HKSAR v. CHENG HOK MAN

CACC 367/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 367 OF 2003

(ON APPEAL FROM DCCC 247 OF 2003)

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

Background

1. On 13 August 2003, the Appellant was sentenced, following a trial in the District Court before Deputy Judge A. Wong, to a total of forty-eight months' imprisonment in respect, primarily, of offences of possessing false instruments (charge 4) and handling stolen goods (charge 6) of which he had been convicted on the previous day. On these charges, the Appellant was sentenced to thirty-nine months and sixteen months' imprisonment respectively, with eight months of the latter sentence being ordered to run consecutively, making forty-seven months in all. We are not concerned in these proceedings with the offence for which he received the balance of one month's imprisonment or other charges on which the Appellant received financial penalties. The Appellant only sought leave to appeal against conviction and sentence in respect of charges 4 and 6 and, on 24 December 2003, leave for each purpose was granted by the single judge.

2. The fourth charge against the Appellant alleged that on 23 October 2002, in contravention of section 75(1) of the Crimes Ordinance, Cap. 200, outside Yau Oi Refuse Collection Point, Upper Wong Tai Sin Estate in Kowloon, he had in his custody instruments which were and which he knew or believed to be false, namely two counterfeit credit cards, with the intention that he or another would use them to induce somebody to accept them as genuine and, by reason of so accepting them, to do or not to do some act to his own or any other person's prejudice.

3. The handling in the sixth count alleged that on the same date the Appellant dishonestly received a DVD player and nine VCDs. Although the judge convicted on this charge, this finding was in respect of the DVD player only.

The facts

4. The facts were a little complicated. Putting them as concisely as possible, on 23 October 2002, after the Appellant had been followed by police for some time, he was spoken to as he got out of the car, registration number KT 170, he had been driving. When he was searched, a number of items were found either on him or in the Gucci bag he was said to have had over his shoulder. These included a notebook containing numerous 16-digit numbers (Ex. P. 8) which were coded credit card numbers.

5. The car, KT 170, was also searched. Amongst the things found were ignition keys for two other cars, HF 2212 and DS 561, a photograph of the Appellant inside the car owner's manual, and two forged credit cards wrapped inside a piece of paper, the subject of the fourth charge. These were unsigned and were found in a compartment under the audio system next to the driver's seat. They were apparently hidden from direct view by a calculator which lay over the top of them. The Appellant was cautioned in respect of the forged credit cards and he replied that the car was not his.

6. Later, police searched the two other cars for which the Appellant had the ignition keys. In the boot of car HF 2212 were found two bags. These contained a total of nine VCDs. They had been bought with credit cards in two transactions without the authorisation of the cardholders. Also in the boot was a DVD player (Ex. P. 47) similarly purchased on a credit card without the cardholder's authorisation. All of these items were the subject of the sixth charge. When cautioned, the Appellant again replied that the car was not his.

7. For the purposes of this application, nothing of relevance was found in the third car, registration number DS 561.

8. The number of the credit card used to buy the DVD player found in car HF 2212 was discovered, in coded format, inside the notebook found on the Appellant (Ex. P. 8). In addition, the purchase order (Ex. P. 54) for this item (Ex. P. 47) was seized from a bedroom drawer in his flat. Also in the notebook, again in coded form, were found the credit card numbers appearing on the forged credit cards kept in car KT 170, the subject of the fourth charge.

9. Against this broad factual background, providing circumstantial evidence of the Appellant's involvement in the offences covered by charges 4 and 6, the Appellant chose not to give evidence. He did, however, call his wife (DW1) to testify about a number of matters relevant to these allegations. In particular, she said that the Appellant's elder brother ("the brother") was a trader who often went overseas. He sometimes stayed at their address and would leave some of his possessions there. It was, she said, the brother who owned the three cars which police had searched and she had even made an application for him to be able to park one of his cars at her address in Shaukeiwan because, as a flat owner, she was permitted to rent a space there. She said that she had seen the brother, and others including the Appellant and "Ah Ben" (who had also stayed in their flat and possessed a key to it), driving the car, HF 2212, and that all of them as well as herself possessed the keys to all three cars. Sometimes, she said, Ah Ben would also leave things at the flat.

