HKSAR v. MALIK MOHAMMAD TARIQ (also known as MOHAMMAD TARIQ MALIK)

DCCC 276/2020

[2021] HKDC 882

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 276 OF 2020

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REASONS FOR VERDICT

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1.  The defendant pleads not guilty to one charge of having custody or control of counterfeit currency notes, contrary to section 100(1) of the Crimes Ordinance[1].

2.  The particulars of the offence read:

“MALIK Mohammad Tariq (also known as MOHAMMAD Tariq Malik), on the 23^rd day of September 2019, at Room C, 1^st Floor, Yen Kwong Mansion, Nos. 314-316 Tung Chau Street, Sham Shui Po, Kowloon, in Hong Kong, had in his custody or under his control 521 pieces of $1,000 denomination Hong Kong currency banknotes, which were, and which he knew or believed to be counterfeit notes, intending either to pass or tender them as genuine or to deliver them to another with the intention that he or another would pass or tender them as genuine.”

Prosecution case

3.  The prosecution case in summary is that in the presence of the defendant the police executed a search warrant at the defendant’s home and found under the pillow of the defendant’s bed a white plastic bag containing the counterfeit banknotes.

4.  The prosecution relies on admissions made by the defendant that he was the tenant of the premises, he lived there and that he slept in the bed where the banknotes were found.     

Defence case

5.  The defence submits that the prosecution has failed to prove that the banknotes were reasonably capable of passing for a currency note and that the defendant was in possession of the banknotes. 

Evidence

6.  The prosecution called four witness on the witness list attached to the prosecution opening, namely: CIP Tang (PW1), the expert witness[2]; DPC 14008 (PW2), the arresting officer[3]; DPC 13979 (PW3), the exhibit officer who searched the defendant’s home[4] and SIP Leung (PW4), the OC case[5].

7.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance [6], including the admissibility of the video recorded interview[7], photographs[8] and that no DNA or fingerprints of the defendant were found on either the white plastic bag or the counterfeit banknotes.  I will refer to the admitted facts as I review the evidence.

8.  The defendant elected not to give evidence and no witnesses were called on his behalf. 

9.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing. I direct myself that I must be sure of the guilt of the defendant before I can convict. 

10.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against the defendant as well as one in his favour the adverse inference cannot be drawn.  

Elements of the offence

11.  The elements of the offence that the prosecution must prove are that:

(i)  the banknotes were counterfeit;

(ii)  the defendant had the banknotes in his custody or under his control;

(iii)  the defendant knew or believed the banknotes were counterfeit; and

(iv)  the defendant intended either to pass or tender the banknotes as genuine or to deliver them to another with the intention that he or another would pass or tender them as genuine.

12.  I have carefully considered all the evidence and the submissions of Mr McNamara and Mr Hemmings. 

Are the 521 banknotes counterfeit?

13.  The prosecution called Chief Inspector Tang as an expert witness.  Chief Inspector Tang adopted his witness statement dated 10 March 2020 as his evidence-in-chief[9]. 

14.  The witness statement set out Chief Inspector Tang’s working experience in the Expert and Support Section of the Commercial Crime Bureau and his local and overseas training on the security printings of banknotes, the production of security paper, security ink and counterfeit techniques and their detection[10].

15.  I was satisfied Chief Inspector Tang was an expert witness who could give expert evidence on the examination of counterfeit banknotes[11]. 

16.  In summary on 4 March 2020 Chief Inspector Tang received 521 $1,000 banknotes for examination (exhibit P3) (“the questioned banknotes”).  The purpose of the examination was to determine the authenticity of the questioned banknotes[12].

17.  Chief Inspector Tang conducted physical and microscopic examination of the questioned banknotes.  The questioned banknotes purported to be of the 2010 series.  Chief Inspector Tang found three main differences with the genuine banknotes of the 2010 series issued by the three note-issuing banks.  The main differences were with the substrate, the printing and the security features of the banknotes[13].  In cross-examination Chief Inspector Tang was asked to produce the genuine banknotes with which he made his comparison (exhibits P11 (a), (b) and (c)). 

