HKSAR v. KWAN MING HO

CACC14/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.14 OF 2004

(ON APPEAL FROM DCCC NO.946 OF 2003)

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J U D G M E N T

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Hon Pang J (giving the judgment of the Court) :

Background

1. After his trial before Deputy Judge Lin sitting in the District Court, the applicant Kwan Ming Ho was convicted of two charges of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance (“the Ordinance”), one charge of attempting to obtain property by deception, contrary to section 17(1) of the Ordinance and section 159G of the Crimes Ordinance, Cap.200, and one charge of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177.

2. On the same day, the applicant was sentenced to three years’ imprisonment for each of the two obtaining charges; three years for the attempt charge and one year for the possession of identity card charge.  Sentences of the two obtaining charges were ordered by the judge to run concurrently while one year of the attempt charge was to run consecutively to the three-year term and three months of the possession charge was to run consecutively to the sentences of the other charges.  The applicant is presently serving a total sentence of four years and three months.

3. On 15 January 2004, the applicant applied for leave to appeal against his conviction and sentence.  He also applied for legal aid but his application was refused.

4. His application for leave to appeal was heard on 10 June 2004 by Yeung JA.  At the hearing, the applicant abandoned his application for leave to appeal against sentence.  Yeung JA heard the application for leave to appeal against conviction and dismissed it on the same day.  On the following day on 11 June 2004, the applicant filed a Notice of Renewal of Application for leave to appeal against his conviction.

5. The prosecution’s case at the trial was that on 26 December 2002, at a computer software shop, the applicant together with an unknown person used a forged credit card in the name of one Lo Chin Man to pay for two separate purchases of computer goods.  The goods purchased under the first charge was one piece of RAM chip, one hard disk and a computer software programme having a total value of HK$4,119.  The second lot of goods consisted of one LCD monitor valued at HK$2,142.  The applicant and the unknown person were served by two shop assistants who later gave evidence as prosecution witnesses.  After the incident, prints of the images of the applicant and the other unknown person were produced from the shop’s CCTV recording device and were kept at the shop counter.

6. On 2 January 2003, the applicant again came to the shop with an unknown person.  This time the applicant attempted to make purchase of two pieces of RAM chips and CPU.  The applicant produced a forged credit card, also in the name of Lo Chin Man, in an attempt to pay for the purchase.  At this stage, the shop assistants recognised the applicant from the CCTV printouts and alerted his colleagues.  The applicant, according to the prosecution witnesses, sensing trouble, snatched the credit card and fled with the unknown person.  The shop assistants gave chase and eventually managed to catch the applicant before he was able to leave the shopping centre.  The unknown person managed to escape.  When the applicant was caught up by the shop assistants, he took a wallet from his trousers pocket and threw it onto the floor.  A police officer soon arrived and arrested the applicant.  It was subsequently discovered inside the wallet there was an American International visa card in the name of Lo Chin Man.  Also present in the wallet was an identity card belonging to a person of the same name.

7. The applicant was subsequently charged with the four offences.  At his trial, the applicant elected not to give evidence nor call any defence witness.

The written grounds

8. The applicant’s homemade written grounds of appeal against conviction contained three criticisms levelled against the Deputy Judge.  The first is the applicant insists that he did not know anything at all about the circumstances of the offences.  By this, we take it to mean that he did not have the necessary criminal intent in respect of all four charges he faced.

9. In respect of the first two charges, the Deputy Judge had reminded himself at paragraph 18 of the Reasons for Verdict that mere presence could not render a person guilty in a charge of joint enterprise.  The Deputy Judge then went on to consider and found that the applicant had acted in concert with the unknown male in using the forged credit card to purchase goods which were the subject matter of the first two charges.  He found that the applicant had participated in the negotiations for the purchase.  At paragraph 7 of the Reasons for Verdict, the Deputy Judge said:

“7.    While PW2 was processing the card he noticed that the defendant was chatting with the male.  After the first transaction was completed the male then suggested to buy an LCD monitor as well to which the defendant voiced agreement by saying ‘Buy it as well’…..”

At paragraph 18, the Deputy Judge went on to say:

“18.    Mere presence could not render a person guilty.  However, the defendant did more than being present.  The defendant did participate in the negotiations for the purchase.  According to PW1 the defendant actually enquired whether it was possible to have a better price.  He also voiced his consent when the other male suggested to make a second purchase of the monitor…..”

