HKSAR v. SIU WAI KWAN NICOLE

[English Translation – 英譯本]

CACC 441/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

Criminal Jurisdiction

CRIMINAL APPEAL AGAINST CONVICTION NO. 441 OF 2014)

(ON APPEAL FROM DCCC NO. OF 693 OF 2014 )

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REASONS FOR JUDGMENT

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Hon Cheung, JA (giving the reasons for judgment of the Court):

I. Charges

1.1   The applicant, together with 3 other defendants, was charged with multiple charges in the District Court.  The applicant was the first defendant of the case.  She was charged with 7 charges.  H.H. Judge SM Sham convicted the applicant of the following charges after trial:

1)   The 1^st and 2^nd charges of “Handling stolen goods”, contrary to section 24 of the Theft Ordinance, Cap. 210.

2)   The 3^rd charge of “Possessing equipment for making a false instrument”, contrary to section 76(1) of the Crimes Ordinance, Cap. 200.

3)   The 4^th and 5^th charges of “Possession of an identity card relating to another person”, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177.

1.2   Furthermore, the applicant pleaded guilty to one count of “Possession of a dangerous drug” (the 6^th charge), contrary to section 8(1)(a) and (2) of the Dangerous Ordinance, Cap. 134.

1.3   Judge Sham sentenced the applicant to 5 years of imprisonment for charges 1 to 6. The applicant applied for leave to appeal against both conviction and sentence.  Earlier, a single judge sitting in the Court of Appeal rejected the applicant’s application for leave to appeal against both conviction and sentence. Now, the applicant renews her application for leave to appeal against her convictions on charges 1 to 5.  After hearing the application, this court has dismissed the application and will now give the reasons for judgment.

II.   Prosecution case

1)   Registered occupant at the hotel

2.1   The applicant and the 3^rd defendant (“D3”) of the case were the registered occupants of room 1529 of the Harbour Plaza Hotel from 15 August 2013 to 27 August 2013.  D3 signed the lease agreement with the hotel on 15 August 2013, and both of them were seen visiting and leaving the hotel in CCTV recordings since that day.  When the police entered the said room for execution of a search warrant on 27 August 2013, the applicant, D3 and the other 2 defendants of the case were all found inside the room.  The police seized multiple numbers of exhibits, including the following:

(1)   About 1,934 stolen letters or documents (Charge 1);

(2)   43 stolen bank cards (Charge 2);

(3)   Equipment for making a false instrument including: (i) an encoder, (ii) one mini optical disc together with a user manual for encoder, (iii) 34 blank cards, (iv) 2 card readers and (v) 2 smart /SIM card readers (Charge 3);

(4)   2 identity cards relating to other persons (Charges 4 and 5);

(5)   Dangerous drugs relating to Charge 6; and

(6)   Notebook(s), computer(s) and items such as mobile phone(s)

2)   The scene where items were seized

2.2   As seen from the photos taken on the same day by the police identification bureau, some of the letters/documents as mentioned above in (1) were scattered on the floor between the bed and the window bay, while some were kept inside a transparent plastic container and file.  One of the identity cards as mentioned in (4) above was placed by the side of a printer on a desk, while the other was inside a “BULOVA” box contained in a red paper bag with the above-mentioned bank cards in (2). A hard paper box containing one encoder, bill/s, mini optical disc and blank magnetic cards was on top of the bed with 4 laptop computers.  Inside the bag on the window bay, there were card readers.  A number of mobile phones were seized from inside the room, including an iPhone 5 (“iPhone 5”) smartphone on the top of the cabinet by the bed. 

2.3   The applicant’s fingerprints were found on documents, the plastic container that contained them and the two notebooks, which were seized at the scene.

2.4   The above stated facts which the prosecution relied on, and the items seized were not in dispute.  They formed part of the admitted facts between the prosecution and the defence.

3)  Information arranged from stolen letters for use in criminal activities

2.5   There was personal and bank information concerning others (others’ information) recorded in the above-mentioned 2 notebooks.  There was a USB memory stick (“USB”) attached to the Apple MacBook Pro (“Macbook”) computer being seized at the scene.  The said USB and the iPhone 5 mentioned above also contained others’ information.

