HKSAR v. RUBIO AZUERO GERARDO AND ANOTHER

DCCC 1025/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 1025 OF 2014

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REASONS FOR VERDICT

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Introduction

1.  The defendant (D2) faces a joint charge with her co-accused (D1) of attempting to obtain property by deception, contrary to s 17(1) of the Theft Ordinance, Cap 210 and s 159G of the Crimes Ordinance, Cap 200.  The present trial concerns D2 alone, as D1 has pleaded guilty and his sentence is adjourned to 11 May 2015. 

2.  The facts are relatively straight-forward.  The following is not in dispute:-

(a) Shortly before 5 pm on 28 August 2014, D1 and D2 entered TSL Jewellery Shop (TSL) on Park Lane Shopper’s Boulevard.

(b) After the defendants had decided on a gold wrist chain for D2, D1 produced to the saleslady (PW1) [1] a credit card (P1) for payment. That card was not accepted by the credit card machine. Then, D1 produced another card instead. However, the second card was also not accepted by the credit card machine. In the event, the transaction was unsuccessful and the defendants left the shop without making any purchase.

(c) Unbeknown to the defendants, a party of police officers in plainclothes (PWs 2-4 & 9)[2] had kept them under observation. Seeing that the defendants were leaving, the police party went forward and intercepted them outside the shop and revealed to them their police identity.

(d) D1 put up a brief struggle but was soon subdued by PWs 2 & 3. Near the place where D1 was subdued, on the ground the police found D1’s wallet and two cards (P1 and P2).

(e) D2 did not put up any resistance, nor did she attempt to flee. Upon enquiry by PW4, D2 was found to be in possession of a Filipino identity card (P4) and a credit card (PP3).[3]

(f) The two cards found on the ground (P1 and P2) bear different names, both of which were different from that of D1.[4] The two cards were subsequently examined by the Government Chemist (PW5)[5] and were found to be genuine bank cards.

(g) The Filipino identity card, P4, bears a name which matches that of P2.[6] P4 was also examined by PW5 who found no signs of tampering regarding photo-substitution or alternation. However, in the absence of a control specimen for comparison, PW5 was unable to say whether it is a genuine document or not.

(h) Later investigation showed that both D1 and D2 were Columbian nationals. However, they came to Hong Kong separately in that D1 arrived on 1 August 2014[7] and D2 on 18 June 2014.[8]

The issues

3.  The charge is about an alleged attempt to obtain the wrist chain by means of false representations concerning P1 and P2.  D1 is alleged to be the principal offender as he was said to be the one who presented the two cards for payment.  The prosecution’s case against D2 is that she was acting in a joint enterprise with D1.  The defence case is that D2 did not know anything about D1 not being authorized to use the two cards. 

4.  As such, in my view the major issues in the present case are twofold:-

(i) whether D1 had used P1 and P2 with a view to dishonestly obtain property from TSL, knowing or being reckless that he had no authority to use the cards; and

(ii) if so, whether D2 was a knowing party to the joint enterprise with D1 to obtain property from TSL as alleged in the charge.

5.  From the CCTV footage[9] of TSL, it can be seen that PW1 had not checked the two cards when D1 presented them to her for payment.  She simply passed the two cards one after the other to her colleague working in the cashier room for processing.  However, as the charge is one of attempt, it matters not that the defendants had not successfully obtained any goods or that PW1 had not in fact been deceived.  Subject to the proof by the prosecution that D1 had the requisite intention to deceive, the undisputed evidence clearly shows that by presenting the two cards for payment he had done an act that was more than mere preparatory to the commission of the offence charged: see s 159G of the Crimes Ordinance.

Relevant legal principles

6.  I am fully alive that the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt.  The defendant has to prove nothing.  Moreover, if the court is to draw any inferences adverse to the defendant, such inferences have to be the only reasonable inferences to be drawn from the evidence.