18.  Chief Inspector Tang also found that of the 521 questioned banknotes, 192 had the same serial number AB113170; 155 had the same serial number AM154194; 170 had the same serial number AX296530 and 4 had the same serial number DD675564. Genuine banknotes have a unique serial number and repeated serial number will not appear[14].

19.  Chief Inspector Tang was of the opinion that[15]:

(i)  the 521 questioned banknotes were not issued by the three note-issuing banks in Hong Kong; and

(ii)  since the image, size and colour of the banknotes resemble to the genuine banknotes to such an extent that they are reasonably capable of passing for currency notes of $1,000, the banknotes are counterfeit banknotes within the meaning of counterfeit according to section 97 (1)(a)(i)  of the Crimes Ordinance.

20.  In cross-examination Mr Hemmings asked Chief Inspector Tang about the quality of the printing of the questioned banknotes by comparing three of the questioned banknotes (marked exhibits P3 (a), (b) and (c)) with the three genuine banknotes Chief Inspector Tang used in his examination (exhibits P11 (a), (b) and (c))[16].    

Bank of China banknote (P3 (a)/P11(a))

21.  Chief Inspector Tang was asked about the quality of the printing of the questioned banknote with specific reference to the bauhinia flower on the obverse side of the banknote.  Chief Inspector Tang considered that the printing of the questioned banknote by “Inkjet” was of poor quality and that in general counterfeit notes printed with “Inkjet” are of poor quality. 

22.  Chief Inspector Tang was asked about the colour of the questioned banknote with specific reference to the building on the obverse side of the banknote and the harbour on the reverse side of the banknote.  Chief Inspector Tang disagreed that the colour of the genuine banknote and the questioned banknote were very different and said that the colour of the questioned banknote resembled the colour of the genuine banknote.  Chief Inspector Tang said the colour was golden yellow and disagreed with Mr Hemmings that the colour of the questioned banknote was red. 

23.  Mr Hemmings referred next to the right side of the building which is in grey colour on the genuine banknote.  Chief Inspector Tang said that this was one of the security features of the genuine banknote and agreed this did not appear on the questioned banknote.  In his witness statement Chief Inspector Tang refers to watermarks and colour changing effects not found on the questioned banknotes because they were only simulated by printing on the paper surface with “Inkjet” [17].

24.  Chief Inspector Tang agreed that the metallic thread on the reverse of the questioned banknote did not look anything like the genuine banknote because the questioned banknote was printed with “Inkjet” and that on a visual inspection the metallic thread was different to the metallic thread on the genuine banknote.

Standard Chartered Bank banknote (P3 (b)/P11(b))

25.  Chief Inspector Tang was asked about the quality of the printing of the questioned banknote with specific reference to the dragon on the obverse side of the banknote.  When asked if he agreed the questioned banknote was a very poor quality copy of the dragon, Chief Inspector Tang replied, “I would say the image resemble to the genuine banknote.” Chief Inspector Tang said as an expert he would not accept the banknote as genuine. 

26.  Chief Inspector Tang agreed that the metallic thread on the reverse side of the questioned banknote was very different to the genuine banknote.  

27.  Chief Inspector Tang also agreed that the white strip/border seen on the right of the obverse side was different to a genuine banknote. 

HSBC banknote (P3 (c)/P11(c))

28.  Chief Inspector Tang was asked about the quality of the printing of the questioned banknote with specific reference to the lion on the obverse side of the banknote.  Chief Inspector Tang replied that the image and colour resembled the genuine banknote.  Chief Inspector Tang again disagreed the colour was red and said that the colour was golden yellow[18].

Discussion

29.  By virtue of section 96 of the Crimes Ordinance, a currency note means:

(a)  a note which-

(i)  has been lawfully issued in Hong Kong;

(ii)  is or has been customarily used as money in Hong Kong; and

is payable on demand; or

(b)…

30.  The meaning of counterfeit is found in section 97(1) of the Crimes Ordinance:

(1)(a)  a thing is a counterfeit of a currency note … if it is -

(i)  not a currency note … but resembles a currency note… (whether on one side only or on both)  to such an extent that it is reasonably capable of passing for a currency note … of that description; or

(ii)  … ;

(b)  a thing consisting of one side only of a currency note, with or without the addition of other material, is capable of being a counterfeit of such note;

(c)….

