Her Majesty the Queen - v. -, 2012 SKPC 159

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 159 Date: September 25, 2012 Information: 32882012 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Su Khiong Chung Appearing: Will Collins, Esq For the Crown Donald G. Findlay, Esq For the Accused JUDGMENT B.D.

HENNING , J [ 1 ] Su Khiong Chung is charged with two offences alleged to have occurred on January 10, 2011, at Regina, namely, he did knowing that a money order in the amount of $2,250.00 was forged, cause the Bank of Montreal to act upon it as if it were genuine, contrary to section 368(1) of the Criminal Code of Canada, and at the same time and place, was in breach of a condition of an undertaking, given to a justice, not to attend to any branch of the Bank of Montreal, contrary to section 145(3) of the Criminal Code of Canada. [ 2 ] At trial the evidence commenced with a police constable who was called to the Bank of Montreal, downtown Regina branch, on January 10, 2011.

He received a money order, exhibited as P-1, from the bank, and met with Mr. Chung, the Accused, from whom he received a letter and envelope, exhibited as P-2. He had a conversation with Mr. Chung which was admitted in evidence as a voluntary

statement. Mr. Chung said that he did not know that the money order was false, forged or fraudulent. [ 3 ] Ms. Sandra Williams, a senior customer service representative, gave evidence next indicating that a teller gave her Exhibit P- 1, and that she knew the person who presented it, and the police were called. She identified Mr. Chung, and no issue of identity was raised in the trial. The money order was, to her, obviously deficient and not a genuine document.

It lacked a date, and was incomplete in other aspects, and did not have the raised surface security feature that is normally the case for the part of the document that sets out the dollar amount. [ 4 ] Ms. Williams indicated that she knew Mr. Chung from the experience of having dealt with two fraudulent cheques or money orders that were previously negotiated at the bank. His account was considered overdrawn in the amount of $34,000.00 as a result of those transactions. She indicated, however, that on that date in January his account was still open.

She stated that the document, P-1, looked superficially like a Bank of Montreal money order, but it was obviously deficient and was not negotiable. [ 5 ] The next bank witness was the teller, Mr. Jim Guo, who conversed with the Accused in Mandarin Chinese, notwithstanding that Mr. Chung’s (and Mr. Guo’

s) English was very good. He immediately recognized difficulties with the money order presented to him for negotiation and referred it to Ms. Williams. Mr. Chung had given him the money order along with the letter that had accompanied it. It was not disputed that Mr. Chung received these documents in the mail. He indicated that Mr. Chung presented the money order to be cashed, but he also tendered the letter as part of the transaction. That evidence concluded the Crown’s case. [ 6 ] Mr. Chung gave evidence following this. He indicated that he was now 80 years old, and was 79 at the time of the incident.

He gave his life history, outlining his education in China, which was primarily provided by Shell Petroleum, which he stated was equivalent to university at a master’s degree level, although he had no degrees. He indicated that he had come to Canada in 1966 and worked in the personnel area for the University of British Columbia until retirement prior to 1990. He had not worked since 1990. Mr. Chung said that he came to Regina in 1999 and had no connections to the city, and very few friends or associates, living an isolated life.

He said that he has a wife and son in British Columbia, but he did not suggest that he has very much contact with them. It became apparent that he has spent a good deal of time on the internet and had become involved in various financial schemes originating from the internet of questionable legality. [ 7 ] Mr. Chung presented himself as a person who was alert and verbally fluent. He described how in 2004 he had received a fraudulent cheque in the mail, and had presented it, causing the bank to close his account. He said he gets many cheques or money orders in the mail.

He described in detail how in 2009 he received a letter from the “Minister of Justice” of Nigeria regarding funds owed to him. He received a cheque for $8,000.00 which he deposited. He then got a cheque for $32,000.00 and asked the bank to check it out. It was drawn in Toronto, and after five days for clearance, the money was released to him. He was then called by the “minister” and told to send the money back, so he took money out in $5,000.00 amounts and sent it away as directed. Just before he sent the final payment of these funds, the bank called and indicated that the documents had been forged.