10. In addition, DW1 provided evidence on the two potentially most important issues concerning, firstly, the Gucci bag and, secondly, the pink-coloured purchase order for the DVD player. She said that at some stage the Appellant had lent his Gucci bag to the brother and that a pink document, which happens to be the colour of the DVD player purchase order (Ex. P. 54), was tidied up by the domestic helper who had put it together with other documents into the drawer in the Appellant's bedroom.

11. The defence contended that the combined effect of DW1's evidence, if accepted, was that it left doubts about the Appellant's culpability which should have led to an acquittal.

12. The only real evidential dispute in the case arose over the whereabouts of the Gucci bag at the time the Appellant was intercepted on 23 October 2002 at sometime after 4.30 pm. It was suggested to the officers that it was in fact found by them in the back of the car which the Appellant had been driving. After a thorough examination of the police evidence, the judge found that it had been carried by the Appellant over his shoulder. However, the area of dispute did not quite end there. The officers who searched the Appellant had not made a record of what they found or from where each item had come. In the result, they were unable to say if the notebook containing the credit card numbers was found inside the Gucci bag or on the Appellant himself. However, in the event, for reasons we shall come to, this may not have been a matter of any real significance.

13. There was one other important aspect of the evidence. This concerned the brother or, as Mr Vincent Wong on the Respondent's behalf, in his most helpful address to the court aptly referred to him, the "bad" brother who was arrested on 28 August 2002 in possession of a forged visa card. In the boot of the car he was using, items of equipment including an encoder, capable of reading data from credit cards, and a laptop computer were recovered. The brother had been in custody since that time.

14. Bearing in mind that the events in the present case occurred almost two months after the brother's arrest in respect of his allegedly fraudulent activities concerning credit cards, the judge focused, with painstaking care, on the evidence which directly linked the Appellant to those offences while balancing this with the other admitted evidence about the brother and the testimony given by DW1.

15. What it amounted to was that a DVD player had been purchased during the evening of 22 October 2002 with the unauthorised use of a credit card bearing a number which was to be found (in code) in the notebook found either in the Appellant's Gucci bag or being carried in his clothing. There was no evidence that the Appellant was himself the purchaser although the DVD player had ended up in the boot of a car parked in Kowloon City Plaza to which the Appellant had a key. It was found there soon after the Appellant's arrest.

16. On the next day, nine DVDs were purchased in Mongkok at about 3 pm. These, like the DVD player, ended up in the boot of the car, HF 2212. These had also been purchased on a credit card without the cardholder's authorisation. Again, the card number, in code, was to be found in the notebook. However, surveillance evidence established the Appellant's whereabouts at that time to have been in a restaurant in Kowloon City Plaza and the judge found, perhaps somewhat generously when acquitting the Appellant of handling these particular items, that he could not rule out the possibility that the Appellant was acting in concert with someone who, without the Appellant's knowledge, had bought the VCDs and placed them in the boot of his car. However, with regard to the VCD player, the purchase note for which had been found in his bedroom, the judge said:

"In all the circumstances, taking into account that the defendant had close connections with the car HF 2212, even though there is insufficient evidence to prove that he had exclusive use of the car and that he had recent access to the car, and the existence of the receipt in the defendant's home, in all the circumstances, I am satisfied beyond reasonable doubt that the defendant had received the DVD player." (Appeal bundle p. 56)

17. The judge went on to find guilty knowledge proved by the existence of the credit card number, in coded form, inside the notebook being carried by the Appellant.

18. In regard to charge 4, the judge again set out his reasons in full for convicting. He found this charge proved bearing in mind the evidence of the Appellant's possession of the two counterfeit credit cards and the numbers for them which, in coded form, were set out in the Appellant's notebook.

19. The judge who gave leave did so because of concern whether knowledge by the Appellant of the existence of the notebook and its contents had adequately been considered by the judge at first instance and whether that knowledge had been adequately established. That concern was, we respectfully agree, a matter for careful consideration and we now have had the advantage of a very detailed scrutiny of the chain of evidence. That chain led inexorably to this Appellant.

20. There was an abundance of evidence against the Appellant on both charges. He has put forward no specific grounds of appeal and we have not been able to discover anything of substance which could justify our interference with these convictions.

21. Accordingly, the appeal against conviction must be dismissed.

22. The appeal against sentence is also without merit. No grounds were advanced by the Appellant and we have not been able to find anything which suggested that the sentence imposed by the judge was a day too long.

23. This appeal is also dismissed.