HKSAR v. LAU KAM TIM

CACC 139/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 139 OF 2008

(ON APPEAL FROM DCCC 1174 OF 2007)

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J U D G M E N T

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McMahon J (giving the judgment of the Court):

1.  The applicant was convicted after a trial before Deputy Judge Dufton in the District Court of an offence of possession of eight false credit cards, contrary to section 75(1) of the Crimes Ordinance, Cap.200 (“the Ordinance”) and was sentenced to four years’ imprisonment.  He now seeks leave to appeal his conviction.  On 12 November 2008, having heard the application we reserved judgment.

2.  The prosecution case was that the vehicle the applicant was driving was intercepted by police officers shortly after 11 a.m. on 4 October 2007 in Mei Tin Road in Tai Wai.  No other person was on board.  When the vehicle was searched an envelope was found lodged between the front passenger’s seat and the driver’s seat.  It was unsealed.  Inside the envelope were two plastic bags.  They were distinctive in that each had attached externally to it a large piece of double-sided adhesive tape.  Inside each plastic bag was a red “laisee” packet containing a number of forged credit cards.  One red packet continued two cards, the other six cards.

3.  Further search of the vehicle located in the glove box in front of the front passenger’s seat, two further plastic bags of the same sort as those containing the two red “laisee” packets and also having stuck on their outsides the same sort of double-sided adhesive tape.

4.  The prosecution case was that the applicant was aware that the envelope found in his vehicle contained forged credit cards, and as a result it was to be inferred that he had the intentions specified in section 75(1) of the Ordinance.  The prosecution case was in large part the subject of admitted facts and the only witness called was the police officer who after the interception of the applicant’s vehicle had searched the vehicle, found the items we have referred to and subsequently arrested the applicant.

5.  The applicant did not give evidence but relied upon the explanations provided by him to the police in a video recorded interview conducted following his arrest.  He claimed to be a self-employed transport worker who was asked by an acquaintance called “Ah Man” to collect something from a person at Shatin railway station and deliver that thing to another person at a roundabout at Lung Hong Estate.  He was to be paid $200 for the delivery.  The applicant had told the interviewing police that the person at Shatin railway station who gave him the envelope said the contents were “cards”, and he believed them therefore to have been name-cards.

6.  He explained the two plastic bags with the double-sided adhesive attached found in his vehicle’s glove box as having been placed there by “Ah Man” on an occasion when he had driven “Ah Man” to Lung Hong estate.  He said he had no means to contact “Ah Man” as he did not have his telephone number and did not know where he lived.

7.  The applicant’s case was therefore that he was an innocent dupe.  A further proposition was put forward to the effect that the applicant may have been set-up by a person or persons unknown as it was common ground that the police had received information which led to their “targeting” the applicant’s vehicle.

8.  The sole ground of appeal advanced by Mr Christopher Grounds is that the judge failed properly to evaluate the evidence.  In seeking to establish that ground he makes three complaints :

(1)  The judge did not or may not have taken into account the fact that the police had information connecting the applicant’s car and its movements with credit card offences.

(2)  The judge wrongly considered it to be inherently improbable that persons embarking upon a criminal enterprise concerning forged credit cards would entrust the delivery of those cards to an innocent dupe.

(3)  The judge wrongly found that there was sufficient evidence to prove the applicant intended that either himself or another person would use the forged credit cards so as to defraud some person.

(1)   The police information

9.  This evidence was led by defence counsel in cross-examination of the solitary prosecution witness PW1, the arresting officer.  The point counsel may have been trying to make was that the police had received information which led them on the morning of the applicant’s arrest to intercept the applicant’s vehicle, and that those circumstances suggested the possibility that the applicant may have been “set-up” by a police informer.

10.  The only relevant evidence came from PW1 and was at its highest to the effect that the police interception of the applicant’s vehicle had arisen from information of some unspecified sort which had resulted in the police wishing to intercept and search that particular vehicle during the course of an operation directed against activities involving forged credit cards.  His evidence included this exchange :

“Q.  …Would you accept that the information that the police received is very specific?

A.  Because it’s so-called an information, then I’m not in a position to doubt it.

Q.  Right.  You might not know this but you don’t need to divulge the information of the informer, but as far as you know, was the informer paid any information money for the information, reward for the information?

A.  The whole team of officers who were conducting the arrest on that day, not a single one had contacted the informer of this case.

Q.  Do you know who’s the informer, this person was?  Which officer is informer?

INTERPRETER:  Sorry, which officer?

Q.  Who was the handling officer of this informer?

A.  I don’t know.

Q.  Did it ever cross your mind that this could possibly be a setup case?

A.  Neither do I know, but I believe that it was not the case.

Q.  Give us your reason.  I mean, first, the police party went to Sheung Shui, then to KC, Shatin.  So either you say neutral or either you give us the reason why you don’t feel this is a setup.  It’d be helpful.

A.  Because from the time we were in Sheung Shui waiting for instruction to the time we reached Shatin, we were acting upon instruction.”