(2)  References in this Part to passing or tendering a counterfeit of a currency note ….are not to be construed as confined to passing or tendering it as legal tender.

31.  Section 100 (3) provides that for the purposes of section 100 it is immaterial that a … note is not in a fit state to be passed or tendered or that the making or counterfeiting of a …note has not been finished or perfected.

32.  The prosecution must prove that:

(i)  the 521 questioned banknotes are not currency notes within the meaning in section 96; and

(ii)  the 521 questioned banknotes resemble currency notes to such an extent that they are reasonably capable of passing for currency notes of that description.

Currency note

33.  I accept the evidence of Chief Inspector Tang that the 521 questioned banknotes were not issued by the three note-issuing banks in Hong Kong and are therefore not a currency note within the meaning in section 96[19].

Resembles a currency note to such an extent that it is reasonably capable of passing for a currency note

34.  Mr Hemmings submits that because Chief Inspector Tang was a police officer his opinion that the questioned banknotes were reasonably capable of being passed is not the opinion of an independent expert[20].

35.  I have no hesitation in rejecting this submission.   As noted earlier no objection was taken to the expertise of Chief Inspector Tang[21]. There was no suggestion that Chief Inspector Tang was part of the investigation team or was in anyway biased.  The fact that Chief Inspector Tang is a police officer is a matter that goes only to the weight to be attached to his evidence.    

36.  I do however accept the submission of Mr Hemmings that whether or not the 521 questioned banknotes are reasonably capable of being passed as genuine is not a matter requiring expert testimony[22].

37.  Admitted in evidence is that no DNA or fingerprints belonging to the defendant were found on either the white plastic bag (exhibit P2) or the questioned banknotes (exhibit P3)[23].  I accept the submission of Mr Hemmings that the court must deal with the questioned banknotes as produced in court there being no evidence that the colour of the banknotes changed as a result of fingerprint examination and no evidence that the banknotes have been altered in any way since they were seized[24]. 

38.  Whilst accepting that the questioned banknotes resemble genuine $1,000 banknotes, Mr Hemmings submitted in his no case submission and in his final submission that they do not resemble currency notes to such an extent that they are reasonably capable of passing for currency notes of that description[25].  Mr Hemmings described the banknotes as amongst the worst he had ever seen and were very, very poor copies.

39.  In his no case submission Mr Hemmings submitted that the standard of printing was very bad and pointed to differences between the genuine banknotes and the questioned banknotes upon which he had cross-examined Chief Inspector Tang, including the colour of the banknotes and the lack of definition of the building and the bauhinia flower on the Bank of China banknotes and the lion on the HSBC banknotes which Mr Hemmings submitted were not sharp like the genuine notes. 

40.  Mr Hemmings also referred to a white border on the banknotes (P3(e) and (f)) which border Chief Inspector Tang said was not on a genuine banknote and the poor quality of the metallic thread on the reverse side of the banknotes. 

41.  As indicated in court, during final submissions, I examined all the 521 questioned $1,000 banknotes in considering the submission of no case to answer and in preparation for hearing final submissions.  In reaching my verdict I have again examined all 521 questioned $1,000 banknotes and considered the paper and the feel of the banknotes. 

42.  In comparison to the genuine banknotes, apart from not having the security features, there are differences as pointed out by Mr Hemmings.  I also note the size of some of the notes are different in that some are slightly larger and some slightly narrower; there are stains on some of the banknotes and the questioned banknotes of the Bank of China with the serial number AX 296530 are dated 2012 and the banknotes with the serial number DD 675564 are dated 2013 and not 2010 as in the genuine notes.

43.  In his no case submission Mr Hemmings submitted that anybody handed such a banknote in payment would immediately be suspicious and would look for one of the security features.  Mr Hemmings said he did not think that anybody tendered such a note would for a moment accept the note as genuine.

