HKSAR v. MORANO DAVID JR GUEVARRA

DCCC 215/2019

[2019] HKDC 1312

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 215 OF 2019

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REASONS FOR VERDICT

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

2.  The particulars of the offence read:

“MORANO David Jr. Guevarra, on the 29th day of October 2018, at The Hongkong and Shanghai Banking Corporation Limited, HSBC Main Building, No 1 Queen’s Road Central, Central, in Hong Kong, used instruments which were, and which he knew or believed to be false, namely:-

i. One “SAFEKEEPING RECEIPT NO. HSBC – 698822” in the name of DAVID G. MORANO JR. of $500,000,000,000.00 United States currency, dated 12 January 1983 purported to be issued by The Hongkong and Shanghai Banking Corporation Limited (“HSBC”);

ii. 4 cards in the name of DAVID G. MORANO JR. of $500,000,000,000.00 United States currency purported to be issued by HSBC; and

iii. 12 documents in the name of David G Morano Jr. of $500,000,000,000.00 United States currency purported to be issued by HSBC

with the intention of inducing SO Wing-yin, Winnie of HSBC to accept them as genuine, and by reason of so accepting them to do or not to do some act to her own or any other person’s prejudice.

Prosecution case

3.  The prosecution case in summary is that the defendant, a Filipino passport holder, came to Hong Kong and together with three other persons (Malaysian male named Tang, a Taiwanese male named Li and a Chinese female named He) went to HSBC Main Building, No. 1 Queen’s Road Central, where he presented documents including the false instruments particularised in the charge, knowing or believing them to be false, with the intention of inducing the bank staff to accept them as genuine and by reason of so accepting them to do or not to do some act to her own or any other person’s prejudice.   

Defence case

4.  When the charge was read to the defendant in court he replied “To my knowledge not false”.  The defendant electing not to give evidence relies on the explanation given in a video recorded interview that he did not know the documents in his possession were false, documents which President Marcos, before he passed away in 1989, had authorised the Marcos Foundation to issue and which were given to him by the Grand Advisory Council of the Ferdinand Marcos Cash Account [2].

Evidence

5.  The prosecution called one witness on the list of witnesses attached to the prosecution opening, namely: Ms So Wing Yun, Winnie (PW1), staff of HSBC. 

6.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance,[3] including the arrest of the defendant and the taking of the video recorded interview and seizure of exhibits.  I will refer to the admitted facts as I review the evidence.

7.  A trial bundle containing all exhibits seized, photographs and the video recorded interview was submitted to court. 

8.  The defendant elected not to give evidence and no witnesses were called on his behalf.  No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.  

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.  On the other hand, if the court thinks that any 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. 

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.  

Evidence of Ms So Wing Yun, Winnie

11.  In summary Ms So testified that she started working for HSBC in 1992.  Ms So is an assistant manager working on the 5th floor of the Main Building, No. 1 Queen’s Road Central. 

12.  At around noon on 29 October 2018 Ms So was asked to attend to four persons who had walked into the bank and were in the reception area of the 5th floor.  Ms So then took the four persons to an interview room on the 5th floor.

13.  Inside the room Ms So spoke to the defendant.  Ms So first verified the identity of the defendant.  The defendant showed Ms So his Philippines passport.  The other three persons were one male from Taiwan, one male who was probably from Malaysia and one female from Mainland China.

14.  The defendant and Ms So spoke in English.  Ms So said that she could speak English and could understand the defendant’s English.  Ms So could not however remember the exact words spoken in English and gave her evidence in Chinese. 

15.  The defendant said that he represented a Philippines frontline organisation.  The defendant showed Ms So some documents including a gold plate (exhibit P1)[4], four cards (exhibit P2 (a-d)) which Ms So thought the defendant wanted to use as supporting documents[5]and twelve documents (exhibit P3 (a-l))[6], all purporting to be issued by HSBC and requested the bank to make a certificate to the effect that he had some savings in the bank. 

16.  Ms So was of the opinion the gold plate (exhibit P1), the four cards (exhibit P2 (a-d)) and the twelve documents (exhibit P3 (a-l))were not genuine.  This evidence is discussed in more detail later when considering whether the prosecution have proved these are false instruments.