11.  It is noteworthy however that in defence counsel’s final address at trial, it was never suggested that the case against the applicant was a “set-up”.  Defence counsel did deal with the evidence of the police having intercepted the applicant’s vehicle as a result of information provided to them, but did so in the following way :

“Your Honour, you would note from the evidence quite helpfully, in my submission, given by the officer there was some sort of information that the police received.  Sometimes, the defence hands are tied because we can’t probe into this piece of information—quite rightly, in my submission, to promote justice in Hong Kong—but we know that they were acting on a tip-off and they proceeded to Sheung Shui and that is the first station linking us to the mainland China.  So anyone coming in, Sheung Shui is normally the first—or Lowu is—Sheung Shui is the second one, I think, after Lowu.

…

But the relevance of this, you may think, your Honour, is this : the defendant and the defence were not served with any of the police statements until before the trial.  If he was involved earlier on, your Honour, he exculpated himself.  He gave a VIR very soon after his arrest.  Your Honour, imagine if he was under surveillance for three days or one day before this operation.  The police would have said, ‘We had you under surveillance for the 24 hours.  What are you talking about?  There is no Ah Man who came or Ah Man’s friend came over to give you any parcels.’”

12.  Accordingly it has been suggested before us for the first time in submissions that the applicant may have been “set-up”.  And this suggestion is put forward solely on the basis of the evidence given by PW1 that an informer may have provided information about the applicant or his vehicle being involved with forged credit cards.  From there Mr Grounds argues that the judge should have considered the possibility that the applicant was an innocent dupe who was “set-up”.  We have difficulty in understanding how the judge was supposed to consider any such possibility, considering the paucity of the evidence before him, without embarking upon a wholly fanciful line of speculation.  That was an exercise which he most certainly should not have countenanced. 

13.  It follows that this complaint has no merit.

(2) “Inherent improbability”

14.  In his reasons for verdict, the judge said, when considering the credibility of the applicant’s evidence :

“41.   Further I find inherently improbable that a person embarking on a criminal enterprise involving counterfeit credit cards would entrust the assistance of someone to deliver the cards, let alone someone he just happened to bump into, unless that person was a party to the criminal enterprise knowing he was delivering counterfeit credit cards.  Further there would be no need to entrust an innocent third party to collect and deliver the false credit cards thereby running the risk for example of the innocent party discovering the criminal enterprise or of losing the cards.”  [Emphasis added]

15.  This particular finding of the judge was one of a number of reasons the judge gave for rejecting the applicant’s version of events.  Later in the course of his considering whether to infer the applicant knew the contents of the envelope found in his vehicle were forged credit cards, the judge reiterated, as one of the matters he took into account :

“44.  Taking into account the following :

…

(iii)  the inherent improbability of persons embarking on a criminal enterprise involving counterfeit credit cards entrusting the assistance of someone to deliver the cards unless that person was a party to the criminal enterprise knowing he was delivering counterfeit credit cards…”

16.  Mr Grounds’ complaint is that by this finding the judge presumed that a courier for a criminal enterprise would know what he was carrying and so created a presumption in the present case which effectively reversed the burden of proof.

17.  With respect, this argument is misconceived.  At the commencement of his reasons, the judge carefully and properly directed himself on the burden and standard of proof.  He said this :

“34.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the defendant’s guilt before I can convict.  On the other hand if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant is entitled to be acquitted.”

and went on :

“35.  I remind myself that when drawing inferences from the evidence the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved.”

18.  There can be no doubt that the judge was amply aware of the approach he was required to take in considering the case against the applicant.  Mr Grounds asserts however that by his comments at paragraphs 41 and 44 of his reasons for verdict as set out above, the judge failed to properly apply the principles of law of which he had reminded himself.

19.  In considering both the credibility of a witness’s (including a defendant’s) evidence and his finding of fact on a particular issue a judge, and jury, is entitled to take into account the implausibility or otherwise of that witness’s evidence.  In doing so it is wholly unremarkable that the probabilities or improbabilities of a particular assertion, whether made by the prosecution or the defence be taken into account.  That is an inevitable consequence of the application of common sense to fact-finding.  In the recent case of HKSAR v. Tam Wing Ming (unreported), CACC474/2007, brought quite properly to our attention by Mr Grounds, and where a similar issue had arisen, complaint was made of the judge in his summing-up saying this :

“Is it at all realistic to think that dangerous drugs of such value would ever be entrusted to an innocent person, a dupe who did not know their nature?”

20.  Stuart Moore VP in delivering the judgment of the court said :

“… The particular comment, which was highlighted by Mr Donald in this ground of appeal, stood out as an obvious point in the case which it was clearly right the jury should consider.”

21.  In HKSAR v. Wong Ka Wah (unreported), CACC260/2006 the issue was, similarly to that in the present case, whether bogus documents and other items including a large number of credit cards found in a van driven by the applicant, which documents and cards had been used in the commission of a fraud upon a bank, may have been left there by other individuals so that the applicant’s possession of them was innocent in the sense he was unaware of those documents and items connection with any fraud.

