HKSAR v. LAU HO YIN

CAC C 288/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 288 OF 2011

(ON APPEAL FROM DCCC NO. 78 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the Reasons for Judgment of the Court):

Introduction

1.  On 15 July 2011, the applicant was convicted after trial in the District Court before Deputy Judge Josiah Lam of one charge of conspiring with Ip Ki-fung to use false instruments, contrary to section 73 of the Crimes Ordinance, Cap 200; and he was sentenced to 3 years’ imprisonment.  Thereafter he filed a notice of application for leave to appeal that conviction.

2.  On 14 December 2012, we granted leave, treated the hearing of the application as the appeal, allowed the appeal and set aside that conviction.  We said that we would give our reasons later.  These are the reasons.

The charges

3.  The charge in respect of which the applicant was convicted was the 4th on the charge sheet.  It alleged that he and Ip on 24 November 2010 conspired together to use American Express cards, each in the name of Chan Ka-ming, which were false and which they knew or believed to be false, with the intention of inducing another to accept them as genuine and by reason of so accepting them to do or not to do some act to his own or to another person’s prejudice.

4.  The first three charges on the charge sheet were levelled against Ip alone; to each of which Ip pleaded guilty.  Ip pleaded not guilty to the 4^th charge.  Those pleas reflected the stance common to both defendants, namely, that the applicant had nothing to do with the dishonest escapade with these forged credit cards upon which Ip was alone embarked on the afternoon of 24 November.

5.  The first charge against Ip was that of using a false instrument with the intention of inducing another to accept it as genuine: the allegation was that he used a forged American Express card to buy some clothing at a Vivienne Tam shop in Ocean Centre, Tsimshatsui.

6.  The second charge against Ip was also that of using a false instrument with the intention of inducing another to accept it as genuine; in this case the allegation was that he used the same forged card at a FILA shop in Ocean Terminal in an attempt to purchase goods there.

7.  The third charge against Ip was in relation to three additional credit cards found on his person when, shortly after the FILA incident, he was arrested by the police; the charge was of possessing false instruments (the three additional cards) contrary to section 75(1) of the Crimes Ordinance.

8.  The four credit cards particularised in Charge 4 were the same credit cards as those particularised in the first three charges.

The evidence adduced for the prosecution

9.  The prosecution case depended upon the testimony of three police officers to whom we shall refer as PW1 (PC33345), PW2 (PC5778) and PW3.  PW1 was the officer who arrested Ip and gave evidence of comments allegedly made by him at the scene of his arrest and later at the police station.  PW2 was the officer who arrested the applicant and testified as to comments allegedly made by him at the scene of the arrest and later.  PW3 was the exhibits officer.  The reliability of the evidence of PW1 and PW2 was central to the prosecution case.

10.  Since the application for leave in this case was an attack on the judge’s findings of fact and upon what was said to be palpably unreliable evidence of the police officers PW1 and PW2 which the judge, it is argued, ought not to have accepted, it is necessary to rehearse the contending evidence in some detail. 

11.  PW1 and PW2 testified that they were on duty in plainclothes inside Ocean Centre in Harbour City on 24 November 2010 at about 3.45 pm when they began observing the applicant and Ip.  They saw the applicant go up to Ip, who handed the applicant a red bag containing a dress and a scarf.  Ip had just bought the dress and scarf from the Vivienne Tam shop with the forged credit card, P4.

12.  The applicant and Ip then walked towards Ocean Terminal.  Outside the FILA shop, PW1 saw the applicant gesture to Ip to go into the FILA shop.  The applicant waited outside the shop while, Ip requested to purchase 10 pieces of ladies’ sportswear.  Ip attempted to pay for the goods using P4.  However, the shopkeeper was suspicious and delayed the process, so Ip did not wait to complete the transaction and instead took back P4 and left the shop. 

13.  Leaving the FILA shop, Ip walked towards the applicant, meeting near the Gigasports shop.  From a distance of 3 to 4 metres, PW1 heard Ip say to the applicant, “It’s unsuccessful.”  As they both walked away, PW1 and PW2 intercepted them.

