HKSAR v. LIU BING KIN and Others

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.622
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. It is convenient in this application to refer to the Applicants by the numbers they were given at their trial. The original charge sheet involved nine defendants.

2. On 26th September 1997, D4, D7 and D8 were found guilty together with D6, following a trial before Deputy Judge Duggan in the District Court, of conspiracy to make or possess equipment for making a false instrument, contrary to section 76(1) and section 159(1)(a) of the Crimes Ordinance, Cap.200. Sentence was imposed on them on 15th October 1997. D4 received 31/2 years' imprisonment, which was the same as the sentence imposed on D6. D7 and D8 each received 2 years' imprisonment. D1, who pleaded guilty, was sentenced on 26th September 1997 to 5 years and 3 months imprisonment.

3. Applications for leave to appeal against conviction are now made by D4 and D7.

4. D6 served notice of his abandonment of a similar application and D8's application was dismissed when it was not pursued.

5. Applications for leave to appeal against sentence are made by D1, D4 and D8.

6. The Particulars of Offence set out the allegation in brief against the defendants. These are that:

"between the 1st day of November 1996 to the 19th day of March 1997, in Hong Kong, conspired together with other persons unknown, to have in their custody or under their control implements and other materials, namely, a skimmer, an embossing machine, two encoding machines, a gold-plating machine, a lap top computer, blank plastic credit cards and other materials which to their knowledge were or had been specially designed or adapted for the making of any instrument, with the intention that they or another should make false instruments, namely false credit cards, and that they or another should 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 their own or any other person's prejudice."

7. After setting out the relevant law in his Reasons for Verdict, the learned Deputy Judge summarised the prosecution's case in the following way:

"According to PW1, the officer-in-charge of the case, the investigation was begun in the month of November 1996. The conspiracy alleged is not, I note, to forge credit cards but, put simply, to possess equipment to do so with an intention to do so.

It is the prosecution case that each defendant had a role in and took part in such a conspiracy. The nature of the evidence before me was such that it sought to identify those various roles. D1 was the instigator and mastermind. He provided the equipment and materials and instructed D3 how to forge credit cards.

D2 was the other principle personality in the syndicate. He provided data from genuine credit cards to D1 and sometimes to D3 direct. D2 recruited D4 and D6 to gather such data from businesses where customers used cards to settle accounts.

D5 was a general assistant and an utterer of the counterfeit cards in Hong Kong. D7, D8 and D9 were persons involved in businesses who could obtain genuine cards and collect the important data from them by use of a machine referred to in this trial as a skimmer.

In support of such allegations, the prosecution adduced evidence principally from three quarters: their own surveillance evidence; the evidence of three defendants, D2, D3 and D9 who had earlier pleaded guilty and are awaiting sentence; and certain admissions made by D6, D7 and D8 in the course of video-recorded interviews by ICAC officers."

8. D4 was the only defendant to give evidence as to the general issue. Part of his evidence was concerned with giving an explanation for being at locations where surveillance officers had seen him. He is a resident of the U.S.A. and it was his evidence that he had returned to Hong Kong in mid November 1996, because of a family matter.

9. D4's evidence was not believed by the judge who found his testimony unconvincing in a number of respects.

10. It has to be said that the evidence against D4 was strong. The judge pointed to a number of the points made against D4 in particular in his Reasons for Verdict. At page 29S in the bundle, he said:

"There are certain key pieces of evidence pointed to by the prosecution, in particular, the evidence of D9 that D4 approached him at his work to supply him with data.

D9 was first introduced to D4 by a companion. Later, D4 asked D9 if he wanted to earn extra money and a discussion in a vacant room followed. A week or so later, D4 returned with D6 and spent some hours in a room waiting for D9 to produce cards. He produced one Gold card which was swiped in the skimmer.

I find these incidents did occur as D9 described and that he had ample opportunity to form an impression of D4's appearance and has correctly identified him and his role. Further, there is the evidence of D3 about events concerning eight counterfeit credit cards on 19 March 1997, the day of arrest of some defendants.

I find as accurate the evidence of D3 concerning the making of those cards, the subsequent contact he had with D1 concerning the cards not working, the instruction to take the cards back from D4 at an appointed time and place, and D3's subsequent meeting D4 and taking the cards back from him. I have no doubt he correctly identified D4 as the person who handed those cards to him.

Again, I refer to the surveillance evidence of PW1, PW11 and PW12 concerning a meeting between D4 and D6 in Dragon Island Restaurant on 1 February 1997. While noting certain discrepancies between their versions of the handing over of a bag containing a skimmer, I find that evidence to be reliable and that the object seen by them to be demonstrated by D4 to D6 was indeed a skimmer and was similar to that shown in a photograph, Exhibit P73. Further, that PW1 has correctly identified D4 and D6 as the persons observed on that day.

I found somewhat surprising the defence objection that PW1, the officer-in-charge of this case who had started this investigation in November 1996, should not have made a dock identification of D4 without having previously picked him out on an identification parade. I ruled accordingly when that was raised in the course of the trial.

