HKSAR v. OMAROV RINAT

DCCC 568/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 568 OF 2017

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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].

Introduction

2.  The particulars of the offence read:

“OMAROV Rinat, on the 18th day of April 2017, at Hang Seng Bank Limited, Hang Seng Bank Headquarter’s Building, No. 83 Des Voeux Road Central, Central, in Hong Kong, used an instrument which was, and which he knew or believed to be false, namely a “Certificate of Deposit” purportedly issued by “Hang Seng Bank” dated the 4th day of March, 2014 in the sum of US$2.5 million, with the intention of inducing NG Chi-hung of Hang Seng Bank Limited to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice”.

3.  The prosecution case in summary is that by presenting a false Certificate of Deposit[2] to the bank manager of Hang Seng Bank the defendant knowing or believing the certificate was false, intended to induce the bank manager to accept the certificate as genuine and by reason of so accepting to do or not to do some act to his own or any other person’s prejudice.   

4.  From the explanations given in a video recorded interview the defence case is that the defendant was helping transfer the monies for an acquaintance called Levan Tsiskarishvili, who is the depositor named on the certificate and who told the defendant the certificate was genuine.  The defendant believed he could transfer the monies.  

Evidence

5.  The prosecution called one witness Mr Ng Chi Hung (PW1), the bank manager and tendered for cross-examination DPC 15562 (PW2), who conducted the video recorded interview.   

6.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance,[3] including that the defendant went to the Hang Seng Bank where he presented the Certificate of Deposit and requested the money be transferred to two different bank accounts; the arrest of the defendant and the taking of the video recorded interview[4]. 

7.  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.   Reliance is placed by the defence on the explanation given in the video recorded interview that he was told the certificate was genuine and that he believed he could transfer the monies.  I have considered the interview in accordance with the principles in R v Sharp[5].

8.  Admitted in evidence is that the defendant has no criminal conviction in Hong Kong[6].  I direct myself as to good character in accordance with the decision in HKSAR v Tang Siu Man[7].

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 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. 

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.  

11.  I have carefully considered all the evidence and the submissions of Mr Omar[8]. 

Elements of the offence

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

(i) the Certificate of Deposit was false;

(ii) the defendant used the Certificate of Deposit knowing or believing the Certificate of Deposit to be false;

(iii) the defendant used the Certificate of Deposit with the intention of inducing the bank manager to accept the Certificate of Deposit as genuine; and

(iv) by reason of so accepting the Certificate of Deposit intended the bank manager to do or not to do some act to his own or any other person’s prejudice.

Falsity

13.  The evidence as to falsity of the Certificate of Deposit was not challenged and can therefore be briefly stated.  Mr Ng gave evidence as to falsity derived from his experience of working in the bank since 1991.  Only someone who worked inHang Seng Bank and understood the operations of the bank could give evidence as to the authenticity of documents purportedly issued in their name[9].

14.  In summary Mr Ng testified that the quality of printing was rather poor.  Mr Ng explained that the words on the certificate were not clear and specifically pointed out the four Chinese characters for the bank.  Mr Ng also testified that Hang Seng Bank did not issue Certificates of Deposit in this format; did not have account numbers starting with the numeral ‘6’; and colleagues in Hang Seng Bank did not hold the positions of Director of Operations or General Manager, the purported signers of the certificate.  In answer to the court Mr Ng said that Hang Seng Bank never had a Director of Operations and that there had been no General Manager for at least more than five years.

15.  I accept the evidence of Mr Ng.  In addition, I note the name in English underneath the Chinese characters is blurred as is the red sign for the bank; in the line ‘This is to certify that the Depositor….’ the words ‘certify’ and ‘Depositor’ are in a different colour to the words that precede them; the top of the letters on the line ‘on this day’ cannot be seen; andthe certificate is said to be issued according to the Hong Kong Banking Act of 1968 whereas the laws of Hong Kong are Ordinances and not Acts. 

16.  I am satisfied so I am sure the only inference to draw is that the Certificate of Deposit is a false instrument[10].

17.  Further, the certificate provides for the signature of the depositor.  In the video recorded interview when asked why there was no signature the defendant tells DPC15562 to look carefully at the other documents to see that Levan signed the certificate in English letters exactly the same way as in those documents and not like the signatures purportedly of the Director of Operations and General Manager[11].

18.  The signatures on the power of attorney[12] and the copy passport[13] referred to by the defendant are handwritten whereas the name on the certificate is printed ‘TSISKARISHVILI LEVAN KADYROVICH’[14].  I reject the defendant’s assertion in the video recorded interview that the certificate was signed.  I am satisfied there is no signature on the certificate.  The certificate having provided for the signature of the depositor, the absence of the signature of the depositor is also evidence as to the falsity of the certificate. 

