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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J U D G M E N T

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1. The applicant seeks 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. It was alleged that the fraud was practised by him by the use of those credit cards. At the outset the applicant sought leave to appeal against the sentences of imprisonment, to a total of 54 months’ imprisonment imposed upon him in consequence of those convictions.

2. Applications by the applicant for legal aid to pursue his applications for leave to appeal against his convictions and sentences were refused on the merits on:

(i)  21 June 2011;

(ii)  20 September 2011; and

(iii)  12 January 2012.

Thereafter, the applicant applied to the Bar Free Legal Service Scheme for their assistance.  However, on 24 April 2012 they determined that they were not in a position to provide the applicant with assistance.

3. On 22 June 2012, the applicant applied to this court for an adjournment of the hearing of his application so that he could apply to this court for the grant of legal aid pursuant to rule 12 of the Legal Aid in Criminal Cases Rules, Criminal Procedure Ordinance, Cap. 221.  This court granted that adjournment and advised him that it would entertain that application together with the hearing of the applications for leave to appeal against conviction and sentence on the next occasion.

4. Now, the applicant puts before the court two affirmations dated 25 July 2012 in support of his application.  In the shorter of the two affirmations, that containing 22 pages, the applicant attacks the failure of the Director of Legal Aid to grant him a certificate for legal aid.  Then, he asserts that it would be in the interests of justice for him to be granted legal aid.  First, he says that he lacks the skills to represent himself and that he is constrained in what he can do by his incarceration.  Second, he says that the convictions have had a “devastational impact” upon him.  Third, he criticises the Judge, defence counsel and his instructing solicitors.  The judge reversed the burden of proof and made “grave errors in his findings of fact”.  He erred in accepting the evidence of the female complainants.  The defence counsel and instructing solicitors were culpable of, “gross negligence and flagrant incompetence”.  Finally, the applicant asserts that a failure to provide him with legal aid would in effect deny him the rights guaranteed under article 11 (2)(d) of the Hong Kong Bill of Rights Ordinance, Cap. 383.

5. In the longer of his two affirmations, namely that extending to 61 pages, the applicant addresses at considerable length the circumstances of his three applications for the grant of legal aid.  In the result, the applicant asserts that the Director of Legal Aid’s refusal to grant him legal aid is “unsafe and unsatisfactory”.  He invites this court to quash those decisions and, in the interests of justice, to grant him legal aid for the conduct of his applications.  The affirmation continues with what are described as ‘Grounds of appeal against conviction’.  Those grounds include the following:

Ground 1

6. By ground 1 is submitted that there was material non-disclosure of the case file in exhibits prior to the trial, namely:

(i)  a statement in respect of a Citibank credit card (exhibit P 145);

(ii)  related credit card counterfoils; and

(iii)  a statement in respect of an AIG credit card.

Ground 2

7. By ground 2 it is submitted that the prosecution failed to disclose to the defence, material statements of the applicant in other proceedings, namely WCH RN 08022980, that being concerned with his complaint of assault on 30 May 2008 by a person who accompanied Ms Chan and Ms Lau to Monmouth villas.

Ground 4

8. By ground 4, it was contended that the counsel and solicitor assigned to him were grossly negligent or incompetent in that they:

(i)  failed to ensure disclosure of all unused material; and

(ii)  failed to conduct the trial properly.

Ground 5 to 15

9. By grounds 5 to 15 it was contended that the judge had erred in a multitude of ways.  He failed to understand the defence case.  He had erred in finding the female complainants credible, in particular having regard to their alleged motives to frame the applicant.  He had erred in finding the use of the credit cards fraudulent.  Further, he had erred in determining what evidence was corroborative of the testimony of the female complainants.  Next, he had erred in drawing inferences adverse to the applicant from the evidence.  He failed to consider the charges separately. He erred in admitting bank records without a banker’s affirmation.

Ground 16

10. By ground 16 it was submitted that the consequence of inordinate delay in bringing the case on for hearing was the destruction of relevant evidence, namely recordings of telephone calls made by the female complainants to the credit card companies.

GROUNDS OF APPEAL AGAINST CONVICTION : 31 March 2011

11. In his home-made grounds of appeal against conviction dated 31 March 2011 the applicant also 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.

GROUNDS OF APPEAL AGAINST SENTENCE

12. In his grounds of appeal against sentence the applicant submitted that the sentences imposed upon him were manifestly excessive, that the judge had failed to consider the inordinate delay in bringing the prosecution and that the judge had erred in having regard to the applicant’s criminal record in determining the appropriate sentence to impose upon him for the offences.

THE TRIAL

The prosecution case

13. 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 that 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 fraudulently 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.  Charges 3 and 5 to 15 alleged acts of fraudulent 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.

14. 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 have been replaced with new credit cards the applicant took and used the replacement credit cards.

15. 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.

