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CACC 366 /2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 366 OF 2015
(ON APPEAL FROM DCCC NO. 195 OF 2015)
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HKSAR |
Respondent |
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TAGAO SAUDEE ABAD |
Applicant |
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| Before : Hon Lunn VP in Court |
| Date of Hearing : 14 September 2016 |
| Date of Judgment : 14 September 2016 |
| Date of Reasons for Judgment : 15 September 2016 |
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REASONS FOR JUDGMENT
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1. The applicant seeks leave to appeal against his conviction after trial by District Court Judge Casewell on 22 September 2015 of two charges of conspiracy; namely,
1) to make false instruments, namely false credit cards, between 10 July and 12 August 2014, contrary to sections 71, 159A and 159C of the Crimes Ordinance, Cap. 200 (Charge 1); and
2) to use false instruments, namely credit cards on between the same dates, which they knew or believed to be false with the intention of inducing others to accept them as genuine and by reason of so accepting them to act to their own or another’s prejudice, contrary to section 73, 159A and 159C of the Crimes Ordinance, Cap. 200 (Charge 2).
2. The Particulars of Offence of each of the charges stipulated that the applicant had conspired with his co-accused at trial, namely Aurelien Simony (the 1st defendant) and Michel Bensadoun (the 2nd defendant), and together with Walid Abdelaziz and other persons unknown.
The prosecution case
3. It was the prosecution case that the applicant was a party to two conspiracies, first to obtain genuine credit card details and duplicate them onto stolen credit cards, and secondly then to use the resulting false credit card to purchase items for resale. It was alleged that the applicant had used his mobile telephone to send WhatsApp messages details of genuine credit card details to the 2nd defendant’smobile telephone, which data were subsequently used in a false credit card transaction at the Apple Store in Causeway Bayon 15 July 2014. The applicant was identified in court by a police officer, DPC 7907 Ting Ho Yin, as a person depicted in the CCTV recording made at the time of the use of the false credit card on that date.
4. On 12 August 2014 the 1st defendant had been arrested, having used an American Express credit card in the name of Olly Arthey, which had been reported as lost in March 2013, to purchase two computers. On 13 August 2014 a Visa credit card in the name of the applicant, the chip of which had been tampered with was found by police officers in a search of the home of the 2nd defendant, whose mobile telephone was found to have received data from the applicant’s mobile telephone via the WhatsApp messaging service. The messages included encoded credit card data sent on 15 July 2014, which data was used in a transaction involving the American Express credit card in the name of Olly Arthey in the Apple Store in Causeway Bay that day. Also, equipment was found in the 2nd defendant’s home, which could be used to read data from magnetic cards and to write data onto magnetic cards.
Video record of interview
5. In a video recorded interview, conducted of the applicant under caution by police officers on 15 September 2014, the applicant said that he had lost the Visa credit card that was found at the 2nd defendant’s home. He denied he was responsible for sending the images and messages contained in the WhatsApp records between his number and the 2nd defendant’s mobile telephone. Walid or another person had sent them when they had borrowed his mobile telephone. They knew the password to his mobile telephone and would use it to send WhatsApp messages, which they then deleted messages.
The defence case
6. The applicant did not exercise his right to give evidence at trial. Rather, he relied on his out-of-court statements made in the video recorded interview. Walid, or another person, had sent the WhatsApp messages when they had borrowed his mobile telephone. The prosecution could not exclude this possibility nor could they exclude the possibility that a third party had tampered with the applicant’s mobile telephone to create a shared account with another mobile telephone. He had lost his Visa credit card. The prosecution could not exclude the possibility that its presence in the 2nd defendant’s home was explained by the fact that the 2nd defendant had stolen that credit card.
7. It was submitted on behalf of the applicant that the CCTV recording of events in the Apple Store in Causeway Bay on 15 July 2014 was not sufficiently reliable evidence on which to found a safe identification of the applicant as having been present at that time.
Reasons for Verdict
8. In his Reasons for Verdict, referring to the applicant as the 3rd defendant, the judge said that the issues at trial were:[1]
“ ...whether the 3rd defendant could be proved to have sent the messages purporting to be from him to the 2nd defendant’s WhatsApp, and also whether the 3rd defendant could be identified as being present at the Apple Store CCTV on 15 July 2014.”