7.  The prosecution’s case against D2 that she acted in a joint enterprise with D1 relies on the inferences which they say can be drawn from circumstantial evidence.  In this regard, I remind myself what McHugh J explained in Shepherd v R[10] that if an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt - not whether any particular act has been proved beyond reasonable doubt.  The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.  In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt.  This is likely to be the case where the incriminating facts relied on to establish the inference are few in number.  But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt.  Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard.  I note that Shepherd v R was adopted in HKSAR v Au Hau Chung.[11]

8.  As regards the video-recorded interview (P6),[12] the admissibility of which was not in dispute, the answers given by D2 during that interview were “mixed statements”.  According to HKSAR v Yuen Man Tung,[13] both the inculpatory and exculpatory parts of the interview  are evidence for the purpose of determining where the truth lies.  It is trite law, however, that this court, as the tribunal of fact, is entitled to attach different weight to different parts of the defendant’s statements: see HKSAR v Huang Xiang Rong;[14] and generally Criminal Evidence in Hong Kong, by Bruce & McCoy, at V [1203]. 

9.  D2 has a clear record in Hong Kong and this assists her in relation to both credibility and propensity: see R v Lee Kam-yuen;[15] and Tang Siu-man v HKSAR.[16]

10.  Mr Beel, counsel for D2, sought to rely on the fact that D1 had said something in his cautioned interview which may exonerate D2.  He elicited the information as to what D1 had said through the cross-examination of the police officer (PW8)[17] who had conducted cautioned interviews with D1 and D2 respectively.  Mr Beel highlighted the similarities between the versions given by D1 and D2 and stressed the fact that they had little chance of putting their heads together after their arrest.  Mr Beel accepts that what D1 had said under caution is inadmissible as evidence of the truth of its contents.  However, what D1 had said under caution, Mr Beel submits, would assist D2 in her defence as regards her consistency and credibility.  With respect, I am unable to accept the submission that it is permissible to put what D1 had said to this use.  D1 has pleaded guilty and is not on trial with D2.  He is therefore both competent and compellable to act as D2’s witness.  If D2 wants to reply on what D1 had said, the proper course is for her to call him so that his evidence might be tested under cross-examination by the prosecution: see HKSAR v Hung Wai Yip;[18] compared with R v Finch.[19]  I note also that the prosecution had not cross-examined D2 on the basis that her evidence in court was a recent fabrication.  Therefore, there is no justification to adduce evidence just to show D2’s “consistency”.  For the sake of completeness, I would say that even assuming I were wrong about the admissibility of what D1 had said, I would have attached little weight to it as it had not been tested by cross-examination. 

Consideration of the issues

As to (i): whether D1 had authority to use P1 & P2

11.  Mr Beel submits that since the prosecution has not adduced evidence from the issuing banks or the cardholders, they have failed to prove that D1 had no authority to use either P1 or P2.  It is submitted that the fact the two cards do not bear the name of D1 is of itself insufficient to give rise to an irresistible inference about D1’s lack of authority.  With respect, I am unable to accept this submission which, though superficially attractive, is in my view unrealistic.  It accords with common sense and common experience that only the person named on a bank card is authorized by the card-issuing bank to use it for payment.  From the agreed statement of PW3[20] and also the immigration movement record,[21] the name of D1[22] is totally different from those appeared on P1 and P2.  As such, in the absence of any evidence to the contrary it is open to a reasonable jury to draw as the only reasonable inference that D1 had not been authorized to use either P1 or P2 and that D1 was aware of or at least was reckless about it.  It was on this basis that I rejected this submission at half time.  At the end of the trial, the aforesaid inference has not been weakened or contradicted by any evidence led by the defence.  As the tribunal of fact, after consideration of all the evidence I am also satisfied that the only reasonable inference to be drawn is that D had no authority to use the cards and that he knew or  was at least reckless about it. 

12.  For the sake of completeness, I should add that in my view the fact that D1 put up a struggle when he was intercepted by the police officers PW2 and PW3 provides additional support to the inference that he was aware of his lack of authority. However, even without taking that into account, the aforesaid inference is strong enough to satisfy me beyond reasonable doubt that D1 knew about  his lack of authority to use the cards. 

13.  What if D1 mistakenly thought that he had no authority to use either of the cards when he had or might have such an authority?  In my judgment, this issue simply does not arise from the evidence.  However, if I were wrong on this, for the sake of completeness I would say that this point would not have assisted the defence.  This is because impossibility is not a defence to a charge of attempt: see s 159G(2), the Crimes Ordinance.