I refer also to the evidence that D4's credit card (Exhibit P30) was found at the factory of the syndicate at Ho Man Tin Estate. D4 says he lost that card and had reported it lost. I find that explanation to be false and that it was at the factory for the purpose of making it a 'land to air' card as referred to in D3's evidence."

11. With this background, it is convenient to deal with D4's grounds of appeal. There are six which remain now that the first two have been abandoned.

12. Ground 3 is that the trial judge erred by wrongly permitting improper and/or oppressive cross-examination of D4.

13. Several passages are cited and it is unnecessary to deal with any of them. As we indicated at the time a number of passages were recited, while the questions on some occasions might have been more happily phrased, there was nothing about the manner or phraseology of the questioning by experienced counsel for the prosecution which resulted in any unfairness even though it is true that some of the questions might have invited speculation.

14. In one of the passages to which our attention was drawn (at page 489 in the transcript) D4 admitted using the car GX 5183. He went on to say that he had borrowed it three times to play bowling. It was suggested by Mr. Grounds on D4's behalf that this was in conflict with what the judge said in his Reasons for Verdict at page 28G in the appeal bundle:

"Having considered his (D4's) evidence, I say that I found unconvincing those aspects which sought to exculpate him from this conspiracy. A clear example of this was his attempt to distance himself from the vehicle, GX 5183, which was used extensively by the syndicate."

15. The judge was not saying that D4 had no connection with that car. The comment was fully justified especially, as the judge later pointed out, in view of the fact that defence counsel had put to PW1 that D4 had never driven the car. The trial judge noted that D4 had said "he did drive it but not in connection with credit cards".

16. Before passing from this ground, we were referred to R. v. Baldwin, (1925) 18 Cr.App.R. 175. Whilst it is true that the English Court of Appeal had a number of observations to make on the form of interrogation of witnesses, we can say that we were not assisted by this case. The court was there concerned with the questioning by counsel on both sides of a defendant about matters relating to character. In the present context, this was an irrelevance.

17. Ground 4 is concerned with character in a different context. Mr. Grounds complains that the judge failed to direct himself properly as to D4's good character.

18. We have frequently had occasion to say that it is unnecessary for a professional judge to give himself the full 'character' direction. The judge was fully aware of D4's good character and he referred to it in the Reasons for Verdict.

19. Turning to Ground 5, Mr. Grounds complains that the judge gave himself an inadequate warning as to his approach to the evidence given by the accomplices.

20. What the judge did say in this Reasons for Verdict is at page 26K-27L:

"D2, D3 and D9 on the original proceedings gave evidence for the prosecution as PW8, PW9 and PW10 respectively. For convenience, I will refer to them as D2, D3 and D9.

As I must do, I approach their evidence with great caution, bearing in mind the various reasons they had to minimise their own role and inculpate others. Each had admitted his respective role in this conspiracy and awaits sentence. Each outlined to the court his previous criminal history.

D2 outlined to the court the formation of the conspiracy. He was approached by D1 to manufacture counterfeit credit cards. D1 had the equipment necessary but needed assistance in the way D2 outlined to the court. D2 then gave evidence of the steps he took in pursuance of the agreement. He referred to the roles of D3, D4, D5 and D6. I had the impression that D2 was a truthful witness with regard to much of his evidence. However, after an overnight adjournment, he resiled from his evidence that D4 had collected data for him and absolved D4 from the conspiracy completely. In such way, he demonstrated his partiality and unreliability. He did not retract his evidence in respect of D6's collection of data for him. Insofar as D2's evidence implicated D4 and D6, I came to the conclusion that I could not accept such evidence unless it was supported by other evidence.

D3 was recruited by D1 to manufacture counterfeit credit cards using data received primarily from D1 but also from D2. D3 impressed the court as a truthful, fair and convincing witness. He gave his evidence earnestly. On some matters, he conceded he may not be correct; on others he was resolute. The court found him to be a witness it could rely upon.

D9 said he was recruited by D4 to provide both D4 and D6 data in D9's place of employment, California Red Karaoke. D9 was found by the court to be a truthful witness whose evidence could be relied upon by the court. He spoke of only three occasions, roughly during January 1997, when he had dealings with D2, D4 and D6. Concerning what occurred on those occasions, he was resolute and convincing."

21. In the view of this court, this demonstrates that the judge was fully aware of the dangers of the accomplice evidence, and that his approach to it was impeccable.

22. Ground 6 is closely linked to the previous ground as it complains that the judge erred by failing to evaluate the evidence of D2 (PW8) in a safe and proper manner and/or wrongly failed to place sufficient weight on PW8's evidence.

23. These were matters entirely dependent upon the judge's assessment of that witness. There is nothing in what he has said in his Reasons for Verdict which leads us to consider that we should interfere with that assessment.

24. In Ground 7, Mr. Grounds submits that the judge erred in law and wrongly failed to deal with issues of identity relating to or concerned with D4.

25. In particular, he advances three incidents in the evidence where identification was in dispute. One of these was a 'fleeting glance' incident where PW9 (D3) was given back a number of credit cards. The second was a disputed approach made by D4 to PW10 (D9) in the California Red Karaoke when credit card data was allegedly requested. The third incident concerned a disputed occasion when D4 was alleged by PW1 (an ICAC officer) to have inspected a "skimmer" which the evidence revealed to be a machine used to obtain credit card information.

