HKSAR v. LEGASPI STEPHANIE JOY

DCCC 787/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 787 OF 2016

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

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

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

REASONS FOR VERDICT

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

Charges

1.  The defendant is charged with 3 offences, namely:-

Charge 1: having custody or control of counterfeiting materials and implements, contrary to section 101(1) of the Crimes Ordinance, Cap 200;

Charge 2: possession of a dangerous drug, contrary to s 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134; and

Charge 3: possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to s 36 (1) and (2) the Dangerous Drugs Ordinance, Cap 134.

2.  She pleaded guilty to charges 2 and 3 but not guilty to charge 1.

3.  In the course of the trial, the prosecution applied to amend the particulars of the charge.  The particulars of the amended charge show that the defendant, on or about 18 February 2016, at Room C207, 1^st Floor, Block C, Whampoa Building, No 99 Baker Street, Hung Hom, Kowloon, in Hong Kong (“the flat”), had in her custody or under her control 5 printers, one MacBook containing 15 complete images of Hong Kong dollars banknotes, one iPad containing two complete images of Hong Kong dollars banknotes, 84 sheets of A4 size paper, inks, two ultra violet lights, one magnifying glass, one paper trimmer, one brief case and two albums, which she intended to use or permit any other person to use for the purpose of making counterfeit currency note with the intention that it be passed or tendered as genuine.

Trial

4.  The prosecution case was that at the material times the defendant was in custody or control of the items mentioned in the amended charge.  It was not in dispute that those items were seized inside the flat.  The prosecution said that the defendant either had the intention to use or would permit other person(s) to use the items for the purpose of making counterfeit currency note with the intention it be passed or tendered as genuine.  To prove its case against the defendant, the prosecution relied on the evidence which included the following:-

(i) the testimony of the witnesses who were called to testify namely,

PW1 (the arresting officer DPC 201),

PW2 (WPC 57111),

PW3 (interpreter Madam Kwong),

PW4 (interpreter Madam Ng),

PW5 (the exhibit officer DPC 4844) and

PW7 (Counterfeit Expert Sgt Tang Wan Keung) whose report was admitted under s 65B of the Criminal Procedure Ordinance, Cap 221;

(ii) the admitted facts (P83 & P89) which were mainly about the items seized at the flat;

(iii) the witness statement of PC 11800 (PW6 Lee Kei Yip, a computer forensic officer) admitted under s 65B of Cap 221;

(iv) the exhibits which included photo albums (P79 & P80); and

(v) the defendant’s written record of interview (“written record” – P56) and her video recorded interview (“VRI” – P57)).

5.  The defence case was firstly that the defendant did not possess all the items named in the amended charge; and secondly even if she possessed such, they were not used for the purpose and with the intention alleged by the prosecution.  The images of banknotes, they said, were pieces of artwork created by defendant and/or with her boyfriend.  Besides, the defence objected to the admissibility of the defendant’s written record and the VRI.  As such, the trial was conducted by way of the alternative procedure.

Undisputed Facts

6.  The undisputed facts in relation to charge 1 was that the defendant and her boyfriend lived in the flat.

7.  On 18 February 2016 at about 10:29 am, a team of police officers including PW1, PW2 and PW5 arrived at the flat.  A Filipino male, later known to be the defendant’s father, opened the main door to permit the police officers to enter.  A second Filipino male, the defendant’s elder brother was found inside a bedroom (the 2^nd bedroom).  The defendant was found asleep in the 1^st bedroom while her boyfriend was found in the same room using a computer.  PW2 showed them the search warrant (P52) and explained the purpose of the police visit.

8.  PW5 was responsible for the house search which was conducted at 10:33 am in the presence of the defendant, her boyfriend, her elder brother and her father.  He first searched the living room, then the 2^nd bedroom and finally the 1^st bedroom.

