



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Yang,









2004 BCCA
            24




Date: 20040114





Docket: CA030433

Between:

Regina

Respondent



And

Shun Lan
      (a.k.a. Ricky) Yang

Appellant














Before:



The Honourable
            Chief Justice Finch





The Honourable
            Madam Justice Prowse





The Honourable
            Madam Justice Ryan




Oral Reasons for Judgment




P. Leask, Q.C.
J. Gellis



Counsel for the Appellant





C. Deedman



Counsel for the (Crown) Respondent





Place and
            Date:



Vancouver, British Columbia





January 14, 2004







[1]

RYAN,
          J.A.
: The appellant appeals his conviction for
          possession of counterfeit money pronounced 30 August 2002 after a trial
        in Richmond Provincial Court.

[2]

On
        17 March 2001 members of the RCMP Drug Squad executed a search warrant
        at an address in Richmond.  A search of the property outside the residence
        turned up guns and ammunition.  A search of a bedroom in the home turned
        up a cardboard box.  In the box the police found several invoices and bank
        documents in the appellants name.  At the bottom of the box the officer
        found $20,800 in counterfeit bills made up of six individual $100 bills
      and three bundles of $50 bills.

[3]

Seven
      people, including the appellant were arrested in the house.

[4]

The
      appellant did not testify or offer other evidence in his defence.

[5]

It
        was the position of the defence, faced with the finding of a large sum
        of bills in the appellants bedroom, that the appellant might have been
        aware of drug related activity in the house, and might have known that
        large sums of money would be found present in the house, but that the Crown
        could not prove that the appellant had possession or control over the bills
        or that he had examined the money or had any knowledge that the bills were
      counterfeit.

[6]

The
        trial judge found that the bedroom was occupied solely by the appellant.  He
        found that the appellant was in possession of the bills.  The issue became
      whether the appellant had knowledge that the bills were counterfeit.

[7]

The
        trial judge was unwilling to infer simply from the amount of counterfeit
        money stashed in the room that the appellant would know of its counterfeit
      nature.

[8]

In
      convicting the appellant the trial judge said this:

As suggested in the Mak case, I have taken the opportunity to examine
        the money in this case.  I find as well that the colour of the money in
        this case is something less than vivid and is somewhat muted.  Otherwise,
        the general appearance of the currency is not particularly noticeable that
        it is something other than genuine.  I also found that the feel of the
        paper that the currency is on is something substantially less than the
        genuine bill.  As I say, otherwise, the money, at first glance, does not
        cause me to suspect it to be counterfeit.  It is only once the money
      is handled that the concerns arise.

Sgt. Murdoch said in his evidence that he guessed that the money was
        counterfeit when he first located it.  Given the way the money was bundled
        and its location, I find that Mr. Yang must also have known the true character
        of the money.  He must have had an opportunity to see the colour and texture
        of it.  It is, in my view, obvious that Mr. Yang must have handled the
        money that was in the box and therefore find that he was aware of its
      nature.

[9]

I
        should note here, that although not much turns on it, Sgt. Murdoch did
        not testify that he guessed that the money was counterfeit when he first
        located it.  What is clear is that at some point the police suspected
        that the bills were counterfeit since they were eventually sent to Ottawa
        for
      expert examination.

[10]

As
        I read the reasons for judgment the trial judge based his finding that
        the appellant knew that the money was counterfeit on his conclusion that
        having touched it at some point, the appellant would have been alerted
      to its texture and colour and its counterfeit nature.

[11]

We
        have had an opportunity to look and feel the bills in question.  Without
        an experts opinion that the bills were counterfeit, I am not persuaded
        that the colour and feel of the bills would alert a member of the public
        to the fact that they are, in fact, counterfeit.  In my view, the essential
      finding of fact in this case cannot be supported by the evidence.

[12]

In
        my view, the verdict cannot be supported by the evidence.  I would allow
      the appeal, set aside the conviction, and enter an acquittal.

[13]

FINCH,
        C.J.B.C.
: I agree.

[14]

PROWSE,
        J.A.
: I agree.

[15]

FINCH,
          C.J.B.C.
: The appeal is allowed, the conviction set
        aside and an acquittal entered.

The Honourable
      Madam Justice Ryan