26. None of these matters requires detailed examination as D4 was well known to all the witnesses concerned and, as Mr. Grounds concedes, the second and third incidents are issues more concerned with reliability in the light of cross-examination by defence counsel than identification. This was not a case in which a 'Turnbull' direction was appropriate.

27. Finally in ground 8, Mr. Grounds submits that two relevant evidential matters which were relied upon by the judge as tending to establish D4's guilt, were not given proper evaluation in the light of effective cross-examination by the defence counsel in the trial. All we need to say is that these were two pieces of evidence amongst an abundance of evidence indicative of D4's guilt and that the trial judge was perfectly entitled to rely on them.

28. There is no merit in any of the grounds advanced on behalf of D4. We are satisfied that the verdict was neither unsafe nor unsatisfactory.

29. D7 is not represented, having dispensed with the services of his counsel at the commencement of the hearing of the application. He had already advanced written 'homemade' grounds of appeal. The first of these was that the trial judge should not have allowed D7's interview record to be admitted as evidence. In his second ground, he says that the judge erred in law by finding that there was only one conspiracy. At the hearing of this application, D7 expanded at some length on both of these grounds and on other incidental matters of no consequence.

30. There is no merit in the grounds advanced by D7. It is clear that there was one conspiracy. As to the admissibility of D7's interview record, his evidence in the voir dire was rejected as "unconvincing and untruthful".

31. There is no merit in these grounds.

32. Turning now to the applications so far as they concern sentence, D1 has made it clear that his complaint is that he was not given a one-third discount when he pleaded guilty. In this regard, the trial judge made it clear to him why he was being given a discount of only twenty-five percent. D1 was perfectly able to plead guilty at the first opportunity, but he had declined to do so. The one-third discount is to reflect genuine remorse from an early stage. A smaller discount is often given when a defendant pleads guilty at a later date, as D1 did in the present case by pleading guilty on the first day of the trial. There is no merit in his application. He was, despite protestations to the contrary, the mastermind of this operation and fully deserved the sentence he received.

33. D4's complaint on sentence is that the trial judge failed to give him any credit for 'previous good character and clear record' whereas with two other defendants in the case (D7 and D8) the judge reduced their sentences by six months to take account of their clear records.

34. This point is wholly without substance, and the ground is in any event based on a false premise which becomes clear when we deal with D8's application. D4 had contested the charge against him. The trial judge properly described him as having an important role in the conspiracy. His role (and D6's) was as a "go-between" for D2 and persons in business establishments who were prepared to supply the genuine credit cards from which the information was extracted to make counterfeit cards. D4 had, as the judge put it, a "middle-ranking" role. The adoption of a sentence of three and a half years seems to this court to have been entirely appropriate having regard to all the circumstances, including previous good character. D4 had no entitlement to a discount. He had contested the allegations throughout.

35. This brings us finally to D8, on whose behalf Mr. Walters advanced a number of grounds. Before coming to these, the judge in passing sentence on D8 (and D7) said at page 42S in the bundle:

"Your role was a lesser one but nevertheless an important one for this conspiracy to be successful. You were prepared to allow the credit cards of customers of your respective businesses to be compromised. That is a substantial breach of the trust which customers placed in you by handing over their credit cards to pay their accounts.

I accept that each of you were prevailed upon by persons to co-operate. I can accept also that in return you did receive no financial reward. I have taken as the starting point in the case of D9 2 1/2 years' imprisonment. Of course, he did receive a financial reward in return for his activities. Each of you comes before the court with a clear record. Bearing in mind all of the matters I have referred to, each of you is sentenced to 2 years' imprisonment."

36. From these words, it can be seen that D8's sentence had to be pitched below the sentence imposed on D9 who had received a financial reward for what he did. The clear record was a factor, but the reason for the reduction by 6 months of D8's sentence was, it seems to us, to distinguish between an offender who acted from motives of financial reward and offenders (D7 and D8) who did not.

37. The absence of financial reward is one factor about which Mr. Walters has submitted the judge failed to give sufficient credit when passing sentence. From the passage I have cited already from the Reasons for Verdict, it is plain that this cannot be so. Mr. Walters also submits that insufficient credit was given for good character. We do not agree. That character had been taken into account is clear from the Reasons for Sentence.

38. Mr. Walters also argues that the judge should have given more credit for the element of coercion exercised on D8 by a member of the gang of fraudsters to get D8 to pass over customers' credit cards.

39. Whilst this was clearly taken into account by the judge, we do not feel that this was a particularly strong element in the mitigation. In a sense, D8 was in a position of trust when he handled credit cards belonging to customers at the well-known hotel where he worked as an assistant manager. Those who permit others to make use of credit card information in circumstances such as these can expect little mercy from the courts.

40. The sentence of two years' imprisonment imposed on D8 was in no sense excessive.

41. For all the reasons given, leave in respect of conviction and sentence is refused and all these applications are dismissed.