HKSAR v. SHAMSIAH BINTI ISMAIL

DCCC 420/2018

[2019] HKDC 187

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 420 OF 2018

____________

_________

REASONS FOR VERDICT

1.  The defendant pleads not guilty to one charge of using a false instrument, contrary to section 73 of the Crimes Ordinance[1].

2.  The particulars of the offence read:

“SHAMSIAH BINTI ISMAIL on the 10th day of January 2018, at “Bank of China”, Ground Floor, No. 40 Kwai Cheong Road, Kwai Chung, New Territories, in Hong Kong, used an instrument which was and which she knew or believed to be false, namely one “CASHIER’S CHECK” purportedly issued by Bank of China (Hong Kong) Limited dated the 27th day of December of 2017 to be paid to the order of “DE’ CRYSTAL OIL SDN BHD c/o SHAMSIAH BINTI ISMAIL” in the sum of €1,000,000,000.00 Euros, with the intention of inducing staff of Bank of China (Hong Kong) Limited to accept it as genuine, and by reason of so accepting it to do or not to do some act to their own or any other person’s prejudice”.

3.  The prosecution case in summary is that the defendant, a Malaysian passport holder, came to Hong Kong and went to the Bank of China where she used a forged cashier’s check, knowing or believing the cashier’s check was false, with the intention of inducing the bank staff to accept the cashier’s check as genuine and by reason of so accepting to do or not to do some act to their own or any other person’s prejudice.   

4.  The defence case in summary is that the defendant believed the cashier’s check was genuine and did not intend to redeem the check or deposit the check into any bank account.  The defendant was acting as the proxy for the account holder of the funds which belonged to the late President Marcos and had been frozen by the Philippines government and managed by the Sentral Bank of the Philippines for humanitarian projects.

Evidence

5.  The prosecution called four witness on the list of witnesses attached to the prosecution opening, namely: Ms Li Sha Sha (PW1[2]); Mr Chan King Wa (PW2[3]), Mr Cheng Yuk Lung (PW3[4]); all staff of the Bank of China; and PC 24763 (PW4[5]), the arresting officer. The evidence of the Government Chemist, Dr Hui Wing Sze[6] and the bank staff Ho Kwai Ha[7]was admitted. 

6.  The prosecution did not call Mr Lo Suk Ching and Mr Tse Wai Mo[8].  At a pre-trial review the defence indicated these witnesses were required for cross-examination.  At the beginning of the trial Mr Tsoi informed the court the witnesses were no longer required for cross-examination.  One additional witness, not on the list of prosecution witnesses, DPC 11065 (PW5) was tendered for cross-examination. 

7.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance,[9] including that the cashier’s check (spelt cheque)[10] was a forgery[11]; the Bank of China (Hong Kong) Limited never issued the cashier’s check (spelt cheque)[12] and the seizure of documents from the defendant[13]. 

8.  The defendant elected to give evidence[14]. No witnesses were called on her behalf. 

9.  Admitted in evidence is that the defendant has a clear record in Hong Kong[15].  I direct myself as to good character both as to credibility and propensity in accordance with the decision in HKSAR v Tang Siu Man[16] and applied in HKSAR v Mohammed Saleem (No.2)[17].

10.  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.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defendant has raised sufficient doubt in the prosecution case and is entitled to be acquitted. 

11.  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

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

(i) the cashier’s check was false;

(ii) the defendant used the cashier’s check knowing or believing the cashier’s check to be false;

(iii) the defendant used the cashier’s check with the intention of inducing the bank staff to accept the cashier’s check as genuine; and

(iv) by reason of so accepting the cashier’s check intended the bank staff to do or not to do some act to their own or any other person’s prejudice.

Prosecution evidence

13.  The prosecution case was largely unchallenged and can therefore be briefly summarised.

Evidence of the bank staff

14.  At around 12:45 p.m. on 10 January 2018 Ms Li Sha Sha (PW1), a customer service ambassador with the Bank of China (Hong Kong) Limited, Kwai Cheong Road branch, saw the defendant together with a Chinese female and a Chinese male in the reception area of the bank.

15.  Ms Li asked if there was anything she could do to help them.  The Chinese female, speaking in Cantonese with an accent, said they had a cashier’s check for a large amount of money and asked where it could be cashed.  In cross-examination Ms Li said that only the Chinese female spoke to her and only spoke in Punti dialect.

16.  The Chinese female, who was holding the cashier’s check (exhibit P1) in her hand, did not mention the amount of the cashier’s check.  Ms Li was however able to see that the check was in Euros with a number of zeros and that the amount was relatively large[18]. Ms Li told them to go to a counter and queue up first.  When they were queueing up Ms Li could not see who was holding the cashier’s check. 

17.  Because the amount was large and Ms Li had another customer to attend to, she informed her colleague Mr Chan King Wa (PW2), a personal banking officer with the Kwai Cheong Road branch, and asked him to help her take a look at the cashier’s check.

18.  Mr Chan was also approached by the Chinese female who said, in Cantonese with a strong accent, that they had a cashier’s check which needed to be banked in or transferred to a certain account[19]. Mr Chan told the female to queue up for processing.  In cross-examination Mr Chan said that he could not remember whether the defendant spoke to him at this time. 

19.  Mr Chan then attended to another customer.  About five minutes later when Ms Li talked to Mr Chan about the cashier’s check, Mr Chan realised something was wrong. The cashier’s check was in Euros and Hong Kong banks, including the Bank of China, did not issue cashier’s checks in Euros. 

20.  Mr Chan therefore went and asked to look at the cashier’s check to see if he had misunderstood anything.  The Chinese female spoke to the defendant.  Mr Chan could not hear what they said because it was very noisy in the bank.  The defendant then took out the cashier’s check (exhibit P1) from her handbag.  Mr Chan took the cashier’s check to have a look.

