HKSAR v. SIMONY AURELIEN CLAUDE FRANCOIS AND ANOTHER

DCCC 195/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 195 OF 2015

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Reasons for Verdict

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1.   I will deal with the verdict against the 3rd defendant.  The defendant faces two charges, one of conspiracy to make false instruments, and one of conspiracy to use false instruments.

2.   The conspiracies are alleged to be with the 1st defendant, the 2nd defendant and an Abdelaziz Walid, and occurred between 15 July 2014 and 12 August 2014, and also persons unknown.

3.   The prosecution say the 3rd defendant was part of an agreement to obtain genuine credit card details, duplicate them onto stolen credit cards, and then use the false card to purchase items such as computer items to resell them for profit.

4.   It is alleged that the 3rd defendant, via messaging software application WhatsApp, from his phone sent some genuine credit card details to the 2nd defendant’s phone.  These details were later used in a credit card transaction at the Apple Store in Causeway Bay on 15 July 2014, where the 3rd defendant was present as shown by the CCTV recording.  The card was also used on a number of occasions, ending on 12 August 2014 with its final use and arrest of the 1st defendant.

5.   The defendant denies he sent the messages to the 2nd defendant, and he denies that he was present at the Apple Store on 15 July 2014.

6.   The issue at trial on the facts was whether the 3rd defendant could be proved to have sent the messages purporting to be from him to the 2nd defendant’s WhatsApp, and also whether the 3rd defendant could be identified as being present at the Apple Store CCTV on 15 July 2014.

7.   The prosecution case was largely established by Admitted Facts or uncontested evidence.  They showed in outline that the 3rd defendant was an employee of the Play Club in Central.  He was promoted to be a senior supervisor in March 2014.  The 2nd defendant and Abdelaziz Walid were also employees of the same club.  The 1st defendant was a French national, who worked elsewhere as a chef.

8.   On 12 August 2014, the 1st defendant used an American Express card in the name of Olly Arthey on two occasions to make purchases of computers.  Suspicions were aroused in one of the transactions, and he was arrested.  The electronic data on the magnetic strip on the American Express card related to another cardholder.

9.   On the following day, the police searched the 2nd defendant’s residence.  They found various equipment for reading and reproducing the magnetic card data on credit cards.  Also, a Visa card belonging to the 3rd defendant was found.  The chip on that card had been tampered with.  The 2nd defendant’s mobile phone was seized, and his WhatsApp account was checked.  Via the WhatsApp messaging service records on the 2nd defendant’s phone it was found that data had been sent from the 3rd defendant’s telephone number, which was a contact.  There were also messages from 15 July to 12 August 2014.

10.   On 15 July 2014, two images which contained encoded credit card data were sent from the 3rd defendant’s telephone number to the 2nd defendant’s telephone number.  The data contained in the message was used in the credit card transaction of the Olly Arthey card on 15 July 2014.

11.   The prosecution also produced all the records of the conversations on the WhatsApp account between the 2nd defendant’s and the 3rd defendant’s numbers which they say are relevant to the two conspiracies. 

12.   There was also a CCTV recording from the Apple Store in Causeway Bay which the prosecution say shows the 3rd defendant as being present.  The recording is on 15 July 2014 at 9.30 pm, at about the time when the Olly Arthey American Express card was used to purchase a computer.

13.   The 3rd defendant was interviewed under caution and the interview has been admitted.  He said he lost the Visa card that was found at the 2nd defendant’s residence.  He denied he was responsible for sending the images and messages contained in the WhatsApp records between the 3rd defendant’s number and the 2nd defendant’s phone.  He said that Walid or another person had sent them when they had borrowed his phone.  He said they would use his phone to WhatsApp, then delete the messages.  He said that they knew his password to his phone.

14.   Olly Arthey had lost his American Express card in the Play Club in March 2013.

15.   In addition to this, the prosecution called some other witnesses.  PW2 was a police officer who dealt with the 3rd defendant previously.  He purported to identify the 3rd defendant as being present on the CCTV recording of the Apple Store at Causeway Bay on 15 July 2014.  His evidence was challenged.

16.   PW3, who was the general manager of the Play Club, told us the 1st, 2nd and 3rd defendants and Abdelaziz Walid had all worked at the Play Club, that Abdelaziz Walid had used a Blackberry phone.

17.   PW4 was called.  He was the computer expert.  He had extracted the WhatsApp conversations between the 2nd defendant’s and 3rd defendant’s phone numbers.  PW4 had in cross‑examination participated in a demonstration which involved the use of three android mobile phones which were numbered as D1, D2 and D3.  The demonstration showed that one WhatsApp account can be installed in two devices - in the demonstration, it was D2 and D1 - and they can carry out a conversation with the third device, which in the demonstration was D3.  The third device would record all the conversations with D1 and D2, whereas the individual two devices with the same WhatsApp account would show their conversations with the third device, D3.

