HKSAR v. WONG KIM FAI

[English Translation – 英譯本]
CACC 203/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 203 OF 2008

(ON APPEAL FROM DCCC NO. 1132 OF 2007)

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving the Reasons for Judgment of the Court):

Application for leave to appeal against conviction and sentence

1. The Applicant was charged with three counts of attempted fraud, contrary to section 16A of the Theft Ordinance (Cap. 210 of the Laws of Hong Kong) and section 159G of the Crimes Ordinance  (Cap. 200 of the Laws of Hong Kong), and one count of forgery, contrary to section 71 of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong). After trial before Deputy District Judge Anthony Kwok, the Applicant was convicted on all four charges. For each count of attempted fraud, Judge Kwok sentenced the Applicant to imprisonment for 3½ years, with the sentences to run concurrently; for the forgery charge, Judge Kwok sentenced the Applicant to imprisonment for 12 months. Six months of this term was ordered to run consecutively to the said 3½-year term, making a total term of 4 years. The Applicant applied for leave to appeal against conviction and sentence. At the conclusion of the hearing, we dismissed the application, for reasons set out hereinbelow.

Background to the charges

I. AIG credit cards

2. In June 2006, PW21, Mr. Ng Kam Kai (伍錦鍇), applied to the AIG Credit Card Company (Hong Kong) Limited (hereinafter “AIG”) for a MasterCard. AIG approved the application and sent the credit card to Mr. Ng Kam Kai by post. However, Mr. Ng did not acknowledge receipt of the credit card by following the procedure prescribed by AIG. On 31 August of the same year, a man who claimed to be Ng Kam Kai telephoned AIG, saying that he had not yet received the credit card which he had applied for earlier and requesting AIG to re-issue a card to him. The staff member of AIG who answered the call acceded to the man’s request, but as the staff member tried to verify the identity of the applicant for the credit card, the man was unable to provide the relevant personal particulars such as the date of birth and address, etc. The man claimed that he could no longer recall what address he had put down in the application form. The man also said that he had moved house and requested AIG to send the new credit card to his new address at Flat 1A, Mezzanine Floor, Ka Hay Building, 19 Tseng Choi Street, Tuen Mun, New Territories (hereinafter “Tseng Choi Street address”). He also asked the staff member to record his new residential and mobile telephone numbers, which were 30581491 and 68911035 respectively. The staff member felt something wrong and called the police. Subsequently, Mr. Ng Kam Kai told the police that he did not telephone AIG in August 2006 and that he had been away from Hong Kong for more than 30 days, working abroad between early August and early September.

3. Following discussions with the police, on 12 September 2006 AIG decided to issue a new card to the man. A police officer put an envelope containing the newly issued credit card into the letter box at the main door of the Tseng Choi Street address given by the man to the AIG staff member. At 2:50 p.m. of the same day, the police saw the Applicant take away the letter from the letter box. The Applicant then went to Hing Fai House in Tai Hing Estate, Tuen Mun, and after staying in the building for about 10 minutes, went to the library on an upper floor of Tai Hing Estate Market. He stayed in the library for 2½ hours and then returned to Hing Fai House. Whilst walking down the staircase from 10^th floor to 9^th floor, he was stopped and searched by the police. The police found on his person the AIG credit card which the police had put into the letter box at the Tseng Choi Street address earlier on, as well as a key. Subsequently, using the key, the police gained entry to Room 925 of Hing Fai House. In the flat, the police found the following exhibits:

(1)        A letter issued by AIG (P2) and a white envelope (P3) containing another letter;

(2)        A salary certificate (P5);

(3)        A stamp bearing the English name of one “Yau Lee Decoration Engineering Company” (P6);

(4)        A letter issued by AIG;

(5)        A letter issued by AIG to the Applicant and a document issued by AIG Finance Company to the Applicant regarding his application for a credit card;

(6)        A water charges bill from the Water Supplies Department, bearing the name of Wong Kim Fai as the account holder.

