HKSAR v. NGO HAN LUONG

DCCC 262/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 262 OF 2016

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REASONS FOR VERDICT

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BACKGROUND

1.  The defendant, Ngo Han Luong appeared before me facing three charges:-

Charge 1: Using false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200;

Charge 2: Possession of false instruments, contrary to section 75(1) of the Crimes Ordinance, Cap 200; and

Charge 3: Possession of false instruments, contrary to section 75(2) of the Crimes Ordinance, Cap 200.

Charge 3 is preferred against the defendant as an alternative charge to Charge 2.

2.  The defendant pleaded not guilty to all charges.

3.  Charge 1 concerned 3 instruments allegedly used by the defendant on the 19 May 2015 at the Nathan Road Branch of the Bank of China, the 3 instruments in question, produced as P1(1)-(3) are:-

(1) A Banker’s Draft payable to Med Holding Corp in the sum of 5,000,000 Euro currency purportedly issued by Santander Bank on 21 May 2014;

(2) A Bank Confirmation letter purportedly issued by Santander Bank on 21 May 2014;

(3) A Financial message “SWIFT” purportedly issued by Santander Bank on 7 May 2014.

4.  Charge 2 and 3 concerned 38 instruments allegedly possessed by the defendant on or about 6 June 2015.  It is the prosecution case that the defendant had these 38 instruments on his mobile phone.

5.  The 38 instruments in question, produced as P2(1) to (38) are:-

(1) a “Proof of Funds” dated 11 June 2014 bearing an account name Victory International Trading Company and a current balance of US$1 billion (US$1,000,000,000) purportedly issued by the Hongkong and Shanghai Banking Corporation Limited (HSBC) (P2(1));

(2) an “Integrated Account Portfolio Summary” dated 11 June 2014 bearing an account name Victory International Trading Company and an available balance of US$1 billion (US$1,000,000,000) purportedly issued by the HSBC (P2(2));

(3) a “Proof of Funds” dated the 13 June 2014 bearing an account holder name Chantenique Holdings Limited and a cash fund of US$3 billion (US$3,000,000,000) purportedly issued by the HSBC (P2(3));

(4) a “Letter” dated the 13 June 2014 to Chantenique Holdings Limited and an amount of US$3 billion (US$3,000,000,000) purportedly issued by the HSBC (P2(4));

(5) an “Integrated Account Portfolio Summary” dated 13^th June bearing an account holder Chantenique Holdings Limited and a ledger balance of US$3 billion (US$3,000,000,000) purportedly issued by the HSBC (P2(5));

(6) a “Proof of Funds” dated 11 June 2014 bearing an account holder Victory International Trading Company and an amount of US$1 billion (US$1,000,000,000) purportedly issued by the HSBC (P2(6));

(7) a “Proof of Funds” dated 9 May 2014 bearing an account name Wang De Sheng and an amount of US$2 trillion (US$2,000,000,000,000) purportedly issued by the HSBC (P2(7));

(8) a “Certificate of Balance” dated 9 May 2014 bearing an account name Wang De Sheng and an amount of US$2 trillion (US$2,000,000,000,000) purportedly issued by the HSBC (P2(8));

(9) a “Deposit Transaction Statement” dated 9 May 2014 bearing an account name Wang De Sheng and an amount of US$2 trillion (US$2,000,000,000,000) purportedly issued by the HSBC (P2(9));

(10) a “Proof of Funds” dated 7 July 2014 bearing an account holder Fan Pui Wan Margaret and a cash fund of US$125 million (US$125,000,000) purportedly issued by the HSBC (P2(10));

(11) a “Certificate of Balance ” dated 7 July 2014 bearing an account holder Fan Pui Wan Margaret and a cash fund of US$125 million (US$125,000,000) purportedly issued by the HSBC (P2(11));

(12) an “Integrated Account Portfolio Summary ” dated 7 July 2014 bearing an account holder Fan Pui Wan Margaret and a ledger balance of US$125 million (US$125,000,000) purportedly issued by the HSBC (P2(12));

(13) a “Proof of Funds” dated 13 December 2014 bearing an account name of Zeng Cui and an amount of 253 billion and 712 million Euro Currency (253,712,000,000 Euro currency) purportedly issued by the HSBC (P2(13));

(14) an “Account Portfolio Inquiry” dated 13 December 2014 bearing a name Zeng Cui and an amount of 253 billion and 712 million Euro Currency (253,712,000,000 Euro currency) purportedly issued by the HSBC (P2(14));