14.  Although PW1 had not checked either P1 or P2 when she received them and she had not been asked in her evidence what she would have done had she known that D1 was not authorized to use either of them, in my view it is open to a reasonable jury to draw as the only reasonable interference that she would not have passed them to her colleague working in the cashier room for processing, had she known that D1 was not authorized to use them.  In this sense, it can be said that PW1 had been deceived: see R v Cheung Wai Wan.[23] However, as I have mentioned above, since the charge is one of attempt, it matters not whether PW1 had in fact been deceived.  On this basis, I rejected the argument at half time.  That said, as the tribunal of fact, in the end after consideration of all the evidence I am also satisfied beyond reasonable doubt that PW1 had been deceived.

15.  Mr Beel raised an argument about the absence of identification of P2 as one of the cards that D1 had used.  The basis of this submission is that PW1 when giving evidence could no longer remember how the second card presented by D1 looked like.  However, in my view this point is a red herring.  PW1 in her evidence said that she had been showed two cards by a police officer shortly after the incident and that she was able to identify there and then that those were the cards used by D1.  There is also the agreed statement of PW3[24] that he entered TSL after D1 was subdued and showed P1 and P2 to PW1.  PW3 said in his statement that she pointed out to him that those were the ones used by D1.  Based on the above evidence, the circumstances in which P1 and P2 were found and the proximity in time and place of the finding of the two cards to the incident occurred in TSL, there can be little doubt that P1 and P2 were the cards that had been used by D1 at the material time.  On this basis, I rejected the submission at half time.  In the end, after consideration of all the evidence I am also satisfied beyond reasonable doubt that the two cards used by D1 were P1 and P2.

16.  Lastly, regarding the technical argument raised by Mr Beel at closing about the correctness of naming TSL as the victim in the charge, with respect I do not see anything in it.  The gravamen of the charge is the attempted obtaining of the wrist chain.  There can be little dispute that D1 had intended to obtain possession of the wrist chain.  The point is whether there was an attempt to induce TSL to part with possession of the gold wrist chain.  If so, it would be proper to name TSL as the intended victim.  Whether or not TSL would have been compensated for any monetary loss as a consequence of their parting with possession of the wrist chain on the strength of the bank cards is quite beside the point. 

17.  Having considered all the evidence, I have no doubt whatsoever that D1 had attempted to obtain the wrist chain from TSL by falsely representing that he had authority to use P1 and P2. 

As to (ii): whether D2 was a party to a common purpose

18.  Ms Alva, prosecuting counsel on fiat, relied on the following which, she submits, gives rise to an irresistible inference that D2 acted in concert with D1 in the attempted obtaining by deception:-

(a) D1 and D2 had acted suspiciously before entering TSL in that (based on the evidence of PW2) they had walked at a faster than normal pace on Park Lane and kept looking behind in the direction of Yau Ma Tei;

(b) D2 and D1 entered TSL together;

(c) the wrist chain, which D2 had tried on and to which she had said “OK”, was intended for her;

(d) D2 was sitting beside D1 when he presented P1 and P2 to the saleslady (PW1) for payment, so that D2 could have seen what D1 was doing;

(e) From the CCTV footage, D2 had exchanged words with D1 whilst inside TSL, although it is not known what they had said; and

(f) When being intercepted by the WPC (PW4), D2 had P4 in her possession, the name on which matches that appeared on P2.

19.  On the other hand, Mr Beel submits that the above circumstantial evidence is equally consistent with the defence case that D2 had just followed D1 into TSL and that she did not know anything illegal about D1’s activities. 

D2’s video-recorded interview

20.  In gist, D2’s case as contained in her video-recorded interview (P6) was that:-

(a) Before her arrest, she had been staying in Mirador Mansion in Tsim Sha Tsui.

(b) On the day in question, she woke up late in the afternoon and felt hungry. So she went out to find something to eat.

(c) When she reached Chung King Mansion, she met D1 who also spoke Spanish. She did not know D1 before. D1 invited her to have meal with him. Both of them then got into a taxi.

(d) Before they went to have meal, however, they went to a jewellery shop first, as D1 said he wanted to buy her something.

(e) Eventually, they left the shop without buying anything. D1 told her that the cards did not work. She was shock to hear that.

(f) Outside the shop, they were arrested by the police.