4. Furthermore, the police found a mobile phone on the Applicant, the telephone number of which was 68911035.

II.  Police investigation

5. Police investigation revealed that between 19 May and 12 September 2006, apart from the AIG credit card mentioned above, 25 applications for credit cards were made to various local financial institutions. The applications were all made using either the Tseng Choi Street address or the address of the adjacent flat, and in three of the applications the name of the applicant was the same as that of the Applicant herein.

Original charges

6. The Applicant subsequently faced three charges, namely, “conspiracy to defraud” (the original 1^st charge), “fraud” (the original 2^nd charge) and “forgery” (the original 3^rd charge).

7. The particulars of the 1^st charge, i.e. “conspiracy to defraud”, alleged that between 19 May 2006 and 12 September 2006 (both dates inclusive) and in Hong Kong, the Applicant conspired with a person known as “Ah Ming” and other persons unknown to defraud banks and financial institutions, by dishonestly and falsely representing that:

(a) the particulars contained in application forms submitted to those banks and financial institutions for credit arrangements were accurate and genuine in all respects; and

(b) the income and address proofs submitted to those banks and financial institutions were genuine.

8. The particulars of the 2^nd charge, i.e. “fraud”, alleged that on or about 31 August 2006 and in Hong Kong, the Applicant together with a person known as “Ah Ming”, by deceit (i.e. by falsely representing that he was Ng Kam Kai and that he had not yet received the AIG MasterCard issued in the name of the said Ng Kam Kai as cardholder) and with intention to defraud, induced the staff of AIG to commit a series of acts (i.e. to issue a new AIG MasterCard to the said Ng Kam Kai and deliver it to the Tseng Choi Street address), which resulted in prejudice or a substantial risk of prejudice to AIG.

9. The particulars of the 3^rd charge, i.e. “forgery”, alleged that on a day unknown in 2006 and in Hong Kong, the Applicant made a false instrument, namely, an income proof bearing the company stamp of Yau Lee Decoration Engineering Company, with the intention that he or another would use the instrument to induce someone to accept it as genuine and, by reason thereof, to do or not to do some act to his own or any other person’s prejudice.

Amendment of the charges

10. The applicant pleaded not guilty to the said three charges. The trial took place before Judge Kwok on 15 April 2008. When the prosecution had presented its case, Mr. So, Counsel for the Applicant, requested the prosecutor to elect whether to proceed against the Applicant on the 1^st charge of “conspiracy” or on the 2^nd charge, the substantive charge of “fraud”. Mr. So took the view that, given Judge Kwok had dismissed the prosecution’s application to admit the Applicant’s confession statement as evidence for the “conspiracy” charge, there was simply no evidence in the case to support the allegation of conspiracy.

11. In light of the defence’s application, the prosecutor sought an adjournment of the hearing so that a new charge sheet could be submitted. Subsequently, the prosecution submitted an amended charge sheet which set out the four charges on which the appellant was in the end convicted. Judge Kwok allowed the amendment of the charge sheet, and the prosecution relied on the evidence already adduced to buttress the new charges.

12. The Applicant elected not to give evidence. Nor did he call any witness. He merely relied on the agreed facts (P9) and submitted to the court four documents issued to him by various organizations.

Particulars of the new charges

13. The particulars of the new charges were as follows:

The 1^st charge, for attempted fraud, alleged that on or about 19 June 2006 and in Hong Kong, the Applicant, by deceit (i.e. by falsely representing that (a) the particulars contained in the credit card application form submitted to AIG were accurate and genuine in all respects; and (b) the income proof submitted to AIG was genuine) and with intention to defraud, attempted to induce AIG to commit an act (i.e. to issue a credit card to the Applicant), which resulted in benefit to the Applicant or prejudice or a substantial risk of prejudice to AIG.

The 2^nd charge, for attempted fraud, alleged that on or about 31 August 2006 and in Hong Kong, the Applicant, by deceit (i.e. by falsely representing that he was Ng Kam Kai and that he had not yet received the AIG MasterCard issued in the name of the said Ng Kam Kai as cardholder) and with intention to defraud, attempted to induce AIG to commit a series of acts (i.e. to issue a new AIG MasterCard to the said Ng Kam Kai and deliver it to the Tseng Choi Street address in Tuen Mun, New Territories, Hong Kong), which resulted in benefit to the Applicant or prejudice or a substantial risk of prejudice to AIG or the said Ng Kam Kai.