9. Having noted that the prosecution case against the applicant was circumstantial in nature and that proof of the prosecution case required the court to draw inferences against the applicant, the judge said:[2]
“there are three related questions to be resolved. Firstly, were the WhatsApp messages on the 2nd defendant’s phone actually authored and received from the 3rd defendant; and if they were, do they support the fact that the 3rd defendant was a member of the agreed conspiracies, or a party to the agreed conspiracies? Secondly, is the identification of the 3rd defendant as being present in the Apple Store in Causeway Bay at about the time the Olly Arthey card was being used there, is that reliable to in fact prove the 3rd defendant’s presence there? And thirdly, does the finding of the 3rd defendant’s Visa card in the 2nd defendant’s residence provide probative evidence of the 3rd defendant’s involvement in the conspiracies?”
10. Of the first issue, the judge noted that the conversation conducted in the WhatsApp messages from the 2nd defendant’s mobile telephone to that of the applicant was with a person named Saudee, the applicant’s name. Also, he said that since Walid was referred to in the third person, he was not the person messaging the 2nd defendant. Finally, he noted that the person using the applicant’s mobile telephone used Tagalog expressions, it being common ground that the applicant was a Tagalog speaker.
11. In the result, the judge concluded:[3]
“ I consider these factors are compelling evidence to show in fact that the 3rd defendant is a participant in the conversation exhibited in P91. However, this evidence does not stand alone. There are other matters that I consider with it.”
12. Then, the judge noted that the data related to a credit card which had been sent by a WhatsApp message on 15 July 2014 from the applicant’s mobile telephone to the 2nd defendant’s mobile telephone contained data replicated on the American Express credit card in the name of Olly Arthey. That credit card had been used in the Apple Store in Causeway Bay that day. Next, the judge went on to consider the evidence of the identification of the applicant as having been present in that store at that time. He said:[4]
“The identification is made by the second prosecution witness. However, as part of the court proceedings, the CCTV recording was played for his benefit and for the court’s benefit.
Having seen the recording, I can say that the CCTV clearly shows the 3rd defendant is present. The 3rd defendant is distinctive in his appearance. Certainly the identification made by the second prosecution witness is a reliable identification. The image is clear enough and lasts for a sufficiently lengthy time for anyone seeing it and then seeing the 3rd defendant to be sure that the CCTV recording shows the 3rd defendant in that store at that time.”
13. In the result, the judge concluded:[5]
“I am sure as a fact of the 3rd defendant’s presence in the Apple Store at the time when the Olly Arthey card has been used.”
14. Of the significance of that evidence, the judge said:[6]
“ This is again compelling evidence to show involvement in the conspiracy. It is in this case unexplained. It would be too much of a coincidence for the information to have been sent from a phone number purporting to be the defendant’s and then the defendant to appear when that information is being used on the forged card.”
15. Of those two separate pieces of evidence, the judge said they were:[7]
“ ...compelling evidence that Saudee, D3, sent the information using the Olly Arthey card, and that the 3rd defendant is the person “Saudee” referenced to in the 2nd defendant’s phone contacts. After all, it is his phone number. The obvious conclusion would be it is his message. There is no other evidence that points in any other direction or creates any reasonable doubt that the 3rd defendant is in fact the author of those messages.”
16. Of the submission made on behalf of the applicant that the cloning of the WhasApp accounts could not be excluded, the judge said “but this is ruled out by consideration and application of his (this?) evidence.” [8]
17. Of the evidence of the presence of the applicant’s Visa credit card in the home of the 2nd defendant at the time that he was arrested and the premises searched, the judge said that it was:[9]
“again evidence of the 3rd defendant’s involvement with the 2nd defendant and an involvement in those conspiracies.”
18. In the result, the judge concluded:[10]
“I find that these three pieces of evidence, taken together, provide the irresistible inference the prosecution require of the 3rd defendant’s part in the agreements alleged in Charges 1 and 2.”
Ground of appeal of his conviction
19. The sole ground of appeal against conviction advanced on behalf of the applicant by Ms Manyi Tsang was that the judge erred in relying on the CCTV recording in the Apple Store in Causeway Bay to find that the applicant was a party to the two conspiracies alleged. The recording was not a sufficiently reliable basis to determine that the applicant was present at the material time. Further, even if it did so, it was not conclusive evidence of what the applicant was doing and with whom he was at that time.
20. Ms Manyi Tsang submitted that the CCTV recording did not depict clearly the face of the person in question. Also, there were no distinctive features, such as tattoos or scars on the person, to aid identification. She submitted that the error rendered the applicant’s conviction unsafe.