14.  PW1 stopped Ip at about 4.05 pm, revealed his police identity, and searched Ip.  He found four forged credit cards, including P4, in Ip’s trouser pocket and asked Ip whose cards they were.  Ip said the four cards were forged.  PW1 then arrested and cautioned Ip for possessing forged credit cards (the first caution).  Ip said he had bought them that morning from someone in Shatin that he did not know and for whom he did not have a contact number.

15.  PW1 then asked Ip what he had done in FILA shop.  Ip said he used P4 to try to buy something there.  PW1 then arrested Ip for using a forged credit card and cautioned him (the second caution). Ip said he wanted to use P4 to buy sportswear but was unable to complete the purchase because the staff had discovered it was a forged card.

16.  PW1 instructed PW3 to go to the Vivienne Tam shop to investigate the red bag found in the applicant’s hand.  PW3 came back and reported to PW1 at about 4.36 pm.  PW1 asked Ip where he had gone before the FILA shop.  Ip said he and the applicant went to the Vivienne Tam shop to use a forged credit card to buy a dress and a scarf.  The applicant knew he had swiped the card, but the applicant just waited outside the shop for him.  PW1 arrested Ip again for using a forged credit card and cautioned him (the third caution).  Ip said he went to buy the dress and the scarf, intending to give them to his girlfriend as gifts.

17.  After returning to the police station, PW1 made separate records of what Ip had said at scene after caution.  As to what Ip said before the three cautions at scene, PW1 only recorded them later in his notebook.  They were not given to Ip to sign for acknowledgement.

18.  When PW2 intercepted the applicant, he revealed his police identity, searched the applicant and found a notebook in his bag. PW2 then briefly read the notebook but did not find it particularly suspicious.  Five minutes later, at about 4.10 pm, PW1 told PW2 he had arrested Ip for possessing forged credit cards.  PW2 then recalled one page of the notebook had writings about FILA commodities.  PW2 then asked the applicant what the notebook was for.  The applicant said when customers wanted certain goods, he would write down and then buy them.  PW2 asked the applicant why those customers did not buy the goods themselves.  The applicant said, “Don’t play me, Ah Sir.  They are bought with forged cards.”

19.  At about 4.37 pm, PW1 further told PW2 what he had learnt from Ip.  PW2 then asked the applicant how he obtained the red bag.  The applicant said that he asked Ah Fung to purchase those items with forged credit cards.  The applicant held the bag after the purchase.  PW2 then arrested the applicant for using a forged credit card.  The applicant said, “I have nothing to say.”

20.  At the police station, PW2 then handed the notebook to PW3 and recorded the applicant’s post-caution statement at scene in his notebook.  This record shows that the applicant revealed at the police station that he was not willing to answer PW2’s inquiries at the police station.

21.  As to the applicant’s pre-caution admissions at scene, PW2 only recorded them later in his notebook.  He did not ask the applicant to sign to acknowledge the contents.

The defence case

22.  Both Ip and the applicant gave evidence denying any fraudulent conspiracy between them and that the applicant had agreed to go shopping with Ip before going to tea together.

23.  Ip testified that the two met at 3 pm at Harbour City.  Ip then went to the Vivienne Tam shop to purchase the dress and the scarf with P4.  He asked the applicant to wait outside the shop, giving his notebook to the applicant to hold because he had too many things in his pockets. 

24.  After he had made the purchase at the Vivienne Tam shop, Ip gave the bag of goods to the applicant to carry because he wanted to go free-handed to the FILA shop.  Once again, he asked the applicant to wait outside while he went into the shop, but he failed in his attempt to purchase things there.  He said nothing to the applicant after coming out of FILA. 

25.  Ip denied saying to the applicant it was “unsuccessful” or admitting to PW1 that the applicant knew that he had used P4 at the Vivienne Tam shop.  Ip also denied that the applicant gestured him to go into the FILA shop.  The applicant did not know he had those four forged credit cards nor did the applicant know he had used those cards.  Ip denied there was any fraudulent conspiracy with the applicant.