False document or copy of a false document

19.  Mr Omar submitted that the wrong charge was laid as the instrument appears to be a photocopy.  In cross-examination when asked if he agreed the certificate was a copy Mr Ng replied “I think so”.  Mr Ng however disagreed thatthe defendant told him that the certificate was only a copy; that there was no signature and that he was only using the power of attorney to transfer the funds.  In the video recorded interview the defendant said that Levan did not have the original certificate which was kind of lost now[15].

20.  Looking at the appearance of the document and the paper the certificate is printed on, I find that more likely than not this is a copy.  I therefore proceed on the basis the certificate is a copy.   

21.  In final submission when addressing the court on whether the proper charge was laid Mr Omar stated that whether the charge was contrary to section 73 or section 74 the defence would defend on the same basis and therefore would not be prejudiced by any amendment.  I am satisfied however there is no need to amend the charge as the definition of instrument in section 68 includes a copy of a document and by virtue of section 69, for the reasons already set out, the copy is a false instrument [16].

Using a false instrument

22.  Mr Ng testified that on the morning of 18 April 2017 a colleague informed him that the defendant wanted to transfer money and showed him the Certificate of Deposit[17]; a Power of Attorney[18]; and a copy of the passport of the holder of the certificate[19].

23.  Mr Ng went to see the defendant who was accompanied by a female interpreter.  In answer to the court Mr Ng said he believed the interpreter was Chinese as she was the holder of a two-way permit issued by the Mainland. In cross-examination Mr Ng said he spoke in Punti which his colleague translated to the female interpreter in Putonghua who then translated to the defendant what was said in a language Mr Ng could not understand[20].

24.  Mr Ng explained he went to see the defendant to find out how the defendant wanted to make use of the Certificate of Deposit.  The defendant confirmed that he wished to transfer the money.  Admitted in evidence is that the defendant presented the documents to Mr Ng together with a copy of his own passport and requested to transfer half of the US$24.5 million to SBER Bank and the other half to Piraeus Bank[21]. The defendant also gave Mr Ng details of the banks the money was to be transferred to[22]. 

25.  I am satisfied that by presenting the certificate together with the power of attorney the defendant was using the false instrument.     

Knew or believed the Certificate of Deposit was false

Summary of the video recorded interview[23].

26.  In summarising the record of interview I have relied on the certified translation of what the defendant said and not the translation made at the time by Arman Akhmetov, the consul of Kazakhstan.  In summary the defendant told the police that:

(i) he came to Hong Kong from Almaty by plane arriving on the morning of 18 April for the purpose of transferring funds by power of attorney and to take a rest[24];

(ii) he was self-employed servicing and maintaining cars (the defendant exercised his right to silence when asked how much was his income)[25];

(iii) the certificate of deposit was given to him in Almaty by Mr Tsiskarishvili Levan to facilitate transfer of the funds to accounts in Kazakhstan and Greece[26];

(iv) he only knows simple English and that the certificate stated that Tsiskarishvili Levan Kadyrovich of Ukraine had deposited 24.5 million[27];

(v) he knows how to get in contact with Levan but was not allowed to contact Levan or his friends and relatives except for one call that day[28];

(vi) Levan is his acquaintance/friend who used to live in the same town[29];

(vii) Levan now lives in Georgia and the defendant in Kazakhstan therefore Levan flew to Almaty to visit the defendant to give him the documents and arrange for a power of attorney[30];

(viii) he met Levan in Russia in a café after which they corresponded by Viber and Skype for more than one and a half years and on one occasion went to Novosibirsk together for about two weeks[31];

(ix) he does not know what Levan does apart from some charity work[32];

(x) Levan told him the certificate was genuine and he believed he could transfer the money[33];

(xi) he had never used such a certificate or seen one before[34];

(xii) in Almaty he went with Levan to arrange for a power of attorney and had to wait 10 days for the power of attorney to be prepared which was in three languages and signed by Levan[35];

(xiii) Levan did not have the original of the certificate only this copy; told him that he had transferred money to the PrivatBank in the Ukraine from the Hang Seng Bank; after 2-3 months Levan moved the money back to the Hang Seng Bank because war/unrest had broken out in the Ukraine[36];

(xiv) Levan gave him a USB flash drive which contained the details of the passport of the female bank manager who helped Levan with the certificate and advised Levan to go himself to transfer the money or send someone with a power of attorney[37];

(xv) the female bank manager posted the original certificate to Levan by registered mail which was then perhaps kept in the safety deposit box in PrivatBank but was now kind of lost[38];

(xvi) that it would not cause the police trouble to find the female bank manager in Hong Kong[39];

(xvii) Hang Seng Bank did not want to return the money therefore they said the account does not exist and Levan did not deceive him[40];

