HKSAR v. CHENG HUNG MAN

CACC 44/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 44 OF 2003

(ON APPEAL FROM DCCC 1054/2002)

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J U D G M E N T

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Hon. Lugar-Mawson J (given the judgment of the Court):

Background

1. On 17 January 2003, the Applicant, Cheng Hung Man, was convicted after trial before Deputy Judge Candy in the District Court of a charge of possession of a false instrument, contrary to s. 75(1) of the Crimes Ordinance, Cap. 200; a charge of using a false instrument, contrary to s. 73 of the Crimes Ordinance and a charge of possessing equipment for the making of a false instrument, contrary to s. 76(1) of the Crimes Ordinance. He was acquitted of 10 further charges of obtaining property by deception, contrary to s. 17(1) of the Theft Ordinance, Cap. 201.

2. He was sentenced to serve 3 years' imprisonment in respect of the first and second charges and 4 1/2 years' imprisonment in respect of the third charge, all to be served concurrently.

3. He now seeks to renew his application for leave to appeal against his convictions, leave having been refused by the single judge on 11 June 2003. He abandoned his appeal against sentence on 2 August 2003.

4. He represents himself, having dispensed with the services of counsel on 1 November 2003.

5. He filed no grounds of appeal prior today's hearing. His statement filed with Form XI says no more than "...I am against the above conviction".

6. Before us this morning, he repeated elements of his defence. He made criticism of his counsel at trial for not asking certain questions of witnesses and he said that the judge drew wrong inferences from the evidence.

Prosecution case

7. On 28 August 2002, the Applicant was intercepted by police officers at the Miramar car park in Tsimshatsui after he was seen opening the boot of a car and removing a black bag from it.

8. He was stopped and searched and in his wallet the police found a Visa card bearing the name Lee Wai Man, purportedly issued by the Wing Hang Bank on behalf of the Open University, and a credit card payment slip showing that the card had been used for a payment of $1,000 an hour ago in the Windsor Sauna in North Point. One of the sauna's business cards was with the payment slip.

9. Inside the black bag and another bag found in the car's boot, the police found a notebook computer, an encoding device, a set of adapter cables and 3 floppy disks containing software for operating the encoding device.

10. On examination, the Visa card was found to be a forged one. The information encoded on its magnetic strip corresponded to that on a card issued by Citibank in South Dakota, USA.

11. There was expert evidence from a number of witnesses that the encoder - a device known as a skimmer - the floppy disks and the computer and the programs installed on its hard-drive were capable of reading and storing data from genuine credit cards and writing that data onto blank magnetic strips, thus reproducing on to blank cards data found on genuine ones. The adaptor cables were capable of powering the computer from the car's electrical system via its cigarette lighter socket. Also on the computer's hard drive were details of other persons' credit cards, including the data from which the forged Visa card found in the Applicant's wallet had been made.

12. At the time of his arrest, the Applicant said that he had picked up the Visa card in a restaurant and used it to make payment for services in the sauna earlier that day.

13. In a later video recorded interview, he again said that he had picked up the Visa card in a restaurant. He also accepted that he was the registered owner of the private car. Apart from that he made no further admissions.

Defence Case

14. At trial, the Applicant did not challenge the fact that the Visa card, the payment slip and the business card were found in his wallet and that the computer, the encoder, the floppy disks and the cables were found either in the black bag he removed from the car's boot, or in the bag found inside the boot. Neither did the Applicant challenge the experts' evidence relating to the use the computer and the equipment found with it could be put to in creating forged credit cards, nor the fact that the Visa card found in his wallet was a forged one and therefore a false instrument.

15. His defence consisted of an attack upon the admissibility of the oral admission he made on arrest and the video recorded interview. It was his case that he had not made the oral admission and had not participated in the video recorded interview voluntarily.

16. It was his case, in the trial proper, that he had loaned his car to a friend called 'Edmond' sometime before 24 August. Edmond returned the car to him on 28 August and gave him the Visa card and the payment slip, which he put in his wallet. Edmond also asked him to return the notebook computer that Edmond had left in the car. The Applicant maintained that he had not seen the computer, the encoder, the Visa card, or the payment slip before the day of his arrest and he had not used the Visa card earlier that day at the Windsor sauna.

Consideration of the reasons for verdict

17. As there are no grounds of appeal to guide us, apart what we have heard this morning, we have considered the judge's Reasons for Verdict with care to see if there is anything in them that could support an appeal against conviction.