4)  The applicant’s reply

2.6   On 27 August 2013, when arrested and cautioned by the police, the applicant said: “Those ice is for my own consumption.  Other items do not belong to me.”  The applicant willingly attended video-recorded interviews in the following 2 days, she remained silent or denied knowledge on items relating to charges 1 to 5.

2.7   In the video-recorded interview(s), the applicant admitted that the above said Macbook together with the USB connected to it, another Acer computer (“Acer computer”) and the iPhone 5 were her belongings.  She lent the Acer computer to D3 for his use.

III.   Defence case

1)   Living in the same room with the applicant

3.1   The applicant did not give evidence in the original trial, but she called D3 as the first defence witness.  D3 admitted that he committed the above mentioned charges 1 to 5 in the hotel room.  D3 claimed that although the applicant and he lived at the same premises for many days, she did not participate in his criminal activities.

3.2   D3 said in his evidence that he and the applicant were friends who had been acquainted for 2 to 3 years and were on good terms.  At the time when he moved into the room, the name of the applicant was registered so that another key card would be assigned.  He and the applicant each held a key card to the room.  Sometimes, D3 would have friends staying overnight, including the second defendant (“D2”) and the fourth defendant (“D4”).  The rental payment for the room was paid by D4.

3.3   D3 explained that he invited the applicant to live in that room together so that she did not need to carry heavy items while walking up four flight of stairs to go home all the time, as she had injured her arm/hand.  Whenever one of them went home, the other could still use the room.

2)   Letters/Documents

3.4   D3 claimed that he rented the room to “do things”, he explained that he used the room to sort through letters that were stolen.  He rented the room because he did not want his girlfriend and his family to know (about this).  He said that all letters seized on the premises were stolen by himself and another friend named “Ah B”.  He needed the room to sort through the letters since it was inconvenient for him to store them at home.  As shown from the photos of the scene, after he had sorted the documents into categories, (he then) arranged and stored them securely into folders, and some of them were stored in a plastic container.  He discarded the unwanted documents onto the floor.  He had not shown the applicant the folder with the sorted documents.  However, at times when these things obstructed the applicant, she would move them to a corner.  The applicant had enquired about the use of those documents, D3 replied that he needed those to do things.  He did not tell the applicant the true situation, and he had never let the applicant assist in sorting through those documents.

3)   Bank cards and identity cards

3.5   D3 claimed that the red paper bag on the bed belonged to him.  He was also the one who put the bank cards and one identity card relating to the charge(s) into the “BULOVA” box that was inside the bag.  The applicant had never opened the “BULOVA” box to D3’s knowledge.  He emphasized that each of them had their own personal belongings and they would not touch each other’s stuff.  However, sometimes, they might put their own belongings into the same bag.  The identity card found on the table was in his (possession).

4)   Encoder and mini optical disc

3.6   The encoder and the mini optical disc found inside the hard paper box on the bed by the police were purchased by D3 through the applicant’s Taobao account.  The applicant has the habit of shopping from Taobao site.  D3 found opening an account troublesome, since it required verification of identity as well as registration of a mainland phone number, therefore, (he) used the balance in the applicant’s account to shop, however, he hid his purchase of the encoder from the applicant.  He repaid the applicant in cash and arranged for courier to deliver the encoder to the hotel.  The mini optical disc contained the drivers to the encoder.

5.  Computer(s) and USB

3.7   D3 said that the MacBook and the Acer computer seized by the police from the room belonged to the applicant.  He borrowed them from the applicant without telling her (his) purposes.  He had downloaded and installed software for the card readers in the Acer computer. (He) tried to replicate the information stored in the bank cards onto the blank magnetic cards by connecting the card readers to the computer.  The applicant had not asked him about the software and he did not volunteer the information.

3.8   D3 had also tried to alter the words on the documents being scanned into the computer (PDF format) by using the MacBook, for example monthly statement of others.  (He) created false address proof for others, he did not tell the applicant about this, and he moved related files to the USB and deleted them from the MacBook.  The USB belonged to D3.

6)  Notebook containing other’s information and D3’s purpose

3.9   D3 said that after he had sorted through the documents, he jotted down information on the owners of the stolen letters into 2 notebooks. This is one “Gambol” notebook and a purple coloured notebook in order to activate the stolen bank cards.  He also intended to use the above-mentioned tools to replicate credit cards, however, he had not succeeded yet.