(15) a “Certificate of Balance ” dated 5 December 2014 bearing an account name of Zeng Cui and an amount of 253 billion and 712 million Euro Currency (253,712,000,000 Euro currency) purportedly issued by the HSBC (P2(15));

(16) a “Foreign Currency Account Counter Withdrawal Form ” dated 5 December 2014 bearing an account name of Zeng Cui and an amount of 253 billion and 712 million Euro Currency (253,712,000,000 Euro currency) purportedly issued by the HSBC (P2(16));

(17) a “Floes the Bill of Lading” with transfer amount of US$1 quadrillion (US$1,000,000,000,000,000) and dated 27 April 2012 purportedly issued by the HSBC (P2(17));

(18) a “Dollar Current Deposit Receipt” dated 27 April 2012 bearing an account name Hong Kong Hung Fai Wang Limited and an amount of US$1 quadrillion (US$1,000,000,000,000,000) purportedly issued by the HSBC (P2(18));

(19) a “HSBC Bank Statement” with an amount of US$1 quadrillion (US$1,000,000,000,000,000) purportedly issued by the HSBC (P2(19));

(20) a “Deposit Transaction Statement” dated 27 April 2012 bearing an account name Hong Kong Hung Fai Wang Limited and an amount of US$1 quadrillion (US$1,000,000,000,000,000) purportedly issued by the HSBC (P2(20));

(21) a “Certificate of Balance ” dated 27 April 2012 bearing an account name Hong Kong Hung Fai Wang Limited and an amount of US$1 quadrillion (US$1,000,000,000,000,000) purportedly issued by the HSBC (P2(21));

(22) a “Letter” with an amount of 500 million Euro currency (500,000,000 Euro currency) and dated 29 June 2015 purportedly issued by the HSBC (P2(22));

(23) a “Banker’s Draft” in favour of China Zehua Energy Group Limited with an amount of 250 million Euro currency (250,000,000 Euro currency) dated 11 May 2015 purportedly issued by the HSBC (P2(23));

(24) a “Banker’s Draft” in favour of Intertrace S L with an amount of 500 million Euro currency (500,000,000 Euro currency) dated 30 June 2016 purportedly issued by the HSBC (P2(24));

(25) a “Banker’s Draft” in favour of China Zehua Energy Group Limited with an amount of 500 million Euro currency (500,000,000 Euro currency) dated 4 November 2015 purportedly issued by the HSBC (P2(25));

(26) a “Letter of Confirmation” with an amount of 500 million Euro currency (500,000,000 Euro currency) dated 4 November 2015 purportedly issued by the HSBC (P2(26));

(27) two “Bank Confirmation Letter” with an amount of 500 million Euro currency (500,000,000 Euro currency) dated 22 April 2014 purportedly issued by the HSBC (P2(27));

(28) a “Letter of Readiness to Issue a Bank Guarantee” with an amount of 500 million Euro currency (500,000,000 Euro currency) dated 12 May 2014 purportedly issued by the HSBC (P2(28));

(29) “Check Sheet” dated 28 May 2014 with an amount of US$48,545,540,020.75 purportedly issued by the HSBC (P2(29));

(30) a “Transfer Slip” dated 6 December 2013 with an amount of US$47,710,604,443 purportedly issued by the HSBC (P2(30));

(31) an “Authorization to Verify Funds” dated 8 July 2014 bearing an account name Yuan Da Yong and a cash amount of US$48,545,540,020.75 purportedly issued by the HSBC (P2(31));

(32) a “SWIFT” dated 1 July 2014 with an amount of 500 million Euro currency (500,000,000 Euro currency) purportedly issued by Barclays Bank PLC to CTBC Bank Co Ltd Hong Kong Branch (P2(32));

(33) a “SWIFT” dated 1 July 2014 with an amount of 350 million Euro currency (350,000,000 Euro currency) purportedly issued by BKS Bank AG to Credit Suisse AG Hong Kong Branch(P2(33));

(34) a “SWIFT” dated 7 May 2015 purportedly issued by Santander Bank to Bank of China (Hong Kong) Limited(P2(34));

(35) a “SWIFT” dated 1 July 2014 with an amount of 500 million Euro currency (500,000,000 Euro currency) purportedly issued by Santander Bank to Bank of America, N A (P2(35));

(36) a “Power of Attorney Disbursement Agreement” dated 31 December 2014 bearing an account name of Ngo Han Luing purportedly signed by Yang Michael Guangze (P2(36));

(37) an “Investment Agreement” dated 31 December 2014 bearing an account name of Zeng Cui and an amount of 200 billion million Euro Currency (200,000,000,000 Euro currency) purportedly signed by Yang Michael Guangze (P2(37)); and

(38) a “letter” dated 13 March 2012 with an amount of US$1 quadrillion (US$1,000,000,000,000,000) purportedly issued by the HSBC to the Hong Kong Monetary Authority (P2(38)).