22.  In considering the applicant’s argument that this evidence was insufficient to establish that he was a party to that fraud, Stock JA said :

“33.   It is obvious to us, as it was to the [judge], that the account given by the applicant as to the circumstances in which he came by the documents, the cards and the keys, was untrue.  It just makes no sense for the conspirators to leave these documents, cards and keys in the hands of an innocent third party who upon their discovery—bank documents and over fifty credit or bank cards belonging to a host of different persons—might very well take them to the police, or to the banks and describe the persons who had accidentally left them in his van. …”

23.  Depending upon the circumstances of the case, if common sense dictates those circumstances properly allow for a conclusion that the defendant’s possession of an item or items renders it improbable he did not know the nature of what he possessed, then that is a matter which can be sensibly and properly taken into account by a finder of fact so long as it is borne well in mind, as we are satisfied it was in this case, that at the end of the day the prosecution has to prove its case beyond reasonable doubt.

24.  Mr Grounds based some part of his argument upon the judge’s use of the word “inherently” and sought to distinguish the comments in the two judgments we have referred to on that basis.  But we do not think the judge meant to import by that word anything other than that his finding was made with reference to the circumstances of the present case.

25.  This compliant had no merit.

(3)  The intention to use and deceive

26.  The final complaint made by Mr Grounds stems from the judge’s finding that :

“44.   … that the defendant intended that the credit cards would be used to induce someone to accept them as genuine and intended by reason of accepting them that the other should act to his own or someone else’s prejudice for there can be no other reasons to possess counterfeit credit cards than to use them as though they were genuine intending the other to accept them as genuine and thereby intending the other should act to their prejudice.”

27.  The argument is that this finding was flawedbecause there was no proper consideration as to whether a mere courier in the circumstances of this case could properly be found to have possessed the double intention required by section 75(1) of the Ordinance.  In particular it is said that the judge’s finding was in error because it :

“… failed to consider the position of the courier who had no concern with what other people did or did not do with the cards, provided he received… $200 for delivering them from A to B. …”

28.  We accept Mr Grounds’ position that the judge’s finding that the applicant possessed the required “double intention” must be looked at in the context of the applicant as a courier of the credit cards and not as an ultimate user.  There was simply no evidence so as to allow any such inference to be drawn.  We note that in the course of giving reasons for the sentence he subsequently passed, the judge had specifically accepted that the applicant was a courier and was a “cog in the wheel” of the criminal operation.  But he was at pains also specifically to state that :

“… I do not accept the submission that in reality the defendant was only in simple possession of the cards. …”

29.  In our view this statement of the judge reflects the thrust of his finding that the two plastic bags found in the glove box of the applicant’s vehicle, each with a piece of double-sided adhesive tape stuck to them, shared a similarity with the plastic bags found to contain the forged credit cards.  The judge rightly rejected that similarity as being a mere coincidence.  We have seen those exhibits and the two sets of plastic bags and the attached pieces of adhesive tape are identical one to the other.

30.  From that, and bearing in mind the judge’s rejection of the applicant’s explanation in his interview with the police as to how the two plastic bags came to be in his vehicle’s glove box, it follows that the applicant was not a mere courier who may have paid no heed to the nature or purpose of what he was transporting.  As Miss Louisa Lai for the respondent urged upon us the applicant was involved in this endeavour at a deeper level.  Given the empty plastic bags found in his vehicles glove box, the applicant had some connection at least in the handling of the bogus credit cards that went beyond the involvement of a mere courier who gave no thought to them other than his task of transporting them from A to B.  It must be borne in mind that the vehicle the applicant was driving when intercepted was his own, and no other person was in that vehicle with him.

31.  In those circumstances, the judge’s drawing of the two inferences going to the applicant’s intention, following upon his finding that the applicant knew of the nature of the credit cards, was one properly open to him.  The judge was entitled to conclude, as in our view he must have done, that given that the applicant would certainly have foreseen that the credit cards would inevitably have been used for the purpose of fraud, his intention in that regard could be inferred.

32.  It may well be that the judge in his reasons for verdict did not embark upon an analysis of the applicant’s inferred intention to the same extent that we have, but we do not think he needed to.  The judge’s finding and the explanation for it as set out in paragraph 44 of his reasons for verdict were, in our view, sufficient.  As the judge said it is difficult to think of any use or purpose the possessor of forged credit cards could attribute to them other than that they would be used by their eventual possessor to defraud some other individual or entity.  In saying this we do not wish to convey that every possessor of forged credit cards can be taken to have the intentions required by section 75(1) of the Ordinance.  Each case will depend on its own facts.  But in the circumstances of this case, given the evidence pointing to the applicant’s deeper involvement with the cards than that consistent with the role of a mere courier, the inferences arrived at by the judge, and for the reasons he gave, cannot be challenged.

33.  This final complaint fails and the application is dismissed.