HKSAR v. CHENG HOK MAN

CACC 367/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO CACC 367 OF 2003

(ON APPEAL FROM DCCC 247 OF 2003)

(APPLICATION FOR LEAVE)

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REASONS FOR DECISION

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1. The Applicant Cheng Hok-man was charged with 7 charges before Deputy Judge A Wong in the District Court, with the following results:

(1) on the 1st charge, he pleaded guilty to driving whilst disqualified, and was sentenced to imprisonment for 5 weeks, of which 1 month was to run consecutively to the sentence for the 4th charge;

(2) on the 2nd charge, he pleaded guilty to using a vehicle without third party insurance, and was fined $3,000 and disqualified for 12 months;

(3) on the 3rd charge, he was convicted after trial of driving an unlicensed vehicle, and was fined $3,000;

(4) on the 4th charge, he was convicted after trial of possession of false instruments, being 2 counterfeit credit cards, and was sentenced to imprisonment for 39 months;

(5) on the 5th charge, he was acquitted of possession of equipment for making false instruments;

(6) on the 6th charge, he was convicted after trial of handling stolen goods, being a DVD player, and was sentenced to imprisonment for 16 months, of which 8 months were to run consecutively to the aggregate of the sentences for the 1st and 4th charges;

(7) on the 7th charge, he was acquitted of handling stolen goods.

2. In total, he was sentenced to imprisonment for 48 months and fined $6,000.

3. The Applicant applied for leave against conviction and sentence in respect of the 4th and 6th charges only. The Applicant was not legally represented and there were no formulated grounds of appeal.

Grounds of appeal

4. However, at the hearing of his application for leave, he orally indicated that his grounds of appeal were that the conviction was unsafe and unsatisfactory in that:

(1) the judge accepted the evidence of the 5 prosecution witnesses even though there were discrepancies in their evidence and even though they had not made any contemporaneous record of what they had found on the Applicant when he was searched;

(2) the judge had convicted him of the 4th and 6th charges on the basis of a single piece of evidence, being a notebook that the prosecution witnesses said was either on his person or in a Gucci bag that he was carrying when he was searched, and failed to take into account other pieces of evidence which implicated his elder brother Cheng Hung-man, who had been arrested in relation to credit card offences a few months before, and which indicated his (the Applicant's) innocence.

Counterfeit credit cards inside KT 170 (4th charge)

5. In brief, the prosecution case was that on 23 October 2002, the Applicant had driven a car (KT 170) from the Kai Tak Bazaar car park to a Wong Tai Sin refuse collection point. After the Applicant got out of the car, police searched him and searched the car. Two counterfeit credit cards were found concealed in a compartment beneath the audio system of the car.

6. When questioned, the Applicant said that KT 170 was not his. Subsequent investigations revealed that it was in fact registered in the name of the elder brother.

DVD player inside HF 2212 (6th charge)

7. The key chain that held the ignition key for KT 170 also held ignition keys for two other cars, HF 2212 and DS 561.

8. HF 2212 was parked inside the Kowloon City Plaza car park. The Applicant had earlier had lunch in that development but there was no evidence that he had used that car to get there. When police searched HF 2212, they found in the boot various items including a box containing a DVD player.

9. When questioned, the Applicant said that HF 2212 was not his. Subsequent investigations revealed that this car was also registered in the name of the elder brother.

10. The DVD player had been bought with a credit card (not the ones found in KT 170) in a transaction which had not been authorised by the cardholder. The number of the credit card used was written in a coded format in a notebook. The prosecution evidence as to whether the notebook had been found on the person of the Applicant, or in the Gucci bag, appears to have been unsatisfactory. I will refer to this later in these Reasons for Decision.

11. The police also searched DS 561 and found various items. Again, the Applicant said that the car was not his. Subsequent investigations revealed that it had originally been registered in the name of the elder brother, but it had been transferred into the name of a younger brother Cheng Chak-man.

Items found at Applicant's home

12. When the police searched the Applicant's home, which was a 2 bed-roomed flat which he shared with his wife, their baby and a domestic helper, they found (in a drawer of a dressing table in the couple's bedroom) a purchase order for the DVD player.

13. However they also found in a drawer of a wardrobe in the same room, various documents showing that the elder brother was the registered owner of KT 170 and DF 2212 and that the registered owner of DS 561 was the Applicant's younger brother.