26.  The applicant testified that he is a business manager of a company called Wealth Blooming.  On that afternoon, he had nothing to do so he called Ip to have a drink, who asked him to accompany Ip while he bought something before tea. 

27.  It was the applicant’s evidence that Ip gave him the notebook before Ip went into the Vivienne Tam shop, and that he had never read it.  When Ip went to the Vivienne Tam shop, the applicant waited outside. When Ip came out of the shop, he agreed to carry the red bag for Ip as well. 

28.  Then Ip needed to buy something else so he went along with him.  When Ip entered the FILA shop, he again waited outside.  The applicant said he was getting impatient, but soon Ip came out of FILA.  The applicant denied hearing Ip say, “It’s unsuccessful.” or gesturing Ip to go into the FILA shop.  He did not know Ip had forged credit cards or that Ip had used those cards. 

29.  He testified that PW2 only briefly checked his bag at scene, and did not find the notebook in his bag then.  Thus, PW2 had not asked him anything about the notebook and he certainly did not give the alleged pre-caution admissions.  The notebook was only found by officers other than PW1 to PW3 when he was thoroughly searched at the police station.

Admissibility

30.  The admissibility of the applicant’s alleged admissions at the scene of his arrest was challenged unsuccessfully.  It was denied by the applicant that he had made the admissions but the challenge was based upon the failure of PW2 to caution the applicant well before he did.  The judge found that although there was a breach of the Rules for questioning suspects in that the applicant ought to have been cautioned before he had made his first admission, he saw no basis upon which to exercise his discretion to exclude the evidence of the admissions.  No complaint about that decision was pursued upon the hearing before us.  The complaint, rather, was that the evidence of the police officers, in particular but not only that of PW2, was such that the judge ought not to have accepted it.

The suggested material evidential flaws 

31.  It was correctly accepted by Mr Reading SC for the applicant that it is difficult to persuade an appellate tribunal to overturn findings of fact made by a first instance arbiter of fact.  But his contention was that the testimony of the two police officers PW1 and PW2 was so inherently improbable insofar as it attributed, both to the applicant and to the co-accused Ip, highly material statements inculpatory of the applicant that, absent reasonable explanations from the officers and acceptable reasoning by the judge for believing their testimony in the light of these improbabilities, it is open to this Court to intervene.

32.  At trial, the attack on the veracity of the evidence of the two police officers was directed at a number of matters including the following:

(1)   That PW1 had heard Ip tell the applicant that his foray at the FILA shop had been unsuccessful; whereas PW2 did not attest to the same event.

(2)   That PW1 said in evidence that he saw the applicant gesture towards Ip to go into the FILA shop, whereas PW2 gave no evidence to that effect. 

33.  These two inconsistencies – or so they were called – were said to undermine the evidence of PW1 insofar as it incriminated the applicant and the same point was urged upon us upon this application.  We were not impressed by this particular point.  There is nothing odd in the fact that two officers with different vantage points do not hear or see quite the same comment or event; and that is the point that the judge correctly made in this regard in his Reasons for Verdict.

34.  So we turn to the other matters included in the attack on the veracity of the two officers; and in these instances we were persuaded, upon reading the transcripts and after hearing counsel, that there was substance to the complaints. 

35.  What happened in relation to each suspect at the scene of the arrests was that Ip was cautioned on three occasions and the applicant once.  Before each caution was delivered to a suspect, that suspect is said to have made a comment; to the detail of which we shall return. After each caution was administered to a particular suspect, the suspect made a reply.  Each officer had with him a police notebook at the scene of the arrest.  Each then and there made a note of the comments made after caution but not of the comment made before caution.

36.  It is a bleak fact that the alleged statements made by both suspects which were inculpatory of the applicant were allegedly each made before a caution and not recorded at the time in the notebooks; yet the exculpatory or non-committal statements made about the applicant’s role at the time of the arrest were recorded in the notebooks at the scene of the arrest.

