R. v. LO PING YEE and Another

IN THE COURT OF APPEAL

1994, No. 398
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. The 1st applicant, Lo, the 2nd applicant, Chan, and one, Ng, were charged under s.76(1) of the Crimes Ordinance Cap.200 that they "on the 29th day of July 1993, in Hong Kong, had in their custody or under their control material, namely, 50 unembossed credit cards (20 pieces of Citibank Master Cards and 30 pieces of Citibank Visa Cards), which to their knowledge were or had been specially designed or adapted for the making of instruments, namely embossed credit cards, with the intention that they or another shall make false instruments and that they or another shall use those false instruments to induce somebody to accept them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person's prejudice".

2. The main ingredient of the offence charged was custody or control of 50 unembossed credit cards with the requisite knowledge and intention as particularised above. Ng failed to attend trial and the prosecution proceeded against Lo and Chan. Both Lo and Chan gave and called no evidence. At the conclusion of the prosecution case, for the respective roles Lo and Chan played in the circumstances disclosed, Deputy Judge Yung found them both guilty as charged.

3. For the 1st applicant, Lo, Mr Sceats submitted that the Deputy Judge was wrong in concluding that Lo had the unembossed credit cards in his custody or under his control because the judge could not properly draw such an inference of fact nor indeed had he even sufficient evidence so to draw that inference. By parity of reasoning, the findings of the requisite knowledge and intention were said to be insupportable.

4. Counsel for Chan, the 2nd applicant, Mr Vaughan argued that there was no evidence to support the inference drawn by the Deputy Judge that Chan knew what were inside the biscuit box, i.e. the unembossed credit cards, in the 7-11 white plastic bag he carried. In essence, the question is what reasonable inferences could be drawn from the circumstantial evidence.

5. In the evening of 28 July 1993, Ng arrived and met by Lo at Kai Tak. Until his arrest, Ng was put up in Lo's premises in Woo Sung Street. He had been accompanied by Lo, travelling in train and on MTR, visiting an emporium, a jewelry shop, a tea shop, a video shop, a fast-food outlet and restaurants.

6. At about 3 p.m. on 29 July, Lo and Ng went into Cheung Fat Restaurant in Woo Sung Street for a meal. Lo used the telephone and returned to the table. When the telephone rang, Ng went up to it but the call was intercepted by the restaurant staff. Ng instructed the restaurant staff that he had left the restaurant number with someone who would be calling in. A little later, Lo telephoned again, waited presumably for the call to be answered and thereupon handed the telephone over to Ng. Part of Ng's conversation overheard by a police officer keeping surveillance was: "Where are you? In Shatin. I am taking a taxi. 8:30 p.m. tonight.". It is true that Lo might not have overheard the conversation or the same portion of it.

7. At about 4 o'clock, Lo and Ng went to Tai Wai Railway Station in Shatin. In the station, Lo and Ng were first seen waiting at different entrances. Later, Lo went close to the booking office and Ng to a public telephone booth. When Chan appeared, Lo approached him first followed by Ng. After the three met, they walked out of the station in the direction of the Tsing Lung Water Playground, turned onto a footpath and thereupon returned to the station. During their time out of the Tai Wai Railway Station, Ng and Chan walked in front with Lo tailing behind. After the meeting, Lo and Ng left by train and Chan went to the taxi stand.

8. At about 8:30 p.m., Lo and Ng took the MTR to the Kowloon Tong KCR. They did not embark immediately but drew back to the wall and waited for about ten minutes. They were "looking around the people there". After they had arrived at Tai Wai Railway Station in Shatin, in the concourse Chan handed a 7-11 white plastic bag to Ng. Lo and Ng were seen to separate. They took the same train back to Kowloon Tong but travelled three carriages apart. In Kowloon Tong MTR, they shifted their bearings from one platform to another and finally arrived at the Lok Fu MTR station. At the turnstile, Ng dropped the 7-11 white plastic bag and fled but he was arrested later in the early hours the following day near Woo Sung Street. Chan was arrested in Shatin and Lo was arrested outside Lok Fu MTR station both in the same evening of 29 July.

9. Lo accompanied Ng ever since his arrival at Kai Tak. Lo attempted to make contact by telephone twice in the Cheung Fat Restaurant and succeeded in his second attempt. Only part of the conversation in the 2nd call was overheard by the police. Lo went with Ng to the Tai Wai Railway Station in Shatin at about 4 o'clock. Lo immediately approached Chan when he appeared, evidently making personal contact for Ng. Thereupon Ng and Chan took a little stroll outside the station with Lo following behind. In the evening of the same day, Lo again accompanied Ng and both took evasive actions before as well as after the 7-11 white plastic bag had been handed over by Chan to Ng. The location and the timing coincided with the particulars of part of the conversion in the 2nd call made and overheard earlier on the same day in Cheung Fat Restaurant. Lo could not be a middle man for merely bringing Ng and Chan together in Hong Kong. He was actively involved in the exercise. As for Chan, he had met Ng and Lo earlier in the afternoon and later in the evening passed over to Ng the 7-11 white plastic bag containing the biscuit box with 50 unembossed credit cards in it. Chan took a stroll with Ng and had a conversation with him. That could hardly have been the conduct of an innocent courier, not knowing the contents of his 7-11 white plastic bag.

10. It was common ground that the question was whether Lo and Chan were both participants in a joint enterprise. We are satisfied that such is the only inference to be reasonably drawn from the circumstances. The Deputy Judge was concerned with reasonable inferences, having regard to pertinent matters within the bounds of reality. He was not obliged to eliminate every conceivable possibility. All the Deputy Judge needed to do was to record a succinct statement of his reasons for the verdict. He took into consideration Chan's long private conversation with Ng and his handing over of the 7-11 white plastic bag later in the same day. As for Lo, the Deputy Judge drew the proper inference from the earlier phone call made by Lo for Ng in the Cheung Fat Restaurant, the contents of the overhead part of Ng's conversation, the earlier afternoon contact with Chan at the Tai Wai Railway Station in Shatin, the evasive actions taken by Lo and Ng in the company of one another prior to and after the 7-11 white plastic bag had been handed over by Chan to Ng. Lo had attended upon Ng since his arrival at every stage of Ng's Hong Kong activities. That Lo was equally involved with Ng's illicit venture was an inescapable inference. The Deputy Judge found these applicants guilty as charged. His process of deduction cannot be faulted.

11. We dismissed the application and intimated that our reasons with regard to the respective Grounds of Appeal would be given later. This we now do.

12. Chan abandoned his application for leave to appeal against sentence. Lo applied in person for leave to appeal against his sentence. Lo pleaded with the court that he had been used and that he had no knowledge of Ng's intention and illicit activities. Lo had decided not to tell the Deputy Judge what he sought to ventilate before us. We could not entertain this plea. Lo further complained in his Grounds of Appeal that the sentence was too severe. He had a clear record in Hong Kong although he had served a 4-year drug sentence in Taiwan. In his Probation Officer's Report, it was also disclosed that he had a 73-year old mother and that his father died in 1993. All his personal circumstances were noted. He helped Ng to procure delivery of a substantial number of unembossed credit cards in Hong Kong. He was sent to prison for four years. The sentence passed by the Deputy Judge is not in any way excessive nor can it be said to be wrong in principle. His application for leave to appeal against sentence was also refused.