9.  He found:-

(I) in the living room

a. one black suitcase (P45) containing

i. (P46) eight cans of black ink,

ii. (P47) five bottles of correction solution

iii. (P48) 12 items of corrector

iv. (P49) together with parts of a printer

b. one Dell hard disc (P23) which was placed on top of a wooden cabinet

(II) in the 1^st bedroom

c. one iPad by Apple (P19)

d. one Notebook computer by HP (P20)

e. one Notebook computer by Dell (P23)

f. one MacBook by Apple (P33)

g. one inkjet Printer by Cannon (P21)

h. one inkjet Printer by Elefax (P32)

i. one inkjet Printer by Epson (P35) together with cable connecting to MacBook

j. one inkjet Printer by Ricoh (P37)

k. one inkjet Printer by Brother (P42)

l. one portable ultra violet counterfeit detector (P24)

m. one ultra violet counterfeit detector by OfficeMax (P39)

n. one magnifying glass (P25)

o. one paper cutter/trimmer (P41)

p. one pile of A3 papers (P22); one pile of A4 papers (P26); one pile of B4 papers (P27);

q. one box with three bottles of developer by Elefax (P40)

r. one black briefcase (P8) containing

i. one red album (P9) which contained seven pieces of coloured ink impressions/ prints/drawings of semi-finished $500 banknotes (P10)

ii. one blue folder (P13) which contained four pieces of inked impressions/ prints/drawings of $500 HSBC banknotes (P14); and one set of ink impressions/ prints/drawing/tracing of parts of $500 HSBC banknotes (P17)

iii. one zip lock bag (P16) containing a set of pieces of ink impressions/prints/drawing of $500 HSBC banknotes (P15)

s. one black album (P11) containing one set of ink impressions/prints/drawings of “lion heads” being parts of banknotes (P 12).

Fingerprints

10.  The defendant admitted that one of her fingerprints was found on one piece of adhesive tape, attached to a piece of tracing in P17; two of her fingerprints were found on one piece of red sticker attached to a piece of tracing in P17; and one of her fingerprints was found on a piece of paper attached to a piece of paper with “grid-pattern”. 

House search

(PW5)

11.  PW5 testified that when he seized the iPad, he switched it on and saw an iDraw application, something similar to $100 banknote image.  When he moved the screen of the iPad, there was a line, something like tracing the $100 banknote. 

12.  In cross examination, PW5 testified that after the seizure, he did not test any of the printers to find out whether or not they worked.  Besides, he did not know if any of the seized printers were capable of printing banknotes.  He had no impression that a tattoo kit was found in defendant’s bedroom.  He also had no impression that 3 desktop computers, modem, an all in one scanner/printer, a graph design board and a round for containing various banknotes were found in the 2^nd bedroom.  He recalled nothing suspicious was found therein.  He agreed that most of the seized items could be bought in the market, however, he had never seen the bulky Elefax printer and was not sure if it could be used to print T-shirts as suggested by the defence.  

13.  It was also suggested to PW5 and PW1 that they deliberately used the phrase “counterfeit banknotes” when they took the VRI with the defendant.  It was a plot on either of them to implant in the mind of the defendant that she was making counterfeit banknotes.  PW5 disagreed and explained that he was investigating into a case concerning counterfeit banknote and so he had to ask questions about counterfeit banknotes.  Besides, both PW1 and PW5 said that there were occasions that they used phrases like “suspected counterfeit banknotes” or “semi-finished products”.

Arrest

(PW1)

14.  At about 11:10 am on the same day at the doorway to the 1^st bedroom, PW1 arrested the defendant for possession of (i) counterfeit banknotes; (ii) tools for making counterfeit banknotes; and (iii) a dangerous drug.  The defendant said in Cantonese “Ah Sir all these things are mine.  Nothing to do with my boyfriend.”  At 12:55 pm, the defendant and her boyfriend were escorted to Hung Hom police station and at 2:40 pm to Kowloon West Regional Police Headquarters. 

The taking of Record of interview

15.  Between 2:50 pm and 3:05 pm on 18 February 2016, PW1, in the presence of PW3, issued a Notice to Person in Custody to the defendant (P55). PW1 explained the rights to the defendant and gave it to her to read.  PW1 then took a written record of interview (P56) with the defendant.  PW1 first post-recorded what items were seized in the flat and the course of arrest in the flat.  Then, PW1 said “Well, through, English Interpreter female Kwong Yuet Wa, I now give you a caution. You are not obliged to say anything unless you wish to do so, but what you say may be put into writing and given in evidence.  Do you understand?”

16.  After PW3 had translated the caution to the defendant, the defendant wrote down her reply in English and in capital letters ie:-

“YES, I UNDERSTAND. SIR, THOSE COUNTERFEIT BANKNOTES, THE EQUIPMENT FOR MAKING COUNTERFEIT BANKNOTES, AND DANGEORUS DRUGS ARE ALL MINE, IT HAS NOTHING TO DO WITH MY BOYFRIEND, O’ NEILL, ALEXANDER DUNCAN. PLEASE GIVE ME A CHANCE.”.

