HKSAR v. SYED RASHID ASLAM

CACC 204/2017

[2018] HKCA 3

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 204 OF 2017

(ON APPEAL FROM DCCC NO 895 OF 2016)

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J U D G M E N T

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1.  The applicant faced a single charge of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210. On 29 June 2017, following a trial before HH Judge Casewell (“the judge”) in the District Court, the applicant was convicted and sentenced to 27 months’ imprisonment.

2.  By way of a Notice of Application for leave to appeal (“Form XI”) filed on 7 July 2017, the applicant seeks leave to appeal against his conviction only.

Prosecution case

3.  It was not disputed that, whilst driving his taxi in the early hours of 8 September 2014, a taxi driver, PW1, lost his Bank of China VISA credit card (“the credit card”), which had been placed inside his bag on the front passenger seat of his taxi.  Later, at 11:49 am that same morning, a male person unlawfully used the credit card to purchase a watch at Man Kee Watch Company (“the watch shop”) in Mongkok, of which PW2 and his wife, PW3, were the shopkeepers.  The left thumb print of the applicant was subsequently identified on the credit card receipt for the watch (“the receipt” (Exh P1))[1].

4.  The prosecution alleged that the applicant must have left the fingerprint on the receipt when he signed the credit card and purported to pay for the watch.

5.  PW1 testified that the last passengers on his shift were two South Asian males, whom he had picked up in the early hours of 8 September 2014 in the Sham Shui Po area.  Thereafter, he stopped work.  It was not, however, until the evening that he noticed that his credit card was missing from his bag[2].

6.  PW2 described the male who purchased the watch from the watch shop as “an expatriate … from the Middle East or Turkey, those people with dark skin”[3]. He subsequently denied the suggestion that he would show his customers the credit card receipts of other transactions during the process of bargaining, and added “Why do we need to do that?”[4]. It was further suggested to PW2 that he had let the male inspect and hold a stack of credit card receipts in order to prove his point that the price he was offering was reasonable, to which PW2 answered “Impossible”[5].  However, PW2 could not recall the details of the male’s visit to his watch shop; nor whether the male came had come to the shop with his girlfriend on 9 September in order to have a watch repaired[6].

7.  PW3 was the person who actually sold the watch to the said male.  She testified that, on 8 September 2014, the male came into the watch shop wanting to buy a watch for his wife or girlfriend[7].  She said the male was hurrying her during the transaction[8]. She accepted that she did entertain a doubt as to whether the male was the genuine holder of the credit card in question, since it bore a Chinese name whereas the male looked like a South East Asian[9]. Nonetheless, she eventually approved the transaction because it was accepted by the machine and, since the male spoke very native Cantonese, she could not exclude the possibility that he might have a Chinese name[10].  After the male had signed on the receipt in her presence, a copy was given to him and the original, Exh P1, kept by her in a drawer in the watch shop[11].

8.  Like PW2, PW3 denied that she had shown any credit card receipts to the male in question[12].

Defence case

9.  The applicant elected to give evidence and called his local Chinese girlfriend, DW2, as a defence witness.

10.  The applicant testified that he was 40 years old, having obtained a Master’s degree in Business Administration in England[13].  In May 2002, he had come to Hong Kong to lodge a torture claim[14]. He said that on 1 August 2004, he was attacked and robbed by a group of people, as a result of which he suffered serious head injuries[15].  After his discharge from hospital on 7 August 2004, he required constant care from DW2 at the home where they lived together.  They lived on the 7/F of a building and there was no lift; it was very difficult, therefore, to go out by himself[16].