17.  Ms So also identified a colour print of the gold plate (exhibit P21)[7] and ten other documents shown to her by the defendant, including documents said to be from the Philippines, the United States and the United Nations which Ms So thought were probably trying to certify that the defendant was doing charity but she could not quite remember the exact content (exhibits P7-P16)[8].

18.  In answer to the court Ms So said she could not remember the sequence the documents were given to her or whether the documents were shown to her one by one or all at once. 

19.  In cross-examination Ms So was referred to paragraphs 3 and 4 of her witness statement which was made the following day, 30 October 2018[9].  Ms So agreed that she told the police that before the defendant showed her any documents he told her that he was a Filipino; that he had an account with HSBC, giving the account number and saying he had USD$ 500 billion in the account; that he came to Hong Kong hoping to get a certificate from HSBC proving ownership of the account and that there was USD$ 500 billion in the account so that he could return to the Philippines for charity and humanitarian work.

20.  Ms So also agreed that she told the police that after she asked the source of the money the defendant said that he was appointed by a Filipino state-owned charitable institution as the CEO and holder of the HSBC account and that he was not going to withdraw the money but may take the money later for charity work. 

21.  Ms So agreed that what she told the police in her witness statement was more likely to be an accurate account of what happened than what she could remember now in court. 

22.  After seeing all the documents Ms So checked the account number shown on the gold plate and some of the documents to see whether the account existed.  Ms So checked the bank’s computer system and found that the account number was not there. 

23.  In cross-examination Ms So said that before going to the interview room she had already checked on a computer in the reception area to see whether the account existed. 

24.  In answer to the court Ms So said that she checked whether the account existed twice, first in the reception area and second after the documents were shown to her in the interview room.  Ms So said that she checked both the account number and the name of the defendant.  The account number did not exist but Ms So could not remember whether any names popped up when she checked the defendant’s name[10].

25.  In cross-examination Ms So said that she did not tell the defendant the account did not exist.  Ms So explained that because the defendant was using documents bearing the HSBC logo she wanted to see if the defendant would produce further false documents which the bank could obtain.  Ms So agreed that because of past experience with other cases she wanted to see what documents the defendant had and if they were false to get hold of them and call the police.  

Arrest and seizure of exhibits

26.  The police were called and the defendant arrested.  Admitted in evidence is that the defendant was arrested by DPC 16462 inside the conference room on the 5/F of HSBC Main Building at about 13:10 hours on 29 October 2018.  Under caution for conspiracy to cheat the defendant replied in English, “It is totally Mr Tang’s idea” and later when he was cautioned again he said, “It’s Mr Tang asking me to bring those documents to HSBC today”[11].

27.  Admitted in evidence is that the police seized all the documents presented to Ms So (exhibits P1-P3, P7-P16 & P21), found in the defendant’s briefcase (exhibits P29-P61) and in his hotel room (exhibits P62-P150) [12]together with an annex (exhibit P151) particularising from where each exhibit was seized[13].  Of the documents presented to Ms So only the gold plate (exhibit P1)[14], four cards (exhibit P2 (a-d))[15]; and twelve documents (exhibit P3 (a-l))[16] are the subject of the charge[17]. 

Summary of the video recorded interview

28.  Admitted in evidence is that the next day, 30 October 2018, the defendant took part in a video recorded interview (exhibits P4 & P5)[18].  A table (exhibit P6) listing the documents shown to the defendant during the interview has also been admitted[19].

29.  The interview was conducted in Chinese with the assistance of a Chinese interpreter and a Filipino interpreter.  At times the defendant answered in English.  After repeating the arrest of the defendant and his replies under caution, the defendant was told he would be asked questions and reminded that he was still under caution (counters 142-189). 

30.  The defendant was interviewed about his education and occupation (counters 190-265); why he came to Hong Kong (266-320); his relationship with Mr Tang (counters 321-438); whether he knew Mr Li and Ms He who accompanied him and Mr Tang to HSBC (counters 439-525) and the purpose of going to HSBC (counters 526-586).