17.  According to PW1, at the end of the written record of interview, the defendant was explained by PW3 the content of a piece of paper which contained two English declarations.  She copied the same and signed on the written record of interview. 

18.  PW1 was cross examined why he did not record the reply of the defendant after arrest in the written record.  He explained that since the defendant was a foreigner, he did not caution her at the scene.  As such, her reply was not made under caution and could not be used as evidence in court.  He considered that the caution should take place in the presence of an interpreter i.e. in the police station.  It was put to him that he made the post record in a deceptive manner in that he did not record the words spoken by the defendant under arrest but put down those words which now appeared in the written record (those words in capital letters).  PW1 denied prompting the defendant to write down those words.

VRI

19.  PW1 and PW5 took a VRI with the defendant between 5:52 pm and 7:41 pm on 18 February 2016.  Under caution, the defendant said, inter alia, the following (see MFI – 1 for easy reference):-

a. She downloaded a $500 banknote image from Google to her iPad. She was helping her boyfriend to do some artwork. She zoomed in the “lion head” which appeared on the banknote and copied / traced the “lion head” with a piece of paper putting on top of the iPad.

b. They never had the intention to print out the counterfeit samples. She knew it was illegal but she simply wanted to keep them to herself.

c. The equipment seized at her flat was not specifically used for printing out counterfeit money.

d. The Elefax printer was bought in a government auction. They wanted to make some T-shirt designs but had not used the Elefax before.

e. The pile of papers found was not used to print out banknotes.

f. Alex, her boyfriend, bought her the yellow blank paper as tracing paper when she designed her tattoo.

g. They always bought A4 paper for drawing and printing.

h. It was just a fun idea to create and to design banknotes. They just came to design, like a creative structure. They had never used the samples.

i. The Epson printer was used 5 or 6 times last night probably by Alex to print semi-finished products of counterfeit notes in the red album. It was to test the printer. It was connected to the MacBook for printing.

j. They were simply making design of the banknotes and they had no intention to even make them as finished products. They both liked drawing. Her boyfriend was good at art and wanted to show off.

k. The ultra violet light was bought by them and it was used by her boyfriend to view the banknote and she had used it to do the same.

l. The magnifying glass was found near a rubbish bin in Kennedy Town eight months ago.

m. The MacBook belonged to Alex and she did not know the password of it.

n. She did not know anything about the red album and its content. She had not seen the black album and the blue folder.

o. It really looked bad that they had all the equipment to make a banknote.

(PW2)

20.  PW2 testified that after she had left the defendant’s residence on the material day, she next met the defendant at a time when the 1^st VRI was about to be taken from the defendant.  She was asked to take the defendant to the restroom.  In cross-examination, she denied having said any oppressive words to the defendant as suggested by the defence.

(PW3)

21.  PW3 was called to testify.  Apart from recognizing her own handwritings in P55, she had no memory of the event.  She said she had done the translation at the best of her ability. 

(PW4)

22.  PW4, who offered translation assistance during the VRI, said that she could not recall the incident. 

Apple iPad (P19) and Apple MacBook (P33)

23.  The evidence of PW6 and PW7 was relevant to the image files found in the Apple iPad and Apple MacBook.

(PW6)

24.  PW6 (whose statement is P85) retrieved 2 image files from the iPad and 1,328 image files from the MacBook which related to counterfeiting notes.  The image files were copied into a DVD (P69).

(PW7)

25.  PW7 analysed the images stored in the DVD (P69) and commented on whether images were currency notes.  He found images of banknotes.  He compiled a booklet of those images of banknotes (P74) and they were also described in paragraph 11 of the 1^st set of admitted facts.

26.  He found one complete image of HSBC $100 banknote in the iPad, and some 35 odd images of $20, $50, $100 and $500 banknote from the MacBook.

27.  In the report of PW7, he said that he had viewed the contents of P69 and found that the banknote images included HKD, Macao Patacas, USD, Barbadian Dollars, Sudanese pounds and EUR.  Some were currency notes (legal tender) under the definition of the Laws of Hong Kong; but some were removed from circulation (not legal tender).  If the banknote image in the computer was a complete image and the colour of the banknote image was likely to be genuine banknote, it could be used to make counterfeit notes by direct digital printing i.e. inkjet printing or laser printing.  The banknote image could be printed on a piece of paper by inkjet or laser printer which was connected to a computer. In 2015, Hong Kong Police Force seized 2,198 pieces of counterfeit HKD (all denominations), in which 1,695 pieces were inkjet printed (77%) and 65 pieces were laser printed (3%).

