By
The SUN
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| The Appeal Court said grounds cited by Bolanos were 'reasonably arguable' |
Was he lying, merely being foolish or was suffering
from delusion?
The failure of the trial judge to address these
questions raised by two psychiatrists in the case of Brudencio Jao Bolanos, an
elderly Filipino who tried to pass off a financial document in the sum of
US$943 billion to HSBC, won him the right to appeal his conviction and sentence.
District Court Judge Stanley Chan convicted Bolanos,
70, on a charge of “using a false instrument” and sentenced him to four years’
imprisonment on Dec 30, 2019.
Bolanos sought leave to appeal against both his
conviction and sentence, saying the judge failed to fully consider the expert
opinions of two psychiatrists who testified in the case.
In the reasons for his decision handed down on Jan 7, Justice
of Appeal Ian McWalters agreed with the applicant, saying he was satisfied that the grounds of
appeal against both conviction and sentence were “reasonably arguable.”
He said that in convicting Bolanos, the trial judge
failed to appreciate that there was only one issue in the trial, which was whether
the applicant had the required “mens rea” (criminal intent) at the time of the
offence.
“Whether his extraordinary claims were true was not a
live issue; only whether he believed them to be true,” said the appeal judge.
He also said it could be argued that the trial judge was
wrong to treat the case as being similar to others where a lengthy prison
sentence was imposed.
“This crime never had any chance at all of any level
of success. The worst possible harm that could befall the bank was that the
time of its staff would be wasted,” said Justice McWalters.
Bolanols arrived in Hong Kong on Apr 2, 2018 as a
visitor. A week later, he and a Malaysian man went to the main branch of the
Hong Kong and Shanghai Banking Corporation (HSBC) in Central and presented a “slip
key deposit box cash dollar deposit” purportedly issued by the bank, with a
face value of US$943 billion.
Bolanos claimed the document which bore his name was a
“heritage,” and insisted on seeing the “regional head” of the HSBC global
private banking so he could confirm its authenticity. The Malaysian man tried
to act as interpreter although Bolanos could speak English and could be
understood by the bank staff.
Police were called and the applicant was arrested. The
Malaysian man fled before the police arrived, and has not been seen since.
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| Bolanos was with an unknown Malaysian man when he went to HSBC's head office |
A “Mr Tang” from the bank confirmed that Bolanos did
not have an account with HSBC, and the account number on the document he
presented was not a valid HSBC account.
The
main issue during the trial was whether Bolanos knew or believed the document
was fake and whether he intended to induce the bank staff to accept it as
genuine.
The
prosecution called as witness Dr Oliver Chan, a psychiatrist who interviewed
Bolanos on seven occasions at Siu Lam Psychiatric Centre.
In
his written report, Dr Chan stated that the applicant managed to give an
elaborate account of his alleged relationship with the late Philippine
President Ferdinand Marcos, who purportedly gave him an inheritance of “943
quadrillion US dollars” insured at Lloyd’s Bank in London.
Dr
Chan concluded that Bolanos appeared to have “an overvalued idea” about his
alleged inheritance, however, he stopped short of calling it “delusional” as
the applicant’s belief “originated from some existing document or persons.”
During
cross examination, Dr Chan agreed that the applicant believed what he was
saying – meaning, he was not lying – “but it was not of the delusional level.”
Bolanos
did not testify in his defence, but his lawyer called as witness Dr Gabriel
Hung, who visited the applicant once in Stanley Prison, and had prepared a
medical report which was presented during trial.
Dr
Hung reported that the applicant had told him that he had gone to Hong Kong to
take out the interest that had accumulated in his HSBC account, and which he
was planning to invest in a confidential trading project under the Belt and
Road initiative, along with a Canadian billionaire.
The
psychiatrist mentioned three possibilities that might explain Bolanos’
extraordinary claims: (1) the applicant was lying; (2) he was just foolish to
believe what he had been told, or because what he said was actually true; (3)
he was suffering from a delusional disorder.
Dr
Hung said (1) was unlikely because the applicant’s statements did not show any
apparent contradiction or inconsistency; (2) was also unlikely because the
applicant did not suffer from any mental retardation or developmental disorder
that could affect his thinking, and his claims were too extraordinary and
implausible.
He
concluded thus that (3) was the most likely diagnosis. Dr
Hung said Bolanos fully believed that the document he presented to HSBC was
genuine, leading him to conclude that the applicant “lacked the mens rea for the alleged offence.”
The
doctor also said the applicant had developed the disorder at least three or
five years before committing the alleged offence.
But Judge
Chan dismissed Dr Hung’s conclusion, saying he had only interviewed the
applicant once, without using any independent external instruments and/or
tests. The judge said more weight should be given to Dr Chan’s opinion as he
had visited the applicant seven times, over a longer period of time.
But the judge then went on to say he had serious doubts about the version of events given by
Bolanos to the doctors.
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| The trial judge said Bolanos could not have known that Marcos had long been dead |
“I
think it can be accepted that the death of the late president of the
Philippines, Ferdinand Marcos, was known and publicized in 1989. But the
defendant insisted that Marcos was still alive. He said he was entrusted by
Marcos to handle the secret account. No details can be provided. There was no
clue as to how the defendant took the flight to Hong Kong and how did he get in
touch with the Malaysian male and/or even the Canadian billionaire. He did not
have any bank account with the HSBC,” said the judge.
He
also said the defendant gave conflicting accounts to the doctors.
“Given the fact that the defendant has no history of
psychiatric illness, I take the view that it is very likely that he fabricated
his stories subsequent to his arrest in April 2018. I find the defendant’s
versions totally not credible,” said the judge.
Further discrediting Dr Hung’s testimony, the judge
said there was no basis for the doctor’s conclusion that the defendant was
suffering from delusion. “No explanation was given as to why the defendant
cannot be regarded as lying and the defendant was just foolish to believe what
he was told.”
He further said: “I ruled that the only irresistible
and reasonable inference from the evidence so presented is that the defendant
uttered the forged document with the necessary mens rea. He was not suffering
from delusional disorder at the material time when he flew all the way to Hong
Kong to present the forged document. The defendant did know or believe that the
document is false. …”
The judge said he would not speculate on the defendant’s
motive for the crime, but noted that he was not acting alone.
In sentencing, he said he did not see a
lot of factors that could mitigate the offence, although he noted the applicant’s
age and state of health, and that the crime had little chance of success and
that HSBC suffered no loss.
On the other hand, he noted the amount involved, and the fact that
there was an international element in the crime, as the culprits had come to
Hong Kong to commit the crime.
He used four years’ jail as a starting point, citing a
similar case in the Court of Appeal, and said he found “virtually no valid
mitigating grounds”.
In granting leave to appeal, Justice McWalters said the
judge did not seem to appreciate that the truthfulness of the applicant’s claims were not in
issue.
“Indeed, his (Bolanos’) claims were so patently absurd
that, arguably, no “sane” person would believe them. To a lay person, anyone thinking that a bank
would accept these documents as genuine would have to be wholly lacking in
reason and common sense. The applicant’s
claims about the documents were clearly incredible but, as I have indicated,
that was simply not the point,” said the appeal judge.
He pointed out that both psychiatrists agreed that
Bolanos believed in the genuineness of the document he presented; the only area
where they disagreed was how to characterize his “wholly other worldly belief” in
psychiatric terms.
Andrew Bullett appeared for the applicant, while Derek
Wong from the Department of Justice acted for the respondent.
