality of the goods that were material or major.  Certainly, no delivery was rejected upon receipt. The defendant did not tell her of any defects found after shipment.

43.  In March 2012, she chased up the defendant and finally received from him the bank reference letter required by PW1 (Exhibit P28). She received it by e-mail.  He told her to forward the letter to Mr Tang.  She did look at its contents and was surprised Rainbow Brush had so much cash, but she did not doubt the letter of a big international bank.

44.  When the defendant did not pay her salary and she recalled the letter she had seen, she contacted PW1 to discuss it.  She knew Millennium had not been paid the balance required after 45 days.  The defendant had told her that all payment issues were to be dealt with by him and not part of her duties.

45.  Whilst she worked for him, the defendant provided an e-mail address, connieyip@rainbowbrush.com.  She never accessed the defendant’s e-mail addresses, as she did not have his password.

46.  The defendant denied her access to her account after she resigned.  She had saved several important attachments to her personal hard drive.

The defence case

47.  PW1 and PW2 were cross-examined at length and the defence case was put to them both.

48.  Specifically, it was put to PW1 that the defendant failed to pay the balance of the money owed, because the goods were rejected and substandard.  The failure to pay was because the goods were problematic. This case had nothing to do with fraud or an intent to defraud PW1 and his employers. This was a civil case, a breach of contract, and not a criminal case with any criminal element.

49.  At the same time it was put to PW1 and PW2 that the defendant did not place the two purchase orders, P21 and 21A.

50.  It was put to PW2, Miss Yip, that she placed these orders without the authority of the defendant.

51.  In fact, it was put to both witnesses that Exhibit PD 20 dated 13 April 2012, were the only purchase orders authorised.

52.  So, on one hand, the defendant agrees that he received the goods from PW1, but rejected them.  But, on the one hand, the goods were not, in fact, ordered by the defendant.

53.  It was put to PW1 that he and PW2 conspired to frame the defendant by forging the HSBC bank reference letter.  Despite evidence of a request to the defendant in e-mails for a bank reference letter and several referrals in e-mails to the bank reference letter, the only letter in evidence (P28) did not come from the defendant.  It was either PW1 or PW2 or both witnesses who forged the letter, as well as the e-mails that refer to the letter.

54.  It was put to PW1 he did this out of spite, because his business relationship with the defendant had failed.

55.  It was also put to PW2 that the defendant did not owe her any money in arrears.  She was lying about her salary outstanding and did not resign for that reason.

Chronology of events during the course of this trial

56.  On the first day of trial, Mr Sutherland informed the court the defendant’s expert report was not ready.  The report related to the origin of the e-mails relied upon by the prosecution (P31A).  P31 is the USB containing the e-mails.

57.  Mr Sutherland told the court his expert had asked for soft copies of these e-mails and received them only 12 days before the trial date.  He could not finish his report without soft copies, but no mention was made of any requirements of a hard drive on the first day of the trial.

58.  That report was ready later that day.

59.  On the second day of trial, Mr Sutherland cross-examined PW1 and asked him if the bank reference letter was requested from the defendant by e-mail and orally.  PW1’s answer was that he should have made such a request by e-mail and also orally. 

60.  It was put to PW1 the bank reference letter did not come by e-mail from the defendant.  He denied this and asked, if not, how would he have received it? 

61.  When it was put to PW1 he did not know for a fact the defendant sent the letter to him, he answered that he genuinely believed he did and had no doubt at all.

62.  This is very relevant, because the prosecution, Mr Hemmings, asked PW1 in re-examination if he, in fact, still had the e-mail asking the defendant for a bank reference letter, and PW1 replied that he should have it.  This arose directly from a question put to PW1 in cross-examination.

63.  As a result, PW1 found e-mails on his laptop that directly asked for a bank reference letter from a Hong Kong-based bank. They were then produced as Exhibit P32.

64.  Next, Mr Sutherland applied to again cross-examine PW1 on those e-mails in that exhibit. 

65.  I refused that application.

66.  On the third day of trial, it was put to PW2 that she placed the two purchase orders without authority and, whilst cross-examining PW2 as to these two purchase orders, Mr Sutherland asked her if these purchase orders had covering e-mails.  This question arose because she had given evidence that she copied the defendant in on all e-mails, including the two purchase orders. 

67.  She was asked if she had those covering e-mails and she produced them later after printing them out from her home computer.