28.  He had viewed:-

(i) Exhibits P9 – P10 (the red album and its contents) and opined that two pieces of paper were printed with the image of HKD 500 dollar note issued by HSBC.

(ii) Exhibits P11 – P18 (black album, blue folder and the contents) and opined that a number of images related to HKD 500 dollar note, issued by HSBC, were found on some pieces of paper, either by printing or by drawing.

(iii) Exhibits P24 and P39 were ultraviolet lights which were commonly used by banks or retailers to check the security features of genuine banknotes. When the genuine HKD banknote was put under ultraviolet light, fluorescent images appear eg. barcode.

29.  In cross examination, he said that the Apple iPad and ordinary printers were not capable of implanting flourescent images onto a piece of paper. However, in his daily work, he received in 2016 more than 2,600 banknotes which were printed by inkjet printers with the use of ordinary A4 paper.

30.  He agreed that (i) that his evidence, taken to its highest, meant that some of the images could be used to produce counterfeit banknotes; (ii) money manufacturers had put in many counterfeit features so it was very difficult to produce high quality counterfeit banknotes; (iii) ordinary printers were not capable of implanting flourescent images; and (iv) P74 (4) & (5) (old currencies) could possibly be a collector’s item. 

31.  Besides, it was admitted in the 2^nd set of admitted facts that there were 14 images (P88: 1 to 14) extracted from the DVD (P69) being the data from the MacBook which did not relate to the Hong Kong banknotes.

Special issue

32.  The defence argued that the written record was misleading and did not accurately reflect the words spoken by the defendant at the time of arrest, and the defendant’s signature was not voluntarily affixed.  She was told to copy the declarations from a piece of paper.

33.  It was further argued that the words attributed to the defendant were a fabrication and distortion of what she actually said upon arrest and were police jargon which were not normally spoken by a person.

34.  In respect of the VRI, it was contended that prior to the VRI, the free will of the defendant was overborne by oppressive words and behaviour by PW2 who said, words to the effect that, the defendant’s boyfriend did not love and would not help her; the defendant should be honest and said it was all him; if not, she would go to jail for 7 years and he would not be around when she got out.

35.  Having heard the evidence of the prosecutions witnesses, I ruled that there was a case to answer in respect of the special issue.  The defendant elected to testify. 

36.  Her evidence was that when she was inside the flat and said “all items are mine”, she was referring to the dangerous drugs.  In respect of P56, she was given a piece of paper to write down those words in reply to the caution.  During the VRI, she felt hopeless for what PW2 had said to her. After the VRI, she felt unwell and was sent to the hospital. 

37.  In cross examination, she said she understood basic/ conversational Cantonese.  When she was inside the flat, she was not explained the content of the search warrant; she did not witness how the search was conducted in the 1^st bedroom; she did not understand why she was arrested; and she thought she was arrested simply because of the dangerous drugs.

38.  When the written record was being taken, she simply followed what she was told to do because she was scared; she was easily overpowered; and she did not understand police procedures.  Besides, she said her mind was confused under the influence of the dangerous drug which she took in the morning.  She described that she was mentally emotional but physically “OK”.

39.  In respect of the VRI, she agreed that (i) she was reminded the right in the Notice (P55) before the VRI started; (ii) she was asked if she wanted to exercise any of the rights; (iii) she was happy not to have a lawyer; and (iv) she gave every answer out of her own free will.

40.  I had carefully considered all the evidence and the submissions in respect of the special issue.  I was satisfied beyond a reasonable doubt that the defendant voluntarily took part in the record of interview and the VRI (see: reasons for the ruling in paragraphs 56 - 68).

No case submission

41.  The defence did not make any no case submission.  I ruled that there was a case to answer.  The defendant exercised her right and elected not to testify on the general issue.  She called her boyfriend to give evidence.

Defence Case

42.  Mr Alexander Duncan O’Neil testified that he owned a company and he bought 2^nd hand products from auctions to resell for a profit.  He was also a banknote and stamp collector and traded in banknotes.  He said the MacBook belonged to him and the defendant did not know the password.  It contained 15 complete images of banknotes.  He sold real banknotes, with unique and fancy serial numbers or antique ones, on-line eg. eBay to overseas buyers.  Under these circumstances, he had to scan the image of a banknote for the buyers to view it on line.  Since he traded in and collected banknotes, he needed to use the ultra violet detectors and the magnifying glass to examine their authenticity of them.