18.   PW4 had opined that from WhatsApp official website that one WhatsApp account cannot normally simultaneously appear on two devices.  He considered that both the phones D1 and D2 were set up using something called titanium backup software, which is another computer application, which allowed simultaneous installation of the same account on two devices.  D1 and D2 could not send or receive messages simultaneously.

19.   The defendant’s phone had been an iPhone.  It was produced as P96.  PW4 believed that such a set-up could be used on an iPhone provided it was “jail broken” was the expression used.  Even if “jail broken”, which means changing the iPhone from its original IOS settings, an iPhone can be returned to its original IOS settings.

20.   PW4 examined P96, D3’s iPhone.  He could not tell if P96 had been “jail broken” or had any back-up software installed. It was not “jail broken” and had no relevant software at the time of examination by him.

21.   The 3rd defendant did not give evidence. He is of clear record, and no adverse inference of course can be drawn from a failure to give evidence.

22.   Exhibit D4, a character letter, was produced by the defendant.

23.   The defence did not contest that the two conspiracies charged existed and that the WhatsApp conversations produced would provide evidence of the participants’ involvement in those conspiracies.  They submitted that there was no evidence to show that the 3rd defendant was actually a participant to the WhatsApp conversations.

24.   It was said the prosecution could not exclude the possibility that a third party had taken and used the 3rd defendant’s phone; had used the phone and then deleted the messages to avoid detection.  This is what the defendant had speculated in his record of interview.  Nor could the prosecution exclude the possibility that a third party had tampered with the 3rd defendant’s phone to create a shared account with another phone.  In that case, the conversations exhibited by the prosecution of the WhatsApp account may never have been present on D3’s phone. The prosecution also could not exclude the possibility that the 2nd defendant had stolen the 3rd defendant’s Visa card, and also said that the CCTV footage could not provide a reliable identification of the 3rd defendant’s presence at the Apple Store on 15 July.

25.   Of course the prosecution must prove their case beyond reasonable doubt.  The defendant is charged with two separate conspiracies:  firstly, to make, and secondly, use, a false instrument.  The substantive offences are contained in section 71 and 73, Cap 200.

26.   The actions of the substantive offences required an intent to induce a person to accept the false instrument as genuine in order that that person does or omits to do an act to his own or another’s prejudice.

27.   As I have said, the prosecution clearly have proved the existence of the two separate conspiracies, and indeed, they are not challenged.

28.   The issue before the court is whether the defendant can be proved to a criminal standard to have entered the agreement with the other named defendants and wanted persons.

29.   The essence of a conspiracy is an agreement.  The defendant, by his words or actions, must be proved to have been a party to the agreement to commit the acts alleged in the two conspiracies charged.

30.   The unchallenged and agreed evidence proves the existence of the conspiracies in Charges 1 and 2.  It proves all elements of those offences beyond reasonable doubt.

31.   The defendant in this case is of clear record.  This is relevant to consideration of the credibility of anything said by him and also to his propensity to commit the crimes alleged against him.

32.   The evidence the prosecution relies on against the defendant in this case is circumstantial.  It requires an inference to be drawn against him.  To be drawn, such an inference must be proved beyond reasonable doubt as being the only inference that can reasonably be drawn from the proved facts.  It must be an irresistible inference.

33.   It is claimed that from the evidence I have before me there are three related questions to be resolved.  Firstly, were the WhatsApp messages on the 2nd defendant’s phone actually authored and received from the 3rd defendant; and if they were, do they support the fact that the 3rd defendant was a member of the agreed conspiracies, or a party to the agreed conspiracies?  Secondly, is the identification of the 3rd defendant as being present in the Apple Store in Causeway Bay at about the time the Olly Arthey card was being used there, is that reliable to in fact prove the 3rd defendant’s presence there?  And thirdly, does the finding of the 3rd defendant’s Visa card in the 2nd defendant’s residence provide probative evidence of the 3rd defendant’s involvement in the conspiracies?

34.   The issues are, of course, interrelated. The prosecution says the conclusion the court can draw from them is cumulative, and that together they provide compelling evidence which would persuade the court to find beyond reasonable doubt that the defendant was in agreement with the other named defendants and named parties in the alleged conspiracies.

35.   The WhatsApp messages are the first issue.  The WhatsApp messages were found on the 2nd defendant’s phone.  D3 was the contact.  It is not disputed that the 3rd defendant’s number and details were a WhatsApp contact of the 2nd defendant.  The 3rd defendant had an iPhone P96.  The demonstration I saw in court involved android phones.  It did establish that the phones used had downloaded the third party application titanium backup.  There, the same WhatsApp account can appear on two separate android phones.  Thus it is possible that the 3rd defendant’s WhatsApp messaging contact telephone account could have been duplicated onto another phone.

36.   However, is there any evidence that this happened here?  The 3rd defendant said that either Walid or another person could have used his phone.  In submission it was added that they could possibly have duplicated his account onto another phone.