68.  As a result of her answer that she should have a copy of the covering e-mails to the two purchase orders at home, Mr Sutherland then applied for disclosure during the course of her cross-examination.  He applied for the first and second prosecution witness’s hard drives to be produced in their entirety.  He accused the prosecution of concealing them and, therefore, the defendant was prejudiced. 

69.  He also applied for an adjournment of the trial to prepare for the continuation of the trial after the disclosure of the two witnesses’ hard drives.  Mr Sutherland said the prosecution witness had in their evidence mentioned hard drives and, therefore, the prosecution had a duty to disclose all such evidence to the defence. 

70.  The prosecution were never in possession of these hard drives, but nevertheless, Mr Sutherland said there was no proper disclosure by the prosecution.

71.  The prosecution applied that what they had was supplied to the defence as requested and required.

72.  Mr Sutherland argued that since the defence had now alleged a conspiracy between PW1 and PW2 to fabricate and forge this bank reference letter, the defence were entitled to go through their hard drives to look for copies of this forgery, perhaps in the making or in its final version.

73.  I refused both applications and accepted the prosecution’s submission that there had been full disclosure of all material in the prosecution’s possession.

74.  Later that day, Mr Sutherland made an application for the prosecution to disclose PW1 and PW2’s home addresses, for the purpose of serving notice on them to disclose their hard drives. 

75.  Mr Sutherland submitted again there had not been full disclosure and the defendant was unable to have a fair trial.  He said if the defence did not get the hard drives, a stay of proceedings application would be made.

76.  The prosecution refused to supply these personal details to the defence.

77.  On the sixth day of the trial, whilst PW2 was still being cross-examined by Mr Sutherland, he made an application to adjourn the trial for the defence to apply again for Legal Aid.  The defendant had run out of his own funds and the trial had overrun.  The defendant had been given a date of 23 December, some 14 days later, to return to the Legal Aid Department for an interview.

78.  I refused the application, as the defendant admitted that he did not have in his possession all the documents required by the Legal Aid to consider a second application.

79.  Mr Sutherland made a further application, a repeat application, for discovery of the two hard drives belonging to PW1 and PW2.  This time, he said his expert now required them.  The examination of the hard drives could establish the genuineness of the e-mail chains such as those in Exhibit P31A.  The only way to be sure is to examine the hard drives. 

80.  The defence did not ask for this prior to the trial nor did the defence expert make reference to this in his already completed report.

81.  I refused that application.

82.  Mr Sutherland made a further application for the court to return the defendant’s passport to him for the purposes of opening a bank account.

83.  This was also denied.

84.  On the seventh day of trial, Mr Sutherland made an application to stay the proceedings.  The defendant at the same time produced a sick note from a doctor, stating he was suffering from gastroenteritis. However, he was able to sit through his counsel’s application to stay proceedings.

85.  After hearing Mr Sutherland as well as Mr Hemmings, the ruling was adjourned for limited discovery of both PW1 and PW2’s hard drives relating to certain dates only, not the hard drives in their entirety.

86.  I do not intend to repeat the submissions made, but Mr Sutherland submitted the prosecution failed to disclose evidence and that there had been material non-disclosure.  He accused the prosecution of cherry-picking what evidence they decided to give the defence.  He said the trial was a trial by e-mail and nothing else.  The defence had been ambushed by the prosecution’s approach and hampered.  There was not a level playing field in this trial. 

87.  He submitted there had been an abuse of process and the proceedings should be stayed.  Many authorities were produced by Mr Sutherland.

88.  Prosecution replied to these serious allegations and pointed out the defence expert himself had not requested the hard drives. Mr Hemmings was referring to a letter not from the expert, but from the expert’s employer.

89.  The prosecution had disclosed all that they had and replied by letter to the defendant in this respect before trial.  The defence did not make any further enquiries before the first day of trial or before cross-examination of either PW1 or PW2.

90.  Mr Hemmings submitted the trial is anything but a trial by e-mails.  The live witnesses gave statements and PW1 refers in his statement to the bank letter he requested from the defendant.  The defence knew of this letter long before the trial began, but did not request before trial all prosecution witnesses’ hard drives.  The hard drives were not requested by the defence’s expert to complete his report and it had been completed before any application made by Mr Sutherland during the course of this trial.  The Police were, in fact, never, I repeat, in possession of any hard drives.