3.10   He borrowed the purple coloured notebook from the applicant.  Later, he clarified that he bought it with the applicant.  After the applicant had taken out the loose pages she had written on, she lent it to D3 and had not touched it again.   D3 inserted new loose pages for use.  The “Gambol” notebook belonged to him, the applicant had not touched that notebook.

7)  Mobile phones

3.11   D3 said that after he left Hei Ling Chau Correctional Institution, he had no phone to use, therefore the applicant lent him the iPhone 5 together with the SIM card inside the phone.  In July 2013, he bought another phone, intending to transfer all the information to the new phone and returned the iPhone 5 to the applicant.  In fact, the numerous number of phones seized in the hotel room all belonged to the applicant.

IV.   Verdict by Judge Sham

4.1   Judge Sham said that D3’s evidence in short, was that he admitted using the hotel room to conduct his criminal activities.  Although D3 lived in the same premises with the applicant, the applicant had nothing to do with this matter.  Judge Sham said:

“7. The question was whether the 3^rd defendant’s evidence relating to the 1^st defendant having nothing to do with this matter was credible. If it was not, from the inference made by the evidence accepted by the court, whether I can reach an irresistible inference that the 1^st and the 3^rd defendant were carrying out criminal activities in the premises with the same criminal purpose.”

4.2   Judge Sham did not accept D3 as an honest witness, he said:

“The 3rd defendant as a witness

41.   Having heard his evidence in court, undoubtedly, he was not an honest witness.  I accepted his evidence only on his admission of his own criminal activities.  Concerning his explanation on behalf of the 1st defendant that it has nothing to do with her, his version was contradictory, I totally reject them, and found that he was only telling lies, hoping that he could deceive the court of what the 1st defendant’s involvement was.”

4.3   Judge Sham inferred that the applicant and D3 lived in the same room for the same criminal purpose. Judge Sham found the applicant guilty of all relevant charges (except the 8^th charge), he said:

“Joint Enterprise

42.   Based on the evidence before the court, I have absolutely no difficulty in reaching the only inference that the 1st defendant and the 3rd defendant, from the moment they moved into the hotel room, lived together for the same criminal purposes.  Only this could reasonably explain why they would live in the same room with such ordinary relationship.  Their purposes were the two purposes as D3 explained – sort and save the personal and bank information gathered from the letters stolen by D3 and use the information to activate credit cards of others for own use; or to input the above data onto blank cards with the help of the encoder, to replicate cards for use.”

…

44.   They acted in a joint enterprise under the same criminal purpose. Who did what was not material in the course of the crime, because in the legal concept of joint enterprise, one is responsible for another’s actions.

45.   All the letters or documents found inside the hotel room (contained) personal and bank information that belonged to others.  Part of those information could be found in the 1st defendant’s mobile phone (iPhone 5).  I have absolutely no difficulty in drawing the inference that she understood those information as being obtained through illegal means and that she possessed such information also for illegal purposes.  Undoubtedly, she was dishonest in doing so.”

4.4   Judge Sham opined that it was only neutral evidence that the applicant’s fingerprints were being found on items.  It was not surprising that she left her fingerprints since the applicant lived in that room. 

4.5   Judge Sham concluded that the prosecution had proved charges 1 to 5 beyond all reasonable doubt and convicted the applicant of these 5 charges.

V.   Grounds of appeal raised by the applicant

5.1.   Counsel for the applicant, Ms. Chong, Sezen K. Y., submitted 9 grounds of appeal.  The court now deals with these grounds.

1)  The 1^st and the 2^nd charges of “handling stolen goods”

5.2   On the 1^st and 2^nd charges, Ms. Chong submitted the following 5 grounds:

(1)   Judge Sham did not specify on which one of the two limbs of “handling stolen goods” he convicted the applicant, his verdict was not clear.

(2)   There was insufficient evidence to prove that the applicant had legal possession or control of the stolen goods.

(3)    There was insufficient evidence to prove that the applicant assisted D3 in handling stolen goods in a joint enterprise.

(4)   The applicant and D3 were jointly charged with having handled stolen goods for the benefit of another, however in this case, there was no evidence to prove who this other person was, since one of the fundamental ingredients for conviction was missing, the prosecution had failed (to prove its case).