The bank said that he was responsible for repayment of these funds. He was then charged criminally, and at the time of the present trial these charges had not come to trial. No objection was taken by the Defence to the introduction of this evidence of a previous transaction. It has been treated throughout as relevant similar fact evidence. [ 8 ] The current incident involved a money order in the amount of $2,250.00 as part of a “mystery shopper” program. He thought this involvement would be “fun” as it involved purchasing goods at various places and giving reports.

This was the money order that he took to the bank, asking if it was valid. He gave them the letter of explanation that has been exhibited as P-2. He readily identified the documents in question. He stated that he had no idea that this was an illegal or fraudulent scheme. No money was advanced to him, however. At the bank he found himself arrested and charged with the present offences. [ 9 ] Mr. Chung explained that if the money order had been good, he would have taken out $250.00, of which $50.00 was for test shopping, and $200.00 for his payment, with the balance to be sent to the Philippines.

This did not, he stated, seem at all similar to him to the previous scheme originating in Nigeria. He explained the differences in the schemes in some detail, differentiating them in his mind. [ 10 ] In cross-examination Mr. Chung admitted that he had been involved in a type of pyramid marketing scheme in 2003 or 2004. He was examined at some length on the various aspects of the recent schemes, but insisted he would not have proceeded with either had he thought they were wrong. He indicated that his memory is not good, and admitted that now he appreciates he should not have been involved in these schemes.

It was put to him that the previous incident with the Bank of Montreal should have put him on guard with respect to money orders arriving in the mail, but he insisted he did not equate the two. [ 11 ] The Defence position is that Mr. Chung did not have the mens rea or criminal intention to commit an offence by knowingly

passing a forged money order, notwithstanding that he had a recent prior experience of cashing a cheque or money order received in themail from an unverified source which had resulted in a similar criminal charge. The Defence asserts that this position is credible due todiminished mental functioning. The Defence also made the point that what occurred at the bank could, at most, constitute an attempt tocommit the offence charged, and that point was conceded by the Crown.

The Defence raised the same issues with respect to the secondcharge of breaching an undertaking, that is, diminished mental functioning resulted in Mr. Chung not remembering the significance ofthe undertaking which required that he not attend to the bank in question. [12] In support of the proposition that it is credible that Mr. Chung might genuinely, in his own mind, have distinguished thepresent incident from the previous one, and not intend to defraud the bank by passing a forged money order, he was tested and examinedfor four hours by Dr. Mirna Vrbancic, a clinical psychologist.

Her curriculum vitae was filed before the Court, and she gave opinionevidence as an expert on the mental functioning of Mr. Chung. Her qualifications in the field of neuropsychological and neurophysicalfunctioning are extensive and very well established. She provided a written report, exhibited as D-1, of her findings, and also testifiedvia a video link from Saskatoon. [13] Dr. Vrbancic at page two of her report made general observations about Mr. Chung, and then outlined a list of tests that weredesigned to measure complex mental functions, as opposed to ordinary and simple daily routine functions.

Some specific tests as tofunction in the fields of verbal ability and reading ability showed average and above average functioning. However, some mentalfunctions were identified as problematic with impairment of complex, abstract reasoning and problem solving. He was found to haveimpaired ability to acquire auditory verbal material, but was somewhat better with visual material.

It was concluded that he had intactaverage range cognitive skills generally, but he likely (emphasis added) had decline in some areas of mental function, including complexproblem solving and comprehension, and that would suggest mild acquired cognitive impairment. Ability to reason through difficulttasks and decision making could be affected, and deficits in memory would contribute to that impairment.

The conclusion was that mildcognitive impairment was observed, and that in order to process information, it had to be presented simply, and not in large quantity atone time. [14] The law with respect to the receipt of expert evidence, particularly in the field of psychology and mental functioning hasproduced significant case law as it approaches the area of the mental state of an accused person which is often the crucial issue incriminal trials. Indeed, it often is sought to be introduced to assist the Court in determining the exact mental state of an accused.