The 3^rd charge, for forgery, alleged that on a day unknown in 2006 and in Hong Kong, the Applicant made a false instrument, namely, an income proof bearing the company stamp of Yau Lee Decoration Engineering Company, with the intention that he or another would use the instrument to induce someone to accept it as genuine and, by reason thereof, to do or not to do some act to his own or any other person’s prejudice.

The 4^th charge, for attempted fraud, alleged that on or about 23 May 2006 and in Hong Kong, the Applicant, by deceit (i.e. by falsely representing that (a) the particulars contained in the credit card application form submitted to the Bank of East Asia, Hong Kong were accurate and genuine in all respects; and (b) the income and address proofs submitted to the said company were genuine) and with intention to defraud, attempted to induce the said company to commit an act (i.e. to issue a credit card to the Applicant), which resulted in benefit to him or prejudice or a substantial risk of prejudice to the said company.

14. It can be seen from the amended charge sheet that the prosecution brought two substantive charges of attempted fraud (i.e. the 1^st and 4^th charges) against the Applicant on the basis of two of the incidents involved in the original 1^st charge for conspiracy to defraud, namely, the Applicant applied in his own name to AIG and Bank of East Asia for credit cards. The original 2^nd charge, one for fraud, was now amended to one for attempted fraud, although the factual basis remained the same, i.e. the said application for an AIG MasterCard by Ng Kam Kai. The 3^rd charge in the amended charge sheet, one for forgery, was the same as the original 3^rd charge, which was also for forgery.

Evidence on the 1^st and 4^th charges

15. The prosecution evidence on the 1^st charge came from the affidavit of a staff member of AIG, who deposed that the Applicant had submitted to AIG a credit card application form dated 19 June 2006. On the application form the Applicant stated that his occupation was a skilled worker in the employ of “Yau Lee Company” and that his address was the Tseng Choi Street address. Documents attached to the application form included a photocopy of the Applicant’s identity card, a photocopy of an income proof issued to the applicant by one “Yau Lee Decoration Engineering Company”, and photocopies of two Demand Notes issued by the Water Supplies Department with the account holder being the Applicant and the account address being Room 925, Hing Fai House. AIG did not approve the application because it felt suspicious of the said documents.

16. The prosecution evidence on the 4^th charge came from the affidavit of a staff member of the Bank of East Asia. The affidavit stated that on 23 May 2006 the Applicant submitted to the Bank of East Asia a credit card application form, in which he stated that his occupation was a general worker, that he was employed by one Kam Shing Trading Company (金誠貿易公司), and that the address was Flat A2, mezzanine floor, Ka Hay Building, Tseng Choi Street (i.e. the flat adjacent to the Tseng Choi Street address). In support of his application, the Applicant also submitted the following documents:

(1)  A photocopy of the Applicant’s identity card;

(2)  A photocopy of the transaction records of the Applicant’s account with the Bank of Communications;

(3)     A letter issued to the Applicant by the Office of the

Privacy Commissioner for Personal Data, Hong Kong, on which the address was stated to be Flat A2, mezzanine floor, Ka Hay Building;

(4)            An income proof issued to the Applicant by Yau Lee Decoration Engineering Company.

17. The Bank of East Asia refused to issue a credit card to the Applicant for the reason that the contents of the said documents were vague and unclear.

18. The telephone number that the Applicant provided in both of the application forms submitted to the two companies was 92008455, the same as the telephone number 92008455 handwritten on the original water charges bill seized by the police in Room 925, Hing Fai House.

Other evidence

19. PW19, Mr. Wong Chi Yin (黃志賢), testified that he and the Applicant lived at the Tseng Choi Street address together some 7 or 8 years ago and that they had a close relationship. Upon the Applicant’s request, PW19 had signed certain business registration documents in respect of one “Yau Lee Decoration Engineering Company” in the capacity of the proprietor, but he had never carried on the relevant business. The Applicant had at that time indicated that he would give him some money if he managed to earn money.