21.  After examining the cashier’s check Mr Chan saw that the printing was not uniform and that the format of the cashier’s check was different to what he normally saw. Apart from the fact that Hong Kong banks did not issue cashier’s checks in Euros, Mr Chan said that normally the cashier’s check would be called a cashier’s order; the signature line would be continuous and that the issuing bank would only be on the top left of a cashier’s order and not a different branch at the bottom as well. 

22.  Mr Chan then sought instructions from his supervisor Mr Cheng Yuk Lung (PW3), a customer service manager with the Kwai Cheong Road branch.  Mr Chan gave the cashier’s check to Mr Cheng for his opinion on whether the cashier’s check was authentic. 

23.  Mr Chan told the defendant, the Chinese female and the Chinese male to wait behind the reception while Ms Li escorted them to take a seat in the lobby.  While waiting Mr Chan was asked how long it will take because they wanted to use the money as soon as possible.  Mr Chan said that on at least three occasions he was asked by them about the progress. 

24.  In cross-examination when asked if it was correct to say that the role played by the Chinese female was similar to an interpreter, Mr Chan described the role of the Chinese female as a middleman who sometimes of her own initiative asked questions, for example how much longer would it take and whether the cashier check could be deposited in an account because they wanted to use the money immediately.

25.  After about 5-10 minutes one of them, Mr Chan could not remember which one, gave him a letter of confirmation (exhibit P3) purportedly issued by the Bank of China. Mr Chan showed the letter to Mr Cheng. 

26.  Mr Cheng was also suspicious that the cashier’s check was fake because Hong Kong banks did not issue cashier’s checks in Euros and that it was extraordinary the cashier’s check purported to be issued by both a Hong Kong branch and a Singapore branch.  Mr Cheng also said the printing quality was bad; the title of the instrument should be a cashier’s order and not cashier’s check; the signatories name and authorisation number should be printed on the instrument and that a branch could not issue a cashier’s order for such a large amount.

27.  In cross-examination Mr Cheng said that a cashier’s order cannot be cashed and needed to be deposited into the payee’s account.  Mr Cheng said that in nine years working in the bank he had never seen a cashier’s order with the payee titled c/o and was therefore unable to give an opinion whether this meant the defendant was only looking after the check. 

28.  Mr Cheng was also of the opinion the letter of confirmation was fake because the bank does not issue letters of confirmation in connection with cashier’s checks.  Mr Cheng made enquiries with the branch named on the cashier’s check and was told the two signatories were not authorised and those two persons named on the check were not people of the Bank of China. 

29.  Admitted in evidence is that the cashier’s check (exhibit P1) was a forgery and that the Bank of China (Hong Kong) Limited never issued the cashier’s check[20]. 

30.  After consultation with his supervisor a decision was made to report the matter to the police[21]. While waiting for the police two other people entered the bank and spoke to the Chinese female and the Chinese male accompanying the defendant.    These two people were still in the bank when the police arrived.

Evidence of PC 24763 (PW4)

31.  PC 24763 arrived at the bank at 13:40 hours and made enquiries of the defendant, who produced her Malaysian passport and said she was staying in the Best Western Hotel in Causeway Bay. 

32.  PC 24763 said that the four persons with the defendant were Chinese female Chan Ngam Chung, who was a Hong Kong identity card holder and two Chinese females and one Chinese male who all had entered Hong Kong that day using Re-entry Permits.

33.  PC 24763 testified that while in the bank he seized the cashier’s check (exhibit P1); an envelope (exhibit P2); the letter of confirmation (exhibit P3); a letter from the Bangko Sentral Ng Pilipinas (exhibit P4) and Appendix 1, Donation Agreement (exhibit P5), which documents had been given to him by Mr Cheng (PW3). Admitted in evidence is that the defendant handed over exhibits P1, P2, P3 and P4 to Mr Cheng and that Mr Cheng handed them to PC 24763[22].

34.  Also admitted in evidence is that at the Kwai Chung Police Station DPC 16991 seized documents from the defendant’s handbag (exhibits P7-P10)[23], namely a donation agreement (exhibit P7); four documents purportedly issued by the Bangko Sentral Ng Pilipinas (exhibits P8(a) – P8(d))[24]; two documents purportedly issued by the Bank of China (exhibits P8(e) and P8(f))[25]; three pages of certification purportedly issued by the Bangko Sentral Ng Pilipinas (exhibit P9); and two documents purportedly issued by the Bank of China (exhibits P10(a) and P10(b))[26].

Defence evidence

35.  The defendant gave detailed evidence over four days.  To understand the defendant’s evidence a detailed summary is necessary.  I have listened again to many parts of the defendant’s evidence and some more than once to ensure I have correctly heard and understood what the defendant said.

36.  At the beginning of the defendant’s evidence the defence submitted the Defence Exhibits Bundle, exhibits A-L[27]. The defence also produced the annual returns of China Star Light Charity Fund Association (defence exhibit M); Wincastle International Limited (defence exhibit N) and Charter Fine Strategies & Management Limited  (“Charter Fine Strategies”) (defence exhibit O) [28].

37.  The defendant aged 57, was born in Malaysia and is married and has three children.  The defendant is the president of De’ Crystal Oil SDN BHD, a family business in Malaysia trading in palm oil and petroleum products.  The defendant is also the president of Aerocosmos SDN BHD, another Malaysian company. 

38.  Over the past few years the defendant and her companies have been involved with many charities in Malaysia, including making donations to charities for orphans, single mothers, the homeless. 

39.  Letters acknowledging these donations have been produced (defence exhibit C1-C4) together with photographs (defence exhibit C5) showing the defendant attending a function where monies were donated to charities for orphans and single mothers.

