HKSAR v. ONG SIU SIN KEVIN

CACC 129/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 129 OF 2011

(ON APPEAL FROM DCCC 1010 OF 2010)

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the reasons for judgment of the court) :

1. The applicant, who was unrepresented having been refused the grant of legal aid, renewed his application for leave to appeal against his conviction on 15 March 2011 after trial by Deputy Judge A Yuen in the District Court of a total of 15 charges, two of the theft of credit cards and the remainder of fraud. On 3 August 2012 the single judge, Lunn JA, refused the applicant’s application for leave to appeal against conviction. Reasons for the refusal of the application were given in a judgment delivered on the same date. On 10 August 2012, the applicant gave notice of his renewal of his application for leave to appeal against conviction by filing Form XIII, as prescribed by the Criminal Appeal Rules, Cap. 221. We dismissed the application and said that we would give our reasons for doing so in due course. This we do now.

Application to adduce evidence

2. At the outset of the application the applicant sought the leave of the court to adduce fresh evidence, pursuant to section 83V of the Criminal Procedure Ordinance, Cap. 221.  The fresh evidence that the applicant sought to adduce in this hearing comprised :

(i)   the witness statements of Ms Lau Mei Sim, referred to at trial as PW3, dated 9 March and 23 July 2008;

(ii)   a copy of a cheque, dated 3 February 2008, drawn on an account in the name of the applicant in favour of Ms Lau in the sum of US$50,000;

(iii)  a copy of a letter from Standard & Chartered Bank dated 18 February 2008 to Ms Lau;

(iv)  documents obtained from the Company’s Registry in respect of Everest Global Trading Company Ltd;

(v)   documents obtained from the Official Receiver’s Office relating to the ‘Bankruptcy and Approved Individual Voluntary Arrangement’ of Ms Lau;

(vi)  Hang Seng Bank credit card statements for Ms Lau for the period December 2007 to February 2008;

(vii)  AIG credit card statements for Ms Lau for February 2008.

3. In his written submissions in support of his application the applicant submitted, by way of explanation for the evidence not having been adduced at trial :

“ Most unfortunately the above evidence was not put forth squarely before the trial judge during the trial for his consideration by reason of oversight by defence counsel in the heat of the battle.”

4. As is apparent from the judgment of the single judge[1] the applicant sought to adduce into evidence at that hearing almost all of the material which he sought to adduce into evidence before this court.  As noted in that judgment[2], the applicant conceded that the material sought to be adduced into evidence then had been available at trial but had not been used by his counsel.  In the document entitled ‘Affirmation’, signed by the applicant, but to which there was no Jurat, which the applicant handed to the court at the hearing in August 2012, the applicant explained, in respect of many of the same documents which he seeks to adduce into evidence now, that they were “available and in possession of the defence counsel”, but were not used.

5. In similar vein, in the course of his oral submissions to this court the applicant conceded that all the material that he sought to adduce into evidence in this hearing had been available to the defence at trial.  That much is made obvious in respect of the statements of Ms Lau dated 9 March and 23 July 2008.  Counsel for the applicant at trial cross-examined Ms Lau on each of the statements[3], putting the one of 23 July 2008 into her hands in the course of cross-examination and asking her to confirm the contents of various paragraphs[4].

6. Far from there being a reasonable explanation advanced by the applicant for not having adduced the material into evidence at trial it is obvious that there was every opportunity to do so, but the opportunity was not taken.  Such explanation as was forthcoming from the applicant was merely that he and counsel at trial had “overlooked” the need to adduce that evidence.  Of course, there often exist readily understandable reasons why evidence is not adduced at trial.  For example, in respect of witness statements, counsel is often concerned to highlight inconsistencies, but does not wish to put the whole of the statement into evidence, lest the balance of the statement goes to show that otherwise the witness is being consistent.

7. We were not satisfied that the requisite conditions for the receipt of fresh evidence in this application had been met so that it is appropriate for the court to exercise the power to receive new evidence in the hearing of the application.  Accordingly, we declined to receive that evidence.