20. The stamp that the police seized in Room 925, Hing Fai House bore the words “Yau Lee Decoration Engineering Company” in English, which was the same as the English name of the company stamped on the income proof. The type-face of the two was also the same.

21. PW20, Mr. Yuen Kwok Por (阮國波), was a tenant of the Tseng Choi Street address. He neither knew the Applicant nor had ever permitted the Applicant to use his letter box. He said that he often received letters not belonging to him, including some letters sent to the Applicant by banks.

Grounds of appeal

22. The grounds of appeal put forward by the Applicant come down to the following three items:

(1) Judge Kwok had erroneously allowed the prosecution to amend the charge sheet;

(2) Judge Kwok had failed to conduct the trial in a fair manner;

(3) The convictions on the four charges were wrong.

(1)  Amendment of the charge sheet

23. Mr. So contended that Judge Kwok should not have allowed the prosecution to amend the charge sheet after the prosecution had presented its evidence. He said that his application was merely for the prosecution to elect whether to proceed against the Applicant on the charge of “conspiracy” or on the original substantive charge (the 2^nd charge), but the application ended up in the amendment of the charge sheet.

24. Practice Direction 9.1 provides as follows: “Where an indictment contains substantive counts and a related conspiracy count, the judge should require the prosecution to justify the joinder, or, failing justification, to elect whether to proceed on the substantive or on the conspiracy counts”.

25. In the present case, although the application for “an election of charges” resulted in the amendment of the charge sheet, in our view there was no substantive connection between the two. In fact, the crucial questions are whether Judge Kwok was entitled to allow the prosecution to amend the charge sheet and whether his decision to allow the amendment was proper.

26. Section 23(1) of the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong) provides as follows: “Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.” In our view, if the prosecution was relying solely on the Applicant’s confession to support the element of “conspiracy”, then upon Judge Kwok’s refusal to admit the said confession, the prosecution would have no evidence to support its allegation of “conspiracy”, in which case the original charge sheet which contained the “conspiracy” charge would become defective. However, prior to the application for amendment of the charge sheet, the prosecution had already adduced evidence on the “conspiracy” charge, including the evidence that the Applicant used false personal particulars in applying to AIG and the Bank of East Asia for credit cards. If such evidence served to support a substantive offence, then Judge Kwok should not neglect such evidence. In that case, there was nothing improper when Judge Kwok allowed the prosecution to amend the charge sheet by removing the original “conspiracy” charge and replacing it with two substantive counts of “attempted fraud”. The amendment made to the charge in respect of Ng Kam Kai was essentially the alteration of the “fraud” charge to a charge of “attempted fraud”. The amended charge sheet accorded with the evidence adduced by the prosecution. Besides, as the prosecution sought to amend the charges on the sole basis of the evidence already adduced and, following the amendment, the prosecution did not adduce any new evidence to support the amended charges, we see nothing unjust in Judge Kwok’s approach.

27. Judge Kwok himself did not suggest that the prosecution amend the charge sheet. Even if he made that suggestion, if he considered that there was insufficient evidence to support a charge of “conspiracy” but there was other ample evidence to support other substantive charges, he was entitled to suggest that the prosecution amend the charge sheet. See the judgment of the Court of Final Appeal in the case of Ho Ka Keung v. HKSAR FAMC No. 20/2009. At the same time, Judge Kwok did give the defence an opportunity to recall prosecution witnesses for cross-examination. In our view, Judge Kwok had correctly allowed the amendment of the charge sheet.

(2)  Judge Kwok conducted the trial in an unfair manner

28. Mr. So raised a serious criticism against Judge Kwok: he was biased towards the prosecution when he allowed the prosecution to amend the charge sheet. We consider this criticism wholly unjustified. First of all, unlike what Mr. So said, Judge Kwok had not “urged” the prosecution to amend the charges. Furthermore, it was within the power of Judge Kwok, which was conferred upon him by law, to allow the amendment to the charge sheet, and he had dealt with the application in a fair way.