(5)   D3 was the thief who stole the stolen goods, he could not have committed “handling stolen goods” at the same time.  Therefore, he could not have handled the stolen goods with the applicant in a joint enterprise.  Judge Sham had wrongly applied the legal principle of “joint enterprise”.

2)  Discussion

(1)   Ground 1: did not specify which one of the limbs the conviction was based upon

5.3   Undoubtedly, there are 2 forms or limbs in “handling stolen goods”:

(1)   The 1^st form: receive or arrange to receive [the receive form].

(2)   The 2^nd form: undertake or assist or arrange to undertake or assist in the retention, removal, disposal or realization by another person or for the benefit of another person [the assist form].

5.4   Although section 24(1) involves 2 different forms of “handling stolen goods”, as pointed out in R v Nicklin (1977) 64 Cr App R 205, the section itself only creates a single offence of “handling stolen goods”.  Furthermore, even if the indictment has not expressively set out which limb the defendant was charged with, it does not amount to a defective indictment.  However, Nicklin pointed out at the same time, that if the prosecution had uncertainty about the form of handling the defendant had committed, they could cover both limbs by laying alternative charges.  These alternative charges would not violate the principle against “duplicity”.

5.5   The facts of the Nicklin case demonstrate the importance of alternative charges.  In that case, the defendant was charged with receiving stolen goods, i.e., the 1^st form of “receiving” “stolen goods”.  He pleaded not guilty, however, he pleaded guilty to assisting in the disposal of stolen goods by another person, i.e., he committed the crime in the form of “assisting”.  The prosecution did not accept the defendant’s plea on the limb of “assisting”.  The original trial Judge directed the jury that they could acquit the defendant of “handling stolen goods” in the form of “receiving”, but they could convict the defendant of “handling stolen goods” in the form of assisting.  At the end, the jury convicted the defendant of handling stolen goods in the form of assisting.  The Court of Appeal in England pointed out that, since the prosecution did not accept the defendant’s plea to committing “handling stolen goods” in the form of “assisting” and it did not put forward an alternative charge, the only charge the jury needed to consider was whether the defendant handled stolen goods in the form of “receiving”.  Under such circumstances, it was an unsatisfactory verdict for the defendant to be convicted of a charge he was not prosecuted for, therefore, the (conviction) needed to be quashed. 

5.6   The Court of Appeal in Hong Kong endorsed the principle in Nicklin in The Queen v Keung Sai Chung and others CACC 19/1985, further, the court disagreed that other cases might support the argument that “handling stolen goods” involves two offences.

5.7   The indictment of this case set out 2 forms of handling stolen goods, however the prosecution did not lay any alternative charge.  At the outset of the original trial, the applicant did not take issue with these 2 limbs.  In the course of the trial, the defense put forward by the applicant was that she had absolutely no knowledge of the information on the letters or bank cards, nor did she know of their uses.  She had not taken part in (any) criminal activities.  Whether her actions constituted “handling stolen goods” in the form or “receiving” or “assisting” was not the issue in the original trial.  The applicant’s legal representative, Ms. Chong, only argued in her final submission that by setting out both forms of handling in the same set of particulars of offence, the prosecution might have violated the principle against duplicity.

5.8   Judge Sham dealt with this in his reasons for verdict.  He quoted section 24 of the “Theft Ordinance” and Archbold (2015) 22-219 to explain that the section creates a single offence, and he opined that it encompasses both limbs being covered in a single charge.  The applicant’s situation also encompassed both limbs:

“58. From the discussion in the above legal literature, it is obvious that there is more than one form of handling stolen goods, however they can all be generalized into a single offence. Therefore, the issue was not on whether multiple charges should be laid, rather it was on whether the particulars of offence had made it clear as to which form of dealing was being alleged. It was the prosecution’s duty to expressly point out which limb they were relying on, so that the defendant can better prepare for his/her defence. As regards laying one single charge or multiple charges, it was only a matter of practice, it seems that it was not a mandatory requirement of the law: in other words, I opined that the prosecution can still lay down a single charge to cover forms (1) and (2) of handling stolen goods.