THE TRIAL

The prosecution case

8. The prosecution case was that, having formed an intimate sexual relationship with two female victims, Ms Chan Lai Ping and Ms Lau Mei Sim, the applicant abused their trust by taking and then fraudulently using their credit cards.  In the case of Ms Chan, the single charge of fraud (Charge 1) was of using her Aeon credit card to defraud Sevva Restaurant on 25 April 2008.  In the case of Ms Lau, two charges of theft alleged that the applicant had stolen Ms Lau’s American Express credit card on or about 4 October 2007 (Charge 2) and five credit cards, issued respectively by Hang Seng Bank, Citibank Cathay Pacific, AIG Visa, Standard Chartered and American Express, in the period November 2007 to January 2008 (Charge 4).  She reported the latter credit cards missing on 19 December 2007.  Charge 3 and Charges 5 to 15 alleged specific acts of fraud committed by use of some of those credit cards. Many of the alleged offences of fraud involved extravagant and conspicuous consumption, from which the prosecution said it was to be inferred that the user knew that he would not be called upon to pay.

9. It was the prosecution case, in respect of each of the alleged victims that, having taken the credit cards from their wallets or handbags and then having used them in the offences of fraud, the applicant returned them or some of them to the place from which he had taken them.  In the case of Ms Lau, after she had reported the loss of particular credit cards and they had been replaced with new credit cards, the applicant took and used the replacement credit cards.

10. Ms Chan said that in May 2008 she had discovered a receipt and a credit card slip in the applicant’s wallet that evidenced the unauthorised use of the credit card at Sevva Restaurant on 25 April 2008.

11. Ms Lau said that in December 2007 after having discovered the unauthorised use of one of her credit cards she confronted the applicant, who admitted having used that credit card without her consent.  That was repeated in January 2008.  On that occasion the cheque that the applicant drew in her favour, by way of repayment, ‘bounced’. Nevertheless, she continued to co-habit with the applicant, explaining that she did so because of her emotional involvement with him.  In March 2008, Ms Lau discovered 48 credit card slips in respect of the unauthorised use of all six of her credit cards.  She found the slips in a desk in a room used by the applicant as his study.  Again, when confronted by Ms Lau, the applicant admitted his unauthorised use of her credit cards.  She reported the matter to the police on 8 and 9 March 2008. 

The defence case

12. The applicant testified in the defence case, denying all the alleged offences.  He accepted that he enjoyed intimate sexual relations with both Ms Chan and Ms Lau.  He had not taken or used any of their credit cards.  He refuted Ms Chan’s evidence that she had found the credit card slip and receipt for the Sevva Restaurant payment in his wallet.  Similarly, he refuted Ms Lau’s evidence that she had found 48 credit card slips in a desk in his study.  He denied having admitting to either Ms Chan or Ms Lau that he had misused their credit cards.

13. It was the applicant’s case, as put in the cross-examination of Ms Chan, that she and Ms Lau had put their heads together to make false allegations against the applicant.

REASONS FOR VERDICT

14. In his Reasons for Verdict the judge described in some detail the evidence of the two female victims, Ms Chan Lai Ping and Ms Lau Mei Sim.  Also, he set out a summary of the applicant’s own testimony.  In the result, he said that he found the two female victims to be “truthful and honest witnesses”, whose evidence he accepted.  The judge rejected the allegation that the two female victims had made up evidence against the applicant, determining that it was understandable that the two of them had acted together after they had come to realise that each had been cheated by the applicant.   By contrast, the judge rejected the evidence of the defendant, finding him to be, “far from a truthful and honest witness” [5].

GROUNDS OF APPEAL AGAINST CONVICTION

15. In his home-made grounds of appeal against conviction dated 31 March 2011 the applicant advanced multiple grounds of appeal.  Those grounds included: the failure by the judge to consider each charge separately; that the judge erred in admitting inadmissible evidence of a bank statement; that the judge misdirected himself in respect of the ingredients of the offences of fraud and theft; that there was clear evidence that the two female victims of the offences had colluded with each other; that there was an inordinate delay in bringing the prosecution; that the judge erred in finding the two female victims and other witnesses credible; and that, in consequence of extensive media coverage adverse to the applicant, the judge was biased against the applicant.

A CONSIDERATION OF THE SUBMISSIONS

16. There is no merit in the applicant’s submission that the judge failed to consider the various charges separately.  In fact, not only did the judge state that he reminded himself of the need, “to consider evidence against each count separately” [6], but also he analysed the evidence relevant to the charges in the sequence of the charges.  It is correct that the judge considered Charges 5 to 15 together. Those charges were of fraud, contrary to section 16A of the Theft Ordinance, Cap 210.  As the judge noted[7], they were “specimen charges”, extracted from the 48 transactions involving the use of credit cards which Ms Lau testified were unauthorized.  Clearly, in those circumstances the judge was entitled to approach a consideration of those charges by an overall analysis of the evidence relevant to those acts of fraud.