91.  Mr Hemmings points out that as a result of matters put in cross-examination, in fact, more detrimental material had been produced in favour of the prosecution’s case.  That is what seemed to have led to the numerous applications. However the prosecution quite properly addressed the matters in re-examination.

92.  It is defence counsel’s own doing that the documents he said or put did not exist were produced during re-examination.

93.  The prosecution was unable to examine PW1’s laptop for those specific and limited dates, as he works and lives in China.

94.  On the eighth day of trial, a computer forensic expert from the prosecution did, in fact, go to PW2’s home to retrieve copies of the e-mails of those limited dates and passed all hard copies and a soft copy to the defence expert.  They were marked as MFI-1 and MFI-2.

95.  On the ninth day of trial, the case was adjourned for the defence expert to examine those documents and the findings.  The trial was adjourned until 3 pm that day. 

96.  At 3 pm, the defendant failed to appear in court, absenting himself with the reason that he was taken ill. 

97.  Later that afternoon, the court was told the defendant was, in fact, at Queen Elizabeth Hospital.

98.  On the 10th day of trial, the defendant was still absent.  There was a copy of a medical certificate produced.  The doctor had diagnosed the defendant as suffering from a heart problem. However, defence solicitors were unable to reach the defendant all that day.  The trial was adjourned to following working day, which was a Monday, the 11th day.

99.  On this day, the defendant did appear in court. On this day, Mr Sutherland made a further supplemental submission to his stay of proceedings application.  He also made a further request for disclosure. Now, he required the server log of Millennium, PW1’s company.

100.  The prosecution made enquiries with Millennium and was told the server logs could be made available without much difficulty.

101.  Although the defendant had appeared in court, he did not produce any original doctors’ documents that he had obtained.  There was an undertaking that those original documents would be made available on the next day, Day 12 of the trial.

102.  The further application made by Mr Sutherland included a draft supplemental report from their defence expert, now saying in his personal view the hard drive examination would be helpful.

103.  Another six authorities were produced by Mr Sutherland, all Canadian authorities.

104.  Again, I do not intend to repeat his submissions, but Mr Hemmings succinctly replied that all these Canadian authorities produced had one common theme:  the information or object required by the defence in those cases were already in the hands of the prosecution, which is very different to the situation in this trial.  Mr Hemmings submitted that prosecution had disclosed everything they had to the defence.  The prosecution could not disclose what they did not have.

105.  On Day 11, I gave my ruling on the stay of proceedings application.  I found that there were no exceptional circumstances nor sufficient grounds to stay proceedings.  Mr Sutherland’s application was rejected and the trial proceeded.

106.  PW2, Miss Yip, was still in the witness-box being cross-examined by Mr Sutherland. 

107.  However, PW4, 5 and 6, all police officers, were interposed and tendered for cross-examination before PW2 continued to give evidence.

108.  Before PW2 could continue on Day 14, the defendant absconded.  This was 19 December 2013.

109.  As I said earlier, we then adjourned for the police to locate and arrest the defendant, but to no avail.

110.  During this adjournment period, the defendant did, in fact, contact Mr Sutherland by e-mail, asking for advice.

111.  I had no hesitation in concluding he had deliberately chosen to defy his bail conditions and absent himself from trial. We continued with the trial in the defendant’s absence on 3 January 2014.

112.  The prosecution only called one other witness, PW7, who is the computer information manager of Wah Tong Paper Group, which I have said Millennium is a subsidiary of that group. 

113.  He accessed the company’s server, which is under his control.  He examined the e-mails purportedly from the defendant.  He was asked to access saved e-mails for certain dates in March, April and June of 2012 from the defendant’s two e-mail accounts and those received by PW1.  There were 10 dates in total.

114.  He extracted them and saved them to a USB.  P36 is hard copies of all those e-mails and P37 are printed e-mail headers of each e-mail contained in P36, for example, page 13 of P37 corresponds to an e-mail in P36, marked 13.  The printed e-mail headers will indicate the Internet Protocol address, the IP address.  Each service provider has an allocated IP address. This witness, PW7, checked and confirmed the originating IP address of all the e-mails from the defendant in P36 show they were sent from Yahoo in Florida, USA.

115.  After PW7’s evidence was concluded, Miss Yip was called to finish her evidence and re-examined.  In particular, she denied she and PW1 framed the defendant by conspiring to fabricate and HSBC reference letter purporting to be from him.

116.  There were no other prosecution witnesses and the prosecution closed its case.

117.  This trial should not have overrun, but it did due to various unmeritorious defence applications, requests for additional material and lengthy, often irrelevant, cross-examination of PW1 and PW2.