16. 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 cohabit 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.  At her demand, the applicant signed an IOU promising to pay $1.5 million on 11 March 2008 and wrote out a cheque dated 10 March 2008 in that amount of money.  Ms Lau explained that the $1.5 million was comprised of $400,000 she had lent the applicant, $600,000 that he had stolen from her by the use of her credit cards and the balance was the value of four watches that had disappeared while she was living with him.  She reported the matter to the police on 8 and 9 March 2008. 

The defence case

17. 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.  Similarly, he refuted Ms Lau’s evidence that she had found 48 credit card slips in a desk in his study.

18. He explained that the two payments, in December 2007 and January 2008 respectively, debited to Ms Lau’s Citibank Cathay Pacific Visa card in respect of the rental of his domestic premises as having been made at her request so that she could earn mileage points.  For his part, he paid her in cash.  The applicant explained that he had come to write the cheque in January 2008, which amount matched the outstanding balance on Ms Lau’s credit card statement, again as having occurred at her request, she promising to deposit cash into his account.  However, she failed to do so and the cheque bounced.  Further, the applicant denied having signed the IOU.  His signature had been forged.  The applicant accepted that he had signed the cheque dated 10 March 2008 drawn in favour of Ms Lau.  However, he said that it had been issued to Ms Lau in January 2008 when they had formed a company together.

19. 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

20. 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, and the evidence is supported by independent evidence.”  Of the fact that Ms Chan had made a report to police of the loss of her credit card on 25 April 2008, before she came to know that the applicant was also seeing Ms Lau, the judge found that chronology to be inconsistent with her having a notion to make up a false allegation against the applicant.  He noted that Ms Chan was “…still on good terms” with the applicant whom she regarded as “her lover”.  He rejected the suggestion that by 25 April 2008 Ms Chan “had in her mind a motive to make up false allegations” against the applicant.  Similarly, he determined that the same logic applied to the evidence of Ms Lau.

21. The judge rejected the allegation that the two female victims had made up evidence against the applicant.  He said that it was understandable that the two of them had acted together after they had come to realise that each has been cheated by the applicant.

22. By contrast, the judge found, “The defendant far from a truthful and honest witness”.  The judge rejected the applicant’s testimony in respect of the circumstances in which he had drawn the cheque dated 10 March 2008 in favour of Ms Lau for $1.5 million.  Having observed that the applicant was trying to paint a picture of himself as well enough off to advance money to Ms Lau, the judge noted that the applicant had not produced “a single piece of independent evidence, for example, a bank record” to support his evidence.  Given that, on the applicant’s account, the prospect of the company jointly formed by Ms Lau and the applicant doing business was subject to ‘due diligence’ on Ms Lau’s company the judge posed the rhetorical question: “why issue a cheque for $1.5 million at that premature stage?”  In the result, he determined :

“ I do not believe it is a coincidence that in January the defendant so happened to post-date a cheque to 10 March 2008, which (is) not only consistent with PW3’s (Ms Lau) evidence that the cheque was issued on the same day the IOU was signed by the defendant, and also consistent with the day PW3 reported the matter to the police, that is, 9 March 2008.”

REASONS FOR SENTENCE

23. In sentencing the applicant in respect of the 13 charges of fraud and the two charges of theft and judge noted that the amount of money in 13 charges of fraud was around $80,000.  Nevertheless, he noted that the charges were merely ‘specimen charges’ in respect of no less than 48 occasions on which the applicant had used the credit cards of Ms Chan and Ms Lau without their consent or knowledge.

Criminal record

24. The judge observed from the applicant’s criminal record that he had a history of deceiving women.  He approved specifically an observation made by the late Mr Justice Mackintosh in HCMA 733/2009 (unreported; 10 March 2011) in which he described the applicant as “persistently dishonest toward gullible women” and “wholly unscrupulous”.

25. On the other hand, the judge described the commission of the offences as being “old”, noting that they had occurred in 2008.

26. In imposing a total sentence of 54 months’ imprisonment the judge stated that he had regard to the “totality principle”.

Rule 12 of the Legal Aid in Criminal Cases Rules

27. Rule 12(3) provides that :

“ If on an appeal from any conviction, order or determination in respect of or in connection with any offence, it appears to judge or, in the case of an appeal to the Court of Appeal, to the court or a judge thereof that an appellant should be granted legal aid notwithstanding that the Director refused an application, the judge or the Court of Appeal may, subject to paragraph (2), grant him an appeal aid certificate, and the Director shall thereupon assign a solicitor and 1 or 2 counsel…to represent the appellant.”