40.  The defendant also donates money to her mosque. 

41.  Aerocosmos also donated money to the university of Malaysia and the university of Zurich for microgravity and cancer medicine research.  With the help of Wong Leung Hang (“Martin Wong”), the defendant’s business partner in Hong Kong and shareholder of Aerocosmos, US$2 million was raised. 

42.  A newspaper article and photographs have been produced showing the defendant and her husband, who is the chairman of Aerocosmos, attending meetings in connection with this donation (defence exhibit B).  

Bebot

43.  The defendant explained that she had been the president of De’ Crystal Oil for the past 25 years during which time she became friends with many people abroad. 

44.  Through her active involvement in the donation programmes the defendant became friends with a lady from the Philippines, whose nickname was “Bebot”.   The full name of Bebot is Wenifreda T. Efe[29], who was an ex-bank officer in the Philippines.   

45.  The defendant had known Bebot for the past ten years.  When the defendant visited the Philippines Bebot would look after her and likewise the defendant would look after Bebot when Bebot visited Malaysia.   The defendant regarded the relationship as close, like family friends. 

Nida Yap

46.  In mid-December 2017 Bebot mentioned to the defendant that she had a friend named Nida G. Yap (“Nida Yap”) who had a very close relationship with high level people in the Sentral Bank of the Philippines who managed the Heritage Fund belonging to the late President Marcos. 

47.  On hearing this the defendant recalled that the late President Marcos had a lot of assets abroad and that news spread around that the Philippines government had frozen those assets[30].

48.  In cross-examination the defendant said she was not surprised when she first found out the amount was €1,000,000,000.00 Euros because there were cases in Malaysia where politicians had large amounts of money suspected to have been obtained by corruption. 

49.  Bebot connected the defendant to Nida Yap who explained more detail about the Heritage Fund of the late President Marcos.  Nida Yap said that the fund was now under the control of the Sentral Bank because the fund had been frozen by the Philippines government. 

50.  Nida Yap told the defendant that the bank arranged the Heritage Fund for the humanitarian/donation projects for poor people but this must be through traders or associations that fully understood about the Heritage Fund.  Nida Yap then sent some emails to the defendant concerning donations already arranged by her through other companies[31].

51.  In order that the defendant could believe in what Nida Yap was saying, the defendant asked Bebot about the background of Nida Yap.  Bebot told the defendant that Nida Yap owned a company in which she acted as a company secretary whose duty was to register new companies and that the company was also an audit firm. 

52.  The defendant trusted Bebot, who she had known for ten years, and believed what Bebot told her about the background of Nida Yap was true and that Nida Yap was connected to high level people in the Sentral Bank.

53.  In cross-examination the defendant said that she never met Nida Yap and that she did not make any personal enquiries herself about the Heritage Fund.  The defendant said that she trusted Bebot, a long-time friend and ex-banker, was telling the truth. 

Martin Wong

54.  The defendant did not really understand what Nida Yap was talking about because the Heritage Fund was new to the defendant.  The defendant therefore asked Martin Wong, her business partner in Hong Kong, who she knew also worked with the China government under Charter Fine Strategies to build the oil tank farm in Maoming Port in China[32].

55.  The defendant had known Martin Wong for about ten years.  Because of their relationship in the oil business during those years, Martin Wong decided to be the business partner of the defendant in Aerocosmos and became a shareholder when the company was registered on 12 February 2014.

56.  Martin Wong told the defendant that he had high ranking people working in the Bank of China who could help him check the background of the account of the Heritage Fund of the late President Marcos.  When Martin Wong informed the defendant that the information from Beijing was that the late President Marcos did have an account with a huge amount of money and gold in the Bank of China and that the account had been frozen, the defendant believed what Nida Yap had told her was true.    

57.  The defendant therefore asked Martin Wong whether he had a way in which to do the donation for humanitarian project.  Martin Wong said he would check with the Bank of China headquarters in Beijing.  After one-week Martin Wong said he had found a company/association which understood the Heritage Fund and which always do the donation programme.  Martin Wong did not at this stage tell the defendant the name of the company/association. 

58.  In cross-examination the defendant said that Martin Wong was not friends with Bebot or Nida Yap and did not know Bebot or Nida Yap. 

59.  The defendant then informed Nida Yap that a channel had been found to handle the Heritage Fund of the late President Marcos.  Nida Yap said to continue with the project the defendant needed to pay bank charges for the Sentral Bank to produce the check.  The defendant therefore paid the bank charges (defence exhibits D3 & D4)[33].

60.  In cross-examination the defendant said that there was only one time she paid bank charges but that she divided the payment into two payments because she wanted to see a copy of the check before making the full payment.  After  Nida Yap sent the check by DHL the defendant paid the balance of the bank charges[34].  The defendant said she paid the bank charges to Nida Yap because Nida Yap was the person who handled the transaction. 

61.  Nida Yap told the defendant that one of the requirements of the Sentral Bank was that there be a proxy.  Martin Wong advised the defendant that because De’ Crystal Oil had been established for twenty-five years he wanted De’ Crystal Oil to be the proxy.  The defendant accepted the advice of Martin Wong because she trusted him.  The defendant then told Nida Yap the check was to be in the name of De’Crystal Oil.  Nida Yap agreed that De’ Crystal Oil be the proxy and proceeded to prepare the documentation.

62.  In cross-examination the defendant said that when Nida Yap telephoned her telling her about the Heritage Fund of the Late President Marcos, Nida Yap said the money could only be liquidated through humanitarian project and needed a proxy.

29 December 2017

63.  On 29 December 2017 Nida Yap sent some documents by email to the defendant, which the defendant forwarded the same day to Martin Wong. The defendant identified the documents at pages 31-37 of the defence bundle[35].