Expertopinion evidence may not be evidence that amounts to an opinion on the crucial and central question for the trial. It may properly bereceived on a question not within the ordinary knowledge of the trier of fact to provide assistance in weighing other evidence. Athorough discussion of this area is contained in S.(C.) v. Canada (Attorney General), 2003 SKQB 540 . In that case Barclay J.rejected expert evidence that went to the main issue of whether a witness should be believed. See paragraphs 39 to 56. [15] The situation of expert evidence is greatly complicated when differing or opposing

interpretations of the applicablepsychology are presented. Where the psychological analysis assists the Crown by showing very particular propensities or characteristics,it has been held not to be evidence on the central question of the case, but on a significant collateral issue, and is potentially admissible. It may still, nonetheless, be inadmissible as unreliable or because of prejudicial effect outweighing its value. (See R. v. ChikmaglurMohan, SCC 1994.) The consideration of expert evidence in the field of psychological analysis must be examined with great care inorder for it to be accepted. [16] Dr.

Vrbancic did not express an opinion on the central question of credibility of Mr. Chung, although she was extensivelycross-examined in an attempt to broaden her conclusions and have her express more specific opinions on Mr. Chung’s mentalfunctioning, and the possible

interpretation of the exact circumstances of the case before the Court. The Crown put a hypotheticalquestion to Dr. Vrbancic that mirrored the facts in the present case, and then asked what is, essentially, the central question in the case,that is, whether it is credible that a person would not associate a previous experience of fraud with the present one. At page 250 ofVolume 2 of the Transcript, Dr. Vrbancic replied that one would think a person would, but a person with acquired cognitive impairmentmight not (emphasis added). [17] In my opinion, Dr.

Vrbancic did not expand her evidence and enter upon opinion relating to the legal questions of the case. Atthe conclusion of her evidence she reasserted the clinical observations and conclusions with respect to mental function that her testingallowed her to make. That left the central question of the trial to be determined by the Court on the whole of the evidence. The evidenceincludes all of the circumstances, including the fact put forward by an expert as a result of clinical testing that some degree of cognitiveimpairment existed at the time of testing, and may have existed at the time of the offence.

The expert evidence of itself does not come atall close to being a conclusion on the central question of credibility in the case, in my opinion, but it may have some weight inconsidering that issue. Dr. Vrbancic resolutely resisted questions meant to expand her opinion evidence to the actual mental state of theAccused, and his intent at the time of the events, and in this her evidence is not similar to the expert evidence in S.(C.) v. Canada(Attorney General), cited above. [18] The defence comes down to a finding of fact, namely, whether Mr.

Chung was credible in his evidence that he did not equatean earlier incident involving a forged cheque or money order that he received in the mail with the present circumstances, and that he did

not recognize the present money order as a fraudulent scheme of manipulation, and went to the bank to see if the money order was valid. The evidence of Dr. Vrbancic does suggest that Mr. Chung’s mental functioning would make his defence more credible than it would be if raised by a person of normal mental function. All opinion evidence is admitted for the purpose of providing insight and understanding to a Court that may be applied in the factual findings of the Court, so long as it does not amount to “oath helping”, that is, an opinion as to the central issue at trial, which may be one of credibility.

The Court still must apply the law to the facts of any case and reach a conclusion independent of the expert opinion. The expert in this case did not comment directly upon the question of Mr. Chung’s credibility, but the expert evidence did, however, raise a factual possibility that bears upon the main issue of credibility. [ 19 ] The Crown suggested that Dr. Vrbancic’s biases were obvious, and also argued that, with or without the expert evidence, that Mr. Chung was not credible in asserting that he did not appreciate that the money order he presented was a false or forged document.

The Crown also, quite properly, pointed out that the testing occurred some significant time after the events in the bank, and that if there was diminished mental functioning at the time of testing, it was not necessarily the same at the time of the incident. [ 20 ] Mr. Chung made distinctions between the former incident and the present incident. The Crown argues that Mr. Chung is a sophisticated and, by implication, a devious person who was fully aware of the nature of his actions. However, this argument is, in my opinion, self-defeating.

The fact of returning to the same branch with a money order from an unknown source, an incident similar to the one that produced a previous charge, in violation of his release conditions, would suggest, in ordinary circumstances, a reasoning that was less than clear and logical. A person of ordinary sense would realize there would be very little chance of success in perpetrating a fraud by returning to the same bank branch, in contravention of terms of release. The fact that this was done at a branch where Mr.