37.  Thus in relation to this applicant, before he was cautioned – and it is common ground that he should have been cautioned much earlier than he was, for by the time the very first question was put to him, there was, on the officers’ testimony, ample reasonable cause to suspect him of complicity in Ip’s illicit foray – he was asked what the purpose of the notebook was and he allegedly said it was to identify goods for his customers, thus claiming the notebook to be his; in the circumstances, highly incriminating.  Yet no note was made of this at the scene of the arrest, even though the police were thereafter at that scene for half an hour.  And that alleged reply was never put to the applicant for confirmation or denial, even when he was interviewed at the police station.  And, further, the alleged reply was not at that interview included in the introductory words relating to the arrest events.

38.  Then, according to this evidence, the officer asked the applicant why his customers did not buy the goods themselves and the applicant made as damning a reply as might be: “Don’t play me Ah Sir.  They’re bought with forged credit cards.”  Yet: once again, no note was made of this at the scene of the arrest; once again this admission was never put to the applicant; and once again it never found its way into the introductory remarks at the interview.

39.  Then, according to this evidence, the applicant was cautioned and replied that he had nothing to say.  It is not as if it was only then that he realised he was in trouble because, according to the officer, before he asked any questions at all he informed the applicant that he suspected that he might have committed some sort of crime.  But the present point is that whereas the alleged blatant admissions of criminal conduct were not recorded, this denial was; there and then – at the scene of the arrest.

40.  Mr Reading says, not surprisingly, that this pattern – if true – was on its face bizarre and called into question the reliability of the testimony of the officers.  We agree.  

41.  The arrests took place shortly after 4 pm.  The police, with their suspects, arrived at the police station at about 5 pm.

42.  At about 7 pm PW2 conducted an interview of the applicant.  In that interview he recorded the fact that at Ocean Centre he had arrested the applicant and cautioned him in response to which the applicant said: “I have nothing to say”.  He said he had some questions to ask the applicant but the applicant – who according to this officer had been so willing earlier to volunteer his complicity – replied that he did not wish to say anything.

43.  Between 8 pm and 10 pm, PW2 made a full record in his notebook of all the events at the shopping mall concerning these two suspects, including the alleged self-inculpatory remarks made there by the applicant.

44.  It is another bleak fact that these alleged inculpatory remarks were never put by this or any other police officer to the applicant.  And neither notebook entry – the one made at the scene of the arrest and the one made at the police station – was shown or read to the applicant for his comment or endorsement.

45.  PW1 conducted a series of interviews with IP between 6.53 pm and 9.50 pm.  The record of the last of these interviews – endorsed by Ip – was wholly exculpatory of the applicant.  This fact raises a stark matter in relation to the testimony of PW1 insofar as it affects his reliability.  His testimony was that at the time of Ip’s arrest, Ip said that he and the applicant had gone to Vivienne Tam and used the forged card and in particular that the applicant “knew that I swiped it.”  It is common ground that what Ip was thereby saying was that the applicant was party to the fraudulent conduct.  This comment was never later put by the police officer to Ip for adoption or refutation but, much more significantly, this is what Ip said in his interview at the police station only a few hours later:

“Answer (8): I know him. He (1 character deleted) (Sd.) (illegible) is my friend. I asked him to meet me at 3 p.m. at somewhere near the LV Shop today and intended to go window-shopping with him. When I went to the Vivienne Shop to buy a dress and a scarf with a false credit card, he did not know anything about this. I told him to wait for me somewhere nearby, so he did not know that I had the 4 false credit cards. After I had bought the dress and scarf, I carried a red Vivienne Tam bag. I asked him to keep it for me. Then I went to the Fila Shop alone and intended to buy some ladies’ sports suits, but I was not successful and I was arrested by you afterwards. Anyway, it has nothing to do with LAU Ho-yin.”