64.  Before forwarding the documents to Martin Wong the defendant went through the documents.  The defendant did not understand the documents because this was the first time she had seen this type of document.  The defendant therefore called Nida Yap asking her to explain all the documents. 

65.  The defendant first asked Nida Yap why her name was on the documents as c/o.  Nida Yap explained that as the proxy of the account holder of the bank was De’ Crystal Oil, the defendant’s name as the representative of the company was required to handle the project.  Nida Yap said that if the defendant’s name was not there and the authority found out she was holding the documents they might think she had stolen them from someone.

66.  Nida Yap explained that according to the Guidelines and Procedures for all Beneficiaries of Heritage Funds the transfer of the money must be by SWIFT internationally to the account of the end beneficiary of the donation and not an over the counter cash transaction[36]. The beneficiary must also have approval from their own country authority under Money Laundering Act to receive that amount of money.

67.  Nida Yap explained the funds were genuine and authentic and were clean and of non-criminal origin[37]; the funds belonged to the late President Marcos and the owner of the account was Grand Holdings Inc through its director Roberto S Benedicto, who was one of the Marcos family[38];and that the account was investment deposit and gold bullion which was legally earned and beneficially owned[39].

68.  Nida Yap also explained that the Bank of China had confirmed the check had been issued by them[40]; and that the check was issued from a check book which Roberto S Benedicto had paid the bank charges for in 1987[41].

69.  This was the first time in 25 years of business that the defendant had seen a cashier’s check with name of two branches of the bank on the check.  The defendant therefore asked Nida Yap why Bank of China (Hong Kong) was on the top of the check and Bank of China, Singapore was on the bottom of the check.  Nida Yap explained that the check was from Hong Kong and that the fund was not for cash and could only be transferred by SWIFT from Singapore. 

70.  In cross-examination the defendant said that apart from asking Nida Yap she did not ask any banks in Malaysia whether the cashier’s check was genuine because the check was issued in Hong Kong and was therefore not under the area to be checked by Malaysian banks. 

71.  The defendant did not think that Nida Yap’s explanation was logical therefore she forwarded the documents to Martin Wong and asked him to verify the documents with the connections he had with top level officers in the Bank of China in both Beijing and Hong Kong. 

Selena Chan

72.  Martin Wong forwarded the documents to Selena Chan and a representative of the association.  The defendant explained that Selena Chan was Chan Ngam Chung who was arrested by the police and that Martin Wong told her Selena Chan was the connection with the association. 

73.  The email sent by Martin Wong is produced as defence exhibit E1[42].  The defendant said that Martin Wong told her that the email address 1020191885@qq.com was the email address of the representative of the association.  The email was also cc to Andrew Lam, who the defendant said was the staff of Martin Wong, a manager of Charter Fine Strategies. 

74.  The defendant still did not know who the association was and explained that over the ten years of working with Martin Wong her business ethic normally was only to communicate with Martin Wong and not to cross-over to know who Martin Wong was dealing with. 

31 December 2017

75.  On 31 December 2017 the defendant called Martin Wong to ask the progress.  Martin Wong told the defendant that the account of the Heritage Fund was genuine and that he will arrange a receiving party who are involved in donation programme under humanitarian project. 

76.  The defendant still did not know the name of the receiving party and told Martin Wong that the Philippine side needed to know the name and the account number of the receiving party and to see the draft agreement showing how the fund was to be distributed.   

77.  On the same day Martin Wong sent an email with a draft Appendix 1, Donation Agreement (“Appendix 1”) and a draft Donation Agreement (defence exhibit E2)[43].  Martin Wong told the defendant that the receiving party (Party B) had drafted the agreements.

78.  The name of Party B was not mentioned in the draft Appendix 1, (clause 2)[44].  The defendant explained that because this was only a draft Martin Wong did not tell her the name of Party B[45]. The defendant said she did not know Wang Yi Jun, the co-ordinator/consultant of Party A mentioned in clause 3.  The defendant said she just knew Martin Wong and Selena Chan. 

79.  The draft Appendix 1 shows the distribution of the funds between Party A and Party B.  Party A was to receive 80% of the funds and Party B 20%. 

80.  The defendant explained that 50% of the funds paid to Party A (clause 1.1) would be allocated between the defendant, De’ Crystal Oil and Martin Wong. 36.6% of the funds was to be paid into the defendant’s account which money the defendant said was to be sent back to the Philippines and used for humanitarian projects managed by her.  Later in evidence when the court asked who she sent the money to, the defendant replied that the money would be sent to Nida Yap as she was the proxy for the account holder to receive the money in the Philippines[46].   

81.  5% of the funds was for De’ Crystal Oil and was to be paid into the account of her son Khairil Anuar Bin Zainuddin, who was a director of De’ Crystal Oil; and 8.4% of the funds was for Martin Wong’s company Charter Fine Strategies. 

82.  The defendant also explained that 30% of the funds paid to Party A was to be paid to Wincastle International Limited (clause 1.2), which the defendant said was the account of Selena Chan[47].

83.  In cross-examination the defendant said Bebot would receive 5% of the fund.

84.  After cross-examination the defendant further explained to the court the distribution of the funds, including the shares of De’ Crystal Oil, Martin Wong and Selena Chan[48]. The defendant said that out of the 36.6% paid to her 5% would be for Bebot and 5% for Nida Yap. 

85.  The defendant said according to the Donation Agreement only 17% of the monies would be for the charity China Star.  Asked by the court whether she was surprised that the charity would only receive 17%, the defendant replied that when she first saw the agreement she was surprised and therefore asked Martin Wong why Selena Chan received so much.  Martin Wong told the defendant that Selena Chan would donate the money to another humanitarian project in China. 