44.  In his written submission Mr Hemmings submits that it is highly unlikely that anyone would accept these notes as genuine, particularly bearing in mind that as they are copies of the 2010 series anyone to whom the notes were tendered would be familiar with the look and feel of a genuine note and being the highest denomination it is reasonable to assume the notes would be subject to more than just a cursory inspection[26].

45.  In HKSAR v Cheung Wai Chuen the court held the determination of whether the banknotes resemble a currency note to such an extent that they are reasonably capable of passing for a currency note of that description is done through an overall observation of the banknote instead of a careful study of the differences[27].

46.  What may pass as genuine depends upon the degree of resemblance to the genuine banknote and the circumstances in which the banknote may be passed.  In my view, what may pass as genuine is not to be limited to passing to someone who is familiar with the genuine banknote and knows to look for the security features.

47.  The image of both the obverse and reverse sides of all the banknotes are the same as the genuine banknotes.  Whilst the definition may not always be as sharp as the genuine banknotes, a careful inspection is required to notice this difference.   

48.  The differences in colour are largely a variation of the colour red, either darker or lighter with some of the banknotes brown rather than a shade of red.  In my view the differences in colour do not affect that the overall appearance of the banknotes is the same as the genuine banknotes. 

49.  Although the metallic thread is not shimmering as in genuine banknotes and there are none of the security features, the absence of the security features requires knowledge of the existence of the security features and a careful inspection to see they do not appear. 

50.  The white borders on some of the questioned banknotes are not of such a proportion to be of any significance.  Similarly, the fact some of the banknotes are very slightly larger or narrower is again not of any significance and is only apparent on carefully measuring the banknote. 

51.  Having carefully examined all the 521 questioned banknotes, I find that the banknotes resemble to the genuine banknotes to such an extent that they are reasonably capable of passing for currency notes of $1,000.  I am satisfied the prosecution have proved beyond reasonable doubt that the 521 questioned banknotes are counterfeit within the meaning prescribed in section 97 of the Crimes Ordinance.  

Did the defendant have in his custody or under his control the 521 counterfeit banknotes (“the counterfeit banknotes”)?

52.  At about 4:43 p.m. on 23 September 2019 DPC 14008 together with DPC 12005 went to Room C on the 1/F of Yen Kwong Mansion, Nos. 314-316 Tung Chau Street in Sham Shui Po (“the premises”)  and kept observation on the entrance of the premises.

53.  At 5:51 p.m. DPC 14008 heard the lift door on the first floor open.  A Filipino female was then seen opening the metal gate and the main door of the premises. Behind the Filipino female was the defendant who was in an electric wheelchair.

54.  DPC 14008 and DPC 12005 went forward and intercepted the defendant and the Filipino female.  DPC 14008 showed his warrant card and then seized two keys used by the Filipino female to open the metal gate and the main door of the premises (exhibit P1).  DPC 14008 and DPC 12005 then took the Filipino female and the defendant inside the premises where they saw two other persons, a Bangladeshi male and another Filipino female. 

55.  At 5:54 p.m. other police officers led by SIP Leung, the OC case, came to assist. SIP Leung assigned DPC 13979 to be the exhibits officer and to search the premises.  At 6:01 p.m. DPC 13979 began to conduct a search of the premises in the presence of the defendant, the Bangladeshi male and the two Filipino females.  In cross-examination DPC 14008 said all four were able to watch everywhere that DPC 13979 searched and that they were moved around the premises so they could witness the search. 

56.  DPC 13979 first searched the living room followed by the lightwell, the bedroom and the toilet[28]. Admitted in evidence are photographs of the premises[29].  After the search was concluded DPC 13979 drew a sketch of the premises indicating the position where various items were found (exhibit P6A)[30].

57.  Inside the bedroom DPC 13979 found underneath a pink pillow a white plastic bag (exhibit P2) containing the counterfeit banknotes (exhibit P3) as shown in photographs 12 and 15 (exhibit P7).  At 6:48 p.m. after finding the banknotes DPC 13979 informed SIP Leung.