(xviii)whilst still in Kazakhstan he found from the internet the interpreter who accompanied him from the airport to the bank by taxi; he had another acquaintance in Hong Kong/Shenzhen, a Russian called Kristina who he met in Russia and who was also an interpreter; Kristina suggested the same interpreter, who turned out to be Kristina’s friend, would help as a favour on a purely friendly basis; and that he had other recommendations in case the lady did not turn up[41];

(xix) described what happened on arrival at the bank and that the bank said they were calling the police because the certificate was false[42];

(xx) identified the documents (exhibits P9 & P10) giving the details of the banks the money was to be transferred to[43];

(xxi) he was not paid for coming to Hong Kong and came purely on a friendly basis because Levan could not get a visa[44]; and

(xxii) told the police that nobody was deceiving anyone and that if they did not believe him they could telephone Levan[45].

Discussion

27.  I have carefully considered the content of the video recorded interview.  I have no hesitation in rejecting the defendant’s explanations in the video recorded interview that he was told the certificate was genuine; he believed the money could be transferred and that he came to Hong Kong purely on a friendly basis, which explanations were not made on oath, have not been repeated on oath and have not been tested by cross-examination[46]. 

28.  I do not find credible the defendant was told the certificate was genuine and that he believed the money could be transferred.  By looking at the appearance of the certificate, including the printing in parts is blurred; the words ‘certify’ and ‘Depositor’ are of a different colour to the rest of the words on the same line; the tops of some letters cannot be seen and the absence of a signature of the depositor, I find this is not what would be expected of a bank document certifying a deposit of US$24.5 million and that anyone with some common sense looking at the certificate would believe the certificate was false.   

29.  I do not find credible the circumstances the defendant says Levan gave him the certificate and that he came to Hong Kong purely on a friendly basis.  I find inherently improbable that a person embarking on a criminal enterprise involving the use of a false Certificate of Deposit to the value of US$24.5 million would entrust the assistance of another person to go to Hong Kong to request transfer of the money by flying from Georgia to Kazakhstan to handover the certificate and arrange for a power of attorney, let alone someone met in a café and except a trip to Novosibirsk, only communicated with via social media, unless that person was a party to the criminal enterprise to use the false certificate knowing or believing that the certificate was false[47].  

30.  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.

31.  Taking into account: 

(i) the printing on the Certificate of Deposit was in parts blurred;

(ii) the words ‘certify’ and ‘Depositor’ are of a different colour to the rest of the words on the same line;

(iii) the tops of some letters cannot be seen;

(iv) the absence of a signature of the depositor; and

(v) the inherent improbability that a person embarking on a criminal enterprise involving the use of a false Certificate of Deposit to the value of US$24.5 million would entrust the assistance of another person to go to Hong Kong to request transfer of the money by flying from Georgia to Kazakhstan to handover the certificate and arrange for a power of attorney unless that person was a party to the criminal enterprise to use the false certificate knowing or believing the certificate was 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 certificate was a false instrument.

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

32.  Taking into account the defendant requested that the US$24.5 million be transferred to two accounts, one in Kazakhstan and one in Greece, the only inference to draw is that the defendant was using the certificate together with the power of attorney intending to induce the bank manager to accept the certificate as genuine and by reason of so accepting intended the bank manager 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.   

33.  In reaching my verdict I have carefully considered the submission of Mr Omar that if Levan was the holder of the certificate and knew the certificate was false because there was no such account there was no plausible reason for him to send someone with a power of attorney to transfer the funds.  Likewise, Mr Omar submits that if the defendant knew the certificate was false because there was no such account there would be no plausible reason for him to go to Hong Kong to attempt to transfer the funds.  Similarly in the video recorded interview the defendant says Levan did not deceive him and that he would not come to Hong Kong just to go to prison[48].

34.  I have no hesitation in rejecting this submission.  Clearly Levan, the ‘depositor’ named on the certificate, knew he did not have such an account and therefore the certificate was false.  Notwithstanding that the bank would most likely check the authenticity of the certificate arrangements were made for the defendant to come to Hong Kong and present the certificate.  Clearly the defendant was taking a deliberate risk with the hope the falsity would not be discovered too soon.  Whilst the aim may have been to try obtain documentation from Hang Seng Bank verifying the information on the certificate, it is not for the court to speculate as to the actual reason why the defendant came to Hong Kong and presented the certificate.  This submission does not cause me to doubt that the defendant knew or believed the certificate was false[49].   

35.  The fact the defendant took with him a power of attorney also does not cause me to doubt that the defendant knew or believed the certificate was false.  Clearly the power of attorney was obtained to try persuade the bank there was such an account and that the certificate was genuine.   Nothing said by Mr Omar causes me to doubt the findings I have made.

36.  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 have proved all the elements of the charge beyond reasonable doubt.  The defendant is convicted as charged.