THE PROSEUCTION’S CASE

6.  The prosecution’s evidence against the defendant is based on:-

(1) the Admitted Facts admitted under section 65C of the Criminal Procedure Ordinance (P3);

(2) the evidence of 4 live prosecution witnesses (PW1 to PW4);

(3) 12 witness statements of 7 witnesses produced under section 65B of the Criminal Procedure Ordinance (P4 to P15); and

(4) a video recorded interview of the defendant (P44C, the transcript P44A and the certified English translation P44). It is an admitted fact that the defendant voluntarily participated in the video recorded interview.

7.  The prosecution’s case against the defendant in respect of Charge 1 is that on 19 May 2015, the defendant turned up at the Nathan Road branch of the Bank of China (BOC) and presented P1(1) to (3) to PW1 and 2 of BOC.  P1(1) to (3) purportedly showed that Santander Bank would pay 5 million Euros into the defendant’s bank account held at BOC.  P1(1) to (3) were false instruments.  It is the prosecution’s case that the defendant knowingly used P1(1) to (3) to induce BOC to accept the documents as genuine so that he could withdraw the 5 million Euros, to the prejudice of BOC.

8.  In respect of Charge 2, it is the prosecution’s case that the defendant, on 6 November 2015, ie the day of his arrest, had in his custody or under his control 38 false documents (P2(1)-(38)), which he knew or believed to be false, with the intention that these documents would be used to induce others to accept them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice.  The prosecution’s case in the alternative (Charge 3) is that the defendant had, without lawful authority or excuse, in his custody or under his control these documents which he knew or believed to be false.

9.  There is no dispute between the parties that the defendant, born on 12 October 1973, is a German passport holder, he was educated in Germany to university level.  At all material times he worked and lived in Shenzhen.  He has a clear record.

10.  PW1 Ricky Wong Wing Ki worked as a Financial Planning of BOC at its branch at Nathan Road.  PW1 gave evidence that in early 2014, the defendant went to the bank and asked PW1 about remitting money to Hong Kong.  After the meeting in early 2014, the defendant had some telephone contacts and email exchange with PW1, which evolved around the subject of remittance.  PW1 never saw the Defendant again until 19 May 2015, when the defendant turned up at the bank with the original copies of P1(1) to (3).

11.  Before the defendant turned up at BOC on 19 May 2015, he had sent an email to PW1 attaching P1(3) asking PW1 to check the cashier’s order of the Swift. P1(3) purported to show that the defendant was the recipient of 5 million Euros.  PW1, in a telephone conversation, asked the defendant to bring along the documents to his branch in person. 

12.  On 19 May 2015, the defendant attended PW1’s branch and presented the original copies of P1(1) to (3) to PW1 and asked PW1 “How can you help me to handle this?”  As PW1 was not sure how to process the banker’s draft, ie the original of P1(1), he asked the defendant why he was not the payee on the banker draft.  The defendant pointed out to PW1 that according to the Swift (the original of P1(3)), the bank had already authorized the deposit into his account and he was the receiver.

13.  PW1 referred the defendant’s case to a specialized department of BOC. Then PW2 Ms. Kelly Lee Lai Fung of the Operation Department took over from PW1 and she spoke to the defendant.  She took photocopies of the original copies of P1(1) to (3) and the passport of the defendant.  She kept the photocopies and returned the originals to the defendant.

14.  PW2 was adamant that the banker’s draft she took photocopy of, ie the original copy of P1(1) was an original banker’s draft, not a photocopy. 