59. In this case, the police found D1 in the hotel room. Those stolen goods were also found in the hotel room. Stolen information was found in D1’s mobile phone and the usb stick inserted into computer, obviously, the information would be used on crimes concerning credit cards. D1 acted with others in crime, undoubtedly, not only for herself, but also for the benefit of another. The above conditions encompass both limbs (1) and (2) of the offence, the prosecution’s allegation was very clear and the defence would have no difficulty understanding it. Thus, in the circumstances of this case, I find that a single charge of handling stolen goods is not problematic and it was clear enough for the defence to understand the subject of the charge.

60. The prosecution submitted an appeal case HKSAR v CHAN Wah-heung CACC127/2014, although the court mainly discussed the legal concept of “recent possession”, it was worth noting that when the Court of Appeal changed the conviction of theft by the original trial Judge to one of handling stolen goods, the court did not point out on which limb the conviction was based, seemingly taking handling stolen goods as one single offence.”

5.9 This court opines that although the prosecution had not charged the applicant with alternative charges on the forms of “handling stolen goods”, the particulars of offence had set out both forms in the indictment, which is different from Nicklin. According to the circumstances of this case, it is obvious that the applicant had committed the crime in the form of receiving.

5.10 First of all, D3 admitted that he stole the letters and bank cards. Judge Sham summarized the criminal activities D3 had admitted on each charge, in which was mentioned that D3 admitted renting the hotel room for convenience in sorting through letters, his purposes including:

(1) To activate credit cards belonging to others by using the personal and bank information (he) stole for use; and

(2) To use the encoder to try duplicate the blank cards into credit cards for use.

5.11 The Appeal Court of England in R v Dolan (1976) 62 Cr App R 36 (page 39) pointed out that if a defendant handled stolen goods in the course of theft, that would not amount to having committed “handling stolen goods”. However, if the defendant handled the stolen goods in another occasion after the act of theft, he might have committed both “theft” and “handling stolen goods”. Therefore, the act of theft had been completed when D3 took away the stolen documents from the letter boxes and left the building. He then brought the letters back to the hotel and sorted through them for information arrangement and record at a later time, he had already committed “handling stolen goods”. The Court of Appeal confirmed the legal principle of Dolan in HKSAR v. CHENG Chi-wai [2012] 4 HKC 290, 598 D-E.

5.12 Judge Sham listed out 5 points in the evidence to illustrate the involvement of the defendant in this case. These included:

(1) The applicant was the registered occupant of the room.

(2) The two computers claimed to have been borrowed by D3 were used to download software relating to the card readers and to sort through others’ information that was stolen respectively; and that information was stored in the USB connected to one of the computers.

(3) D3 claimed that he borrowed the applicant’s iPhone 5, in which there was information of others and D3 had not transferred the information to his own phone by the time he was arrested.

(4) The encoder set out in the 3^rd charge was purchased through the applicant’s Taobao account.

(5) One purple-coloured notebook containing others’ information was lent to D3 for his use after the applicant had bought it.

5.13 To summarize the facts of the case, the prosecution had adduced sufficient evidence to prove that the applicant and D3 shared the same criminal purpose and committed in the room, “handling stolen goods” in the first form of “receiving”:

(1) Both the applicant and D3 were registered occupants of the hotel room and intended to stay for 47 days until 30 September. The applicant had lived there for 13 days up to the 27 August when the police raided the room. If it wasn’t for the police operation, the applicant would have continued her stay in the room for a longer time.

(2) From the photos submitted by the prosecution, the hotel room was of an open plan with no partitioned space. The majority of the documents and letters were scattered on the floor inside the room, the applicant must have been aware of their existence and had the opportunity to touch, read and understand their content;

(3) The scattered documents and letters did not belong to either the applicant or D3. The documents contained personal information. Simply from the names printed on the documents, there was no question the applicant knew they were stolen properties;

(4) The applicant and D3 were not girlfriend and boyfriend, they were not in any way related, when the applicant saw these stolen properties, she should have returned to her own home. There was no reasonable excuse for her to continue her stay in the hotel room;

(5) Although D4 paid for the rental of the hotel room, the key cards were used by the applicant and D3;