2 January 2018

86.  The defendant sent the draft agreements to Nida Yap to see if they were acceptable to the account holder Roberto Benedicto.  The account holder agreed the draft agreements and therefore Nida Yap arranged to courier the original bank documents to the defendant.  The defendant received the documents on 2 January by DHL and scanned copies to Martin Wong the same day by email (defence exhibit E3)[49].  Martin Wong sent the documents to Selena Chan for her to talk to Party B and to go through Appendix 1. 

3 January 2018

87.  On 3 January 2017 Martin Wong informed the defendant by email that the ‘head guy’ was to be changed and sent the defendant a revised version of the agreements (defence exhibit E4)[50]. After going through the revision the defendant informed Martin Wong by email that she agreed the terms of the revision (defence exhibit E5)[51]. 

88.  The defendant on seeing the name of Party B was still not mentioned told Martin Wong that she would not sign the agreements until she knew the name of Party B.  Martin Wong told the defendant the name of Party B will be given by Selena Chan in the final version and asked the defendant to sign the draft Appendix 1, first. 

89.  The defendant therefore signed the draft.  The defendant only signed the draft Appendix 1 because the draft Donation Agreement required amendment.  The defendant signed draft Appendix 1 (defence bundle pages 53-56) electronically[52]. 

90.  In the evening of the same day Martin Wong sent the defendant the final version of the agreements (defence exhibit E6)[53]. The defendant agreed the terms of the final version. 

91.  Martin Wong also sent by email draft agreements setting out the terms of his co-operation with the defendant and the co-operation between the defendant and Selena Chan for the defendant to go through (defence exhibits E7 and E8)[54].  The defendant agreed the terms of the co-operation agreements. 

92.  Later in the evening Martin Wong sent a further revision of Appendix 1 because there was a mistake in the account of Selena Chan (defence exhibit E9)[55].  The email was also cc to the representative of Party B.

4 January 2018

93.  Martin Wong communicated with Selena Chan and Party B regarding verification of the documents by Party B as required by the Donation Agreement.  Martin Wong cc to the defendant the email he sent to Party B (defence exhibit E10)[56].

94.  At the end of the defendant’s evidence, the defendant produced WhatsApp messages with Nida Yap and Martin Wong concerning verification of the documents (defence exhibit J)[57], including Martin Wong asking questions about verification, Nida Yap’s reply to the defendant which was forwarded to Martin Wong and the defendant asking Martin Wong if Party B had verified the documentation[58]. 

5 January 2018

95.  On January 5 Martin Wong sent copies of the Donation Agreement and Appendix 1 for the defendant to sign[59]. The agreements showed the name of Party B, China Star Light Charity Fund Association (“China Star”)[60].

96.  Martin Wong asked the defendant to sign first.  Martin Wong said that because China Star was a very high end charity who wished to ensure there was no mistake or fraud before signing they refused to sign before the defendant signed and before they had verified the documents.  Martin Wong said China Star would sign after three days on 8 January. 

97.  The defendant signed first electronically and sent the documents back to Martin Wong (defence exhibit E11)[61].

8 January 2018

98.  The defendant referred to page 71 of the defence bundle and said that Mr Lo Suk Ching on behalf of China Star on 8 January 2018 signed electronically the Donation Agreement and Appendix 1 (defence bundle pages 72-74).     

99.  After receiving copies of the signed Donation Agreement and Appendix 1 from Martin Wong by email on 8 January the defendant was confident that China Star had done the verification and because she had known Martin Wong for ten years believed that she was dealing with the correct person[62].

Hong Kong

100.  After both parties had signed Martin Wong said the defendant needed to go to Hong Kong to meet the China Star people on 10 January to sign the original agreement face to face.  The defendant came to Hong Kong on 8 January together with her son Khairil Anuar Bin Zainuddin.

101.  The defendant checked into the Best Western Hotel which had been paid for by Martin Wong.  At the end of the defendant’s evidence, the defendant produced WhatsApp messages with Martin Wong concerning the defendant coming to Hong Kong (defence exhibit J)[63].

102.  In the evening Martin Wong invited the defendant and her son to meet Selena Chan for dinner.  The defendant showed the original documents she received by DHL from Nida Yap to Martin Wong and Selena Chan to check. 

103.  Selena Chan told the defendant that China Star had already checked with their bank that the documents were genuine and were aware that the late President Marcos had assets in Hong Kong bank.  Selena Chan said that a meeting was set up with the chairman of China Star to sign the agreement on 10 January as the signature before was only electronic signature.  Selena Chan told the defendant to keep the documents and to hand over the check after signing on 10 January.

9 January 2018

104.  On 9 January the defendant, Martin Wong and Selena Chan signed the co-operation agreements[64]. The defendant referred to a signed copy of the co-operation agreement with Martin Wong which shows the date of signing was 3 January[65].  The defendant explained that 3 January was the date the draft was sent to her by Martin Wong but the actual date of signing was 9 January[66].

105.  The defendant also referred to a copy of the co-operation agreement with Selena Chan which is not signed[67]. At the end of her evidence the defendant said that prior to dinner on 9 January Martin Wong sent her by email a draft of the co-operation agreement with Selena Chan to read through and check before the dinner[68].  The agreement was signed at the dinner. 

106.  The defendant explained that the original co-operation agreements were inside her bag when she was arrested by the police.  The defendant said that the police seized her bag and her phone in the bank[69]. In answer to the court the defendant said that the police returned her bag and phone in April 2018 but not the documents inside her bag. 

107.  In the evening Selena Chan told the defendant that China Star understood that the fund was to be received by SWIFT from Singapore and were aware that they needed the approval under Money Laundering Act to receive that amount of money.