31.  The defendant was then shown the documents seized by the police.    The defendant was shown documents in a red folder (counters 575-1100); a blue folder (counters 1102-1283); a purple folder (counters 1284-1515); a transparent folder (counters 1516-1738); and a yellow folder (counters 1739-1937)[20].  The defendant was also asked about communications he had with Mr Tang prior to coming to Hong Kong (counters 1938-2165).

32.  In summary the defendant told the police that: 

(i) he attained college level education without graduating (counters 190-195);

(ii) he was a businessman who owns his own company in the Philippines called Maharleeka Construction Development Corporation, which name was on some of the documents seized by the police (see counters 202-260);

(iii) he often came to Hong Kong as a tourist and this time he came to Hong Kong from Manila on Sunday 28 October 2018 at the invitation of Mr Tang who rushed him to bring the documents to Hong Kong as arranged by the World Trade Organisation (see counters 266-320, 333-365 and 395-417);

(iv) he had no relationship with Mr Tang who he knew just over the phone; he did not know what business Mr Tang had and he first came to know Mr Tang on 25 October when Mr Tang’s secretary contacted him (see counters 321-332 and 366-399);

(v) Mr Tang picked him up at the airport on 28 October 2018 which was the first time he met Mr Tang (see counters 418-438);

(vi) he did not know the Taiwanese male called Li or the Chinese female called He who were arrested together with him and who he saw for the first time at HSBC on 29 October 2018 (see counters 419-525);

(vii) Mr Tang said the female was a lawyer (see counters 452-466);

(viii) that according to Mr Tang the purpose of going to HSBC was to validate the documents; to know if the documents were correct/genuine and not to withdraw anything (see counters 526-546);

documents in a red folder

(ix) inside HSBC they went to the 5th floor to the office of a female who interviewed them; Mr Tang spoke to the female; Mr Tang asked him for the documents to be validated; he gave the documents to Mr Tang who handed them to the female bank staff; the female took the documents upstairs to check and later asked for more time to check the documents because the amount was big (see counters 547-585);

(x) the defendant identified the gold plate (exhibit P1[21]) which he had seen before and which he confirmed bears his name as the holder of an account with HSBC numbered 008-194088-120 (see counters 587-598);

(xi) he said according to the ‘Council” the gold plate was a safekeeping receipt for gold to the value of US$500 billion (see counters 599-616);

(xii) the defendant identified the documents contained in a red folder as the documents handed over to the female bank staff[22] (see counters 575-586 & 617-628);

(xiii) he had read the documents which stated that the money was backed by gold which had been deposited in Hongkong Shanghai Bank by former President Marcos (see counters 629-664);

(xiv) his name was on the documents because President Marcos, before he passed away in 1989, authorised the Marcos Foundation to issue the documents transferring the assets to him (see counters 665-693);

(xv) the documents belonged to the Grand Advisory Council of the Ferdinand Marcos Cash Account (FMCA) (“the Council”) (see counters 694-753);

(xvi) the money was transferred to him to fund his projects in the Philippines because in 2007 the United Nations had approved him to make large agricultural and construction projects (see counters 754-780);

(xvii) the funds were provided by President Marcos who was the owner and custodian of the heritage fund which had deposited money in many banks around the world (see counters 781-802);

(xviii)the United Nations only approved the projects but did not provide the funding (see counters 803-884);

(xix) he had a friend who was a classmate of Mr Ban Ki Moon, the Secretary General of the United Nations (see counters 885-899);

(xx) the documents were given to him in Manila by the Council, some in 2016 and some in 2018 (see counters 900-908 and 1045-1062);

(xxi) he did not know if the documents were genuine and unless someone invited him and had validated the documents he would not take them outside (see counters 923-928 and 1064-1081);

(xxii) he brought the documents out to seek funding for the projects from other parties who were willing to provide funds once the bank had confirmed the documents (see counters 929-963);

(xxiii)a foundation in New York with branches in California and Europe had seen copies of the documents and were willing to sign a contract and Global House Limited in Europe were ready, willing and able to release funds against confirmation (see counters 964-1044);

