R. v. WONG YAU KEUNG, JOHNNY

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1343 OF 1996

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J U D G M E N T

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1. The appellant was convicted after trial on charges 2, 4, 6, 8, 10, 12, 14 and 17 of the charge sheet. These are all offences of aiding and abetting counselling and procuring the use of false instruments, namely counterfeit credit cards.

2. Charges 2,4 and 6 were offences committed on 3^rd February 1996, charges 8, 10, 12 and 14 were committed on 10^th February 1996 and the remaining charge 17 was committed on 16^th February 1996.

3. He now appealed against conviction on charges 2,4 and 6 only.

4. The facts were the appellant was the proprietor of a laser disc shop. Various counterfeit credit cards were used to obtain goods on a number of occasions on 3^rd February 1996, 10^th February 1996 and 17^th February 1996 by a person Chan Kwok Keung at the appellant's shop. The appellant and Chan were arrested on 16^th February 1996 when they were observed by ICAC officers to have used a false credit card to complete a sale at the appellant's shop. In relation to such use, Chan was prosecuted together with the appellant and was convicted by his own plea of 6 charges of using a false instrument. The appellant made certain statements to ICAC officers in which he admitted that he knew when the cards were used that they were false credit cards. The evidence against the appellant as to his knowledge was based on these statements.

5. The magistrate in his findings said :

"I considered all the evidence in the case. I reminded myself that the Crown had to prove the case beyond reasonable doubt and so that I was sure. I also bore in mind the defendant's good character. On the evidence I was sure that the Crown had established the guilt of the defendant beyond reasonable doubt on charges 2, 4, 6, 8, 10, 12, 14 and 17."

6. The grounds of appeal were that the magistrate had failed to deal with the allegations and evidence on each charge separately and that in accepting the contents of appellant's first interview with the ICAC as true, the magistrate failed to distinguish between the state of his knowledge as to the illegality of the transactions in the 2,4 and 6 charges on 3^rd February 1996 and those relating to the latter transactions on 10^th , and 16^th February 1996.

7. Mr McGowan for the appellant submitted that in the statements made by the appellant to the ICAC the appellant stated that he did not know at the beginning that the cards were false and he only came to know when it was declined. There was no evidence that the appellant knew on 3^rd February 1996 that the cards were rejected and that the appellant knew they were false.

8. The magistrate in his findings made the following reference to the appellant's admissions.

"Under caution D2 made certain admissions concerning the offences charged. D2 said he met D1 on the introduction of a fellow trader known as 'Ah Shing'. Ah Shing was to obtain the goods but credit cards for payment were to be presented and signed by D1. D2 claimed he was not suspicious of the transactions at first but grew suspicious when a number of cards presented by D1 were rejected by the credit card machine at the shop."

9. Ms Yang for the respondent submitted that the magistrate had considered all the evidence and relying on the cautioned statements dealt with the charges in question separately before he convicted the appellant. However, she agreed that the only evidence against the appellant on these charges was his cautioned statement.

10. It is trite law that each charge must be considered separately in the light of the evidence in support of that charge. Thus, the transactions on 3rd February1996 must be considered separately from those on the other two days namely 10^th February 1996 and 17^th February 1996. From his findings, it is not apparent that the magistrate had dealt with the charges separately with respect to the evidence in support of each charge.

11. The appellant in his cautioned statement told the ICAC officer that in early February, someone began to use fake credit cards in his place and at first he could not tell whether it was genuine or counterfeit and his machine would not work if it was a fake card. Thus, it is clear from his statement that he made no admission as to knowledge of the cards being false in so far as the first transactions on 3^rd February 1996 were concerend. Had the magistrate considered the evidence as to knowledge in support of each charge, he would have found the cautioned statement of the appellant did not support the three charges in question.

12. In the circumstances the appeal is allowed and the convictions on the 2,4, and 6 charges are quashed and the sentences set aside.