Respondent’s submissions
21. In his submissions Mr Jonathan Man submitted that the CCTV recording was of good enough quality for it to be determined by someone watching the CCTV that the person wearing the red T-shirt at least clearly resembled the applicant as he presented in the dock at this hearing. Whether or not the applicant was the person present in the Apple Store on 15 July 2014 was an issue to which DPC 7907 and the judge spoke. However, he contended that the judge had not convicted the applicant merely because he was present at the Apple Store on the morning of 15 July 2014 at the time of the first use of the false credit card to purchase an item. The judge had relied on his findings in respect of all three questions that he had posed in respect of the evidence. That included his finding that the presence of the applicant’s Visa credit card in the premises of the 2nd defendant was evidence of the applicant’s involvement together with the 2nd defendant in the conspiracies alleged.
A consideration of the submissions
22. Of the identification of the applicant as the person depicted in the CCTV recording, referring to DPC 7907 as PW2, the judge said:[11]
“ PW2 was a police officer who dealt with the 3rd defendant previously. He purported to identify the 3rd defendant as being present on the CCTV recording of the Apple Store at Causeway Bay on 15 July 2014. His evidence was challenged.” [Italics added.]
23. Of DPC 7907’s identification of the applicant as a person depicted in the CCTV recording of 15 July 2014 of the Apple Store in Causeway Bay, the judge said:[12]
“ ...the 3rd defendant is identified as being recorded on the CCTV in that store. The identification is made by the second prosecution witness. However, as part of the court proceedings, the CCTV recording was played for his benefit and for the court’s benefit.”
24. Then, the judge went on to say:[13]
“Having seen the recording, I can say that the CCTV clearly shows the 3rd defendant is present. The 3rd defendant is distinctive in his appearance. Certainly the identification made by the second prosecution witness is a reliable identification. The image is clear enough and lasts for a sufficiently lengthy time for anyone seeing it and then seeing the 3rd defendant to be sure that the CCTV recording shows the 3rd defendant in that store at that time.” [Italics added.]
25. Clearly, the judge was there making two separate findings. First, that he was able to identify the applicant from the CCTV recording. Secondly, that he accepted that the identification of the applicant by DPC 7907 was reliable.
26. Although the judge described the applicant as “distinctive in his appearance”, he gave no details at all of what he meant by that description. Further, the judge did not describe the image(s) of the applicant which were “clear enough and lasts for a sufficiently lengthy time” for a sure identification of the applicant to be made by anyone seeing the CCTV recording. For example, he did not say whether or not the image was of the profile or of the person’s face from the front.
27. Of the basis of the identification of the applicant by DPC 7907, the judge said, as noted earlier, that the police officer “dealt with the 3rd defendant previously.” He did not condescend to any detail at all of that earlier occasion.
28. In those circumstances, at the request of Ms Tsang, the Court viewed the relevant CCTV recording. In addition, the Court had regard to a transcript of the evidence of DPC 7907, which transcript was in the possession of those representing the applicant, but the existence of which was not known to the Court or to the respondent until the Court enquired during the hearing as to the need for such a transcript. For reasons which are not clear, no application had been made for the inclusion of that transcript in the Appeal Bundle. Clearly, such an application ought to have been made. The limited ambit of the evidence of DPC 7907 adduced at trial was highly relevant to the judge’s finding that his identification of the defendant as the person in red in the CCTV recording was “a reliable identification.”
29. DPC 7907 was the exhibits officer in the case. He testified that he came into contact with the applicant on 15 September 2014. It appears from the video record of interview that the applicant had been arrested in the report room of Wanchai Police Station at 10:35 a.m. that day. DPC 7907 said that 4:30 p.m. that day he knew of the fact of the applicant’s arrest. He was one of the officers who escorted the applicant to his home in Yaumati. After a search of those premises, he and other police officers escorted the applicant to make a report to Yaumati Police Station. Then, the applicant had been escorted to Wanchai Police Station.
30. Having viewed about five minutes of the CCTV recording during the hearing, DPC 7907 said that he recognised the applicant as the person who had appeared at the bottom of the screen and then moved to the top of the screen before returning to the bottom of the screen, at which he moved to the top of the screen and was not to be seen again. He said that the person he identified was wearing a red T-shirt, blue jeans and light brown shoes. He had short black hair, was of relatively fat build and had relatively tanned skin.
31. In cross-examination, only three questions were put to the officer, all of which he denied. He disagreed with the suggestion that the person he had identified in the CCTV recording was not the applicant. He was not mistaken about that identification. He had not identified someone who was merely similar to the applicant.
32. It is to be noted that the judge’s determination on 22 September 2015, following a trial conducted on and between 26 August and 8 September 2015, that he was sure that the applicant was depicted in the CCTV recording, was of a recording made on 15 July 2014. The judge made no reference to the appearance of the applicant at trial.