(6) D3 claimed that he borrowed the iPhone 5 from the applicant, however, it was the latest model amongst all the applicant’s mobile phones found in the hotel room. Others’ personal and bank information was stored in the phones’ memory. Although D3 claimed that he had borrowed the phone for at least 2 weeks, he had not finished transferring the criminal information into his own Samsung phone, this claim was completely incredible;

(7) D3 claimed the he had borrowed 2 of the applicant’s computers to conduct his criminal activities, including scanning the stolen documents into the MacBook in order to sort through the stolen personal and bank information, but he saved the data in the USB stick (when the police raided the room, this usb stick was attached to the MacBook). Regarding the Acer computer borrowed from the applicant, D3 used it to download some software that could read smart card readers. However, D3 had 2 computers of his own, Sony and Lenovo, and the latter could be used to manage things the MacBook managed. Furthermore, the applicant still needed her 2 computers for use at times. D3 said that he didn’t want others, including his girlfriend and her family (sic) to find out about his criminal activities, therefore, he did not carry out his crimes in the rented residence he shared with his girlfriend and specifically chose to live in a hotel room. If the explanation was true, D3 had no reason to use the applicant’s computers and phones to commit crimes.

(8) The encoder was purchased through the applicant’s Taobao account. This process required the use of personal identification number, and would also leave transaction record in order to allow the applicant to trace what product she had bought. However, D3 explained that he did not ask the applicant to buy it for him through her Taobao account like previously, because he did not want her to know about it. This explanation contained irreconcilable inconsistency; and

(9) At one time, D3 claimed it was the applicant who bought the purple-coloured notebook and he borrowed it from the applicant for recording others’ personal and credit card information after they had moved into the hotel room. However, he said at another time, that the purple-coloured notebook was bought by the 2 of them together and lent to him for his use. He gave contradictory versions and the fingerprints of the applicant were found on the notebook.

5.14 According to these evidence, Judge Sham could correctly infer that the applicant was in possession of others’ information that was obtained by illegal means and was in a joint enterprise with D3. Their joint purpose was to sort through the stolen letters of others for personal and bank information to activate credit cards belonging to others for their use (charges 1 and 2), and to input data onto the 34 blank cards mentioned in charge 3 by using the encoder to try to duplicate credit cards for use (charge 3).

5.15 As the applicant and D3 were in joint possession of the stolen goods and acted together, she committed “handling stolen goods” in the form of “receiving”.

5.16 Nonetheless, this court does not agree there was sufficient evidence to support that the applicant committed “handling stolen goods” by way of “assisting”. First of all, according to section 24 of the “Theft Ordinance”, “another person” mentioned in the form of “assisting” must be another person other than the co-accused: R v Tsang chi-ho & others [1997] 3 HKC 36, paragraphs 21-22 & 33; R v Gingell [2000] 1 Cr App R 88, 89. According to paragraphs 58 & 59 of the reasons for verdict, Judge Sham found that “another person” in this case was D3. However, D3 and the applicant were co-accused in the same case, therefore, Judge Sham convicted the applicant of handling stolen goods for the benefit of D3 was wrong.

5.17 Mr. Chan, counsel representing the respondent, submitted that the two charges of handling stolen goods (i.e., 1^st and 2^nd charges) involved a total of 1,934 letters and 43 bank cards; upon police arrival, they found those documents and credit cards scattered inside the room. The prosecution case alleged that the applicant and D3 acted in a joint enterprise, and those letters and bank cards were stolen at different times. Depending on how the applicant dealt with any one of the documents or any one of the bank cards, it might involve different ways of handling. Therefore, the prosecution did not know and could not point out in what way the applicant dealt with any one of the letters or bank cards. Judge Sham could not have concluded in what ways the applicant dealt with each and every letter or bank card, and in turn could not have determined whether the form of dealing was one of “receiving” or “assisting”. Therefore, the “better way” mentioned in Nicklin is not applicable to this case.

5.18 This court does not agree that the indictment was improper on the ground that the prosecution could not have proved who stole which document or could not have categorized the documents. The real issue of this case was that since the prosecution had set out 2 limbs in the indictment, the prosecution has to therefore proceed with these two limbs in the form of alternative charges.