11.  The applicant denied boarding a taxi in the early hours of 8 September 2014 with another South Asian male[17].  In relation to the watch shop, he accepted that he had been there before but said there had been two occasions.  On the first occasion, during an afternoon at the end of August 2014, he and DW2 had gone to the watch shop in order to have her watch repaired.  They had stayed in the shop for about 15 minutes, whilst PW2 was attending to the watch[18]. On the second occasion, which was between 4 and 5 pm on 9 September 2014, they had returned to the watch shop to complain that the watch was still not working properly, and in order to change the strap[19]. PW2 suggested that they buy a new watch instead and recommended a watch which normally retailed at $3,200 but which he would discount to $2,800[20].  When the applicant counter-offered $2,200 or $2,300, PW2 took out a stack of credit card receipts to show that he had sold the same watch he was recommending to other customers for $2,800[21]. It was in that context that the applicant touched the receipts[22].  He did not ultimately buy the watch.  The applicant also maintained that when serving him, PW2 spoke in English[23].

12.  DW2 testified that the applicant had suffered serious injuries to his head and that she had accompanied him to go to the watch shop on two occasions.  Her evidence was essentially consistent with that of the applicant.  During cross-examination, prosecuting counsel attacked her credibility with reference to her some 11 previous criminal convictions relating to dishonesty, including two charges of theft in 2008; three charges of theft in 2009; one charge of theft in 2010; two charges of conspiracy to defraud in 2011; one charge of theft in 2012; and two charges of theft in 2015[24].

13.  In his closing submissions before the judge, defence counsel submitted that:

(a)   Since PW1 could not be certain that the credit card was stolen from his taxi by the South Asian passengers he had picked up towards the end of his shift, it might have been lost or stolen before that time[25];

(b)   Since PW2 had little recollection of what happened between himself and the applicant at the watch shop, his evidence should be disregarded[26];

(c)   PW3 might have mixed up another native Chinese speaker with the applicant and wrongly recalled the latter was the offender in question[27].  In particular, it was extremely unlikely that the applicant as a torture claimant could have attained the sort of proficiency in Cantonese attributed to him by PW3[28].

Reasons for Verdict

14.  The judge noted that the only factual issue before him was how the applicant’s fingerprint was left on the receipt.  He said:[29]

“Thus the issue presented to the court is purely one of fact, namely, how did the defendant’s fingerprint come to be on the receipt for the sale of a watch, for which a stolen credit card was used to make the purchase and what, if any inference, can be drawn in the circumstances of this case from the presence of the defendant’s thumbprint on the relevant credit card receipt?”

15.  In that regard, the judge also noted that neither PW2 nor PW3 could identify the applicant as the person who used the credit card to obtain the watch by deception; as such, the applicant’s fingerprint found on the receipt was the only evidence which linked the applicant to the credit card.[30]

16.  In respect of the credibility of the prosecution witnesses, the judge said:[31]

“It is clear to me that none of the first three prosecution witnesses have any reason to lie, dissemble or mislead the court in respect of this matter. They gave their evidence of the facts that they remembered occurring as best they could. I found they were honest, trustworthy and reliable.”

17.  As regards the credibility of the applicant, the judge said:[32]

“I simply found the defendant’s account to be not credible. It appeared on its face to be (a) contrived and made‑up story to account for the presence of his left print on the credit card receipt. It was simply an absurd account. It was no wonder that PW2 described it as being impossible.”

18.  In particular, the judge disbelieved the applicant’s allegation that he was given some credit card receipts to examine. The judge said:[33]

“I can see no credible reason why anyone selling an item, a watch, in these circumstances, would give access to credit card receipts. The credit card slips themselves give no information about the items sold. I see no reason why such receipts would ever be shown in such a negotiation. It is simply unbelievable. It is an obvious outright falsehood defying common sense and any normal commercial practice. I completely reject the defendant’s account of him being shown and handling the credit card receipts in the course of some negotiation about buying a watch.”

19.  The judge went on to reject the evidence of DW2.  He said:[34]

“I note his witness confirmed in part his account. This simply shows that she has also lied. It is pointed out to me she had convictions for dishonesty and she was apparently quite prepared to come to court to lie for her friend and partner. I reject her evidence also.”

20.  In the result, the judge accepted the prosecution case that the only inference to be drawn from the case was that the applicant left his fingerprint on the receipt when he used the credit card to purchase the watch, “thereby obtaining the watch by the operative deception of using PW1’s credit card”[35]. Accordingly, he convicted the applicant.

