CRIMINAL LAW & PROCEDURE
HKSAR v Cheung Wai Chuen
 3 HKLRD 696,  HKCFI 2333
Court of First Instance
Magistracy Appeal No 300 of 2018
Albert Wong J
26 September, 15 October 2018
Criminal law and procedure — having custody or control of counterfeit currency notes — prop banknotes connected with filming of movie — extent to which court should examine exhibits — test for determining whether notes counterfeit — mens rea — requisite knowledge or belief not established
D1–2 were convicted of having custody or control of counterfeit currency notes (Prop Banknotes) contrary to s.100(2) of the Crimes Ordinance (Cap.200) (CO). D2 was the owner of a film production company and a props master. The Prop Banknotes had been seized from boxes bearing the word “prop” in D1’s private car and D2’s company premises in 2016. At trial, D2’s case was that the Prop Banknotes were connected with the filming of a movie in 2014. His assistant had been responsible for dealing with the Prop Banknotes, and he was not aware that they were on his company premises and had not seen them. D2 appealed against his conviction, raising three grounds: (a) the Magistrate’s failure to examine each of the Prop Banknotes was a material irregularity; (b) the Magistrate found the Prop Banknotes to be counterfeit merely because they appeared to resemble real banknotes, without considering or fully considering how different they were compared to real banknotes; and (c) there was insufficient evidence for the Magistrate to draw the inference that D2 knew or believed the Prop Banknotes resembled currency notes to the extent that they could pass for real banknotes.
Held, allowing the appeal and quashing D2’s conviction, that:
- The Magistrate should have examined the Prop Banknotes herself, because she had to resolve whether they were counterfeits and this depended on the extent to which they resembled real banknotes. The expert evidence was not particularly helpful in this area as it focused on the differences between the Prop Banknotes and real banknotes. In general, whether the court had to examine physical exhibits was a fact-sensitive question depending on the issues in dispute and the possibility of dispensing with examination or narrowing down the scope of examination. In many cases, examination was either unnecessary or examining a representative sample would suffice. Here, that the Magistrate had only examined a few Prop Banknotes was in any case not determinative of the appeal, as the appeal was by way of a rehearing and the Court could examine the exhibits itself. (See paras.12, 16–18, 26–32.)
- On examination, the Prop Banknotes fell within the meaning of counterfeit currency under s.97(1) of the CO. Whether notes were counterfeit depended on whether they were reasonably capable of passing for real banknotes of that description, which here were HKD1,000 banknotes. This was to be mainly determined by their appearance, and other factors included their material and feel. Here, the general design, graphics and text of the Prop Notes were very similar to real banknotes, notwithstanding some had the words “PROPS” printed on them. Whether the court had to use a real banknote as reference was fact-sensitive. Most people had some knowledge about HKD1,000 banknotes and the prosecution had provided a photocopy of a real banknote. (See paras.18, 40–52.)
- Overall, there was insufficient evidence to prove that D2 knew or believed the Prop Banknotes resembled real banknotes to such an extent that they were reasonably capable of passing for real banknotes of that description. The Magistrate’s finding that D2 did not have any reason to believe that the Prop Banknotes had a poor likeness to real banknotes did not mean that D2 believed that they bore a resemblance to the extent required by law. The standard required in movie production was not necessarily as high as that in law. Further, the Magistrate overlooked the expert’s observation that the quality of the Prop Banknotes was “just fair” (HKSAR v Pang Hung Fai (CACC 34/2012,  HKEC 841) applied). (See paras.58–62, 72–73, 78.)
- (Obiter) The way defence counsel and counsel conducting the appeal handled the issue of whether the Prop Banknotes were counterfeits was unsatisfactory. It was rarely necessary to require the court to inspect all the exhibits and here, the exhibits could have been divided into different categories and the Court’s attention drawn to relevant matters. (See para.53.)
Appeal against conviction
This was an appeal against conviction for having custody or control of counterfeit notes imposed by Ms Cheung Kit Yee in the Magistrates’ Court. The facts are set out in the judgment.