10 January 2018

108.  On the morning of 10 January Selena Chan informed the defendant that the chairman of China Star wanted to see her but her son and Martin Wong were not allowed to join the meeting.  Martin Wong sent the defendant to Admiralty MTR station where she met Selena Chan and three representatives of China Star, two Chinese females and one Chinese male.    

109.  The Chinese male guided the defendant and Selena Chan to the office of China Star. The Chinese male introduced the defendant to the vice chairman and two members of the board. 

110.  The vice chairman, who spoke some English, explained to the defendant that the association had been involved in charity for the past twenty years and gave the defendant a pamphlet about their 20-year anniversary.  The vice chairman also showed the defendant an article from a local newspaper about the activities of the association.  The vice chairman convinced the defendant the association was the right party to receive the donation. 

111.  The defendant asked the vice chairman if he was aware of the Heritage Funds of the late President Marcos.  The vice chairmen said the association was familiar with the Heritage Fund and had successfully dealt with the Heritage Fund in China and Taiwan.  The vice chairman also said that their association is back up by the China government. 

112.  The original Donation Agreement (exhibit P7) was then signed by the Chairman and the defendant.  The date of the agreement was 8 January, the date when the electronic signatures were made.  The defendant explained by signing on 10 January this confirmed the electronic signatures on 8 January were genuine.  The defendant also signed Appendix 1 (exhibit P5).

113.  A further agreement in Chinese was then printed out showing the distribution of the money.  Selena Chan translated the document to the defendant (defence exhibit F3)[70]. After the defendant understood the content of the document she signed and put her thumb print on the document. 

114.  After signing the agreement, the defendant handed over to the chairman the full set of bank documents sent to her by Nida Yap.  The vice chairman confirmed he fully understood the terms of the agreement, the distribution of the money and that the association could only receive the fund by SWIFT. 

115.  A photograph (defence exhibit H[71]) was then taken with the defendant’s phone by the staff of the association showing the defendant with the chairman on her right and Selena Chan on her left.  Next to Selena Chan was the vice chairman and the Chinese male who met the defendant at Admiralty.  Next to the chairman were the two board members of the association.

Bank of China

116.  After the photograph was taken the vice chairman gave the documents to the Chinese male who the defendant had met at Admiralty.  Selena Chan then said the vice chairman invited the defendant to go to their bank.  The defendant asked Selena Chan why she needed to go to the bank.  Selena Chan explained that the chairman wanted the defendant to go to the bank and confirm with a bank officer that China Star had an account with that branch and had approval to receive this amount of money[72].

117.  The defendant went to the bank together with Selena Chan and the Chinese male who she met at Admiralty.  The defendant described what happened in the bank by reference to still photographs taken from CCTV footage in the bank (defence exhibit I (1) - I (7)) [73].

118.  I (1) shows the defendant, Selena Chan and the Chinese male outside the bank.  I (2) is when Selena Chan is telling the defendant that they need to queue up at a teller counter.  At this time the original bank documents the defendant gave in the office to China Star were with Selena Chan.  The defendant refused to queue up and took back the documents from Selena Chan’s hand telling Selena Chan that she was only there to obtain confirmation from a bank officer and not for an over the counter transaction.

119.  Selena Chan said she would talk to the bank officer again.  The defendant saw Selena Chan talking to a bank officer.  Selena Chan then told the defendant that the bank officer wanted to look at the documentation.  I (3) is the time when Selena Chan tells the defendant the bank officer wanted to look at the documentation.  

120.  The defendant again told Selena Chan this was not a cash transaction.  Selena Chan said the bank officer just wanted to look at the documents in order to explain to the defendant what is the procedure for the SWIFT.  The defendant then took out the full set of documents from her bag and gave them to Selena Chan. Selena Chan gave the full set of documents to the bank officer.  Selena Chan then told the defendant to sit down for a while and wait for the bank officer to come back.

121.  I (4) is the time when Selena Chan shows the documents to the Chinese male who went with them to the bank.  I (5) is when Selena Chan is talking to a bank officer behind a reception counter.  I (6) shows the defendant standing in the corner of the bank while Selena Chan and the Chinese male go to another counter.  I (7) shows the defendant approaching a bank officer who she asked how long she had to wait to see the bank officer.  The bank officer just told the defendant to wait. 

122.  After waiting for a long time the police suddenly arrived and arrested the defendant, Selena Chan and the Chinese male.  The police took them into a room inside which were the two Chinese females the defendant had met earlier in the morning at Admiralty. 

123.  While the police were talking to Selena Chan the defendant called Martin Wong to ask why they were arrested.  Martin Wong was shocked and told the defendant not to worry and relax.  Martin Wong said that he would arrange for her son to visit her in the police station and for the chairman of China Star to go to the police station and explain there was a misunderstanding by the bank. 

124.  The defendant also managed to send a WhatsApp message to Nida Yap telling her she had been arrested because the police said the cashier’s check was fake.  Nida Yap replied the check was genuine (defence exhibit J)[74].  When the police saw the defendant using her phone they told her to switch off the phone.  The police then took the phone from the defendant. 

125.  Other than telling the defendant to switch off her phone the police did not talk to the defendant.  Apart from giving her passport to Selena Chan to give to the police, the defendant did not produce any other documents to the police in the bank.  The defendant was then taken to the police station. 

126.  In cross-examination when asked what she intended to do with the cashier’s check the defendant replied that the cashier’s check was for China Star to understand the amount they were going to receive by SWIFT from Singapore.  When the question was repeated the defendant said that the check was to be given to China Star for their next action and was not to be given to the bank. 