46.  It will be seen at once that this stance is directly contrary to the stance said by PW1 to have been taken by Ip at the time of his arrest near the shops.  Such a contrary stance is odd in itself, if the evidence of the earlier comment is true.  What is even more noticeable is that that answer having been given, PW1 did not then put to Ip the remarks he had allegedly made against the applicant’s interest at the time of Ip’s arrest. Not surprisingly, PW1 was challenged about this in cross-examination:

“Q. Well, if he’d said he knows Lau Ho-yin at the scene, why did you ask him again in question 8, “Do you know Lau Ho-yin?”

A. Because I want to give Dl the opportunity to explain his relationship with Lau Ho-yin and also an opportunity for him to explain as to the reasons why they came out on that day.

Q. But let’s go to that question.  You knew that he knew Lau Ho-yin because he’d told you so apparently.  Why do you ask him again?

A. For the reason that I wanted to record that it was in fact he who told me that he knew Lau Ho-yin so I made such a record.

Q. Why didn’t you do the simple thing and write down at the scene, “You told me you went shopping with Lau Ho-yin” and what you told the court before?

A. I did not do that because I wanted to offer him an opportunity to give explanations concerning the situation and the purpose.

Q. So the question is very simple.  Again, why didn’t you give him the opportunity to explain what he’d said before or confirm what he’d said before?

A. I did not make any record of that.

Q. Well, why didn’t you ask him then, that’s the question?

A. I did not ask him of that.

Q. Yes, why?

A. There was no specific reason.

Q. And then when he answered question 8 he gave an answer that is completely contradictory to what you said he said at the scene, right?  He said, “It’s nothing to do with Lau Ho- yin.”

A. That is correct.

Q. That’s right. Why didn’t you at that time say, “But remember before you told me”?

A. No, I did not pursue it any further.

Q. Why not, that’s the question.  It’s the most obvious thing to do, isn’t it?

A. I didn’t pursue it.”

47.  This was hardly a satisfactory explanation.  The absence of a satisfactory explanation on a material issue called for the judge’s attention and scrutiny.  Yet not only did the judge not acknowledge that the explanation was not satisfactory but he, the judge, offered an explanation which the officer had not provided.

48.  What the judge said was this:

“42. I have ruled that all the disputed pre-caution admissions of Dl and D2 admissible and truthful. Dl’s admission to PWl at scene confirms he had conspired with D2 to go on fraudulent shopping with the four forged credit cards Dl had. A few hours later, at the police station, Dl reneged from his earlier truthful admission made at scene. He gave a false answer to Question 8 in P18. PWl did not have to follow up that false answer because it was clearly a lie.”

49.  The problem with that reasoning is fundamental: first, it starts with a supposition that the earlier inculpatory remark had been made and was true, which was the very question begged by the unhappy nature of the police testimony; and, secondly, it was not the explanation given by the officer himself.  It was not for the judge to offer an explanation which the officer had not provided, either expressly or by implication, nor was it an explanation which was warranted, as a matter of acceptable inference, from the evidence.  This approach to police evidence caused us concern and coloured our view the judge’s reasoning as a whole.

50.  Shortly after PW2 made his full notebook entry, PW1 commenced making his full notebook entry – there is nothing sinister in this timing, for PW1 had only then completed his interviews of Ip.  By “full notebook entry” we mean that at 10.15 pm he put down the (alleged) full story of the events at the shopping mall including the suggested remark by Ip at the mall to the effect that the applicant was in on the scam with him.  In this instance, too, we see that none of this was put to Ip by this or any other officer.

51.  The failure at any time after his arrest, which includes the time of the interview a few hours later, to put to the applicant the alleged inculpatory remarks made by him at the time of his arrest is of itself remarkable.  He was never asked to sign the officer’s notebook and there is no reference in his record of interview to anything which he had earlier allegedly said.  The officer’s explanation for this failure was that he did not think it important.  The point is all the more notable in light of the fact that when asked during the interview whether he was willing to answer questions the applicant said: “I am not willing.”