15.  When PW2 spoke to the defendant, the latter asked whether the banker’s draft could be deposited into his account and PW2’s response was that as the banker’s draft was not in the defendant’s name, it could not be deposited.  The defendant said the Swift report, ie the original of P1(3) evidenced that the local bank had already transferred the money to him.  PW2 suggested to the defendant that he could do it by way of telegraphic transfer, the defendant replied that the charge for making a remittance from that place into the account in Hong Kong would be very expensive.  PW2 further suggested that the defendant could ask his company to make out a banker’s draft in his name, ie with him as the payee for a deposit into his account.  The defendant said he would talk to his company upon his return.  The defendant asked PW2 if she would talk to her supervisor to see if the banker’s draft could be deposited.  At some stage, the defendant told PW2 that the money was commission money.

16.  PW2 returned the originals to the defendant after she learnt from the specialized department that the genuineness of the documents could not be confirmed and the genuineness of the banker’s draft could only be known at the clearing or settlement stage.

17.  It is the evidence of PW1 that the defendant had spent some 2 hours, and possibly more at his bank on 19 May 2015.  As for PW2, she had spent about half an hour with the defendant on the day in question.

18.  PW3 Fung Kwok Leung, the Fraud Investigation manager of the Fraud Investigation Division of BOC gave evidence that there was no record of the Swift report (P1(3)) in BOC’s record.  PW3 checked and found that there was no such 5 million Euros in the defendant’s bank account with BOC, hence it was impossible for BOC to pay the defendant money of the money did not exist in his account.

19.  PW3, as PW2 did, testified that a Swift report is a document between bank, in other words, it is an interbank communication and individual customers would not have access to a Swift report.

20.  PW4 Fok Shui Kwok, Anthony gave evidence about the falsity of the HSBC documents in question.  For P2(22) and (26) to (28), PW4 said these documents were not issued by HSBC UK only because his UK colleague of HSBC had told him so in the course of PW4’s enquiry into the matter.

The video recorded interview

21.  The defendant told the police, inter alia, in his video recorded interview:-

(1) The defendant received university education in Germany where he studied engineering (counters 1052 & 1056).

(2) He worked as a middleman, making introducing for companies seeking loans (counters 205 &1092).

(3) He cannot read Chinese (counters 818 & 1488) and his English was poor (counter 1182).

(4) He moved to China when he was 38 (counter 812). He worked as a translator for the Chinese Government in Shenzhen and later as a middleman between companies (counter 830 & 826). During the time he worked as a translator he was given free accommodation but he was not financially remunerated (counter 1009).

(5) He did business with a Turkish man called Kaptan (counters 210-213). Kaptan and his team worked as middleman (counters 537-540). The defendant made an introduction to Kaptan in relation to a petroleum deal in September/October 2014. The defendant was involved in introduced a Russian company to a Turkish company (counters 439 & 449).

(6) The petroleum deal was worth 500 million Euros (counter 430). The total commission for the deal was 5 million Euros (counter 449). The defendant was entitled to a commission from the deal of “a hundred thousand at most, or two hundred thousand Euros” (counter 469).

(7) The defendant was not clear what business the Turkish company carried out (counter 566).

(8) For his share of the commission, the defendant said he would accept cash, not cheque (counter 474).

(9) A cheque (P1(1)) had been sent to the defendant by a Spanish party who said that banks in Europe could not accept it (counters 201 & 449). Kaptan said P1(1) could not be deposited and he asked the defendant to see if it could be deposited (counter 476).

(10) The defendant believed the payee, Med Holding Corp, was Kaptan’s partner (counter 592).

(11) Kaptan gave P1(1) and P1(2) to the defendant (counter 1401-1408). Kaptan emailed P1(3) to the defendant (counter 1389).

(12) Kaptan told the defendant P1(3) had already been sent to the bank and asked the defendant to take P1(1) to deposit it (counter 1374-1376). After deducting his own commission from the collected amount, the defendant should send the balance of the money to another middleman (counter 471).

(13) The defendant was urged to make enquiries to see of the money had arrived (counter 286). The defendant then emailed PW1 on 11 May 2015 to check if the money had arrived (counter 184). As there was no response, the defendant attended PW1’s branch in person to make enquiries (counter 184).

(14) At the branch, the defendant explained that he had already emailed P1(3) to the bank and asked the bank staff to check the same. However the bank staff did not check it so he took out a copy of P1(1) and asked the bank staff to see if the money had been deposited into his account. He told the bank staff that the money represented commissions and the bank staff took the documents and checked for him. The defendant waited for almost 2 hours and the bank staff came out and told him that they could not find it and suggested that he have P1(1) made into his name. The defendant told the bank staff that P1(3) showed that the name was changed (counter 704).