(xxiv)Mr Tang invited him to bring the documents for verification saying that everything had already been checked by the bank and that world organisations such as the World Bank were waiting(see counters 1082-1100);

documents in a blue folder

(xxv) the defendant identified documents in a blue folder which were found from his personal belongings (exhibits P29-P61[23]), including a gold plate (exhibit P29[24]) which bears the name Hongkong & Shanghai Bank Corporation, an account number and his name as the account holder (see counters 1102-1113);

(xxvi)he had read the documents but did not take them out (see counters 1115-1133);

(xxvii) they were old documents similar to the documents shown to him earlier and had also been given to him by the Council in 2016 (see counters 1129-1186);

(xxviii)just like the other documents he was not sure if they were genuine so he did not take them outside or bring to the bank unless someone validated them (see counters 1188-1192);

(xxix)Global (House Limited) who had access to the bank were waiting for confirmation from a high official of the bank (see counters 1193-1225);

(xxx) the documents belonged to the Grand Advisory Council who assigned the documents to him (see counters 1226-1249);

(xxxi)Mr Tang told him to bring these documents ready to convert into cash not with the bank but with another party upon confirmation they were valid (see counters 1250-1272);

(xxxii) the documents were not given to the staff of HSBC because they wanted to give them one by one and not all at once (see counters 1273-1282);

search of the defendant’s hotel room

(xxxiii)the defendant identified three folders and a computer found in his hotel room (see counters 1284-1310);

documents in a purple folder

(xxxiv)the defendant identified documents found in a purple folder (exhibits P62-P89[25]), including a gold plate (exhibit P62[26]) which bears the word HSBC, an account number and his name as the account holder, which documents he said were similar to the documents shown to him earlier and had also been assigned to him by the Grand Advisory Council (see counters 1311-1378);

(xxxv) he had read the documents but was not sure if they were genuine as they were subject to validation (see counters 1379-1390);

(xxxvi) he was waiting for groups like Global House Limited who have access with the bank to seek validation of the documents (see counters 1391-1488);

(xxxvii) he brought the documents to Hong Kong because Mr Tang said he had many connections to convert them into cash (see counters 1489-1515);

documents in a transparent folder

(xxxviii)the defendant identified documents found in a transparent folder (exhibits P90-P119[27]), including a gold plate (exhibit P90[28])which bears the name Bank of China, an account number and the defendant’s name as the account holder, which documents he said were similar to the documents shown to him earlier except that these documents had been validated by the Bank of China and he had signed a contract a few months ago in Shenzhen to convert the value of the gold into US$200 billion cash (see counters 1516-1610, 1650-1669 and 1713-1738);

(xxxix)he had not received the cash because he had been sick which the Bank of China (BoC) in Hong Kong had deposited with HSBC in the trust account of the counterpart to the contract for disbursement to different accounts in the China, Philippines and Hong Kong (see counters 1611-1649 and 1839-1865);

(xl) he does not have a current account with the Bank of China in Hong Kong and that the Bank of China account in his name on the gold plate is the heritage account of President Marcos which was transferred to the Council and then to him (see counters 1670-1712);

documents in a yellow folder

(xli) the defendant identified documents found in a yellow folder (exhibits P120-P147[29]), including a gold plate (exhibit P120[30]) which bears the name Bank Mandiri Indonesia, an account number and the defendant’s name as the account holder, which documents he said were also similar to the documents shown to him earlier (see counters 1739-1762);

(xlii) he obtained the documents from the Grand Advisory Council who assigned the documents to him for a project in Indonesia together with Mr Tang’s order (see counters 1763-1844);

(xliii) last week he gave all the documents to the ambassador to take to the Department of Foreign affairs for verification (see counters 1866-1887 and 1919-1929);

(xliv) all the documents were notarised and validated and because the defendant was in a hurry to come to Hong Kong the ambassador held the validated copies (see counters 1888-1918 and 1930-1937);

communications with Mr Tang prior to coming to Hong Kong

(xlv) Mr Tang told him by email and in phone calls that the bank had already checked the documents (see counters 1938-1957);

(xlvi) he identified the email found on his computer by the police was sent to him by Mr Tang on 26 October 2018 at 3:49 pm together with a photograph attachment of a letter of assurance that if he went to Hong Kong there would be no problem when he presented the documents and that if fraud was declared he should not be blamed (see counters 1958-2072);

(xlvii)he also identified another email found on his computer by the police which was also sent to him by Mr Tang on 22 October 2018 at 9:40 pm asking him to bring the documents to Hong Kong to convert into cash against confirmation for help in developing projects in the Philippines (see counters 2073-2165).