Analysis

52.  In the round, therefore, the picture painted by the officers’ evidence was this:

(1)   Statements after caution were contemporaneously recorded; those prior to caution were not;

(2)   Alleged admissions by the applicant prior to the administration of cautions – the ones not contemporaneously recorded – were inculpatory of the applicant; whereas comments made after cautions were administered and are contemporaneously recorded were not inculpatory.

(3)   Prior to caution, Ip is supposed to have said that he committed the Vivienne Tam offence with the applicant’s complicity – this was not recorded contemporaneously; yet only four minutes later in answer to a caution in relation to precisely the same incident he gave an answer as to what he was doing in the Vivienne Tam shop, but with no reference to the applicant, and this was recorded contemporaneously;

(4)   The inculpatory statements allegedly made by the applicant by way of immediate response to questions put to him at the scene were never put to him, even when later interviewed about the events at the scene of the offences – they were not even recorded in the preamble of that interview.

(5)   Ip’s assertion at the scene, of the applicant’s involvement in criminality, was not recorded contemporaneously and then, for no apparent reason, Ip changed his story completely, according to this account, and wholly exonerated the applicant a matter of a few hours later; and the inconsistency was not put to him and the officer was wholly unable to explain why not.

53.  We studied the cross-examination of PW2 which not surprisingly probed him for possible reasons for not making a contemporary record of alleged unambiguous admissions.  He said, in essence, that he did not really have much time to make a very long record because he was concerned that the applicant might escape.  He said that his priority was to record what the applicant had said under caution because it was that which was more important than what the applicant said before the caution.

54.  In his ruling on the issue of the admissibility of the various alleged statements (it was not really an issue of admissibility but rather a question of the exercise of discretion) the judge addressed the question of the credibility of the two arresting police officers.  He found them honest and reliable; officers who had not covered up their investigative shortcomings in this case.  He took the view that such oddities in the conduct in question was probably the result of poor police training:

“10. It is true that neither officer recorded the alleged pre-cautioned admissions contemporaneously or later in the record for D1 and D2 to acknowledge the contents. They only recorded them in their notebooks for their own reference. In fact, this is often the way police officers would deal with pre-caution admissions. Most of the officers this court has seen giving evidence in court would only record the post-caution admissions in what they call post-record cautioned statements. They would write down the pre-cautioned admissions for defendants’ explanation or acknowledgment.

11. I accept what PW1 says of his training in this regard.  He has received no proper training on how to deal with pre-cautioned admissions.  I believe many officers in the police force are in the same position as PW1, that is why most officers this court has seen giving evidence in this court would only focus on recording the post-caution admissions in caution statements.  For the pre-caution admissions they usually only record them in their witness statements or notebooks for their own reference.  Such inadequate police training needs improvement but it is not this court’s duty to oversee that or to punish the officers for their deficiency.”

55.  We hesitate to second-guess the experience of someone, such as this judge, with extensive exposure in the magistrate’s court to police practice but we were somewhat surprised – as a matter of our own experience in the courts – by the suggestion that police officers do not normally record pre-caution admissions and do not normally put them at any stage to the suspect.  In this regard, we put our surprise to Mr Leung for his reaction and he submitted that it was indeed unusual never to put to a suspect the only admission which he has made; and not to record such an admission in the preamble to an interview.  Indeed, he categorised the failures to do so in this case as “bizarre”.  In any event, if it is the practice to record only post-caution remarks, then in our judgment that is an unacceptable practice.  There is no logic in recording only what is said after caution.

56.  A tribunal of fact always has an advantage over an appellate tribunal insofar as the first instance tribunal observes the witnesses, immerses itself in the details and, over the course of the hearing, secures a “feel” for the case.  Where police officers give evidence, the failure to follow rules is not of itself necessarily fatal and it is right for a court to approach evidence realistically, acknowledging or recognising flaws that stem from inexperience or other factors which do not affect credibility.  Yet, even so, inherent probabilities and improbabilities are always sound guides to truth and where important evidence is on its face inherently improbable, that inherent improbability should be addressed.  There may be an acceptable explanation for it.  But where there is not an acceptable explanation for it, an inherent improbability should give pause for real concern about the reliability of the testimony on that point.  Whether that concern, in the context of the whole of the evidence in the case, results in an outcome favourable to one side or the other must be fact and evidence specific.