29. Mr. So accused Judge Kwok of “making a judgment before trial”. He contended that Judge Kwok had already made arrangement to hear other cases before the prosecution tendered the formally amended charge sheet, and at that time the trial of the present case had not yet completed within the scheduled trial period. This, Mr. So submitted, showed that Judge Kwok had already made a decision in respect of the amendment of the charges. The court record showed that when Judge Kwok informed the parties that he had to hear other cases, the present case had in fact overrun the scheduled trial period, and the prosecution’s application to amend the charge sheet would likely lead to an adjournment of the trial. This being the case, we see nothing improper for Judge Kwok to request the administrative division of the court to arrange for other cases to be heard before him so as to put the court’s time to good use.

30. Mr. So also complained that even before the prosecution submitted the perfected amended charge sheet, Judge Kwok asked the defence if it needed to recall any prosecution witness for cross-examination in the event that the amendment was allowed. This, Mr. So submitted, also showed that Judge Kwok had already made a ruling in respect of the application. When the prosecution submitted the amended charge sheet, Judge Kwok did not make a ruling instantly but, instead, adjourned the case and asked the defence to notify the prosecution before the resumed hearing which prosecution witnesses the defence would like to recall. Mr. So submitted that this not only deprived the Applicant of the time and the right to consider how to meet the charges, but also plainly suggested that the approval of the amendment to the charges was a natural consequence in the circumstances and was virtually a foregone conclusion. When, after Judge Kwok had allowed the amendment, the defence indicated that no prosecution witness would be recalled, Judge Kwok criticized the defence for not informing the prosecution of that decision sooner.

31. While it is beyond doubt that defence lawyers should fearlessly defend and safeguard their clients’ interests, we do not agree with the accusation laid against Judge Kwok by Mr. So. In his written final submission at trial, Mr. So said that “the court and the prosecution are worried about not being able to convict the defendant”. Such a statement was most inappropriate. Although Mr. So had already apologized to Judge Kwok for this, his written submission for the present appeal still contained words of an offensive nature, such as “a bystander would readily feel that the prosecution had a consultant in the court”. In court proceedings, it is often the case that where a party makes an application, for instance, to amend the charge sheet, the court will discuss with both parties about their positions and possible responses. Such discussion does not mean that the court has already ruled on the application. As Mr. So had said at trial, it was a discussion that enabled the court to “get prepared one way or the other”. Although it might not be too appropriate for Judge Kwok to criticize the defence over the recalling of prosecution witnesses, it does not mean that he was biased towards the prosecution. We do not think a bystander conversant with the background of the present case would consider that what Judge Kwok did would deprive the Applicant of a fair trial.

(3) Wrong verdict

1^st charge

32. The Applicant argued that there was no direct evidence in the present case to prove that he personally participated in the credit card application, and that the affidavits filed by the bank staff were merely hearsay evidence.

33. We do not agree. Under section 20(1) of the Evidence Ordinance, Cap. 8, upon the production of the affidavit by the prosecution, the record appended to the affidavit shall without further proof be admitted as prima facie evidence of the matter recorded in the record. No other evidence existed in the present case which could rebut the prima facie evidence.

34. We agree that an application form bearing the Applicant’s name was by itself insufficient to prove that the Applicant had committed the offence of “attempted fraud”. However, in respect of the 1^st charge, Judge Kwok had also taken the following factors into consideration:

72.           PW21 [it should be PW20 to whom Judge Kwok was referring] has made it clear that he neither knew the defendant Wong Kim Fai nor had ever permitted Wong Kim Fai to use the letter box at the residential address tenanted by him.

73.           In the present case, the name of Yau Lee Company was put down in the application form concerned. In terms of wording, Yau Lee Company was not exactly Yau Lee Decoration Engineering Company. However, the English words ‘Yau Lee Decoration Engineering Company’ stamped on the salary proof which accompanied the same application form subsequently did represent Yau Lee Company and also refer to Yau Lee Decoration Engineering Company.