118.  The case essentially is a simple one.

119.  PW1 and 2 were the main witnesses.  PW3 and PW7’s evidence was not contentious.  PW4 to 6 were tendered for cross-examination at defence counsel’s request.

The law

120.  The prosecution has the duty to prove the defendant’s guilt beyond reasonable doubt.  The defence has no burden of proof whatsoever.

121.  The main prosecution witnesses were cross-examined at length before the defendant absconded.  I will exercise extreme caution, as the defendant did not present its case and the trial continued in his absence.

122.  I warned myself that his absence is not an admission of guilt.  I am aware that I must take all reasonable steps to consider any weaknesses or discrepancies in the prosecution’s case and evidence.

123.  The defence case was put to the two main prosecution witnesses, with many exhibits produced and some produced provisionally.  There was no admission from the defendant.  He remained silent under caution, which was his right.

124.  There are two particulars of the charge and the prosecution must, to prove fraud by false representation, show the defendant dishonestly made a false representation and intended, by making that false representation, to gain for himself or to cause a loss to PW1.  Both elements must be proved.

125.  In this case, there were two false representations, as set out in the particulars of the offence.  A representation is false if it is untrue and the defendant when making it knew it was or might be untrue.  In this case, the representation is to fact and express, not implied. 

126.  The test for dishonesty derives from the authority of R v Ghosh (1982) QB 1053. 

127.  The prosecution must prove the defendant falsely represented to PW1 that the bank reference letter was genuine and that he would pay the balance of the goods within 45 days of delivery, and, but for the letter and the promise, PW1 would not have agreed to package and ship the goods worth over US$138,000 to the defendant. 

128.  It must be proved the victim was induced by the false representation to agree to favourable terms of payment; the defendant intended to defraud PW1 by making these false representation that resulted in a benefit to him as well as a loss to PW1.

The issues

129.  The issues, having considered the prosecution’s evidence and defence case put to the prosecution witnesses is:

a)firstly, whether or not the HSBC bank reference letter came from the defendant;

b)secondly, whether or not the purchase orders of P21 and P21A were authorised by the defendant;

c)thirdly, whether or not the defendant rejected the goods for poor quality; did he not pay the balance of over US$118,000 because of serious and major defects or because of deception and an intent to defraud PW1.

130.  The credibility of PW1 and, to some extent, PW2, is important.  There is no challenge the bank letter is a forgery.  There is no challenge the goods were packaged and all packaging printed by PW1’s company was received by the defendant.  There is no challenge the defendant paid a deposit of $20,000 for the purchase orders.  This is despite defence case that the purchase orders were not authorised by the defendant.

131.  I have carefully considered the prosecution witnesses’ evidence and the supporting evidence in the form of copies of e-mail correspondence.  I have carefully considered the defence case as it was put to each witness and their responses.

132.  I found both PW1 and PW2 to be honest and credible witnesses.  I did not find any major discrepancies in their evidence, so serious that I should doubt their veracity. 

133.  Both prosecution witnesses were independent to each other.  PW1 was the victim and PW2 was the employee of the defendant at the material time.  Her evidence should have only concerned the bank reference letter and the payment terms as agreed by the parties.  PW2’s evidence did, in fact, support PW1’s evidence. 

134.  There was certainly no evidence of a conspiracy between them to frame the defendant by forging the bank reference letter.  It was an allegation without substance, and fanciful.

The bank reference letter

135.  I have heard PW1’s evidence as to why he requested a bank reference letter. He even says in an e-mail to PW2, copied to the defendant, that it was usually their company policy that Cash on Delivery was required for new business. 

136.  He says this in the same e-mail of 5 April 2012, sent at 4.40 am, where it says, having received the bank reference letter from HSBC and spoken to his group senior manager and directors, the company were prepared to accept 30-per-cent deposit and balance payable within 45 days. This e-mail is in Exhibit P31A.

137.  There is a long e-mail that immediately follows this e-mail in P31A from the defendant, directly addressed to PW1 and PW2, where he says that the 30-per-cent deposit is too high.

138.  He says, and I quote, “The reasons we sent you our bank reference letter showing you that financially we are a stable company”, unquote, indicates a direct reference to a bank letter from Rainbowbrush.