57.  What troubled us in this case, as we have made clear, are a series of fundamental improbabilities for which explanations were given but which explanations we are in as good a position as the trial judge to assess.  We did not, with respect, think that the improbabilities were accorded recognition by the judge and he did not, as he should have, acknowledge the unsatisfactory nature of some of the explanations given.  Further, in the case of the failure of PW1’s reason for not raising with Ip the dramatic inconsistency between the non-recorded arrest scene comments by Ip inculpating the applicant and Ip’s comments in his interview exculpating the applicant, the judge has provided an explanation which was not the explanation provided by the police officer and which was not an obvious explanation to infer.  If there is a material flaw in the evidence for the prosecution, for which there is no common sense explanation, the prosecution must live with the consequence. 

58.  We were, in the circumstances, entitled to come to a view about the quality of the evidence of the two police officers and we found that that material witnesses’ testimony on its face presented an improbable account of what had been said at the scene of the arrest with no satisfactory explanation for the improbabilities.  We do not think that their testimony should have been relied upon.

59.  The question therefore was whether, putting aside the evidence that the applicant pointed Ip towards the second shop; the evidence of Ip’s alleged remark to the applicant after he emerged from FILA; and the evidence of the applicant’s alleged inculpatory remarks shortly before his arrest – whether the remaining evidence sufficed to prove beyond reasonable doubt, the guilt of the applicant in respect of Charge 4.

60.  Mr Reading for the applicant pointed to the fact that it is apparent from the Reasons for Sentence that the inculpatory remarks attributed to the applicant were key to the judge’s finding of guilt.  What the judge there said, in its relevant part, was this :

“9. Counsel says both defendants agreed to much of the facts. The fact is that both defendants have only agreed to those facts which they can hardly dispute. They, however, dispute those facts, including those challenged admissions, that ultimately proved Charge 4 against them.”

61.  Given that remark by the judge and putting aside all the police evidence, we did not think it appropriate to apply the proviso.

62.  Accordingly, we allowed the appeal and set aside the conviction.  Given the centrality of the police evidence to the case, Mr Leung quite realistically did not apply for a retrial.

Addendum

63.  We would add as an aside one matter which troubled us.  It relates to the sentence imposed in respect of Ip.  He having pleaded guilty to Charges 1, 2 and 3, there was no need, so it seems to us, to take a plea from him in respect of Charge 4 but, that having been done, he ended up with the same term of imprisonment as did this applicant.  What the judge did was to take a starting point of three years’ imprisonment in relation to all the charges; impose a term of two years’ imprisonment in relation to Charges 1, 2 and 3 but in the case of Ip impose a term of 3 years (the same as in the case of this applicant) on Charge 4, ordering them to run concurrently.  It follows that although Ip pleaded guilty to use of the one credit card on the two occasions and to possession of the remaining cards, whereas the applicant pleaded not guilty to joint responsibility in the same course of conduct, Ip lost all discount to which he would otherwise have been entitled simply because, although he accepted responsibility for the offences, he denied that in committing them he had conspired with the applicant.  Albeit without the benefit of argument on behalf of respondent to the contrary, this does not to us seem just or to accord with principle.

64.  That apart, the conviction of the applicant in respect of Charge 4 having been set aside, a question arises in relation to the conviction of Ip on that charge; although in relation to conviction, revival of an application faces the problem that Ip has abandoned his application for leave to appeal against conviction.  We asked Mr Leung to notify those acting for Ip, as well as Ip himself, of the result of this applicant’s appeal so that those advising Ip may take such consequential steps as may be appropriate.