Grounds of appeal

21.  In his homemade grounds of appeal attached to his Form XI, the applicant made the following complaints:

(a)   No prosecution witness or CCTV evidence could identify him as the person who went into the watch shop in question and committed the offence;

(b)   No identification parade was conducted with PW1, PW2 or PW3;

(c)   The credit card, the watch and the receipt were not found on him;

(d)   PW2’s evidence in court was different from that in his witness statement;

(e)   PW3 first made a statement to the police almost 24 months after the offence;

(f)   The fingerprint report was doubtful and incomplete;

(g)   The judge was wrong in finding the prosecution witnesses credible;

(h)   The judge unfairly rejected the defence evidence.

22.  In addition, the applicant specifically referred to the notebook of the police officer who seized the receipt at the watch shop.  He seeks to adduce the notebook, which was not produced at trial, as fresh evidence on appeal.

23.  After filing his Form XI, the applicant has submitted various letters containing submissions which, however, far exceeded the upper limit of 15 pages prescribed by the Practice Direction 4.2. Therefore, on the directions of the Master[36], some letters were returned to him, leaving only those dated 8, 11, 15 and 25 September 2017 (making a total of 30 pages) to be treated as his written submissions, the contents of which will be further summarised below.

24.  In his 7‑page written submissions dated 8 September 2017, apart from repeating his grounds of appeal already stated in his Form XI, he set out at length the evidence in the case.  The more significant points made by the applicant were as follows:

(a)   PW1 failed to prove that his credit card was stolen on 8 September 2014 by a male of a South Asian appearance.  PW1’s evidence in court was also different from his witness statement[37];

(b)   Both PW2 and PW3 had made their respective witness statements to the police long after the offence, albeit that the offence in question had been known by them soon after the event[38];

(c)   In the early morning of 8 September 2014 (when the credit card was allegedly stolen), he was staying at home with his girlfriend DW2, who took care of him[39];

(d)   The judge was wrong to reject DW2’s evidence on account of her criminal record[40];

(e)   The judge erred in ruling that there was a case to answer[41];

(f)   The credit card was used by someone else from 8 to 11 September on more than 10 occasions at different places[42].

25.  In his 10‑page written submissions dated 11 September 2017, the applicant elaborated, if not repeated, most of the points he had previously made, and again set out in detail certain evidence in the case (which I shall not repeat).  The more significant points, however, are these:

(a)   The applicant asserted that, at the hearing in Kowloon City Magistracy on 16 September 2016, the prosecution had informed the court that various fingerprints belonging to three to four persons (including the applicant and PW2) were found on the receipt[43];

(b)   As a result of the judge’s ruling that there was a case to answer, the applicant had no choice but to testify to defend himself lest he would be convicted[44];

(c)   Contrary to PW3’s evidence, the applicant could not speak native Chinese[45].

26.  In his 9‑page written submissions dated 15 September 2017, the applicant further repeated his points made in his previous submissions.  He emphasised that the fingerprints of other persons apart from himself were found on the receipt; in particular, PW2’s fingerprint was found thereon, which supported the defence case that he was showing him various receipts when encouraging him to buy a new watch[46].  In addition, he re‑iterated the point that he could not read, write or speak native Chinese[47].

27.  In his 4‑page written submissions dated 25 September 2017, the applicant, the applicant inter alia invited me to read the notebook of the police officer and the complete fingerprint report[48].

Respondent’s submissions

28.  Ms Chan Sze Yan, on behalf of the respondent, submitted that the application for leave to appeal against his conviction had no merit.  She argued, in particular:

(a)   The fingerprint evidence was strong evidence against the applicant, since there was no reason for his thumb print to have been on the receipt unless he was party to the transaction.  She pointed out that, contrary to the applicant’s assertion, PW2’s fingerprint was not found on the receipt, which bore only the thumb print of the applicant;

(b)   It was unrealistic to require PW2 and PW3 to attend any identification parade because the applicant was only arrested in 2016, some two years after the commission of the offence in 2014;

(c)   The discrepancies in PW2’s evidence were minor and only went to his description of the male offender.  It was sufficient to note that he contended that the male in question was not of a Chinese appearance;

(d)   The judge fully explained why he accepted the prosecution evidence and rejected the defence evidence.  His account was improbable and unbelievable.  It was submitted that DW2’s evidence was also rejected because it was unbelievable, not simply because of her criminal record;

(e)   It was not necessarily unlikely that the applicant could speak native Cantonese, given that he had been in Hong Kong since May 2002 and lived with a local Chinese girlfriend.

