HKSAR v. MARCOS TIBURCIO VILLAMOR TAN

CACC 144/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 144 OF 2002

(ON APPEAL FROM DCCC 567 OF 2001)

______________

______________

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

1. On 21 February 2002, the Applicant was convicted, following a trial in the District Court before Deputy Judge Livesey, of using a copy of a false instrument (charge 2) and copying false instruments (charges 3 and 4), contrary to sections 74 and 72, respectively, of the Crimes Ordinance, Cap. 200. The Applicant was sentenced to a total of four years' imprisonment on these charges. The Applicant was also convicted on charge 1 of being in breach of his conditions of stay but, as no complaint has been made in relation to that conviction, we do not need to say more about it.

2. The Applicant now seeks to renew his application for leave to appeal against conviction on the three charges under the Crimes Ordinance, leave having been refused before the single judge on 3 September 2002.

3. The circumstances were, as Mr Martin Hui on the Respondent's behalf rightly described them in his written response to this application, somewhat bizarre. The Applicant claimed to be the son of the late former President of the Philippines, Ferdinand Marcos. On two separate occasions in March 2001, the staff of Hongkong and Shanghai Banking Corporation (HSBC) were approached by two Germans, Messrs Kenntoff and Lipp, who were apparently acting as agents for the Applicant. Copy documents (exhibits P20, 21, 31 and 33) purporting to be issued by HSBC were faxed to the bank by them. Amongst these documents were an HSBC Custodial Safekeeping Receipt (P20) in a sum of just over US$36 billion relating to an account purportedly held by a William V. Morales with the HSBC (the subject matter of charge 3) and an HSBC Insurance Certificate (P31) in the sum of US$54 billion also purportedly held by William V. Morales (the subject matter of charge 4). Both of these two copy documents formed the subject matter of charge 2.

4. Bank personnel were suspicious of these documents and police were alerted. Subsequent police investigations led to the arrest of Messrs Kenntoff and Lipp in a hotel in Yaumatei. Police found exhibits P20 and P21 (a copy of P31) in Kenntoff's room. The Applicant was arrested in a hotel in Tsimshatsui. In the Applicant's hotel room, the police found, amongst other things, documents, including exhibits P31 and P33 (a copy of P21) and stamps which provided a direct link to the false copy documents submitted by fax to HSBC. The Applicant's fingerprints were found on exhibit P20, one of the documents seized from Kenntoff's hotel room.

5. The Applicant represented himself at trial and called a witness (DW2) to give evidence about his (the Applicant's) identity. This evidence, identifying the Applicant as the son of Ferdinand Marcos, was hearsay in its nature.

6. The main issue at trial related to the authenticity of the documents (Exhibits P20, 21, 31 and 33) which were the subject matter of charges 2 to 4.

7. The prosecution called HSBC staff members, a fingerprint expert, a document examiner and the police who arrested and interviewed the Applicant and who seized the exhibits. The judge accepted the prosecution's evidence when concluding that the copy documents which were the subject of charges 2 to 4 were false. In particular, she found that the false documents had emanated from the Applicant who had knowledge about their falsity. The Applicant had physical possession of documents and stamps (or chops) which were damning in themselves. The link between Messrs Kenntoff and Lipp and the Applicant, as well as fingerprint, handwriting, and other forensic evidence about the false chops found in the Applicant's possession, all combined to point the finger at the Applicant as the culprit responsible for these fake documents.

8. The judge found that the Applicant had been concerned in the making and copying of these false documents by affixing thereto the stamps found in the Applicant's hotel room with the intention, as specified in charges 2 to 4, of inducing somebody to accept them as genuine and, by reason of so accepting them, to do or not to do some act to his own or another person's prejudice. This virtually inevitable inference was one at which the judge arrived having assessed the Applicant's evidence to have been "totally unreliable and dishonest ...." and "confusing throughout".

9. The lack of clarity in the Applicant's case, about which the judge was complaining in her Reasons for Verdict, has spilled over into these proceedings. Mr Hui has described the Applicant's grounds of appeal as "unintelligible" although what seems to emerge from them is that the Applicant still seeks to support the authenticity of the documents by various meaningless statements.

10. In court today, the Applicant has said nothing of any relevance to these proceedings.

11. In our judgment, there was a wealth of evidence on which the judge was entitled to rely in coming to the conclusion that all of the charges were made out. Indeed, any contrary conclusion would have been extraordinary.

12. The application is dismissed.