Photographs

33.  In the interview the police took screen captures of the two emails.  Screen captures of the two emails and the photograph attachment (exhibit P152 (5-12)) are admitted in evidence together with four photographs of the defendant’s hotel room (exhibit P152 (1-4))[31]. Also admitted in evidence is a print out of the photograph attachment (exhibit P153) [32].

Discussion

34.  I have carefully considered all the evidence and the oral and written submissions of Mr Whitehouse and Mr Hemmings.  

Elements of the offence

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

(i) the instruments particularised in the charge were false;

(ii) the defendant used the instruments knowing or believing them or any of them were false;

(iii) the defendant used them or any of them with the intention of inducing the bank staff to accept them as genuine; and

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

Falsity

Examination of the documents by Ms So

36.  Ms So had worked for HSBC for 27 years and was familiar with HSBC documentation.  I was satisfied that Ms So could give expert evidence on the authenticity of documents issued by HSBC.  Only someone who worked in HSBC and understood the operations of the bank could give evidence as to the authenticity of documents purportedly issued in their name[33].

37.  Based on her past experience when looking at the documents Ms So said they did not bear the format of HSBC documents and therefore she thought they were not genuine.

38.  Specifically, with regard to the individual documents particularised in the charge:

Gold plate (exhibit P1)[34]

39.  Ms So had never seen HSBC issue such a gold plate.

40.  Although referred to as a golden plate in the prosecution opening the charge particularises this as a safekeeping receipt.  A receipt is a document and comes within the definition of instrument[35]. Alternatively,  the gold plate is a die which also comes within the definition of instrument[36].

Four cards (exhibits P2 (a-d)) [37].

41.  Similarly, Ms So said that HSBC had never issued any kind of cards which looked like these four cards. 

42.  Ms So also said that HSBC have never used the logo of the Hong Kong bauhinia flower. 

Twelve documents (exhibits P3 (a-l)) [38]

43.  Ms So said that HSBC have never had any product or service of slip key deposit box (exhibit P3 (a)) [39]; HSBC would never use the wording “Bank proof of funds”(exhibit P3 (b))[40]; the bank statement was not the style of statement issued by HSBC (exhibit P3 (c))[41]; Ms So had never seen and HSBC had never used a “Bank Tearsheet” (exhibit P3 (d))[42]; the signature card was of a different size and the style was not that of HSBC (exhibit P3 (e))[43]; Ms So had never seen such certification (exhibit P3 (f))[44]; HSBC statement of account was not like exhibit P3 (g)[45]; and Ms So had never seen documents like exhibits P3 (h-l)[46].

44.  I accept the evidence of Ms So that the instruments were not genuine and not issued by HSBC.  I am satisfied so I am sure on this evidence the only inference to draw is that all the instruments particularised in the charge were false as that term is defined in section 69 of the Crimes Ordinance.  

45.  I accept the evidence of Ms So that HSBC do not use the logo of the Hong Kong bauhinia flower. 

46.  The bauhinia flower is seen on the gold plate (exhibit P1)[47]; the four cards (exhibits P2 (a-d)) [48]; the colour print of the gold plate (exhibit P21) [49] and seven documents (exhibit P3 (f-l)) [50].

47.  The bauhinia flower is in the design of the Hong Kong Regional Flag.  I am satisfied that I can take judicial notice that the design of the bauhinia as the Regional Flag was first used in Hong Kong on 1 July 1997 on the handover of sovereignty to the People’s Republic of China.

48.  Save for exhibits P2 (a-d) all other instruments showing the Hong Kong bauhinia flower in the design of the Hong Kong Regional Flag are dated in 1983. 