43.  The 2 images found in the defendant’s iPad were downloaded for artwork purposes, and the defendant helped him trace the images of banknotes by using an application (apps) called ‘iDraw’ which enabled her to draw on the screen of the iPad.

44.  Since 2012, he had been interested in using banknotes in his artwork. He also said that the images of banknotes found were used for his artwork and graffiti design (see: P88 the photos depict different banknotes painted on a wall).  He also used stencils for his artwork (see: P79 photos 8 and 10 which depict two stencils in the 1^st bedroom). 

45.  Regarding the contents inside the blue folder and the red album, he said they were his art work.  He enlarged the images of HK banknotes and other currencies for making a larger size of stencil for graffiti purposes.  It had nothing to do with the defendant who simply gave him a helping hand to trace the images and that explained why her fingerprints were found on some of the adhesive tapes.  At no stage, did he or the defendant had the intention to produce counterfeit banknotes.

46.  He said P88 1 to 14 were downloaded from Google and some of them depict banknotes like graffiti on the wall.  He also produced D1 to show that images of banknotes were printed on towels and wallets which he bought the same in Temple Street. 

47.  He asserted that the defendant was interested in tattoo so he bought her a tattoo kit (see: P79 photo 11 depicting a silver box) and some tracing papers for her to draw the tattoo pattern and then transferred it onto human skin.

48.  He and the defendant always brought different items at the Government auction for resale purposes.  In November 2015, they bought the Elefax printer and the Dell computer which were 2 of the 50 items he bought at the government auction.  Apart from the Elefax printer, other seized printers were in working condition. 

49.  In cross examination, he said that he lived with the defendant in Kennedy Town before they moved into the flat in October 2015.  He attended government auctions to buy a job lot which consisted of many items.  He could re-sell it or break down into smaller parts for resale.  He was cross examined on each and every item seized.  In gist, he said that the Elefax printer, the UV light, the Richo printer were solely for his use.  He said the defendant did not use the Elefax printer for printing T-shirts.  In fact, it was not serviceable.  The magnifying glass was borrowed from the defendant’s father. He used the Epson printer on 17 February 2016 to print out banknotes for he wanted to make a large image for his design.

50.  He agreed that the defendant was well aware of what he had purchased on line or in the auctions; nothing secured in the 1^st bedroom that she could not access except the MacBook which required a password; and she could use anything in the 1^st bedroom he bought or which belonged to him.

51.  Regarding his antique HK banknote collection, he said that it was kept in her father’s house and a few was kept inside the 1^st bedroom but not seized. 

Analysis

52.  I have carefully considered all the evidence and the written and oral submissions of both counsel.  In reaching my verdict, I bear in mind that the prosecution has the burden to prove the charge against the defendant beyond a reasonable doubt.  The defendant has to prove nothing.  I direct myself that I must be sure of the defendant’s guilt.  If the defence version is true or may be true, it will follow that the defence has raised a doubt in the prosecution case and the defendant should be acquitted.

53.  Besides, I remind myself that when drawing inferences from the evidence the inference must be the only reasonable inference to draw against the defendant from the facts proved.

54.  As for the elements of the offence, there is no dispute that the charge requires proof of the defendant’s intention to use those materials and implements for the purpose of making counterfeit banknotes and her intention that the counterfeit banknotes be passed or tendered as genuine.

Reasons for the Ruling on the Special issue

55.  I find the defendant’s allegations against PW1 that she was asked to copy the admissions in P56 not true for, inter alia, the following reasons:

56.  First, before the written record was taken, it was not in dispute that the Notice (P55) was served on the defendant in the presence of PW3.  The defendant testified that she read it herself, she knew the 9 rights contained therein, she did not ask for anything and she signed on the Notice.  In other words, she knew her rights (including the right to seek legal assistance) perfectly well before the written record was about to be taken from her. 

57.  Second, she agreed that she witnessed PW1 writing on P56 and passing it to PW3 for translation, and she understood the translation and the caution. 

58.  The above indicated that she knew perfectly well that she had the right to remain silent and to seek legal assistance.  That being so, she could simply refuse PW1’s instructions (as she alleged) to copy the “admissions” which was made against her interests if they were not true.

59.  Besides, at page 6 of P56, she wrote down “no” after the declaration which said that she had read over the statement and were told she could make any correction, alteration and addition.  She agreed that it was her own free will to write down “no”.  In other words, she knew she could there and then make any representations but she exercised her free will not to do so.