58.  SIP Leung immediately declared arrest on the four persons in the premises.  In cross-examination SIP Leung confirmed that the other three persons were not charged.

59.  After declaration of arrest DPC 13979 put the white plastic bag containing the counterfeit banknotes back where he found them for the purpose of taking photographs. 

60.  DPC 13979 also found in a wardrobe of the bedroom a tenancy agreement in the name of Malik Mohammad Tariq (exhibit P4)[31] and two letters in the name of Ahmad Malik Zawar and Ahmed Malik Zawar (exhibit P5)[32].

Summary of the video recorded interview

61.  Admitted in evidence is that the next day, 24 September 2019, the defendant took part in a video recorded interview (exhibits P8, P9 & P9A)[33].  The interview was conducted in Chinese with the assistance of a Chinese-English interpreter and an Urdu-English interpreter. 

62.  After repeating the arrest and the finding of the counterfeit banknotes, the defendant was cautioned (counters 102-177).  The defendant replied he did not wish to say anything (counters 178-182).   The defendant was told he would still be asked questions and reminded that he was still under caution (counters 183-198).

63.  The defendant answered most of the questions.  In summary the defendant said that he came to Hong Kong in 2001 (counters 615-636); he lived in the premises (counters 199-212); ); he had lived in the premises for four to five years with the rent being paid by ISS (counters 367-382); no one else lived in the premises and he slept alone in the bedroom (counters 322-366); there was only one bed in his bedroom and a bunk bed outside where someone could sleep if they came to visit (counters 340-366); his name and signature were on a tenancy agreement of the premises (counters 457-484); the two keys were his keys to the two doors of his home (counters 485-517); the two letters were in the name of his son who sometimes visits him and who had his own keys (counters 518-614).

64.  On 23 September his friend Lenora opened the door for him (counters 213-243); a Bengali friend and a Filipina female called Crystal were inside the premises (counters 244-294)  and that the Bengali friend and Crystal did not live in the premises but his girlfriend Lenora sometimes stayed over (counters 295-321).

Discussion

65.  The defendant elected not to give evidence or call witnesses.  When the defendant was shown the counterfeit banknotes in the video recorded interview he had nothing to say (counters 383-412).  No adverse inference is drawn against the defendant for exercising his right to remain silent on being shown the counterfeit banknotes and in court. That is his right.  This proves nothing one way or the other.   This does not establish his guilt.

Criminal Record

66.  In cross-examination SIP Leung was shown the criminal record of the defendant. SIP Leung having confirmed that was the criminal record of the defendant, Mr Hemmings asked for the criminal record to be produced (exhibit D1)[34].  Mr Hemmings asks the court to take into account that the defendant has no previous convictions for offences of dishonesty[35].

67.  In reaching my verdict I take into account the defendant has no convictions for offences of dishonesty.  I direct myself that the fact the defendant has a criminal record does not mean he is guilty of the offence charged[36].  

Acting on information

68.  In cross-examination Mr Hemmings elicited that the police were acting on information and that the defendant was the target of their operation.   No adverse inference is drawn against the defendant by reason of the fact that the police were acting on information and that the defendant was the target of their operation. 

69.  Mr Hemmings cross-examined both DPC 13979 and SIP Leung about the information the police received leading to the arrest of the defendant. 

70.  DPC 13979 agreed that prior to going to the premises he attended a briefing in which he was informed that information had been received that there was counterfeit banknotes and dangerous drugs in the premises; that he searched for dangerous drugs in the premises; after 8 p.m. a dangerous drugs dog also went to the premises to search for dangerous drugs and confirmed that no dangerous drugs, paraphernalia or suspected items were found in the premises.   

71.  SIP Leung agreed that on the day of the briefing he had met with an unregistered informant.  SIP Leung said that as far as he could recall this was not related to their operation that day. 