49.  I am satisfied so I am sure on this evidence the only inference to draw is that all the instruments bearing the logo of the Hong Kong bauhinia flower were false. 

50.  I accept the evidence of Ms So that the account number did not exist.  In answer to the court Ms So explained the system of the bank for recording the account numbers in the computer system of the bank. 

51.  Ms So told the court that when a customer opens an account with the bank the staff will key into the computer the personal information of the customer and assign an account number.  Ms So was not aware when the bank computerised the account records but said this was in operation when she joined the bank in 1992.

52.  Ms So also explained that when the bank was computerised the bank conducted a “cleaning” exercise whereby all written records of bank accounts were input into the computer.

53.  On this evidence I am satisfied so I am sure that a system was in place where a person acting under a duty compiled a record in the bank’s computer system of the particulars of the bank accounts including the account numbers[51]. 

54.  I am satisfied so I am sure from the evidence that the account number did not exist that the only inference to draw is that the documents purporting to be issued by HSBC were false.

Documents found in the defendant’s briefcase and in his hotel room

55.  In court Ms So was not shown any of the documents found in the defendant’s briefcase (exhibits P29-P61) or in his hotel room (exhibits P62-P150) apart from the gold plate (exhibit P29) which was shown to Ms So by the court.

56.  At the beginning of the trial Mr Hemmings indicated that the defence objected to the production of the documents found in the defendant’s briefcase and in the defendant’s hotel room on the basis they were not relevant.  Subject to hearing submissions I indicated that on the face of the documents they were relevant. On the fourth day of trial prior to the facts being admitted Mr Hemmings informed the court that no submissions on admissibility would be made and that all the documents would be admitted in evidence[52].     

57.  I reject the closing submission of Mr Hemmings that because the defendant has not been charged with any offence in relation to these documents and no evidence has been adduced to prove their falsity the court can only consider the documents shown to Ms So[53].

58.  The documents found in the defendant’s briefcase and in his hotel room are almost identical to those presented to Ms So.  I am satisfied that they are relevant to whether the defendant knew or believed the instruments subject of the charge were false.  All the documents were also shown to the defendant in the video recorded interview and are therefore relevant in considering the defendant’s explanations.

Using a false instrument

59.  I accept the unchallenged evidence of Ms So that the defendant presented the documents to her.  I reject the assertion in the video recorded interview that Mr Tang handed the documents to Ms So[54].

60.  On this evidence I am satisfied so I am sure that the defendant used the false instruments. 

61.  I reject the submission of Mr Hemmings that the actus reus of the offence is using a false document to induce another to accept it as genuine[55].  The actus reus of the offence is using a false instrument knowing or believing the instrument to be false. Inducing another to accept the instrument as genuine is part of the mens rea, the double intention. 

Knowing or believing the instruments were false

62.  I have carefully considered the content of the video recorded interview. I have considered the interview in accordance with the principles in R v Sharp[56]. 

63.  I have only considered what the defendant said and not an interpretation placed on what he said by the interviewing officer[57].

64.  Admitted in evidence is that the defendant, who is aged 64, has a clear record in Hong Kong[58]. 

65.  Mr Hemmings submits that the prosecution have not refuted what the defendant told the police in the video recorded interview that he had been to Hong Kong often as a tourist[59].

66.  A copy of the defendant’s passport (exhibit D1) has also been admitted in evidence[60].  Page 3 of the passport shows the visa issued when the defendant arrived in Hong Kong on 28 October, the day before he was arrested.  At the back of the passport is a visa issued when the defendant arrived in Hong Kong on 13 September 2018 and was permitted to remain until 27 September 2018.  No other entries to Hong Kong are shown in the passport which was issued on 22 November 2016.

67.  I direct myself as to good character both as to credibility and propensity in accordance with the decision in HKSAR v Tang Siu Man[61] as applied in HKSAR v Mohammed Saleem (No.2)[62].

68.  I have no hesitation in rejecting the defendant’s explanations in the video recorded interview, which explanations were not made on oath, have not been repeated on oath and have not been tested by cross-examination[63]. 