60.  In light of the above, I am sure that she gave the answers in the written record of interview voluntarily.

61.  As to the suggestion that PW1 deliberately misled the defendant by not writing down her actual response at the scene, I accept PW1’s evidence that the reason why it was not so recorded in the written record was because that response was uttered without the defendant having been cautioned.  In other words, I reject the defence’s submission that it was a tactical move to mislead the defendant.

62.  I now turn to the VRI.  It was taken in circumstances that the defendant was content not to have a lawyer present.

63.  Although Mr Polson argued that PW1 and PW5 kept using phrases like “counterfeit banknotes” instead of semi-finished products/ images of banknotes/suspected counterfeit, I did not find that this had the effect, as alleged by the defence, of implanting in the mind of the defendant that she was in possession of counterfeit banknotes.  According to the defendant, the police kept saying the items were counterfeit but she tried to explain that they were not.  On many occasions, the defendant kept repeatedly saying that they were pieces of artwork.

64.  The defendant testified that no one told her what to say and she answered every question herself.  Given that the defendant admitted that she answered every question out of her own free, and that she wanted to answer every question so as to put the record straight, I found what she said about PW2 using oppressive words and behaviour which sapped her free will was a complete false allegation. 

65.  The VRI was played in court and I had watched it.  The defendant was found to be willing to proffer her answers eg.

Para 250: without being asked, she volunteered the information that she and her boyfriend had used the black Epson printer to print out the counterfeit so as to test the printer;

Para 1248: the officer asked if the defendant wanted to make any addition or alteration. The defendant said “yes” and gave a lengthy explanation that she and her boyfriend were simply interested in doing art;

Para 1252: she described that the case looked very suspicious and dodgy. It really looked bad that they had all the equipment to make a banknote; and

Para 1301: It really looked bad that they had all the equipment to make a banknote.

66.  Having considered the evidence carefully, I am sure that that defendant attended the VRI and provided all the answers voluntarily.

67.  I have also considered if I had to exercise my discretion to exclude the written record of interview and the VRI but I have come to the conclusion that such is not necessary in this case.

General Issue

68.  I now come to the general issue. 

69.  Insofar as the defendant’s written record is concerned, it contained an admission about the counterfeit banknotes and the equipment making the counterfeit banknotes being hers.  I attach full weight to this admission.  It should be noted that PW1’s evidence about the defendant witnessing the search conducted in her bedroom was not challenged.  In other words, the defendant knew what items were seized in the flat.  Therefore, in context, when she admitted that “the equipment for making counterfeit banknotes … are all mine, it has nothing to do with my boyfriend, please give me a chance”, the equipment must refer to the 5 printers, 4 laptop computers and 2 piles of semi-manufactured counterfeit banknotes found in her bedroom.  It must also follow that her admission about the equipment must have included the MacBook. In other words, she had admitted to having in her possession such equipment.

70.  As regards her VRI, it contained both inculpatory and exculpatory parts.  In accordance with the principles in R v Sharp (1988) 1 WLR 7, I have considered the entirety of the VRI.  In reaching my verdict, I take the view that the inculpatory parts are true admissions and I attach full weight to them.  In respect of the exculpatory parts, they were not given under oath and not tested under cross examination.  Having considered the entire record and all the evidence adduced, I will not attach any weight to them.

71.  I should also mention that although the defendant admitted that the dangerous drugs were hers in the written record and in the VRI, that admission did not impact on the present charge and I pay no regard to it when considering if the prosecution has proved this charge about counterfeit banknotes against the defendant.

72.  Now, the DW said that he was interested in artwork/design in Hong Kong banknotes and he enlarged the images of HK banknotes.  He also said he did the same for other currencies as well.  I have examined the images of the HK banknotes in the blue folder, the red album, and the black album.  As mentioned by the DW, they were enlarged images.  However, one could see that the enlargements were of a sophisticated nature in that different parts of a banknote were enlarged on different images, including the background patterns upon which the banknotes were printed; the Chinese characters; the English words; the numerals; the drawings on the banknotes; the lion head, etc.  Some showed a gradual progression of how the drawing was done and there was also one image showing “Five Hundred Hong Kong Dollars” attached onto a grid paper.  This paper bearing the words “Five Hundred Hong Kong Dollars” is also the exhibit on which the defendant’s fingerprint was found and I shall return to this later.

