R. v. LAU CHOR HUNG

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JUDGMENT  OF  THE   COURT

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Yang, C.J. :

1. After a trial before Mr. D.M.B. Gill sitting as a deputy judge of the District Court the applicant was convicted of possession of forged banknotes and was sentenced to three and a half years' imprisonment. He seeks leave to appeal against his conviction.

2. The charge against the applicant was that between November 1988 and the 23rd February 1990 at Flat A2, 10th floor, No.171 Wai Yip Street, Kwun Tong, Kowloon ("the address") he had in his custody or possession 351 documents purporting to be Renminbi Wu Shi Yuan (fifty dollars) banknotes issued by the Zhongguo (China) Renmin (People's) Yinhang (Bank), China, knowing the same to be forged.

3. The Crown's case was as follows.

4. In or about September 1988 the applicant entered into an agreement to rent premises at the address described above for the purpose of operating a printing business. Installed there were a printing machine and some related equipment and several items of furniture. The applicant registered his business under the title of Concept Design and Photograph Company. It was stated to be a sole proprietorship.

5. The premises were partitioned off into two parts.. Upon entry, one faced a workshop or a work space and further in was the office or inner office. These two parts were separated by a door with a lock. In the office was another room described as a dark room. It was in this locked office that the forged banknotes were found by a court bailiff who forced entry to it in the course of executing a court order to distrain. The office was dusty and in a state of disarray. The bailiff discovered in a locked cabinet in that office two parcels, each wrapped in brown manila paper and sealed with brown adhesive tape. In one of the parcels were the forged banknotes. In the other parcel were strips of paper which came from the same source which the forged banknotes were printed. A fingerprint of the applicant was lifted from one of those strips of paper. In a cabinet drawer there were several genuine renminbi 50 yuan banknotes. Some travel documents and a bankbook belonging to the applicant were also found in other drawers in the office.

6. The applicant had begun business at the address in about December 1988, employing two girls. For about a month he had an assistant who was given the keys to the address including the keys to the office space. The assistant later left due to the lack of business and returned the keys to the applicant.

7. In March 1989, an art designer rented from the applicant a desk situated in a corner of the office space. He and a partner worked there until May that year when the applicant asked them to leave. The art designer had not been given keys, but relied on the applicant's presence there for access.

8. In mid-May 1989, the applicant sublet the workshop part of the premises to a bookbinder who operated his business with members of his family. The bookbinder was still in occupation of the workshop at the date on which the bailiff forced an entry into the office. He had keys to the outer door of the premises but not to the office, which the applicant retained for his own use. The only occasions on which the bookbinder or members of his family went into the office were when the bookbinder paid rent to the applicant personally or to his employee, a Miss Wong. When the applicant was not present the door to the office was locked.

9. As time passed, the applicant's presence at the address became less and less regular and the office staff stopped going altogether. The applicant was last seen there in the day time in about November 1989. Sometime near the end of 1989, perhaps in October or November of that year, the bookbinder changed the lock to the main door. However, he gave a duplicate key to that lock to the applicant which the applicant returned to him on the following day. Shortly before or during the Chinese New Year 1990, the applicant telephoned the bookbinder and asked him to open the main door to the premises so that he could spend the night there, but it is not clear what actually transpired.

10. A post office collection card dated the 20th January 1990 and addressed to the Concept Design and Photograph Company was also found inside the office. It was not revealed how the card came to be there or in what part of the office it was found.

11. The applicant elected not to give evidence.

12. In order to make good his primary submission that there was insufficient evidence to establish the applicant's guilt to the required standard of proof, Mr. Mullick, who appeared for the applicant in this court but not in the court below, focussed on the following passages from the deputy judges Reasons for Verdict:

"I found that at and for a significant period prior to the bailiff's discovery the defendant had exclusive possession and occupancy of the office to the exclusion of all others. In particular the printer and his family had no right of access occupation or use of that area which was locked and unused when not occupied by the defendant. Further they did not in fact at any time gain access to it or use for any purpose.

The evidence was and I accepted as a fact that the defendant had not been seen in the premises since November at least not during working hours and that from this time on at least during working hours, the office was locked and vacant. The dusty condition of the office when it was explored by the bailiff supported this finding. But it did not exclude the possibility that he or another or other persons could have gained access with keys retained or cut as copies at some time without notice or detection or (in the case of others) without authority. The Post Office card dated 20th January 1990 found by the bailiff indicated somebody had been in after that date but not who that was. Logically it was the defendant perhaps after hours at Chinese New Year but I could not and did not discount the possibility that it was someone else."