29.  Ms Chan also submitted that there was no basis for the applicant now to apply to adduce the relevant police officer’s notebook as fresh evidence on appeal.  She pointed to the fact that whilst the applicant was legally represented at the trial below, there had been no request from the defence to tender the police officer for cross-examination, or to have sight of his notebook.

Consideration

30.  A person may be identified by fingerprint evidence alone: R v Castleton[49]. Further, as the appellate committee of the Court of Final Appeal held in HKSAR v Chiu Wai Keung[50], at para 9:

“…depending on the circumstances of each case, the presence of an accused’s fingerprint at the scene of crime may be sufficient to form the basis of a conviction”.

31.  In the present case, it was not disputed that the applicant’s left thumb print was found on the original credit card receipt issued in respect of the watch in question.  Indeed, the applicant gave an elaborate explanation as to why his fingerprint may have appeared on the receipt ostensibly signed by the card holder.  However, the judge rejected that explanation.

32.  I can see no reasonable ground of appeal for saying that the judge was wrong to reject the applicant’s explanation.  As the judge found, it was an incredible account, which not only defied common sense and normal commercial practice, but it was refuted by PW2, who described it as “impossible”. Once that account, and that of DW2, were rejected, the only reasonable inference to draw, as the judge found, was that the applicant had placed his thumb print on the receipt at the time he used the stolen credit card to obtain the watch in question.

33.  The applicant’s other complaints, such as the lack of formal identification by either PW1, PW2 or PW3, the absence of any CCTV footage and the absence of the credit card, the watch itself or a copy of the receipt in his possession are not to the point.  Such pieces of evidence were not necessary: the applicant’s fingerprint on the original receipt issued at the time the stolen credit card was used to purchase the watch was sufficient in the circumstances to identify the applicant as the one who obtained the property in question by deception.  A fortiori, it was more than enough to justify the judge ruling a case to answer.

34.  Furthermore, the discrepancies between PW2’s evidence and his witness statement were not significant to warrant a rejection of his evidence.  Nor is the fact that his witness statement, or that of PW3, were made so long after the offence fatal to the conviction.

35.  As for the failure to disclose the notebook of the police officer who went to the watch shop on 10 September 2014, his witness statement was served on the defence.  He was not called as a witness, nor did defence counsel seek to have him called and cross-examined.  There is no basis now under the rules to apply for fresh evidence to be admitted in respect of an issue which was not in dispute, and which has no meaningful bearing on the issues at trial.

36.  As for the rejection of the applicant and DW2’s evidence, the judge saw and heard their evidence and rejected it: in doing so, he was in a much better position than any appellate court.  Regardless of DW2’s criminal record, her evidence purported to confirm the applicant’s account, which the judge found to be incredible.  It follows that she must have lied to support his account, irrespective of her extensive criminal record for dishonesty. It is not reasonably arguable that the judge was wrong to disbelieve the evidence of DW2.

37.  As for the applicant’s medical evidence as to his injuries or the fact that, as a consequence, he found difficulty in leaving his home unsupported by DW2, neither circumstance was inconsistent with the prosecution case.

38.  The suggestion that the credit card may have been used on other subsequent occasions does not impact on the fact that it was used on the occasion in question, nor was anything made of this information at trial.

39.  None of these or the applicant’s other grounds of appeal are, in my judgment, reasonably arguable.  Accordingly, leave to appeal against conviction must be refused.

40.  The applicant is duly advised that he has the right to renew his application for leave to appeal against conviction to the full Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.