74.           PW2 found a similar salary proof, P5, in the defendant’s residence at Room 925, Hing Fai House. The person with whom the salary proof was expressed to be concerned is no one but the defendant. This also excludes the possibility that the said document may be related to his elder brother or someone else.

75.           Furthermore, PW2 also found in the flat a company stamp (P6) bearing the English name Yau Lee. The English name on the stamp is the same as the English company name appearing in the salary proof, and the two have the same type-face. Having compared the physical evidence of the stamp with the type-face of the name on the salary proof, I also agree that the two names are the same.

76.           More importantly, on both of the other two documents adduced, namely the two water charges bills, the residential address as printed is Room 925, Hing Fai House, Tai Hing Estate, Tuen Mun.

35. Judge Kwok also referred to the mobile phone number (i.e. 92008455) that appeared in the application form and the false salary proof:

79.           In addition, the water charges bill which belonged to the defendant and was found by PW2, the Exhibit Officer, in Room 925 is exactly the original of the water charges bill mentioned in the application documents in respect of the 1^st charge. I accord substantive weight to this water charges bill. This bill is significant in three respects: (1) It would be impossible to find the original of a supporting document on the person of a civilian whose personal particulars had been stolen. However, when the defendant was arrested, the police found the original supporting document in the defendant’s residence; (2) The telephone number 92008455 handwritten on the bill is exactly the telephone number put down by the applicant Wong Kim Fai on the application form. As the defendant was in possession of the details of the bill, he was undoubtedly in a position to put down this telephone number in the application form; (3) Although the defendant’s Hing Fai House address was put down in the bill, the words ‘(changed address)’ and a signature appeared above that address. This proves that the defendant intended to rely on changed address to support his application.

…

81.           The defence submitted that it was common in the market for the actual operator and the registered proprietor to be two persons. I then invited the defence to note that in the application form, the defendant stated that he was a skilled worker earning $10,000 per month and that he had been in the job for only one year. Why would a skilled worker as an employee have the company stamp of the decoration engineering company established by his employer? If Yau Lee was actually in operation, why was it necessary for the defendant to ask PW19, someone who had nothing to do with the company’s business, to register as the proprietor?

36. In our view, all this corroborating evidence served to prove that the relevant application stemmed from the Applicant. The particulars that the Applicant furnished in the application were not genuine, and the Applicant furnished false information for the purpose of deceiving AIG into issuing a credit card to him so that he could obtain benefits with the credit card.

37. As this evidence was capable of supporting the offence of “attempted fraud”. In our judgment, Judge Kwok’s verdict is correct.

2^nd charge

38. The Applicant contended that Judge Kwok had wrongly found that the Applicant was the man who called AIG assuming the identity of Ng Kam Kai, and that Judge Kwok had overlooked the possibility that even if the Applicant had taken part in the incident, it might not necessarily be the Applicant and not his accomplice who had called the bank.

39. Regarding this charge, the evidence at the scene was that the Applicant took away the envelope containing a credit card from the letter box at the Tseng Choi Street address, and the police found the credit card on him when they searched him after his arrest. The police also found in Room 925, Hing Fai House the envelope which originally contained the credit card and a letter from AIG. Fingerprints of the Applicant’s left hand were found on the envelope. The evidence showed that at about 3:30 p.m. on 12 September 2006, a staff member of AIG received a call from a person claiming to be Ng Kam Kai and acknowledging receipt of the credit card. At about 2:50 p.m. of the same day, the Applicant had already taken away the envelope containing the credit card from the letter box at Tseng Choi Street. Ng Kam Kai did not call AIG. Ten minutes after taking away the envelope, the Applicant went into Hing Fai House. He left Hing Fai House at 3:50 p.m. of the same day and went to the library in the market. In our view, in the absence of contrary evidence, in particular evidence of other people being involved in the incident, Judge Kwok was entitled to hold, on the basis of the course of events on that day and the exhibits subsequently seized by the police, that the Applicant was the person who called AIG claiming to be Ng Kam Kai and that the Applicant had deceived AIG into re-issuing a credit card to him. The evidence adduced by the prosecution was sufficient to support this charge.