127.  When asked what China Star was to do with the check the defendant said that China Star was supposed to wait until she sent the agreement to the Sentral Bank side and the money was sent by SWIFT to their account.  The defendant repeated that the check was only to show how much China Star was to receive and was not to be cashed at the bank.  When asked how China Star would use the check the defendant said that the vice chairman understood this was like a “mock” check.

Bank account with the Bank of China

128.  The defendant concluded her evidence by telling the court that previously when she came to Hong Kong she opened a bank account with the Bank of China.  The defendant said the bank account was opened to facilitate payments made by Martin Wong and clients. 

129.  The defendant produced a copy of the Account Opening Application Form and Financial History Transaction List (defence exhibit L)[75].

130.  The defendant remembered opening the account in 2017 but could not remember the exact date.  In answer to the court, after being referred to the Financial History Transaction List the defendant said she believed that she opened the account on 24 November 2017 the same day she deposited $3,000 in the account.  The defendant said there was also a multi-currency account in which she deposited $500.  The defendant confirmed there were no other transactions in the account before she was arrested. 

Discussion

131.  I have carefully considered all the evidence and the submissions of Mr Donald and Mr Tsoi[76].

132.  I have no hesitation in rejecting the defendant’s evidence.  I do not find the defendant’s evidence credible, for example I do not find credible the defendant’s evidence as to the circumstances in which she came to obtain the forged cashier’s check and supporting documents.

133.  I do not find credible the defendant was asked by Nida Yap, someone she had never met, to act as a proxy for the account holder of funds which belonged to the late President Marcos and had been frozen by the Philippine government and managed by the Sentral Bank of the Philippines for humanitarian projects.

134.  I find inherently improbable that if funds were frozen by the Philippine government and managed by the Sentral Bank of the Philippines for humanitarian projects that the bank would endorse the defendant, someone they had never met and who lived in Malaysia, to enter into an elaborate scheme where €1,000,000,000.00 Euros was allocated between various parties with only 17% for the charity[77].

135.  It beggars belief that if funds were frozen by the Philippine government and managed by the Sentral Bank of the Philippines for humanitarian projects that the bank would not deal directly with the charity, in particular where the amount involved was €1,000,000,000.00 Euros.

136.  I do not find credible the defendant’s evidence that she came to Hong Kong to sign the Donation Agreement and Appendix 1 and that the cashier’s check was not for presenting to the bank but only to show China Star the amount of money to be sent to them by SWIFT.  

137.  It beggars belief that the only purpose of the cashier’s check was to show China Star the amount that was to be sent to them by SWIFT and not for presenting to the bank. 

138.  In reaching this finding I have carefully considered the evidence of DPC 11065 (PW5) who was tendered for cross-examination.  DPC 11065 said that he arrested Chan Ngam Chung (Selena Chan) for using a false instrument and conducted a record of interview.  Under caution Selena Chan said she only did translation and knew nothing about the other.  During the interview Selena Chan, inter alia, said she had never seen the cashier’s check; they went to the bank to cash the check and that since the bank staff knew English they communicated directly with the defendant.

139.  Mr Tsoi submits that Selena Chan having told the police about the defendant talking to the bank staff, which is in direct contradiction to the evidence of the bank staff, the court should find that Selena Chan lied when she told the bank staff the defendant wanted to bank in the cashier’s check[78] . 

140.  I have no hesitation in rejecting this submission.  I accept the submission of Mr Donald that the Chinese female (Selena Chan) accompanying the defendant would not have done anything contrary to what the defendant wanted[79].  The fact that Selena Chan may have downplayed her role when interviewed by the police does not cause me to doubt the findings I have made.

141.  I do not find credible the defendant’s evidence she believed that the cashier’s check was genuine. 

142.  The cashier’s check being false all the supporting bank documents purportedly issued by the Bank of China and Bangko Sentral Ng Pilipinas and confirming the authenticity of the cashier’s check (exhibits P3, P4 & P9) are also false. Mr Cheng (PW3) also stated that exhibit P3 was not issued by the Bank of China[80]. 

143.  Mr Chan and Mr Cheng both spoke of the poor quality of the printing of the cashier’s check.  Mr Chan and Mr Cheng also said that there would not be two issuing banks named on the check, something which the defendant said she had not seen in 25 years of business[81].

144.  The supporting documents are also of poor quality, for example the letter of confirmation (exhibit P3), which Mr Cheng said was not issued by the Bank of China, has different fonts/font sizes as between the first paragraph and the last two paragraphs; the letter of confirmation from the Governor of the Bangko Sentral Ng Pilipinas (exhibit P4) purports to be certified, guaranteed and confirmed by the Treasury Department on 10/27/2017, a date two months prior to the date of the cashier’s check and the certification by the Governor[82]; and  the certificate of Origin and History of Funds (exhibit P9) also has different fonts/font sizes, for example the first line of clause 1 is different to the second and third lines.

145.  I find that the quality of the cashier’s check and supporting documents is not what would be expected of banks issuing and certifying cashier’s checks of €1,000,000,000.00 Euros and that anyone with some common sense, let alone an experienced business man or woman, looking at the documents would realise that they were not genuine.    

146.  Further, I find inherently improbable that persons embarking on a criminal enterprise involving the use of a false cashier’s check to the value of €1,000,000,000.00 Euros would entrust the assistance of another person to go to Hong Kong with the forged cashier’s check and supporting documents in that person’s name, let alone someone they had never met, unless that person was a party to the criminal enterprise to use the false cashier’s check and supporting documents knowing or believing that they were false[83].

147.  In rejecting the defendant’s evidence I have carefully considered the submission of Mr Tsoi that the defendant’s evidence is supported by the emails, the agreements and the WhatsApp communications[84].