33. Also, it is to be noted that the context in which the identification was made by DPC 7907 of the applicant on 26 August 2015, as a person depicted in the CCTV recording, was that he had been in the company of the applicant for what appears to have been at least some hours on 15 September 2014. Of course, that was only two months after the making of the CCTV recording in the Apple Store.
34. Having viewed the CCTV recording I note that the person who matches the description given by DPC 7907 as being the applicant presents his back to the camera for much of the time that he is on-screen. There are occasions when that person is in profile and other occasions when for short periods the person presents part of a full frontal view of his face. In all the footage the depiction is of the full person, rather than a close up of a head or face.
35. The judge did not address the submission made in Ms Tsang’s written closing speech that DPC 7907’s identification of the applicant as the person depicted in the CCTV recording was of “little value as it is obvious that no facial features can be seen on the footage.”
36. In the absence of any particularisation whatever by the judge of what it is that he regarded as the “distinctive” appearance of the applicant or as to the particular images he regarded as “clear enough” and of a “sufficiently lengthy time” it seems to me that it is reasonably arguable that the judge was wrong to conclude that anyone viewing the CCTV recording would conclude with certitude that person was the applicant and, in particular, to make that finding himself.
37. Similarly, it is difficult to understand the basis on which the judge determined that the identification of the applicant by DPC 7907 was “a reliable identification”. DPC 7907 did not give any evidence at all of the applicant’s appearance when he met him on 15 September 2014 or any evidence of whether or not the applicant’s appearance at trial was the same or similar to his appearance on 15 September 2014 or in the CCTV recording of 15 July 2014. Furthermore, he did not give any evidence of the appearance or features, distinctive or otherwise, by which he recognised the applicant in the CCTV recording.
38. Although, as Mr Man submitted, there was evidence other than of identification that was of a compelling nature, it is clear that the judge used his finding in respect of identification to support his findings in respect of other evidence. If he was wrong in his determination in respect of the identification of the applicant in the CCTV recording, it is reasonably arguable that the erroneous finding may have impacted upon his other findings. The judge said: [14]
“It would be too much of a coincidence for the information to have been sent from a phone number purporting to be the defendant’s and then the defendant to appear when that information is being used on the forged card.
These two pieces of evidence, taken together - that is, the recording in P91 and the CCTV recording - are, I find, compelling evidence that Saudee, D3, sent the information using the Olly Arthey card, and that the 3rd defendant is the person “Saudee” referenced to in the 2nd defendant’s phone contacts. After all, it is his phone number. The obvious conclusion would be it is his message.” [Italics added.]
39. On the other hand, it is to be noted that in making his finding subsequently that the finding of the applicant’s Visa credit card at the home of the 2nd defendant “is again evidence of the 3rd defendant’s involvement with the 2nd defendant and an involvement in those conspiracies” [15] the judge made no reference to any reliance on his finding of the identification of the applicant in the Apple Store on 15 July 2015.
40. In the result, the judge concluded:
“ I find that these three pieces of evidence, taken together, provide the irresistible inference the prosecution require of the 3rd defendant’s part in the agreements alleged in Charges 1 and 2.”
Conclusion
41. In the result, I am satisfied that the grounds of appeal advanced by Ms Tsang are reasonably arguable. Accordingly, I grant leave to appeal against conviction on those grounds. I order that a transcript of the evidence of DPC 7907 be included in the Appeal Bundle.
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(Michael Lunn) |
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VICE PRESIDENT |
Mr Jonathan Man, SADPP, of the Department of Justice, for the respondent
Ms Tsang Manyi, instructed by SSW & Associates, assigned by Director of Legal Aid, for the applicant
[1] Reasons for Verdict, paragraph 6.
[2] Reasons for Verdict, paragraph 33.
[3] Reasons for Verdict, paragraph 40.
[4] Reasons for Verdict, paragraphs 41-2.
[5] Reasons for Verdict, paragraph 43.
[6] Reasons for Verdict, paragraph 43.
[7] Reasons for Verdict, paragraph 44.
[8] Reasons for Verdict, paragraph 45.
[9] Reasons for Verdict, paragraph 47.
[10] Reasons for Verdict, paragraph 48.
[11] Reasons for Verdict, paragraph 15.
[12] Reasons for Verdict, paragraph 41.
[13] Reasons for Verdict, paragraph 42.
[14] Reasons for Verdict, paragraphs 43-4.
[15] Reasons for Verdict, paragraph 47.
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