73.  Having examined the images, I have come to the conclusion that if it was merely for artwork/design purposes, there was no reason for such images to be reproduced to such minute detail even if one were truly indeed in the artwork/design of HK banknotes.  In particular, I do not accept that one would have the words “Five Hundred Hong Kong Dollars” pasted onto a grid paper merely for examining its artistic design.  After all, these words, in themselves, do not appear to have any artistic value and they do not show any special design.  As can be seen, they were just ordinary English words and were printed in ordinary bold capitals.  To suggest that one sees any artistic value or design interest in these words so much so that one had to so reproduce the words in the form in which they appeared defies common sense.  The suggestion is simply untenable.

74.  I find it as a fact that the images relate to the making of counterfeit HK banknotes.  They have nothing to do with what the DW claimed about any artistic interest.

75.  Further, the DW asserted that he traded in genuine banknotes and some of his stock were kept inside the flat.  However, it is of note that PW5 conducted a detailed house search with a view to seizing any suspicious items which related to counterfeit currency.  He seized almost 50 items in the flat but he found no genuine banknote collection and no pieces of artwork with images of banknotes of foreign currencies therein.  This is contrary to what the DW asserted and I reject that the DW was a collector of genuine banknotes.

76.  The DW also said that the defendant was interested in tattoo and he bought her a tattoo kit.  The papers, including the 84 sheets of A4 paper and other tracing papers were partly for his own office use and for the defendant to draw tattoo patterns and then to transfer them to human skin.  Further, the DW produced at trial Exhibit D1 photo 15 which depicted a banknote pattern tattoo on human skin.  However, for those tracing papers which were seized, all that one could see were banknote images and there was no other tattoo image/pattern of any kind.

77.  In short, I reject what the DW said about having the seized items in the bedroom as he was merely interested in the artwork/design of HK banknotes.

78.  Of course, despite my rejection of the DW’s evidence, I remind myself that the burden of proof still rests upon the prosecution to prove every element of the charge to the requisite standard.

79.  There is no dispute that the items mentioned in the amended charge were seized in the flat.  Apart from the Dell computer (P23) and the black gun case (P45), other items were found inside the small bedroom which was shared by the defendant and her boyfriend.

80.  For the present offence, the prosecution has to prove the defendant had in her custody or under her control the items listed in the amended charge; and that the defendant had an intention to use or permit any other person to use the items for the purpose of making counterfeit currency note with the intention that it be passed or tendered as genuine.

81.  In the course of submissions, Mr Percy for the prosecution also raised that the prosecution has to prove that the materials and implements particularised in the amended charge were reasonably capable of being used to make a counterfeit of a currency note (see: page 6 written closing submissions).

82.  First of all, there is no dispute that the items particularised in the amended charge were found in the places seized.  Of the many items seized, the defendant claimed in the VRI that the MacBook belonged to the DW and she did not have its password.  The DW also said so in his testimony. 

83.  Despite both their claims, I find that the defendant was at the material time in custody or control of the MacBook.  Firstly, she so admitted when she responded to the caution in the written record of interview [see: para 70 above].

84.  Secondly, in the VRI, when she was asked if there was any information in the MacBook which was in relation to the counterfeit money, the defendant answered “yes” and supplemented that there were images which were the same as those on her iPad (VRI para 887).  She also admitted assisting the DW to draw lines/do layers of the images of banknotes to produce pieces of artwork. Putting what she said in the VRI in the context of her admission in the written record, it clearly shows that the defendant was well aware of the existence of the images of banknotes in the MacBook and, on her own admission, had assisted the DW to create images of such banknotes on her iPad.

85.  For the reasons which I have mentioned, I, too, reject the defendant’s claim in the VRI that the images and the seized items were kept purely because of the DW’s artistic interest in the banknotes.  I find as a fact that the defendant, who had an intimate relationship with the DW and who had lived with the DW together in the flat since October 2015, was well aware that the seized items were for making counterfeit banknotes.  She had also assisted in some of such creations as she admitted.  In fact, the defendant’s fingerprints were found on some of the items i.e. the adhesive tape, the red sticker and the grid paper in the blue folder.  Again, the presence of fingerprints does not sit with her claim in the VRI that she knew nothing about the blue folder.

86.  Insofar as the red album is concerned, although the defendant denied having any knowledge of the contents of the album, she admitted that the DW had taken out some of the contents from the red album for printing.  In other words, based on her own admission, there was no secrecy between the two of them concerning the contents of the red album.  She also admitted that the red album was “pop up” in the shelf.  Of course, that, in itself, does not mean that the defendant had in her possession the red album but having considered all the evidence before me, I find it as a fact that the defendant also had in her custody or control of the red album because the album was just placed on the shelf in her shared bedroom with the DW.  It was not locked away and it was not kept in any secret place.  In fact, the defendant had also admitted picking up the album on one occasion and returned it to the shelf.