(15) The defendant left as the bank could not handle P1(1) (counter 706).

(16) The defendant sent P1(1) back to Kaptan for a new one to be made out in his name (counter 338-342). However at the time of the video recorded interview, he still had not received a new cheque in his name (counter 394).

(17) At the time of the video recorded interview, he felt that he was deceived and cheated by Kaptan as he still had not received his commission (counter 1562).

Case to answer and the defendant’s election

22.  At the conclusion of the prosecution’s case, I found that the defendant has a case to answer on all charges.

23.  The defendant elected not to give evidence and not to call any witness.

THE DEFENCE CASE

Charge 1

24.  From the explanations given by the defendant in the video recorded interview, it is the defence case that the defendant did not know or believe that P1(1) to (3) were false, it follows that he did not have the requisite intention.

Charge 2 and 3

25.  The defendant was never cautioned, nor was he asked any question about P2(1) to (38) in the video recorded interview.

26.  Mr Cheng SC took issue with the following matters:-

(1) Whether the defendant possessed the false instruments in question;

(2) Even if possession could be proved, whether it can be proved to the required standard that the defendant knew or believed they were false;

(3) In relation to Charge 2, there is no evidence that the defendant had the double intention required for section 75(1).

CLOSING SUBMISSIONS

27.  I am grateful to Mr Cheng SC for the detailed closing submissions.

The standard and burden of proof

28.  The prosecution brought the charges against the defendant, it is for the prosecution to prove all elements of each offence beyond reasonable doubt.

The good character of the defendant

29.  The defendant has a clear record.  He is less likely to commit the crimes under complaint.  He is more likely to tell the truth in the exculpatory parts of his video recorded interview.

DISUCSSION

Charge 1

The Falsity of P1(1) to (3)

30.  From the statements of Mr Derek Gibson, Branch Manager of Hong Kong Branch of Banco Santander, SA, I have no difficulty in finding P1(1) to (3) were not issued by Banco Santander Bank SA and/or Santander Bank, P1(1) to (3) were false instruments.

Using

31.  I find PW1 to PW3 all credible and reliable witnesses.  I accept their evidence as true and reliable.

32.  From the evidence of PW1, I find it proved that the defendant had used P1(1) to (3) on 19 May 2015.  PW1’s evidence that the defendant had used P1(1) to (3) at the Nathan Road branch of BOC on 19 May 2015 is supported by the evidence of PW2.

Knowledge

33.  In paragraph 1 of the prosecution’s opening, it is the prosecution’s case against the defendant that he used P1(1) to (3) to induce BOC to accept the documents as genuine so that he could withdraw the 5 million Euros, to the prejudice of BOC. 

34.  It is not the prosecution case that the defendant, knowing P1(3) was false and BOC would in no way pay him 5 million Euros when there was no such money in his account, did not really want to get the money from BOC, but just want to have P1(1) deposited, so that he could get some written proof from BOC that a cheque in the amount of 5 million Euros was deposited into his account. It is the prosecution’s case that the defendant wanted to withdraw the 5 million Euros with the use of P1(1) to (3), not that he wanted to get some written proof from the bank so that he could use the written proof to swindle others.

35.  Mr Chau, in his opening stated frankly that as no admission was ever made by the defendant that he knew P1(1) to (3) to be false, the prosecution is asking the court to infer from the facts that the defendant used the documents and tried to induce BOC to accept them as genuine and act to the bank’s prejudice that the defendant knew at the time that P1(1) to (3) were false instruments.

36.  In my judgment, if the defendant knew that the Swift report was false , that there was no transfer of money and the 5 million Euros did not exist in his account, it is inherently improbable that he would ask BOC to deposit P1(1) into his own BOC account for the purpose of withdrawing the 5 million Euros. The defendant was not a layman in the sense that he is a well-educated man in his forties, he received university education in Germany and he had worked as a middlemen for companies seeking to borrow money.  He would be extremely naïve to think that he could withdraw the 5 million Euros when he knew the money did not even exist.