14. The Applicant did not give evidence at trial. However the judge was aware that apart from a minor gambling offence some 14 years ago, he had no previous convictions and worked as a hairdresser.

Wife's evidence

15. The Applicant's wife gave evidence to the effect that the elder brother was a "parallel trader" in electrical appliances and that he stayed at the flat when he was in Hong Kong. He contributed to household expenses and kept his personal belongings in the wardrobe of their room. He parked one of his cars (KT 170) in the car park of the development and paid the rental.

16. Her unchallenged evidence was that the Applicant, the elder brother, the elder brother's friend Ben (who was also a "parallel trader") and she herself had keys to KT 170, HF 2212 and DS 561. She also said that the elder brother had borrowed the Gucci bag (which belonged to the Applicant) a few months ago.

Trial judge's findings

17. The judge directed herself that as the elder brother had been arrested in connection with forged credit cards and was the owner of KT 170 and HF 2212 (where the counterfeit credit cards and the DVD player were respectively found), she must consider the possibility that the items found in the cars were possessed by, or at least connected with, him.

18. At paragraph 45 of the Reasons for Verdict, the judge rejected the prosecution submission that possession of, or access to, the car proved that the Applicant had possession of the counterfeit credit cards which had been concealed in it. She held that it was only a factor to be taken into account. At paragraph 48 of the Reasons for Verdict, she held that she could not exclude the possibility that people other than the Applicant had the use of the car or had access to it.

19. However, one significant piece of evidence which the judge found linked the Applicant to the counterfeit credit cards was that their numbers (albeit in coded form) were written in the notebook which was found either on the person of the Applicant or in the Gucci bag which the prosecution witnesses said he was carrying when he was searched. From this, the judge drew "the only irresistible inference that the [Applicant] was knowingly in possession of the two credit cards" (paragraph 51, Reasons for Verdict).

20. The judge also found that the only irresistible inference that could be drawn from the circumstances was that the Applicant knew or believed that the credit cards were false instruments and that he possessed them with the intention that he or another would use them to induce someone to accept them as genuine and thereby act to his or any other person's prejudice.

Brother's access to Gucci bag

21. In respect of the notebook, it is at least arguable on appeal that the judge seems to have failed to take into account the wife's evidence that the elder brother had also had access to the Gucci bag, so that the notebook might have been his. In paragraph 41 of the Reasons for Verdict, the judge recorded the wife's evidence that the Gucci bag and a wallet had been lent to the elder brother in mid-June but considered the question whether they "were still not returned" to the Applicant (paragraph 42, Reasons for Verdict).

22. The judge concluded that as the elder brother had been arrested on 28 August, about 2 months before the Applicant was arrested, she was "sure that the [Gucci bag and the wallet] were not in the physical possession of the elder brother at the material time, otherwise it would not end up with the [Applicant] on 23 October".

23. With respect to the judge, she did not seem to have considered in respect of the Gucci bag the same point that she had considered in respect of the cars, that since the elder brother had had access to the Gucci bag, the notebook might have been left there by him.

24. Of course this point might not arise if the notebook had been found on the person of the Applicant, instead of in the Gucci bag, but the officer who searched the Applicant and the officer who witnessed the search did not make a record of what was found and from where each item was found (paragraph 36, Reasons for Verdict). The judge could only be satisfied that all the exhibits (including the notebook) which the officers had put into a plastic bag were "either found on the person of or inside the Gucci bag being carried by the [Applicant] at the material time". There was no other evidence that linked the notebook to the Applicant e.g. there was no evidence that the numbers were in his handwriting.

25. Since the notebook was essential to the trial judge's finding of guilt but there appears to have been a failure to consider the possibility that the notebook was the elder brother's and not the Applicant's, I consider that the Applicant should have leave to appeal in respect of the 4th charge.

26. As for the 6th charge, the trial judge found the Applicant guilty of handling stolen goods because the Applicant had "close connections" with DF 2212 (where the DVD player was found) and because there was a purchase order for the DVD player in the drawer of the dressing table in his room. However as was recognised by the judge, there was no evidence that the Applicant had had any recent access to DF 2212. Further, the judge seems to have relied on the fact that the number of the credit card used to purchase the DVD player had been written in the notebook (paragraph 69) when she drew the inference that the Applicant knew or believed the DVD player was stolen property. The judge appears not to have taken into consideration the possibility that the notebook might have been the elder brother's.

27. In the circumstances, I consider that the Applicant should have leave to appeal in respect of the 6th charge as well.