(g) As to the two cards including P4, they were given to her by D1 who asked her to keep them prior to them entering TSL. She just put the cards into the back pocket of her jeans without looking at them.

Reasons for ruling a case to answer

21.  In considering whether there was a case for D2 to answer, I took into account Mr Beel’s submissions at half time which I have dealt with in relation to issue (i).  I am not going to repeat those.  I also considered the whole of the prosecution’s evidence and in particular D2’s possession of P4 outside TSL at the time of her arrest which occurred just after D1’s attempted use of P1 and P2 and the fact that P4 and P2 bear the same name. 

22.  It has been held that if the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer.  There is no case to answer only if the evidence is not capable in law of supporting a conviction.  In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence: see Director of Public Prosecutions v Varlack,[25] applied in Secretary for Justice v Ng Siu Lun.[26] 

23.  Applying the relevant legal principles to the present case, in my assessment at the close of the prosecution’s case the prosecution evidence, taken to the highest, is capable of showing that D1 had attempted to obtain the wrist chain from TSL by deception.  Moreover, D2’s possession of P4 is capable of linking her to the offence of D1.  A reasonable man may take the view that D1 would not have given P4 to D2 and got her involved in the case if she had not been a knowing party to the deception.  As such, a reasonable jury, properly directed, “could, may or might” infer that D2 was acting in concert with D1.  On this basis and the reasons I have given in relation to the discussion on issue (i), I found that there was a case for D2 to answer.

D2’s oral evidence

24.  In her evidence in court, D2 added more details what she had already said in the cautioned interview.  She supplemented that she came to Hong Kong to work as a prostitute and that she had been staying in Mirador Mansion ever since she arrived in June 2014.  On the day in question when she was looking for a restaurant, she was wearing her “work clothes”, namely a black strap top exposing her back that was split on the chest down the middle.  When she reached Chung King Mansion, she met D1.  D1 asked her whether she was working. She understood that D1 wanted her sexual service.  The two of them then got into a taxi.  After getting off the taxi, she followed D1 into TSL, as D1 said he wanted to buy her something.  She understood that the gold wrist chain was intended to be her payment for sexual service.

Evaluation of the evidence

25.  It would be more convenient for me to start with the evidence of the defence. Of course, it is always in the forefront of my mind that the burden of proof is on the prosecution. 

26.  In my view, the crux of the matter is whether it might be true that D2 had, as she said, happened to meet D1 on that day, that she was just an innocent dupe taken by D1 to TSL and that she had no knowledge of and had not foreseen D1’s criminal act. 

27.  In evaluating the defence evidence, I am alive to the discrepancies between what D2 said in P6 and her oral evidence.  I am also aware that there are discrepancies within her oral evidence.  Examples of the above include (i) at which stage D1 gave her P4, whether it was inside the taxi or after they had got off; (ii) for how long the taxi journey lasted; (iii) where the taxi stopped, whether it was in front of TSL or on the opposite side of the road; (iv) when she intended to discuss her price with D1.  After carefully considered her evidence, in my assessment there are not material differences between what she said under caution and what she said in court.  The basic theme of her case remains consistent in that she was given P4 by her patron (D1) whom she had only met shortly before the incident, that she intended to have meal with him but was first taken by him to the jewellery shop, as D1 said that he wanted to buy something for her.  In my view, given that D2 does not speak English, some minor discrepancies can be expected in the accounts given by her at different times through different interpreters.   Moreover, D2 had received not much education, in that she left home to live with her boy friend at the age of 13 and subsequently intermittently worked as a prostitute in various places for extended periods of her life.  Given her background, I would not expect her to be able to recount events with mathematical precision.

28.  I have not ignored the fact that it would seem unreasonable for D1 and D2 to have taken a 10 minutes taxi ride to go from Chung King Mansion to Park Lane Shopper’s Boulevard, as the two places are in fact within walking distance.  By the time of the incident, D2 had been living in Tsim Sha Tsui for more than 2 months.  One would expect her to be familiar with the area.  D2 had also given confusing accounts as to where they got off from the taxi.  However, against all of the above, I can see no apparent reason for D2 to lie about having taken a taxi if it was not true.   Whether she had taken a taxi does not seem to be a material fact.