87.  Apart from the MacBook, the defendant admitted in the VRI that the iPad belonged to her and she downloaded images of banknotes online into her iPad and used iDraw to help make some design for the DW.  She zoomed in the picture of the banknote and drew on the screen of the iPad.  That she had custody and in control of her iPad was not in dispute.  Further, contrary to the claim that she downloaded the images for the DW’s artistic interest in banknotes and to help making the drawings for fun, I find that she did so in order to make counterfeit notes.

88.  Regarding the printers, she admitted in the VRI that she and the DW acquired the Elefax printer; they found the Epson printer on the street; they both owned the Richo printer; and she used the Brother printer to scan her tattoo.  All these admissions prove that she was in custody or control of these items. 

89.  As to the other items particularized, she said (i) the Cannon printer belonged to the DW for doing artwork and photography; (ii) the magnifying glass was an item of trash which she found 8 months ago in Kennedy Town; (iii) the ultra violet light (P24) was used by her and the DW to look at the banknotes; the other counterfeit detector (P39) had not been used; the paper trimmer was simply placed on the shelf; the A3 papers (P22) were one of the many items they bought in the government auction; and the pile of papers (P26, 27) were bought by the DW for the defendant tattoo designs. 

90.  It is clear that the defendant had either admitted having used them or having acquired them or having kept them in her bedroom.  Further, the DW said that the defendant could use any item in their bedroom (except the Macbook which he claimed he was the only one having the password but which evidence I have rejected).  This, coupled with the fact that the items were openly placed in the room and that given their intimate boyfriend girlfriend relationship, I find that the defendant had those items either in her custody or control.

91.  Now, I return to Mr Percy’s submission that the materials and implements seized and particularised in the amended charge were reasonably capable of being used to make a counterfeit of a currency note.

92.  On this aspect, we have the expert’s evidence that for those banknote images in the iPad and MacBook which were complete images with matching colours, they could be used to make counterfeit notes by direct digital printing i.e. inkjet printing or laser printing.  The expert also said that in his daily work, he received in 2016 more than 2,600 banknotes which were printed by inkjet printers with the use of ordinary A4 papers.

93.  In the present case, we have the following.  A number of seized inkjet printers which could be used for printing; the piles of papers which could also be used for such printing; the ultra violet light/counterfeit detectors and the magnifying glass to examine the details of the work; and the ink to add colour to the pattern of banknotes.

94.  Clearly, the aforesaid items were capable of being used to make counterfeit of a currency note.

95.  The remaining matter is whether I could draw the irresistible inference that the defendant intended to have the notes passed or tendered as genuine.  Having considered all the evidence before me, that is, the number, the variety and the relative sophistication of the equipment seized; as well as the images and the half-finished products found on the computers and the albums; I am sure that the defendant had in her custody or control the items listed in the charge with the intention that they be used for the purpose of making counterfeit currency notes and that she did intend those notes so produced be passed or tendered as genuine.  I find that this is the only reasonable inference to draw from the proved facts.  If it was for any other purpose, eg for fun or for artwork, I do not believe that one would go to such trouble to have the currency notes reproduced by the equipment particularized and to such detail and such precision as shown in some of the semi-finished products.

96.  To conclude, I find that each and every element of the charge has been proved against the defendant and I so convict her of this offence.

97.  I should add that at the time (before cross examination of PW7) when the prosecution applied to amend the particulars of the charge by adding “one brief case and two albums”, Mr Polson for the defendant objected to the amendment, saying that the brief case and the two albums could not have been used as instruments or materials for making counterfeits.  With respect, I do not consider this submission should act as a bar to the amendment.  Firstly, the defence knew full well that such items were seized.  In other words, they were not taken by surprise and there was not any prejudice said to have been caused to the defence because of the amendment.  Secondly, although Mr Polson argued that on the face of the amendment, only the brief case and the albums per se, and not the contents, were said to be the implements or materials, it is clear what the prosecution alleges is that the brief case contained the two albums and the blue folder and which then contained the enlarged images of the printings on the banknotes as described in para 9(r).  In the circumstances, again, I do not see this submission as a bar to the amendment or that there was any prejudice caused to the defence by way of the amendment.