37.   Firstly, I note the conversations of the 2nd defendant’s phone are with a person called Saudee at the 3rd defendant’s phone number.  The actual conversations have been reproduced by way of photographic representation in Exhibit 91 and are numbered.  Some parts of the conversation are relevant to determine the issue that I am considering now.

38.   It would appear from the conversation that the person who is in conversation with Saudee is clearly not Walid, as this person refers to Walid in the third person, and so the conversation that is being used by Saudee cannot be Walid messaging the 2nd defendant.  This is shown in P91 by photo 12 on the 12th page.  The person who the account identifies as Saudee says:  “Anything” to D2, and he says:  “No”.  D2’s response is:  “No.  Have no cards.  Gave to Walid to try over”.  And then: “TGE”.  So clearly the 2nd defendant is referring to Walid in the third person as the person he is communicating to, so he cannot be messaging Walid in this case or indulging in conversation with him.  Also again at photo 15 the number identified as Saudee’s says:  “No spare”, and the 2nd defendant’s number says:  “Walid has at his house I think”.  Again, the 2nd defendant is not messaging Walid.

39.   Also of significance in this conversation and what can be gleaned from this conversation furthermore is that the person messaging, using the telephone number, Saudee, uses a Tagalog expression, and that can be seen at photograph 13 of P91, where the expression “Eh ano pala”, this has been identified in court as being a Tagalog expression.  This is significant because it is common ground that the 3rd defendant is a Tagalog speaker.  So the conclusion could be reached that the Tagalog speaker is using the phone and that could be linked to the 3rd defendant’s possession of that number.

40.   I consider these factors are compelling evidence to show in fact that the 3rd defendant is a participant in the conversation exhibited in P91.  However, this evidence does not stand alone.  There are other matters that I consider with it.

41.   The initial conversation involves the despatch by the WhatsApp application in the name of Saudee of an image containing encoded credit card data which was eventually found on the Olly Arthey card used on 15 July 2014 and also by the 1st defendant on 12 August 2014.  The initial use was at the Apple Store in Causeway Bay at about 9.30 on 15 July 2014, where the 3rd defendant is identified as being recorded on the CCTV in that store.  The identification is made by the second prosecution witness.  However, as part of the court proceedings, the CCTV recording was played for his benefit and for the court’s benefit.

42.   Having seen the recording, I can say that the CCTV clearly shows the 3rd defendant is present.  The 3rd defendant is distinctive in his appearance.  Certainly the identification made by the second prosecution witness is a reliable identification.  The image is clear enough and lasts for a sufficiently lengthy time for anyone seeing it and then seeing the 3rd defendant to be sure that the CCTV recording shows the 3rd defendant in that store at that time.

43.   I am sure as a fact of the 3rd defendant’s presence in the Apple Store at the time when the Olly Arthey card has been used.  This is again compelling evidence to show involvement in the conspiracy.  It is in this case unexplained.  It would be too much of a coincidence for the information to have been sent from a phone number purporting to be the defendant’s and then the defendant to appear when that information is being used on the forged card.

44.   These two pieces of evidence, taken together - that is, the recording in P91 and the CCTV recording - are, I find, compelling evidence that Saudee, D3, sent the information using the Olly Arthey card, and that the 3rd defendant is the person “Saudee” referenced to in the 2nd defendant’s phone contacts.  After all, it is his phone number.  The obvious conclusion would be it is his message.  There is no other evidence that points in any other direction or creates any reasonable doubt that the 3rd defendant is in fact the author of those messages.

45.   The technical possibility of cloning WhatsApp accounts is referred to in submission, but this is ruled out by consideration and application of his evidence.

46.   In addition to this, the 3rd defendant’s Visa card is with the 2nd defendant, and there is evidence that the chip had been tampered with.  The 3rd defendant said the card had been lost and had not been reported as lost, as a new card had already been mailed to him.

47.   However, I find the presence of the 3rd defendant’s card is again evidence of the 3rd defendant’s involvement with the 2nd defendant and an involvement in those conspiracies.

48.   I find that these three pieces of evidence, taken together, provide the irresistible inference the prosecution require of the 3rd defendant’s part in the agreements alleged in Charges 1 and 2.  In making these conclusions, I did note the 3rd defendant’s explanation of the WhatsApp messages in his video‑recorded interview.  I also bore in mind his good character as evidenced by his clear record, and the testimonial evidence of Exhibit D4 and his manager, PW3.

49.   But I did find the defendant’s explanation in his cautioned statement both evasive and untrue, and I reject them in their entirety.

50.   I am confident that the evidence presented in this case rules out the possibility of any other person than D3 being the author of the messages in the Saudee WhatsApp account in the 2nd defendant’s phone.  All the evidence, taken together, provides, as I said, irresistible evidence of the 3rd defendant’s part in the agreements alleged in Charges 1 and 2.

51.   The 3rd defendant’s agreements in those conspiracies alleged in Charges 1 and 2 is proved beyond reasonable doubt, and he is convicted on both charges.