5.19 Mr. Chan said that according to D3’s testimony, after he was being arrested and cautioned, he told the police in the hotel room that the letters seized were stolen earlier by him and “Ah B”. The time was in about 2013, and the location(s) were the buildings which the persons concerned resided. Therefore, part of the letters and bank cards seized in the hotel room were stolen by “Ah B”, but the quantity was uncertain. Concerning these letters and bank cards stolen by “Ah B’, the applicant committed “handling stolen goods” in the form of “assisting”. After she had received the stolen goods, she undertook or assisted in the disposal of those goods by sorting through and storing personal & bank information for the benefit of “Ah B”.

5.20 This court disagrees with this argument. In fact, the prosecution did not discuss the point of “Ah B” being “another person”. Judge Sham did not use “Ah B” as “another person” to support the applicant’s commission of “handling stolen goods” in the form of “assisting” either. Judge Sham only dealt with this issue generally as mentioned above. This court found that the verdict based on the form of “assisting” was unsatisfactory. However, it has no effect on the verdict based on the form of “receiving”.

5.21 This court must point out that when defence counsel found that the charge(s) had not expressly set out which form the prosecution was relying on, he/she should have submitted to the court at the outset of the trial and asked the prosecution to make appropriate replies. At the same time, this court opines that stating both limbs in the indictment does not conform with the requirement of legal principle. The appropriate way was to set out expressly that the second limb was an alternative charge. This would cause the court as well as both parties to note at an early stage and deal with the criminal elements in the two forms of crime.

(2) Ground 2: Insufficient evidence to prove legal possession of or control over stolen goods

5.22 Regarding ground 2, Ms. Chong submitted that “possession” required conscious control and custody, in this case, there was no evidence to prove how the applicant obtained the stolen goods from D3 or how she controlled and managed them jointly with D3. The only evidence, i.e., the applicant lived in the same hotel room where the stolen goods were kept was insufficient to convict her: constructive possession or the power to control does not constitute “possession”.

5.23 This court disagrees with this argument and had given analysis above.

(3) Ground 3: Insufficient evidence to prove that the applicant assisted D3 in handling the stolen goods in a joint enterprise

5.24 Ms. Chong submitted that if the prosecution was accusing the applicant of the crime in the 2^nd limb, there was insufficient evidence to prove how the applicant undertook, or assisted in the retention, removal, disposal or realization (of the stolen goods). Handling (such stolen goods) without knowledge or mere non-disclosure of the stolen goods to the police did not constitute assistance.

5.25 This court has already dealt with this argument above. This court agrees that the prosecution had not adduced enough evidence to support that the applicant had committed the crime in the 2^nd form of “assisting”.

(4) Ground 4: One basic element for conviction was missing as the prosecution failed to prove who was the other person

5.26 This court has dealt with this argument above.

(5) Ground 5: Judge Sham had wrongfully applied the legal principle of joint enterprise

5.27 Ms. Chong quoted paragraphs 42, 44 to 45 from the Reasons for Verdict. She submitted that there were 2 issues in the legal concept from which Judge Sham inferred and found that the applicant acted in a joint enterprise with D3 for the same criminal purpose, that each person is responsible for the other’s action. Firstly, as D3 admitted stealing and pleaded guilty to it, he could not have committed “handling stolen goods”. He, therefore, could not have committed the said crime with the applicant in a joint enterprise. Secondly, it seemed that Judge Sham had applied the co-conspirators principle to D3’s testimony and convicted the applicant, when there was insufficient independent evidence to prove the applicant and D3 shared the same criminal intention. She submitted that Judge Sham was wrong in applying that principle.

5.28 Ms. Chong submitted that Judge Sham inferred the applicant and D3 shared the same criminal intention on the basis that there were images of others’ information in the hotel room as well as the iPhone5. However, she submitted that it was doubtful as to whether the applicant was in possession of the iPhone 5, therefore, there was no independent evidence to prove that the applicant was in possession of others’ information therein as well as in the hotel room, or that she participated in the sorting through (of the information), saving or activating or duplicating credit cards, or infer that the applicant carried out such acts in consensus with D3.

5.29 This court has dealt with the argument on whether the applicant and D3 were in a joint enterprise and has confirmed that Judge Sham’s verdict was correct. This court has also dealt with the principle when a defendant committed “theft” and “handling stolen goods” at the same time.