13. Mr. Mullick submitted that the net effect of these findings, taken together with the whole evidence adduced, was firstly, to negative the proposition that the applicant was the only person to have exclusive possession and 'dominance' of the inner office; secondly, that other persons, without the knowledge of the applicant could have deposited the forged material in the inner office; and thirdly, that the forged material could have first been placed in the inner office at any time from September, 1988 until it was found on the 23rd of February, 1990. Mr. Mullick contended that none of these possibilities could be excluded and that, had the deputy judge taken them properly into consideration, he would inevitably have had a reasonably doubt as to the applicant's guilt.

14. Although we accept that for a period of time prior to May 1989 the applicant had permitted certain other persons to have access to the office and that he and his staff were not seen at the office during working hours from November 1989, we do not think that the deputy judge was wrong in concluding that at and for a significant time immediately prior to the bailiff's entry the applicant had been in exclusive possession and occupancy of the office.

15. Absence from the office does not negative exclusivity of occupancy. The deputy judge fairly considered the possibility that some other person might have retained a key to the office or have had a duplicate key cut. But the reality was that the forged banknotes were found in a sealed packet on a shelf of a locked cabinet in the applicant's office. Moreover, it must be remembered that the applicant's fingerprint was found on one strip of a number of strips of paper that came from the same source as the paper on which the forged notes were printed, and that the bundle in which the strips of paper were contained was also sealed and was found on the same shelf of the locked cabinet as that on which the forged banknotes were found.

16. In our view there was ample evidence from which the deputy judge could properly conclude that the applicant was in possession of the forged banknotes. It was not necessary for that purpose to eliminate the possibility that other persons might have had access to the office. It was the applicant's office and there was no reason to think that any other person would have stored, let alone have left, forged banknotes there.

17. Mr. Mullick also submitted that the deputy judge was in error in making the following finding:

"I found all the cautioned statements produced, in which the defendant consistently denied knowledge of the counterfeits and sought to distance himself from the place of their discovery, exculpatory and thus of no evidentiary value as to truth of their contents; however, I accepted them as evidence of the defendant's reaction when confronted with the accusation."

18. It is true that in his cautioned statements the applicant made admissions. For example, he admitted that he had rented the premises from about October 1988, that he had conducted his own business from then until January 1989, that he had last visited the premises in November 1989 and that some of his and his girlfriend's personal documents had been left in the office.

19. We accept that, strictly speaking, these admissions were incriminatory. But, as Mr. Mullick frankly conceded, it is sometimes difficult to determine whether an admission is incriminatory or merely neutral. It seems likely that the deputy judge took the view that the admissions which Mr. Mullick contends were incriminatory in the sense that they connected the applicant with the premises, were as to matters which were beyond any real dispute. In other words, the statements consisted in effect of admissions by the applicant of a connection with the premises that could not credibly be denied, of attempts to distance himself as far as possible from any recent connection with the office in which the forged banknotes were found, and of assertions that other persons had access to the premises both before and after he had ceased to operate his business there.

20. Although he stated that cautioned statements were of no evidentiary value as to their truth, the deputy judge in fact took into account and accepted the very exculpatory matters that the applicant raised in them, namely that because other persons had occupied his office they had had an opportunity to place the forged banknotes there, and that he had not been running a business from the premises since about October or November 1989. While it is true that the source from which the deputy judge came to his findings regarding these matters was the testimony of the bookbinder, what is important is that he accepted that that evidence was true. All that really remained in the cautioned statements was a denial by the applicant that he was in possession of the banknotes. This took the matter no further than his plea of not guilty.

21. As we have already observed, the deputy judge, having accepted this evidence, nevertheless concluded on a consideration of all the evidence in the case, that the applicant was the person who possessed the forged banknotes.

22. Notwithstanding therefore his erroneous finding that the cautioned statements were completely exculpatory and, as such, of no evidentiary value as to their truth, we are satisfied that there was no miscarriage of justice and that the verdict is neither unsafe nor unsatisfactory. We grant the application for leave to appeal against conviction and, treating the hearing of the application as that of the appeal, dismiss the appeal.