FU Yan v. R.

1991, No.490
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Nazareth, J.A. ;

1. In the early hours of the morning of 19th January 1990, a team of police and immigration officers mounted a joint operation in Tsuen Wan. With a search warrant they searched a hut at Lot 1212 in Lo Wai Village. The applicant Fu Yan let them in. He was the only person there. In the hut they found 16,802 forged US$100 banknotes; 3,658 forged Bank of America travellers cheques each in the denomination of US$500, and 1,528 forged Bank of America travellers cheques each in the denomination of US$100. They also found a range of items fit for use in the forgery of banknotes, China Exit and Re-entry Permits, Hong Kong British Passports and visa and immigration control documents.

2. This led in time to the applicant's trial before Duffy J and a jury, and his conviction upon three counts of possession of forged banknotes, contrary to s.76(1) of the Crimes Ordinance; three counts of forgery of banknotes with intent to defraud, contrary to s.70 (1) (c) of the Crimes Ordinance; and four counts of possession of implements for forgery, contrary to s.76A of the Crimes Ordinance. He was sentenced to nine years' imprisonment on each of the three counts of forgery of banknotes with intent to defraud and to four years on each of the remaining counts, all the sentences to run concurrently.

3. The applicant now seeks leave to appeal against his convictions.

4. Before coming to the grounds he relied upon, it is necessary to add that in his statements to the police, and at his trial, his defence was lawful authority or excuse upon the basis that he was working for Commercial Crime Bureau informants, whom he named and two of whom he called to give evidence. The judge dealt with the matter in the following way at p 12 of his meticulous and careful summing-up :-

" Now, of course, members of the jury, much in this case is not now in dispute. As I understand the position, the defendant is not denying that he had possession of these forged banknotes, nor is he denying that he had these articles which were fit to be used in forgery. What he is saying to you is, generally speaking, 'I had these and I was going to use them, the articles, and I was going to make these forgeries because the Commercial Crime Bureau wanted me to create forgeries for them.' That is his position. So as I understand, members of the jury, he is not denying that he had possession of these things, merely giving you an explanation or asking you to accept that he had a lawful excuse for his possession of them.

Naturally, if you found the defendant was actively engaged in forgery, then you would have little difficulty in any event in concluding that he possessed the things alleged.

Now, an important part of the evidence in this case, the evidence of the prosecution, consists of the records of interviews between the defendant and the police, both written and video. You must look at that evidence in the same way as you look at all the other evidence. You must decide how much of it you think speaks the truth, how much of it you think you can rely upon."

He then proceeded to outline the relevant evidence fully and fairly. In finding the applicant guilty on all counts, the jury rejected that defence.

5. Against that background, we return to the applicant's grounds. His home-made notice of appeal for leave dated 28th October 1991 specified four grounds of appeal. Subsequently in September 1992, he sent to the Registrar seven further grounds of appeal which, together with a substantial introduction, ran to some four pages of dense typescript. Finally this morning, he submitted yet further grounds of appeal, again seven in number but running to seven closely typed pages. Orally before the court, he was critical of hypothetical aspects of the expert evidence.

6. One way and another, many of the grounds and points he raised were concerned with his defence of lawful authority. That, as can be seen from the passage quoted from the judge's summing-up, was fully and fairly put to the jury, which clearly rejected the defence. Much of the remainder that he raised was discursive in nature and concerned with the principles of logic. He also raised numerous minor points of no significance, complained that the judge was biased, criticised the summing-up in other inconsequential respects, and renewed points raised at the trial and plainly dealt with satisfactorily in the summing-up. We see no good reason to specify them.

7. Having studied all his grounds of appeal and what he had to say before us, we were satisfied that there was no merit in any of the grounds and that the application for leave had to be refused.