69.  I do not find credible the defendant’s explanations that the gold plate was a safekeeping receipt for gold to the value of US$500 billion which President Marcos had authorised to be transferred to him and that he was given the documents by the Grand Advisory Council of the Ferdinand Marcos Cash Account (FMCA) (“the Council”) to fund projects approved by the United Nations[64].

70.  All the documents purporting to be issued by HSBC were false.  The account did not exist and HSBC did not issue the documents. The account not existing and the documents purporting to be issued by HSBC all being false, the other documents given to Ms So by the defendant, including documents purportedly issued by the United Nations, the World Bank, the International Monetary Fund and the Federal Reserve certifying that the sum of USD$500 billion belonged to the defendant, were also false (exhibits P12-P15[65]).

71.  It beggars belief that if President Marcos did deposit money in a bank which was backed by gold and authorised his foundation to transfer the assets to the defendant that the foundation would use false documents. 

72.  I reject the defendant’s explanation that President Marcos authorised USD$500 billion to be transferred to him and reject his explanation of how he came into possession of the false instruments.

73.  I do not find credible the defendant’s explanations that he did not know if the documents were genuine and unless someone invited him and had validated the documents he would not take them outside and that at the request of Mr Tang he took the documents to Hong Kong for verification[66].

74.  The defendant was also found in possession of other similar documents including two other gold plates purportedly issued by HSBC each in the sum of USD$500 billion (exhibits P29 & P62); one gold plate purportedly issued by the Bank of China in the sum of USD$1 trillion (exhibit P90) and one gold plate purportedly issued by the Bank Mandiri, an Indonesian bank (exhibit P120), in the sum of USD$500 billion[67].

75.  The total value of the five gold plates is USD$3 trillion. I do not find credible the defendant brought documents to the value of USD$3 trillion to Hong Kong at the request of Mr Tang.  It beggars belief that the defendant would bring the documents to Hong Kong at the request of someone who he first came to know four days earlier on 25 October 2018 and who he had no relationship with; who he just knew over the phone and did not know what business he had[68]. 

76.  I reject the defendant’s explanation that he brought the instruments to Hong Kong for verification because he did not know if they were genuine. 

77.  In reaching this finding I have considered the submission of Mr Hemmings that in determining whether the defendant believed that the documents were genuine the court can take judicial notice of frequent reports in the Philippines media fuelling the widespread belief in the Marcos billions being hidden in banks across the world [69].

78.  I have no hesitation in rejecting this submission.  These are not matters which the court can take judicial notice of.  Further, the defendant did not in the video recorded interview say he believed the instruments were genuine because of reports in the Philippines media. 

79.  Further, I find inherently improbable that persons embarking on a criminal enterprise involving the use of false instruments to the value of USD$500 billion would assign the custody of the instruments to another person unless that person was a party to a criminal enterprise to use the false instruments knowing or believing they were false[70].

80.  I remind myself that the rejection of the defendant’s explanations 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.

81.  There is no direct evidence that the defendant knew or believed the instruments were false. 

82.  The amount of the gold plate, USD$500 billion, is an astronomical amount and would have alerted any person with some commonsense that the gold plate and the other documents were too good to be true. 

83.  As was said in HKSAR v Chen CF James & others, a case involving bonds to the value of US$25 billion “These are astronomical figures and would have alerted any person with some commonsense that they were too good to be true.  In other words the bonds could not have been genuine ones”.[71]  

84.  That they were too good to be true is even more apparent when considering the defendant was also found in possession of two other gold plates purportedly issued by HSBC each in the sum of USD$500 billion; one gold plate purportedly issued by the Bank of China in the sum of USD$1 trillion and one gold plate purportedly issued by the Bank Mandiri, an Indonesian bank, in the sum of USD$500 billion, all purportedly being issued in 1983, three on the same day 12 January 1983, and were accompanied by similar documents purportedly issued by the banks and the United Nations, the World Bank, the International Monetary Fund and the Federal Reserve certifying that the monies belonged to the defendant.