29.  Regarding the contention that she had not discussed the price of her service with D1, her explanation was that she had no opportunity to do so because of the arrest.  In her evidence, she said initially that she had intended to talk with D1 about it on the way to the restaurant.  Later in her evidence, she said that she had intended to talk about it at the restaurant.  I do not find this to be a material difference.  Her point is that had D2 not been arrested, D2 would have plenty of time to discuss her price with D1 before providing service to him.

30.  On the other hand, one objective pointer which tends to show that the visit to TSL was not a pre-planned act between D1 and D2 is the way they dressed themselves.  There is no dispute that D1 dressed as if he was a construction site worker who had just come off duty in that he was wearing a yellow reflective vest and was holding a white safety helmet.  The way in which D1 was dressed contrasted greatly with that of D2, so much so that they were bound to attract attention and could easily leave an impression on the people they encounter. If the present case was a pre-planned act, it is arguable that D1 and D2 would have dressed in a less eye-catching way.  The fact that they dressed in the way they did in my view supports D2’s version that she just happened to meet D1 on the day in question.

31.  As to D2’s possession of P4, as said above one inference which was open to a reasonable person to find as a fact is that she was a party to D1’s criminal act.  However, in my view it is also possible, as Mr Beel submits, that D1 passed P4 and the other card to D2 simply because he did not want them to be found on him in case of any trouble.  I am unable to subscribe to the case theory put forward by the prosecution that D2 kept P4 so that she might assist by producing it in case D1 was asked for identity proof when he presented P2 for payment.  In my view, it would only arouse more suspicion if the saleslady saw that D1’s purported identity proof was not kept by him, as D1 presented himself not as a tourist but a local.  Also, the photograph on P4 shows the face of an Asian male who is clearly not D1.  As such, the production of P4 would be more trouble than it’s worth. 

32.  Then how could one explain D2’s possession of P4 and the other card?  Would it be that D2 had obtained all the cards from her other patrons and then gave D1 the two bank cards (P1 and P2) to use, as she could not use them herself? However, that is speculative and not supported by evidence. 

33.  I have not lost sight of PW2’s evidence that he observed that D1 and D2 had acted in a suspicious manner prior to entering TSL.  The basis for him to form that opinion is that D1 and D2 had walked in a faster than normal pace and that they kept looking behind them.  D2 in cross-examination also accepted that she had looked behind as she was walking.  If one accepts PW2’s evidence that D2 had acted suspiciously, then it may suggest that D2 was nervous in that she knew that a crime was about to be committed.  However, there is some objective evidence which shows that PW2’s observation may not be accurate.  Firstly, PW2 said that D1 and D2 were holding hands before they entered TSL.  The CCTV footage suggests the otherwise.  Secondly, PW2 said D1 and D2 entered and left TSL through the same door.  That also is contradicted by the CCTV footage. Thirdly, D2 does not appear to be nervous in the CCTV footage.  To the contrary, she appears to be yawning on several occasions.  In addition, she seems to have been not concerned about what was going on when P1 and P2 were returned to D1.  I note also that, unlike D1, D2 did not attempt to flee when she was intercepted by the police.  In addition, the WPC (PW4) could not rule out the possibility that D2 voluntarily handed over her passport together with P4 and the other card.  There was no evidence that D2 had attempted to dispose of P4.  In view of all of the above, although I do not consider PW2 to be dishonest, I am unable to attach much weight to his observation and perception that D2 had acted suspiciously before she entered TSL.  

34.  Having considered all the evidence, I am unable to rule out the possibility D1 had just used D2 as a prop in his deception without letting D2 know what he was up to.   Thus, I am also unable to be satisfied beyond reasonable doubt that there was a joint enterprise between D1 and D2 to obtain property by deception.   

35.  Furthermore, for the sake of argument, even assuming that D2 was aware that what D1 had given her before they entered TSL included a Filipino identity card which did not belong to D1, could it then be inferred that D2 knew or foresaw that D1 was in possession of and was going to use a credit card or credit cards which he had no authority to use?  As the tribunal of fact, I am unable to find this as the only reasonable inference.   I am also unable to be satisfied beyond reasonable doubt that D2 at the time knew or was at least reckless that D1 had no authority to use the cards which he presented for payment.   

36.  To conclude, although I am not without suspicion of D2’s conduct, I have no choice but to acquit her of the charge.