17. The crux of the case lay in a determination as to credibility, on the one hand, of the account given by the female complainants and, on the other hand, the applicant’s evidence.  The judge was well placed to make that determination and conducted his analysis of the evidence in a thorough and logical fashion.  He was entitled to come to the conclusion that the female complainants were “both truthful and honest witnesses” [8]and to accept and rely upon their evidence.  Having acknowledged that Ms Chan had reported the matter to the police only after she came to know of Ms Lau’s complaints in respect of the applicant and that they had acted in concert in confronting the applicant, nevertheless the judge rejected the suggestions made on behalf of the applicant that they had colluded together and made up evidence against the applicant[9]. By contrast, as he was entitled to do, the judge rejected the evidence of the applicant.

18. The judge’s analysis of the evidence in respect to Charge 1[10] is illustrative of his measured and considered approach to the evidence.  There was no dispute that at the time Ms Chan and the applicant lived together.  First, he noted that Ms Chan and the applicant had been together at Sevva Restaurant on the evening of 25 April 2018.  She left the restaurant first, at about 8:30 p.m., to join her mother for dinner at her home leaving the applicant, but without having paid the bill.  Later that evening, she noticed that her Aeon credit card was missing and made a report of its loss.  An Aeon credit card employee testified that the loss had been reported at 11:52 p.m. on 25 April 2008[11].  At 10:40 p.m. on 25 April 2008 the credit card was used to pay the billof $5,174.  However, some days later she discovered the card was now in her wallet.  Ms Chan testified that having received her credit card monthly statement dated 18 May 2008, from which she learned of the payment to Sevva Restaurant on 25 April 2008, she examined the applicant’s wallet and found a credit card slip in respect of that transaction, which she produced as exhibit P90 A[12].

19. The judge resolved the rhetorical question that he posed of who could have removed and then replaced the card[13] :

“ …the only irresistible inference is that this person must be the defendant because he was the only person who could have the opportunity to take the card from PW1’s wallet and replace it after using it.”

Then, the judge concluded that the irresistible inference to be drawn was that the applicant had used the card to pay the bill in Sevva Restaurant (Charge 1).

20. The evidence led by the prosecution in support of the allegations made in respect of Ms Lau was of similar conduct by the applicant.  There was no dispute that the applicant was with Ms Lau when she used her Amex credit card to pay a bill in a restaurant in the late evening of 3 October 2007, after which she returned home.  On the following morning she discovered the Amex card was missing from her wallet and reported its loss to the credit card company and to the police, only to discover that it had been used at about 01:00 on 4 October 2007 to pay a bill in a nightclub, Dragon-I (Charges 2 and 3).  She had never been to that night club.  As the judge noted, Ms Lau testified that later she had found related credit card slips in a drawer in the applicant’s home.  Although she did not take possession of those credit card slips, she did take possession of 48 credit card slips that she found in similar circumstances.  They related to other unauthorised transactions involving five other credit cards (Charges 4, 5 to 15).  Of the Amex card, the judge found[14] :

  “ The irresistible inference is therefore it was the defendant who stole PW3’s card and used it in Dragon-I thereafter.”

21. Noting that the pattern of conspicuous expenditure evidenced by the use of Ms Lau’s credit cards in respect of the 48 transactions about which she testified, of which charges 5 to 15 were specimens only, the judge determined that the “extravagant spending pattern” was consistent with, “someone who knows that he or she does not have to be responsible for settlement of the bills”.  In consequence, he rejected the defence case that Ms Lau incurred the expenses and found that the applicant was the person who had used the credit cards in those transactions[15].

22. The applicant’s proposed grounds of appeal in respect of conviction are without merit.  Accordingly, the application for leave to appeal against conviction was refused.

[1] Judgment of 3 August 2012, paragraphs 30-34.

[2] Judgment of 3 August 2012, paragraph 31.

[3] Appeal Bundle, pages 219 and 220.

[4] Appeal Bundle, page 219 A-K.

[5] Reasons for Verdict, paragraph 75.

[6] Reasons for Verdict, paragraph 56.

[7] Reasons for Verdict, paragraph 87.

[8] Reasons for Verdict, paragraph 59.

[9] Reasons for Verdict, paragraph 72.

[10] Reasons for Verdict, paragraphs 80-1.

[11] Appeal Bundle, page 234 N.

[12] Appeal Bundle, page 150.

[13] Reasons for Verdict, paragraph 80.

[14] Reasons for Verdict, paragraph 82.

[15] Reasons for Verdict, paragraph 88.