72.  SIP Leung explained that one to two weeks before he gave the briefing he had gathered information for his colleagues from which he knew the target of the operation.  SIP Leung agreed that the information was that the defendant was involved in trafficking in dangerous drugs and possession of counterfeit notes.  SIP Leung explained that the information was not acted on straight away because there was preparation and planning to do first and other engagements. SIP Leung said that as far as he understood the informant did not reveal the source of his information. 

73.  Mr Hemmings submits that it is highly suspicious that the bag containing the counterfeit banknotes was effectively hidden in plain sight; that it was almost as if the bag of counterfeit banknotes, neatly tied without a trace of the defendant’s DNA or fingerprints was aching to be found and that placing the bag under the pillow on the defendant’s bed makes little sense with the premises being crammed with paraphernalia affording a better hiding place [37]. 

74.  In court Mr Hemmings submitted that the location the bag and the counterfeit banknotes were found was almost too good to be true and that whilst making no allegation that the police planted the counterfeit banknotes he suspected that somebody did, in particular considering the information came from an unregistered informer who no doubt wanted some benefit from providing the information. 

75.  I accept the unchallenged evidence of DPC 13979 that the bag containing the counterfeit banknotes was found inside the bedroom underneath a pink pillow as shown in photographs 12 and 15 (exhibit P7).  I am satisfied full weight is to be attached to the admissions in the video recorded interview that the defendant had lived in the premises for four to five years, no one else lived in the premises and that he slept alone in the bedroom.

76.  I am satisfied so I am sure on this evidence the only inference to draw is that the defendant had in his custody or under his control the counterfeit banknotes.  The submission of Mr Hemmings that the location where the bag containing the counterfeit banknotes was found was highly suspicious and too good to be true does not cause me to doubt this is the only inference to draw.

77.  I have also considered the submission of Mr Hemmings that the court cannot exclude the possibility that others had access to the premises, including the defendant’s son who had keys to the premises and the two other persons who were found in the premises[38]. 

78.  In the video recorded interview after being shown the two letters the defendant said that his son’s name was on the letters; his son sometimes lived with him and sometimes with his wife and that his son went to the premises every day (counters 518-561).  When asked if anyone else had keys to the premises the defendant replied his son had got the keys; his son lives with his wife and occasionally visits him (counters 565-614).

79.  The fact that the defendant’s son may have had keys to the premises and sometimes visited the premises does not cause me to doubt the only inference to draw from the finding of the counterfeit banknotes underneath the pillow of the defendant’s bed in the premises where he lived alone is that the defendant had in his custody or under his control the counterfeit banknotes. 

80.  I am satisfied full weight is to be attached to the admissions in the video recorded interview that no one else lived in the premises; that the Bengali friend and Crystal did not live in the premises and his girlfriend Lenora only stayed over sometimes.

81.  The fact others may visit the premises does not cause me to doubt the only inference to draw from the finding of the counterfeit banknotes underneath the pillow of the defendant’s bed in the premises where he lived alone is that the defendant had in his custody or under his control the counterfeit banknotes. 

82.  I have also considered that no DNA or fingerprints belonging to the defendant were found on either the white plastic bag (exhibit P2) or the counterfeit banknotes (exhibit P3)[39].

83.  After careful consideration I find that the fact the defendant’s DNA and fingerprints were not found on the white plastic bag and the counterfeit banknotes does not cause me to doubt the only inference to draw from the finding of the counterfeit banknotes underneath the pillow of the defendant’s bed in the premises where he lived alone is that the defendant had in his custody or under his control the counterfeit banknotes. 

Knowing or believing the 521 banknotes were counterfeit notes, intending either to pass or tender them as genuine or to deliver them to another with the intention that he or another would pass or tender them as genuine

84.  I am satisfied so I am sure on all the evidence that the only inference to draw is that the defendant knew or believed the 521 banknotes were counterfeit notes.

85.  I am satisfied so I am sure on all the evidence that the only inference to draw is that the defendant intended either to pass or tender them as genuine or to deliver them to another with the intention that he or another would pass or tender them as genuine.

86.  In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Hemmings, both individually and collectively.  Nothing said by Mr Hemmings causes me to doubt the findings I have made.

87.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence, which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt.  The defendant is convicted as charged.