HKSAR v. FUNG CHUN KEUNG

CACC 385/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 385 OF 1999

(ON APPEAL FROM DCCC 277/1999)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted of two charges of using a false instrument and four charges of theft of credit cards after a trial in the District Court before H. H. Judge Wilson. He now seeks leave to appeal against his convictions. He has abandoned his application in relation to charge 5 and so accordingly the application in relation to that charge is dismissed.

2. All of these offences related to postal applications being made for credit cards and the mail being improperly interfered with. At an early stage in his reasons for verdict the Judge commented adversely on the lax methods obtaining relating to registered mail and the collection of registered packets.

3. All of these offences related to mail delivered either at Nan Ning House, Tsuen Wan or Anking House which is a short distance away. Also there were significant similarities adopted in the way in which these offences were committed. In particular when post was being retrieved from the post office intermediaries would be used. They would be young persons and in most cases they would receive a small reward for their services.

4. Charge 1 reads as follows:

"1st Charge

Statement of Offence

Using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200.

Particulars of Offence

FUNG Chun-keung, on or about the 28th day of July, 1997, in Hong Kong, used an instrument, namely, by tendering to the Citibank Card Products Centre, Hong Kong, a false credit card application form in the name of KO Hon-hung which he knew or believed to be false, purporting to have been made by the said KO Hon-hung who in fact had not made that application in that form or in those terms with the intention of inducing the said bank to accept it as genuine and by reason of so accepting it to issue a credit card in the name of the said KO Hon-hung."

5. The victim Mr KO gave evidence that he received a gold visa credit card in his post box at Nan Ning House. He was surprised as he had not applied for this. He was also suspicious as some time before this his post box had been broken into. He reported the matter to the card company and the police.

6. Enquiries revealed that the card company had unsolicited sent an application form for a credit card to Mr KO. It had been completed purportedly by Mr KO. The credit card was then despatched to him. Mr KO gave evidence that the writing on the form and the signature was not his. Five of the applicants' fingerprints were on the application form.

7. Charge 2 reads as follows:

"2nd Charge

Statement of Offence

Theft, contrary to section 9 of the Theft Ordinance, Cap. 210.

Particulars of Offence

FUNG Chun-keung, on the 12th day of August, 1997, in Hong Kong, stole a Chase Manhattan Card No. 4508-8551-0119-4344 and bearing the name of FUNG Yuk-ting, the property of the Manhattan Card Company Limited."

8. The victim Miss FUNG emigrated to Canada. She applied to the card company to issue her with a replacement card. The arrangement was that her sister would collect her mail and forward it to her.

9. The card never arrived. She was however informed that transactions totalling in excess of $23,000 had been debited to her account. Investigations undertaken by the police revealed that when the card company sent the replacement card to Miss FUNG by registered post no one had taken delivery of it. Accordingly the postman left what was described as a collection card requiring the addressee to attend at the post office to take delivery of the packet.

10. The person collecting the packet is required to give his identity card number. It transpired that the person who collected the card was a 16-year old schoolboy who gave evidence for the prosecution. He said that he had been asked by an 18-year old bartender to collect the packet. He also gave evidence saying that the applicant had requested him to do this and he had passed on the task to the schoolboy. When it had been done he passed the packet back to the applicant.

11. Charge 3 reads as follows:

"3rd Charge

Statement of Offence

Using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200.

Particulars of Offence

FUNG Chun-keung, on or about the 28th day of August, 1997, in Hong Kong, used an instrument, namely, by tendering to the Chase Manhattan Card Company Limited, a false Ready Cash acceptance form in the name of WONG Ping-keung which he knew or believed to be false, purporting to have been made by the said WONG Ping-keung who in fact had not effected that acceptance in that form or in those terms with the intention of inducing the said bank to treat it as genuine and by reason of so treating it to issue a Ready Cash Card in the name of the said WONG Ping-keung."

12. The factual background of this charge is connected with charge 6 which reads:

"6th Charge

Statement of Offence

Theft, contrary to section 9 of the Theft Ordinance, Cap. 210.

Particulars of Offence

FUNG Chun-keung, on or about the 10th day of September, 1997, in Hong Kong, stole a Ready Cash Card No. 0000-0016-8801-7902 and bearing the name of WONG Ping-keung, the property of the Manhattan Card Company Limited."

13. The victim of these counts Mr WONG received out of the blue a monthly statement from Manhattan Card Company Limited in respect of a "Ready Cash Card". There was evidence that Manhattan had unsolicited sent Mr WONG an application form for their credit card. This was never received by Mr WONG.

14. Someone else had filled in the form and forged Mr WONG's signature. The application was accepted and card was sent to him by registered post. As there was no one to take delivery of the registered letter a collection card was issued. Investigations undertaken by the police revealed that a 15-year old apprentice had collected the registered letter. He gave evidence at the trial that he had collected the letter on the instructions of a Mr NG. He also gave evidence. He said that he had been asked by the applicant and another man to collect the letter and that he had passed the instruction on the 15-year old apprentice. The applicant had given a small financial reward to both these men. In addition to this the applicant's fingerprints appeared on the application form.

15. Charge 4 reads as follows:

"4th Charge

Statement of Offence

Theft, contrary to section 9 of the Theft Ordinance, Cap. 210.

Particulars of Offence

FUNG Chun-keung, on or about the 29th day of August, 1997, in Hong Kong, stole a Citibank Gold Visa Card No. 4791-1140-0127-9961 and bearing the name of YUNG Chun-chi, the property of the Citibank Card Products Centre, Hong Kong."

16. The victim of this charge Mr YUNG also a resident of Nan Ning House applied to Citibank for a gold visa credit card but never received it. He did however receive a statement which showed that cash advances of $95,660 had been made on a card in his name.

17. The two witnesses who gave evidence in relation to charge 2 gave evidence on this count to the effect that they had collected mail on 28 August 1997 on the instructions of the applicant which clearly related to Mr YUNG's credit card. They received a reward of a meal for passing the packet on to him.

18. The applicant gave evidence at his trial. He said that he lived at Nan Ning House. The explanation he gave for his fingerprints being found on application forms was that often mail was delivered to the wrong mail box at Nan Ning House. He did sometimes accidentally open mail in his box which was not addressed to him. When this happened he returned the mail to the correct mail box. On such occasions it was possible that his fingerprints may be on the documents he had touched. He denied any knowledge of the youngsters who testified against him. He claimed not to know them at all. There are altogether ten perfected grounds of appeal.

19. The first three grounds make complaint that the Judge failed to consider each of the charges separately or satisfactorily analyse them.

20. In the fourth ground complaint is made that the Judge should have rejected the evidence of the youths who collected the mail and testified that they have done so on the instructions of the applicant.

21. There is no merit whatever in these grounds. It is apparent from the reasons of verdict that the Judge did carefully evaluate all of the relevant evidence. He was mindful of the unsatisfactory aspects of the evidence of some of the youths and the fact that some of them were not of good character. He was however perfectly entitled to accept their evidence.

22. Also he was fully entitled to reject the explanation proffered by the applicant concerning the existence of his fingerprints on some of the application forms.

23. The prosecution case against the applicant was overwhelming on all of these charges and it was in no way surprising that the Judge was satisfied at the appropriate level of the applicant's guilt.

24. The convictions were in no way unsafe or unsatisfactory and this application is dismissed. As there is no merit in this application we order that 1 month of the time that the applicant has spent in custody will not count towards the sentences he is serving.