3) The 3^rd charge (Possessing equipment for making a false instrument)

5.30 Regarding charge 3, Ms. Chong’s argument (ground 6) was that there was insufficient evidence to prove the applicant was in legal possession or control of the relevant equipment in this case. Ms. Chong pointed out that although D3 bought the encoder through the applicant’s Taobao account, this encoder was a machine with versatile functions and not contraband. It could be used on key cards to offices, for storage of information etc., and was not limited to being used on bank cards or illegal activities; and its operation also required certain level of computer skills. There was no evidence in this case to prove that the applicant had possessed and operated the said encoder, or had sufficient skills to use it to make false instrument (counterfeit bank cards).

5.31 This court disagrees with the argument. The police found equipment including 1 encoder, 1 mini optical disc with user manual, 34 blank white cards, 2 card readers and 2 smartcard readers inside the room. It was a batch of equipment capable of making counterfeit credit cards. D3 admitted in court that he tried to use equipment such as the encoder to write the personal information stolen onto the blank cards, to duplicate credit cards for use. Judge Sham has sufficient evidence to support the verdict that the applicant and D3 jointly committed the crime and were in joint possession of the stolen goods and equipment such as the encoder in the room. Under the circumstances of a joint enterprise, each co-accused has to be responsible for actions of another, therefore, whether the applicant had sufficient computer skills to operate the equipment, such as the encoder, was not relevant.

4) The 4^th and 5^th charges (possession of an identity card relating to another person)

5.322 Regarding charges 4 and 5, Ms. Chong submitted (Ground 7) that there was insufficient evidence to prove that the applicant had legal possession or control of the identity cards relating to other persons. Ms. Chong submitted that the only evidence regarding charges 4 and 5 was that the applicant was the registered occupant of the room, and that the 2 identity cards relating to others were found therein, however, there was no proof that the applicant was in possession of the said identity cards.

5.33 The police found an identity card and an entry permit for Hong Kong and Macau residents belonging to a female named LAW on top of the table in front of the TV cabinet inside the room. The iPhone 5 belonging to the applicant which was in her possession had 62 printed copies of photos, 1 of the images was “LAW’s” identity card and UnionPay card. The said identity card was reported lost in July 2013.

5.34 Another identity card was placed inside the red paper bag on top of the bed. It was also from this same red paper bag that the police found the 43 stolen bank cards on that day. The said identity card was reported lost in October 2012.

5.35 Furthermore, the said iPhone 5 also contained others’ information, including an image of an insurance letter relating to a female named Wu (transliteration). The police also found the said insurance letter on the window bay of the room.

5.36 This court found that Judge Sham had sufficient evidence to support his verdict on the applicant being in joint possession of the said stolen goods including the 2 identity cards in the room with D3.

5) All 5 charges

5.37 Ms. Chong submitted 2 grounds regarding all charges as follows:

(1) Ground 8: Judge Sham did not consider each charge separately

5.38 This court does not agree with Ms. Chong that Judge Sham only convicted the applicant on the general principle of joint enterprise, without having considered each charge separately whether there was fundamental independent evidence to infer that the applicant and D3 were in a joint enterprise, and that he had not considered the applicant’s level of participation separately. This court has given a detailed analysis above and will not repeat itself.

(2) Ground 9: Judge Sham dealt with D3’s testimony inappropriately and did not give the applicant the benefit of the doubt

5.39 Ms. Chong submitted that the principle of balancing and accepting defence’s evidence was not whether the evidence given by the defence witness was accepted by the court as facts, because the defendant did not have the duty to prove the facts of the case. As long as the defence witness evidence might be true, it is sufficient to amount to a doubt. (Sze Kwan Lung & others v HKSAR (2004) 7 HKCRAR 475). In this case, D3’s evidence relating to the applicant might be true. Judge Sham’s reason for rejecting D3’s evidence was far-fetched.

5.40 This court disagrees with this argument. Judge Sham’s rejection of D3’s testimony was a mere finding on facts. He has already set out detailed analysis in his reasons for verdict and this court finds that the verdict was correct.

VI. Conclusion

6. For the above reasons, this court dismisses the application.

Ms. Sezen K.Y. Chong, instructed by Chan & Co., Betty, assigned by DLA, for the applicant.

Mr. David Chan, ADPP of the Department of Justice, for the respondent.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.