139.  PW1’s evidence is that they ultimately agreed to 15 per cent and 45 days’ credit to pay the balance.  That is a departure of the company policy of Cash on Delivery for new customers.  To have requested a bank reference letter makes sense if a departure from such a policy was contemplated.

140.  The prosecution say the company only departed from its policy because of the bank reference letter and the promise to pay in 45 days.

141.  The bundle of e-mails in P31A and P32 have many references to the request from PW1 of such a bank letter.  He preferred a bank letter from a bank in Hong Kong as opposed to a bank in the United States. 

142.  Defendant actually supplied, according to the e-mails, reference letters from two banks:  the Bank of America and the HSBC bank.  The HSBC bank letter was sent to PW1 via an e-mail attachment of 2 April 2012.  PW1 accepted it as genuine. 

143.  I am sure it came from the defendant, as requested by PW1.  It came from the defendant’s e-mail address, info@rainbowbrush.com, and I accept there is no evidence that anyone other than the defendant had any reason to send such a letter to PW1.  PW2 certainly had no access to this e-mail address and I believe her.

144.  I am saying it came from the defendant, because PW1 requested it from the defendant.  He sent him a forged bank reference letter in order to dishonestly induce PW1 to supply goods and services on favourable terms.  He would not have got credit without such a letter.

145.  I find it is proved beyond reasonable doubt the defendant sent the letter and attached it to an e-mail to PW1.  The attachment is P28.

The promise to pay in 45 days

146.  The evidence of PW1 is, because of the misrepresentation from the defendant, he ultimately agreed the terms of 15 per cent and 45 days to pay the balance, and that is expressly agreed in writing in the purchase orders of P21 and 21A under the heading of “Terms of payment”.

147.  The evidence is the goods were packaged and shipped according to one purchase order and it is not disputed that, besides a $20,000 deposit, the balance was not paid after 45 days or to date.

148.  PW1 said he was never given a legitimate reason for non-payment when he chased the defendant; in fact, not until he saw the defendant in January 2013 when he was arrested by the police.

149.  PW2 said no client nor the defendant gave her any explanation that the goods were rejected for poor quality after the delivery was made.  PW2 did recall a meeting with the defendant to discuss outstanding debts, where the defendant told her that he had enough money to pay for most invoices, but probably not for Millennium’s invoice.

150.  I am sure the goods were not defective when delivered.  If they were, the defendant could legitimately argue non-payment. The fact is, I believe, no reason was given to PW1 for non-payment when the deadline fell due.  I am sure the allegations of serious defects came as a result of the arrest of the defendant.  It is an excuse, not the truth. 

151.  I believe PW1’s evidence that the defendant only said to him when he chased him for payment was that he should be patients and wait for payment. 

152.  I am sure there was an agreement to pay within 45 days the balance due.  It is in writing on the two purchase orders. 

153.  Perhaps this is a reason the defendant tries to distance himself from the purchase orders, by putting to PW2 that she signed the two orders without his authority. 

154.  I do not believe that was the case.  I am sure he agreed the purchase orders as well as the terms of payments specified. 

155.  I am satisfied he made these false representations, knowing he could not or might not be able to satisfy these payment terms agreed.

156.  Specifically for the 45-day term, there is no evidence he could have paid or intended to pay.  His first response to payment was to tell PW1 to wait for it.  This response held no indication of an intention to pay.

157.  To conclude, I am sure the prosecution can prove the defendant falsely represented to PW1 that the HSBC reference letter was genuine and that he would pay for the balance of goods supplied within 45 days of delivery.

158.  I believe PW1’s and PW2’s evidence proves that beyond reasonable doubt.  The documents and e-mails support their credible oral evidence.

159.  I am sure the defendant acted dishonestly when he made those false representations and had the intention to defraud PW1, knowing PW1 would agree to complete the purchase orders and give the defendant credit instead of insisting on Cash on Delivery terms.  This resulted in the defendant gaining a benefit to himself (receipt of goods shipped) and the company represented by PW1 suffering a loss.

160.  I repeat again, I have only heard evidence from the prosecution.  The defendant, by absconding, did not present his case. 

161.  However, his case was put in extensive detail in cross-examination to the prosecution witnesses and I was made well aware of his defence.  I proceeded to make my findings with caution, nonetheless.

162.  I am sure the findings I made above were proved beyond reasonable doubt by the prosecution’s evidence.  I am sure the prosecution can prove every element of this fraud charge beyond reasonable doubt.

163.  Accordingly, I convict the defendant of this charge.