Chung was immediately remembered and recognized adds credibility to the defence that he did not have a full understanding of the situation, and as a result, did not have criminal intent. [ 21 ] The question of whether Mr. Chung’s evidence is capable of belief when he asserts that he did not have a criminal intent must be considered in light of Dr. Vrbancic’s evidence on his ability to process complex information, as well as on other evidence at trial, as outlined above, as well as his age, background and demeanour in Court. [ 22 ] In weighing this issue, I am of the opinion that Mr.

Chung’s assertion that he did not identify the transaction with the money order that forms the basis of the present charge with the previous incident is not something that a person of ordinary mental functioning could credibly assert. However, Mr. Chung did assert it in a manner that appears to be sincere, judging from his manner in Court. Not to see the similarity of the two incidents at the time suggests a mental functioning that may not be normal, and to go back to the same bank is anything but devious.

Ordinary experience allows the Court to recognize that advanced age may have effects on memory and mental acuity that younger persons are less likely to experience. These circumstances give rise to ordinary, non-clinical, questions of logic, reasoning, and common sense that were, or were not, present at the time of the offence which bear upon the question of credibility. It is my conclusion that Mr. Chung was not thinking logically with full understanding with respect to this transaction, and this is evidenced by the whole of the circumstances. [ 23 ] It is not necessary that I accept Mr.

Chung’s evidence in its entirety, but only that it raises a reasonable doubt as to the criminal intent to pass a forged money order. In concluding that his evidence is capable of belief, it is not necessary that I make use of Dr. Vrbancic’s evidence, though it does reinforce and support this conclusion, and is, in my opinion, properly admitted as evidence upon a fact that does bear upon, but is not conclusive of, his mental functioning. Assessing Mr.

Chung’s evidence and taking the circumstances of the alleged offence into account, as outlined above, I find that it cannot be rejected as lacking credibility. [ 24 ] I have reasonable doubt as to whether he appreciated that the document he presented to the bank teller was a forged document. He was obviously hopeful that it might not be, but, it would appear, that he presented the money order, and its covering instructions, expecting the bank to advise him whether it was genuine. That this was a ‘scam’ would be apparent to most persons, but it cannot be concluded that it would appear so to all persons.

To hope that a windfall money order might be genuine is not the same as having the criminal intent to pass a document knowing that it was forged for a fraudulent purpose. My conclusion in this case, is based upon particular and untypical facts, and does not represent any new

interpretation of the law in this area. Accordingly, I dismiss the charge of uttering a forged document. [ 25 ] The question of breach of the term of the recognizance is another matter. The existence of his conditions of release, and his understanding of them, was not touched upon in evidence as extensively as the issues in the other charge. I have reached a conclusion of reasonable doubt with respect to guilty intention with respect to the first count, and a lack of appreciation of facts and circumstances relating to that charge may also be considered as relevant on the second charge.

As a result it is possible, in my opinion, that his recollection and understanding of his release document was similarly impaired. [ 26 ] Mr. Chung indicated that he did not remember the conditions. If that assertion is not credible, and he did remember them, to return to the place where he is not to go, and attempt to perpetrate another offence, is not logical for a person with his experience and

education level. I therefore make the same conclusion with respect to this offence as on the previous offence—the irrationality of the actions adds to the credibility of the defence that Mr. Chung did not appreciate certain things that would ordinarily be understood. [ 27 ] It is therefore credible that he might not have recalled the provisions of his undertaking on the previous charge, and that raises a doubt as to the mental element of the offence of breach. If a person is careless, or deliberately blind to conditions, then no defence would exist.

However, if the failure to remember the release document and conditions is based upon a diminished mental capacity, then there would be a valid defence of lack of mens rea . I have reasonable doubt as to whether Mr. Chung did have the capacity to recall the document and conditions at the time of the events, and accordingly, I dismiss that charge also. Dated at the City of Regina, in the Province of Saskatchewan this 25 th day of September, 2012. ________________________ B.D. Henning, J