10. On the third charge, the Deputy Judge found that it was the applicant who produced the forged credit card in the name of Lo Chin Man from his wallet in an attempt to effect payment.  The applicant then snatched and fled with the credit card which was later recovered from a wallet which the applicant had seen discarded earlier.  An identity card bearing the name of Lo Chin Man, the subject matter of the fourth charge, was found inside the wallet.  By way of admitted facts, it was agreed between the prosecution and the defence at the trial that on 17 December 2002, Lo Chin Man discovered that his wallet containing his identity card no.G591656(8) and another items was missing and he reported the loss to the police.  There was ample evidence for the Deputy Judge to find that the applicant had the necessary criminal intent in respect of all four charges.

11. The second criticism levelled at the Deputy Judge was that the prosecution failed to produce the CCTV videotapes which, according to the applicant, would have shown that he never took an active part in making the purchases.  The applicant’s contention is correct insofar as the videotapes are concerned.  However, at the hearing four prints were produced from the CCTV video recording.  For the two obtaining charges, the Deputy Judge accepted the evidence of the shop assistant, Mr Lai, who gave evidence as PW2.  There is evidence from this witness for the Deputy Judge to find that the applicant had taken an active part in the negotiations leading to the two transactions.

12. As to the third and fourth charges, the Deputy Judge based his findings on the direct evidence from the prosecution witness, which he accepted, and found that the applicant had snatched the forged credit card which he used to effect payment for the goods he purchased and also that the identity card belonging to Lo Chin Man was found inside the wallet which he was seen to have discarded earlier.  The point raised by the applicant regarding the video record kept by the shop is not relevant to the Deputy Judge’s finding in respect of the third and fourth charges.  The failure to produce the video record did not undermine the prosecution case in any way in respect of the charges.

13. The applicant also complained that no identification parade had been conducted and as such was unfair on him, the judge had erroneously concluded that he was guilty of the charges.

14. The Deputy Judge found as a fact that the applicant was caught as he was fleeing from the computer shop.  There is also ample evidence that he was recognised by the shop assistants as the person who had previously come to the shop with the unknown person and purchased various items.  The applicant never disputed the fact that he was at the shop on the occasion that was stated in the first two charges.  Identification was therefore never an issue in this case.  His criticism against the Deputy Judge of bias is unfounded.

The oral grounds

15. At the hearing this morning, the applicant was invited to supplement his grounds of appeal.  He put forward three additional grounds in his oral submission.  The first is that the Deputy Judge at the trial did not resolve the material discrepancies between PW3 and PW4, and that the Deputy Judge erred in finding that the two witnesses were honest and credible witnesses.  On this ground, we must say appellate courts are reluctant to disturb findings of credibility on the part of witnesses by the trial judge.  The trial judge had the opportunity to observe the witnesses closely and he was in the best position to pass judgments on the credibility of particular witness.  We see no reasons to disturb his findings in this case.

16. At paragraph 17 of his Reasons of Verdict, the Deputy Judge did resolve the discrepancies in the evidence of PW3 and PW4.  This is what he said:

“…. I noticed that there had been discrepancies in the evidence between PW3 and PW4 in that PW3 apparently stated that the defendant and the male had gone by the time PW4 returned to the shop whereas PW4 was saying that he himself had personally dealt with the defendant at the shop.  They were consistent in stating they saw the defendant and the other male in the shop…..”

In any event, the alleged apparent discrepancy must be looked at in the context of the evidence in its entirety.  The applicant was described as fleeing from the scene and he was intercepted and caught and there was never any dispute on that part of the evidence.  We consider the  discrepancy more apparent than real.  Again, we see no merit in this criticism levelled against the Deputy Judge.

17. The applicant also raised for the first time the issue that no fingerprints were ever lifted from the wallet nor from the credit cards recovered by the police.  The absence of fingerprints matching that of his, it is said, proves that he is innocent.  The prosecution never relied on fingerprint evidence in this case.  The Deputy Judge came to his conclusions based on the evidence available before him.  The absence of fingerprint evidence does not undermine the prosecution case against the applicant in any way.

18. The final point raised by the applicant this morning was that he was wrongly advised by counsel representing him at the trial.  Suffice it to say that the applicant was represented by very experienced counsel at the trial, he must have made the conscious decision to not to give evidence nor to call any witness for the defence.  He cannot now be heard to complain.

Conclusion

19. We see no merit in this renewed application for leave to appeal against conviction.  The application is dismissed.