37.  The defendant has a clear record, he is more likely to tell the truth in the exculpatory parts of his video recorded interview.  I have considered the contents of the video recorded interview which I see as a mixed statement given by the defendant not long after his arrest.  In my judgment, some of his answers do not make business sense to me, eg there was no written agreement on the commissions to be received by the defendant, that the defendant would believe Kaptan would ask him to deposit a cheque for the amount of 5 million Euros into his account when he was only entitled to 100,000 to 200,000 Euros of the amount.  On the other hand, notwithstanding some of his answers were incongruous, I find that there is an overall air of frankness in the video recorded interview and I cannot exclude the possibility that what the defendant said in his exculpatory explanations is true, in gist, he was cheated and deceived by Kapyan.  The behavior/conduct of the defendant at BOC on 19 May 2015, that he spent some 2 hours at the bank, and during his stay, he spent some 30 minutes with PW2 explaining to PW2 that P1(3) showed the money had been transferred to his account goes some way to support his claim of innocence.  In my judgment, if the defendant knew the Swift report was false and he knew the money had not been transferred to his account, it made no sense for him to explain persistently to PW2 that the money had been transferred to him as BOC would check to find out for sure if a transfer had been made. 

38.  In my judgment, the conduct of the defendant at the bank on 19 May 2015 was suspicious but the evidence fails to satisfy me beyond reasonable doubt that the defendant knew or believed that P1(1) to (3) were false instruments.

Charge 2 and 3

The falsity of P2(1) to (21), P2(23) to (25) and P2(29) to (38)

39.  I found that the evidence of PW4 is both credible and reliable.

40.  I also attach full weight to the various produced under section 65B.

41.  From the evidence, I am satisfied beyond reasonable doubt that P2(1) to (21), P2(23) to (25) and P2(29) to (38) were false instruments.

POSSESSION

Knowledge of the existence of the false instruments

42.  It is an admitted fact that the false instruments were extracted from the 2 mobile phones seized from the defendant (P49 and P50).

43.  In order to prove possession, the prosecution must prove that the defendant knew that the false instrument existed in P49 and P50.

44.  I agree with the defence submission that items may exist on a person’s mobile phone without that person knowing of their existence, eg unread email or unopened attachments.

45.  PC 8774 explained in his 2^nd statement (P15) the details including, the storage location of 21 case relevant documents which he extracted from the black Sony mobile phone.  He set out the file names which required his further elaboration in paragraph 3 of P15.  In Annex A to P15, he set out the details of these 21 documents.

46.  It is an admitted fact the 2 mobile phones (P49 and P50) were in safe custody of the police until they were delivered to the police laboratory for forensic examination.  In my judgment, the fact that P49 and P50 were in safe custody of the police does not preclude the possibility that the false documents in P49 and/or P50 may have come into existence after they were seized, eg the false documents were sent to the defendant’s phone after 6 November 2015.  There is no evidence that the phones were kept in such a way, eg they were kept at an insulated place or container, that it was impossible for the false documents to be sent and received by the phones after 6 November 2015.

47.  In Annex A, there is a column titled “Modified –Date/Time”.  PC 8774 did not explain, however, what the dates and times mean.  If the “Modified –Date/Time” of file “1226” (Item no 1) “2014-08-13 01:36:00 (UTC+ 8)” means the file was received by the phone, or even opened/accessed in 2014, evidence should be led, I cannot infer from the information set out in the 2 statements, in the absence of further evidence to explain the details contained therein, that the false documents were already on the phones when the defendant was arrested on 6 November 2015 and his 2 phones seized. 

48.  There is no evidence to show when the false documents first appeared in P49 and/or P50.  There is no evidence for the court to infer, given the time that the false documents had existed in the phone, the defendant must have had assessed, seen, handled or processed the false documents.  In my judgment, even the prosecution could establish that the false documents existed on the phone before the defendant’s arrest on 6 November 2015, without the benefit of evidence showing when the false documents first appeared in P49 and/or P50, I cannot preclude the possibility that they remained unread emails or unopened attachments.  I appreciate the defendant worked as a middle-man making introductions for companies which seek to borrow money, hence one would expect the defendant would read the emails and attachments in question.  The longer the time these false documents had remained on the phones, the stronger the inference that the defendant had read them.  However, in the absence of evidence explaining when the false documents first existed on the phones, I cannot make a positive finding that the defendant knew of the existence of the false documents.

49.  The defendant, when he was interviewed by the police, was not asked about the false documents which formed the subject matters of Charge 2 and Charge 3.

50.  I find that on Charge 2 and Charge 3, the prosecution fails to prove beyond reasonable doubt that the defendant possessed the false documents in question.

VERDICT

51.  For the reasons given, I find the defendant not guilty of all charges.