85.  Taking into account:

(i) the astronomical amount of the gold plate (exhibit P1), USD$500 billion;

(ii) that the account did not exist;

(iii)that the gold plate and the documents (exhibits P2 & P3) purporting to be issued by HSBC were not issued by HSBC;

(iv)that the gold plate and the documents all bear the name of the defendant as the account holder;

(v) the accompanying documents from the United Nations, the World Bank, the International Monetary Fund and the Federal Reserve (exhibits P12-P15) certifying that the sum of USD$500 billion belonged to the defendant were also false; and

(vi)the inherent improbability that persons embarking on a criminal enterprise involving the use of false instruments to the value of USD$500 billion would assign the custody of the instruments to another person unless that person was a party to a criminal enterprise to use the false instruments knowing or believing 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 instruments presented to Ms So were false.

Using the instruments with the intention of inducing Ms So to accept them as genuine and by reason of so accepting them to do or not to do some act to her own or any other person’s prejudice (the “double intention”)

86.  I accept the evidence of Ms So that the defendant requested the bank to make a certificate to the effect that he had some savings in the bank.  

87.  Mr Hemmings submits that the bank could never have been prejudiced by accepting the documents as genuine because the account did not exist and the defendant clearly stated he did not want to withdraw any money from the account[72].  Similarly, Mr Hemmings submits that potential prejudice to some unidentifiable person or persons is insufficient and could never have occurred because the bank could never have accepted the documents as genuine because the account did not exist[73].

88.  I have no hesitation in rejecting this submission.  What the prosecution must prove is that the user of the false instruments intended to induce somebody to accept the instruments 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 as that term is defined in section 70 of the Crimes Ordinance.  Whether the user of the false instruments  succeeds as he intended and whether prejudice within the meaning of section 70 in fact occurs is immaterial (see R v Chandriacant Vallabhji Ondhia[74] as applied in HKSAR v Ra Hyun Bin[75]). 

89.  The prosecution also does not have to prove the identity of the person to be prejudiced by a false instrument (see R v Lin Kuo Liang, David[76]as applied in HKSAR v Ra Hyun Bin[77]).

90.  Section 70 (1)(f) provides that an act intended to be induced is to a person’s prejudice if, and only if, it is one which, if it occurs will be the result of his having accepted a false instrument as genuine in connection with his performance of any duty.  Clearly if Ms So had accepted the false instruments as genuine and had as intended by the defendant issued a certificate to the effect that the defendant had some savings in the bank this would have been in connection with Ms So’s performance of her duty working in the bank.  Ms So and the bank would therefore have been prejudiced (see HKSAR v Wong Wai [78]).

91.  Further, it is not difficult to appreciate that obtaining such a certificate from a reputable bank would be used to entice others to lend or advance money to the defendant on the strength of the certificate ( see HKSAR v Chen CF James & others[79]). This is very different to the situation where prejudice to passengers who used false tickets was less than certain in R v Emilio Garcia cited by Mr Hemmings[80].

92.  I am satisfied so I am sure on the evidence that the only inference to draw is that the defendant used the instruments intending to induce Ms So to accept them as genuine and by reason of so accepting them intended Ms So to issue a certificate to the effect that he had some savings in the bank and that this would have been an act to the prejudice of Ms So, the bank and any other person who the certificate would be given. 

93.  In reaching this finding I have considered the submissions of Mr Hemmings that the idea anyone would think they could use false documents to fool a bank into certifying the existence of a non-existent account with USD$500 billion dollars in it is clearly ridiculous; if the defendant knew the account did not exist the visit to the bank was pointless; if the defendant knew the documents were false the last place to have taken them was the bank and that if the defendant intended to defraud others by pretending he had USD$500 billion in the bank he could have done so by using the documents he already had in his possession[81].

94.  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 chose to present the documents to Ms So at HSBC[82].

95.  The submission of Mr Hemmings does not cause me to doubt the only inference to draw is that by presenting the false instruments to Ms So the defendant used them intending to induce Ms So to accept them as genuine and by reason of so accepting intended Ms So to do or not to do some act to her own or any other person’s prejudice.   

96.  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.

97.  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.