28. It follows that the power to grant an appeal aid certificate is not contingent upon a determination that the Director has erred in refusing to grant legal aid.  Accordingly, it is not necessary to examine the copious material that the applicant has chosen to put before this court addressing the issue of alleged errors made by the Director.  Clearly, the merits and the interests of justice loom large in a consideration of whether or not this Court should exercise its power.  I will deal with the merits of the case later, but I have it in mind now as well.  One matter relevant to the interests of justice is the complexity of the case.  Notwithstanding the applicant’s sustained efforts to make the issues in the trial appear complex, clearly they were not.  Indeed, they were simplicity itself.  Clearly, the key issue was one of credibility.  Was or might the applicant’s testimony be true?  If so, the applicant must be acquitted.  On the other hand, was the judge sure that the material evidence of Ms Chan and Ms Lau was true and, if so, were the ingredients of the charges proved.  It is readily apparent from the voluminous affirmations and written submissions of the applicant that he is an educated man with an obvious command of the English language, well able to address the simple issues arising in this case.

29. In the result, I am not persuaded that it is appropriate for this court to exercise its powers pursuant to rule 12(3) and I do not do so.

Fresh evidence

30. At the direction of the court, the applicant has identified specifically the evidence that he invites the court to receive, pursuant to section 83 V of the Criminal Procedure Ordinance, Cap 221, in the hearing of the application for leave to appeal against conviction and to indicate whether or not that evidence was available at trial but not produced and, if so on what basis it ought to be admitted in these proceedings.  He did so in an affirmation made on 1 August 2012 which was produced to the court on 2 August 2012.

31. Generally, the applicant concedes that the material sought to be adduced was available, but was not used because of what he alleges was the incompetence of his counsel.  In respect of a ‘Bankruptcy Search Report’ in relation to Ms Lau, he said that it had been obtained after trial at his request of a friend.  The applicant accepted that could have been done prior to or during the trial.  For example, the applicant invites this Court to receive evidence of Immigration records, which evidence his own movements.  He accepts that the material was available, but his counsel chose not to use it.  Since cross-examination of Ms Lau, on behalf of the applicant occurred at a relatively early stage of the trial and the applicant himself gave evidence, it is clear that the tactical decision taken by counsel was sustained throughout the trial.

32. In any event, that evidence is irrelevant.  Perhaps, that is why the applicant’s counsel did not accuse the evidence.  The applicant seeks to adduce it to contradict the judge’s finding as to the date that the document in which the applicant acknowledged owing $1.5 million to Ms Lau was made.  The judge said that the document was made on 9 March 2008, the date on which he said Ms Lau made a report to the police.  It is said that the Immigration records evidence the applicant’s departure from Hong Kong on the afternoon of 8 March and his return on 10 March 2008.  However, the judge’s statement that the report was made on 9 March 2008 does not fully and accurately reflect Ms Lau’s evidence.  She said that she had made two reports to the police on successive days, namely 8 and 9 March 2008.  In cross examination by counsel for the applicant in respect of her statement to the police of July 2008, she agreed that there she said that 8 March 2008 was the date on which the document was made.  In an answer to a question from the judge, Ms Lau agreed that was the correct date.

33. Next, the applicant invited the court to receive a document entitled ‘Prosecution List of Exhibits’ and his own solicitor’s case file.  He said that it evidenced the fact that the prosecution had not served on the defence prior to trial various exhibits adduced in evidence by the prosecution.  There is no dispute that that was true.  It appears from the transcript that the credit card slips that had been served on the defence were restricted to the charges themselves.  However, in the trial the charges were treated as specimen charges and the prosecution adduced evidence of greater use of the credit cards, producing as it did at least 48 credit card slips.  No objection was taken by counsel for the applicant.  That was hardly surprising, since the applicant’s case was the use of the credit cards was nothing to do with him, rather they were used by Ms Chan and Ms Lau.  In any event, many of the transactions to which they related were evident from the credit card statements that had been served on the defence prior to trial.

34. Having regard to the applicant’s affirmation, his oral submissions in the hearing and the respondent’s submissions, I am not satisfied that the requisite conditions for the receipt of fresh evidence in this application has been met so that it is appropriate for the court to exercise its power to receive new evidence in the hearing of this application.  In the result, I decline to receive such evidence.

Conclusion : application for leave to appeal against conviction

35. As noted earlier, and as counsel for the respondent submitted, the crux of the case lay in a determination as to credibility, on the one hand the account given by the female complainant’s 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 credible and to accept and rely upon their evidence.  Similarly, he was entitled to reject the evidence of the applicant.

36. In my judgment the applicant’s proposed grounds of appeal in respect of conviction are without merit.  Accordingly, the application for leave to appeal against conviction is refused.

The application for leave to appeal against sentence

37. During the course of his oral submissions in respect of his application for leave to appeal against sentence, the applicant informed the court that he abandoned that application.  Having ensured that the applicant understood that if the application was dismissed in those circumstances only in exceptional circumstances would he be permitted to renew the application, the application was dismissed.

38. The applicant was well advised to abandon the application to appeal against sentence.