18. The judge was satisfied beyond reasonable doubt that the Applicant had made the verbal admission and taken part in the video recorded interview voluntarily. He ruled both of them admissible in evidence against the Applicant.

19. The judge found the Applicant's evidence to be:

"...utterly incredible in relation to all the matters at issue. His account of events of 28 August was inherently improbable and I rejected it as a fabrication."

20. He went on to say that:

"There was nothing in the defendant's evidence nor in cross-examination on his behalf in relation to the general issue which may have any reason to doubt the credibility of the prosecution witnesses."

21. We can see no reason why the judge was not entitled to come to those conclusions.

22. The judge reminded himself of the burden and standard of proof and the need to consider each of the three charges separately.

23. In relation to the first charge, which related to the Applicant's possession of the forged Visa card, the judge, having rejected as a fabrication the Applicant's explanation as to how he came by it, came to the conclusion that as the computer's hard drive contained information relating to other persons' credit card, including the data from which the forged Visa card found in the Applicant's possession had been made; and the fact that the Applicant admitted using that forged Visa card at the Windsor sauna earlier that day and had it in his possession on arrest; and as the card bears a name - Lee Wai Man - which is not the Applicant's, the only inference to be drawn from the evidence was that the Applicant knew that the Visa card was a forged one and must have possessed it with the requisite intention. We can see no basis for disturbing the Applicant's conviction on the first charge.

24. In relation to the second charge, which related to the Applicant's use of the forged Visa card at the Windsor sauna, the Applicant had made a verbal admission, which the judge gave full weight to, that he had used the card to make payment at the sauna. The payment slip evidencing his payment by the card was also found in his wallet. There was ample evidence to support the conviction on the second charge.

25. In relation to the third charge, which related to the computer and its accompanying equipment, being equipment possessed for the purposes of making false instrument; there was unchallenged evidence that the police found the computer, the encoding device, the adapter cables and the floppy disks containing the software for operating that device inside the bag the Applicant was seen removing from his car's boot and the other bag found in the boot. There was also unchallenged evidence, not only that the computer and the equipment found with it were capable of producing forged credit cards, but that the computer's hard drive contained information relating to the forged Visa card found in the Applicant's possession, as well as information relating to other persons' credit cards. The judge accepted the applicant's admission that he had used the forged Visa card earlier on the day of his arrest. He went on to say this and we agree with him:

"The encoder is not a common item. It can be used to read and write credit card information. In the context of the Defendant's possession of this item, I can think of no legitimate purpose to which it might be put which would explain the Defendant's possession of it. The only reasonable inference and the inescapable conclusion from all of the evidence is that the Defendant was aware of the nature of the encoder, he was aware of what use it could be put to, and was aware that its use in conjunction with the computer and disks was for gathering storing and writing credit card data from genuine credit cards onto false magnetic stripe cards, knowing that this data would later be used to make forged credit cards, false instrument which would be used for fraudulent purposes."

26. We can see no basis for disturbing the Applicant's conviction on the third charge.

Former grounds of appeal

27. We have considered the Perfected Grounds of Appeal filed by the Applicant's former counsel, although we have not been aided by argument, we can see nothing of merit in them. As to the first two grounds, whether the sauna's cashier could identify the Applicant, or not, is of very little worth when set against the overwhelming evidence of the Visa card payment slip being found in the Applicant's wallet and his verbal admission to having used the card to make payment at the sauna. As to the third ground, there appears to have been no evidence at trial from either the prosecution or the defence relating to the descriptions given by the two persons named in that ground and frankly we fail to see its relevance.

Decision

28. We can find no error of fact or law on the judge's part. This was a case that depended on the credibility of witnesses and the drawing of proper inferences from proved facts, and it is not for us to disturb the judge's findings. There are no reasonably arguable grounds of appeal in this case and the application for leave to appeal against conviction is refused.

Loss of time

29. As we have said this was a wholly unmeritorious appeal, which had no realistic chance of success. No grounds of appeal were filed and the appeal was persisted in even after the single judge had refused leave. We exercise our powers under s. 83W(1) of the Criminal Procedure Ordinance and direct that 3 months of the time the Applicant has spent in custody pending the determination of this appeal shall not be reckoned as part of the sentences to which he is for the time being subject.