3^rd charge

40. The Applicant submitted that he was charged with “forgery” of a false instrument as opposed to “possession” of a false instrument, but the prosecution had failed to prove that the false instrument in question was made by the Applicant.

41. The false instrument in question was the salary proof (P5) that the police found in Room 925, Hing Fai House. The document bore a stamp with the English name “Yau Lee Decoration Engineering Company”. On this issue, Judge Kwok made the following findings:

96.           Furthermore, as stated in the admitted facts, the defendant’s fingerprints were indeed found on (P5). On it there was also the defendant’s name. In addition, upon the establishment of Yau Lee, it was the defendant who invited PW19 to register as the proprietor on paper and to sign on the document. I find that the defendant had every motive and intention to make use of P6, the company stamp, to stamp on P5, the salary proof.

97.           Although the salary proof in the document P31 is not completely the same as P5, close scrutiny will reveal that only difference between the two documents lies in the relevant date. In fact, careful examination shows that P5 was a pre-printed document. Anyone who had P6, the stamp, could stamp it on P5, the pre-printed document. After filling in other details such as the date, name and identity card number, the document could serve as a salary proof. Therefore, on P31, the defendant made a copy of a salary proof by using the same format and the same stamp.

98.           For the above reasons, I have no hesitation in drawing the only and irresistible inference that the defendant forged the document P5 by making use of the stamp, P6, with the obvious purpose of making a false salary proof in order to attempt to defraud the banks or financial institutions concerned to issue credit cards.

42. We agree with the analysis and inference made by Judge Kwok.

4^th charge

43. The opinion that we have given as a matter of principle in respect of the 1^st charge also applies to the 4^th charge. The address being put down in the application form for the Bank of East Asia credit card was not Room 925, Hing Fai House but the Tseng Choi Street address. In the absence of contrary evidence, it was open to Judge Kwok to find that the application form and other documents in support of the application emanated from the Applicant. Regarding the address, Judge Kwok made the following findings:

88.           As stated above, the defendant is, it can be said, inextricably linked to the Tseng Choi Street address. In 2000 or before, he lived at this address with PW19. This also explains why he would use this address subsequently. As a matter of fact, in the exhibits produced by the defence, there is indication that the defendant did use this address from time to time. The exhibits produced by the defence include four letters involving organizations including the Independent Police Complaints Council, a bank, the Labour Department and the Hospital Authority. They all show that the defendant used the Tseng Choi Street address as his correspondence address. On the evidence, however, it is also obvious that the defendant was not residing at the Tseng Choi Street address at that time. PW21, the tenant of the Tseng Choi Street address has stated clearly in his testimony that he neither knew the defendant nor permitted the defendant to use his address. I fail to see any legitimate reason for the defendant to consider using the Tseng Choi Street address as a correspondence address of his, and it is difficult to comprehend why he did so.

89.           I have considered the submission made by the defence that the Tseng Choi Street address might only have been a correspondence address of the defendant’s. The defence has even gone so far as to suggest that it matters not whether what the defendant did was lawful or unlawful and that the crucial issue is to prove that the defendant frequently used that address. I reject this suggestion. In my opinion, there is sufficient evidence in the above circumstances to show that, as far as the defendant was concerned, the Tseng Choi Street address was a false address. The banks were entitled to know the defendant’s genuine address. What if something happened to the credit card after it was issued and the bank or financial institution had to contact the applicant but was unable to do so because the applicant’s address was not the defendant’s correspondence address? The interests of the bank or financial institution would then be prejudiced.

The conviction is correct.

Conclusion on convictions

44. The application for leave to appeal against convictions is dismissed.

Application for leave to appeal against sentence

45. What the Applicant had committed were “attempted” offences. However, in view of the fact that the Applicant had applied to two different banks for credit cards by deception and successfully deceived one of them into issuing a credit card to him, and that he had committed the offence of “forgery”, we do not find the total sentence of imprisonment for 4 years manifestly excessive or wrong in principle. The application for leave to appeal against sentence is dismissed accordingly.