148.  I have no hesitation in rejecting this submission.  The Donation Agreement specifically refers to the number of the forged cashier’s check CC 182507 and the amount of €1,000,000,000.00 Euros (Part 1, clause 2).  The Donation Agreement also refers to the letter of confirmation purportedly issued by the Bank of China (Part 3, clause 3-i) which Mr Cheng said was not issued by the Bank of China.  Appendix 1 refers throughout to a cashier’s check.  The signed co-operation agreement (defence exhibit G1) also specifically refers to the number of the forged cashier’s check CC 182507 and the amount of €1,000,000,000.00 Euros (clause 1). 

149.  I am satisfied that the documentation adduced by the defence was entirely contrived to give an appearance of a legitimate transaction involving a charity.  The agreements, the emails and the WhatsApp communications do not cause me to doubt the findings I have made. 

150.  I remind myself that the rejection of the defence evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  The burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Statements attributed to the defendant

151.  PC 24763 (PW4) also testified about the enquiries he said he made of the defendant in the bank.  PC 24763 said that he asked the defendant the purpose she took the check to the bank and the origin of the check.  The defendant told PC 24763 that the check was from the Sentral Bank of the Philippines.  Mr Donald informed the court that the prosecution did not rely on the answers given by the defendant to PC 24763’s enquiries and that the evidence was adduced out of fairness to the defendant. 

152.  Mr Tsoi submits that PC 24763 was not telling the truth[85]. This is a somewhat surprising submission considering that the prosecution did not rely on the answers given by the defendant and when Mr Tsoi cross-examined PC 24763 he put to PC 24763 what else the defendant told him, namely that she intended to deposit the cheque in the account of Crystal Oil as a charitable donation. 

153.  After PC 24763 had finished his evidence and was released Mr Tsoi applied to recall the witness to put the defence case.  PC 24763 disagreed that he did not make any enquiries or ask the defendant any questions in the bank.  In oral submissions Mr Tsoi explained that when initially cross-examining PC 24763 he had made a mistake.

154.  I accept the evidence of PC 24763, however, the prosecution not relying on the answers given by the defendant I place no weight on this evidence. 

Falsity

155.  Admitted in evidence is that the cashier’s check (exhibit P1)was a forgery and that the Bank of China (Hong Kong) Limited never issued the cashier’s check[86].  I also accept the evidence of Mr Chan and Mr Cheng of the irregularities they found in the cashier’s check.   I am satisfied so I am sure the cashier’s check is a false instrument[87].

156.  The cashier’s check being false all the supporting bank documents purportedly issued by the Bank of China and Bangko Sentral Ng Pilipinas and confirming the authenticity of the cashier’s check (exhibits P3, P4 & P9) are also false. Mr Cheng (PW3) also stated that exhibit P3 was not issued by the Bank of China[88]. 

Using a false instrument

157.  I accept the unchallenged evidence of Ms Li and Mr Chan as to what happened when the defendant went to the bank.  On this evidence I am satisfied so I am sure that the defendant used the cashier’s check.

Knowing or believing the cashier’s check was false

158.  There is no direct evidence that the defendant knew or believed the cashier’s check was false. 

159.  Taking into account: 

(i) the amount of the cashier’s check is €1,000,000,000.00 Euros[89];

(ii) the poor quality of the printing on the cashier’s check;

(iii) the name of two branches of the same bank, one in Hong Kong and one in Singapore, were named on the cashier’s check;

(iv) the poor quality of the supporting documents; and

(v) the inherent improbability that persons embarking on a criminal enterprise involving the use of a false cashier’s check to the value of €1,000,000,000.00 Euros would entrust the assistance of another person to go to Hong Kong with the forged cashier’s check and supporting documents in that person’s name unless that person was a party to the criminal enterprise to use the false cashier’s check and supporting documents knowing or believing that they were false,

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 cashier’s check was a false instrument.

Using the cashier’s check with the intention of inducing the bank staff to accept the cashier’s check as genuine and by reason of so accepting to do or not to do some act to their own or any other person’s prejudice (the “double intention”)

160.  Mr Tsoi submits that there was no sufficient evidence to support that the defendant was using the cashier’s check to bank in the money or transfer it to the bank account[90]. I have no hesitation in rejecting this submission. 

161.  I accept the evidence of Ms Li (PW1) that the Chinese female (Chan Ngam Chung), who was accompanying the defendant, asked where the cashier’s check could be cashed and the evidence of Mr Chan (PW2) that the same Chinese female said they had a cashier’s check which needed to be banked in or transferred and while waiting said they wanted to use the money as soon as possible[91]. 

162.  I accept the evidence of Mr Cheng (PW3) in cross-examination that a cashier’s check could not be cashed and could only be deposited into an account[92]. 

163.  Taking into account that the defendant gave to the bank staff the cashier’s check on which her name was printed as c/o the payee, the only inference to draw is that the defendant used the cashier’s check intending to induce the bank staff to accept the cashier’s check as genuine and by reason of so accepting intended the bank staff to do or not to do some act to their own or any other person’s prejudice as that term is defined in section 70 of the Crimes Ordinance.   

164.  Whether or not the actual aim of the defendant was to cash the cashier’s check or bank in the cashier’s check in the bank account she opened less than two months earlier on 24 November 2017 (defence exhibit L), the defendant was clearly taking a deliberate risk in the hope the falsity would not be discovered too soon.  It is not for the court to speculate as to the actual reason why the defendant came to Hong Kong and presented the cashier’s check to the staff of the Bank of China[93].

165.  The submission of Mr Tsoi does not cause me to doubt the only inference to draw is that by presenting the cashier’s check to the bank staff the defendant used the cashier’s check intending to induce the bank staff to accept the cashier’s check as genuine and by reason of so accepting intended the bank staff to do or not to do some act to their own or any other person’s prejudice   

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

167.  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.