HKSAR v. LI KA HO

CACC 360/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 360 OF 2011

(ON APPEAL FROM DCCC 281 OF 2011)

____________

________________________

J U D G M E N T

________________________

Hon Lunn JA (giving the judgment of the court):

1. The applicant sought leave to appeal against his conviction on 4 August 2011 by Deputy District Judge Joseph To on a single charge of possession of material for making a false instrument, contrary to section 76(1) of the Crimes Ordinance, Cap. 200. Having abandoned his application for leave to appeal against the sentence of 4½ years’ imprisonment imposed on him for that conviction, the application was dismissed on 10 July 2012. We reserved our judgment, which we hand down now.

THE CHARGE

2. The charge alleged that on 6 January 2011 in Hong Kong the applicant together with his co-accused, Pang Ka Yin, had in their custody or under their control material, namely partly complete counterfeit credit cards, with the intention that others would make false instruments and that they would use them to induce others to accept them as genuine, and thereby act to their prejudice.

THE TRIAL

The prosecution case

3. There was no dispute that Pang had been detained by Customs and Excise officers at 16:02 on 6 January 2011 at the Arrival Hall of Lok Ma Chau Spur Line Control Point as he entered Hong Kong from the Mainland.  He was found to be carrying a white paper box which contained 124 counterfeit credit cards which were in a partially complete state and bore the names of different well-known banks.  The applicant passed through the Arrival Hall about 20 seconds behind Pang.  The applicant was detained by police on 23 August 2011.  Having been arrested and cautioned for the offence the applicant denied knowing anything about it.  On the following day, a video recorded interview was conducted of the applicant.  The prosecution relied upon what they contended were admissions in that interview in proof of their case.  Objection was taken to the admissibility of that evidence and, having conducted a voir dire, the judge ruled it admissible in evidence.

The defence case

4. The applicant gave evidence on the special issue, but not on the general issue.

REASONS FOR VERDICT

5. In his reasons for verdict, the judge adverted to the observations of this Court in HKSAR v Poon Hoi Wing & Another [2001] 1 HKC 363 in which it was said that relatively greater weight might be attached to inculpatory out-of-court statements made by a defendant and less weight to exculpatory statements.  Stock JA, as he was then, said:

“ … a tribunal may well take the view that the inculpatory part is more likely to be true and therefore give it great weight, and the exculpatory part, being self-serving, worthy of little or even no weight…”

6. In light of those observations, the judge said that he attached “full weight” to the applicant’s admissions “to arranging for and accompanying the 1^st defendant (Pang) to meet Ah Sun to bring the credit cards from Shenzhen to Hong Kong.”  By contrast, he attached “no weight” to the applicant’s denials of knowledge of the falsity of the credit cards.  He rejected the submissions made as to the limited role of the applicant and determined that the applicant had accompanied Pang to cross the border to ensure that Pang in fact carried the credit cards into Hong Kong and that they were available for onward delivery in Hong Kong.

7. Given that the applicant had said in his record of interview that he thought that payment was offered for delivery of the cards into Hong Kong on the basis that to do so was illegal, the judge found that the applicant “knew the credit cards were forged”, but that in their current condition they were inoperative.  From that finding, the judge moved on to find that the applicant had the intention that the credit cards be made into operative credit cards and used “... to deceive others to act to someone’s prejudice.”

8. In the result, the judge said that he found all the elements of the offence proved and found the applicant guilty of the charge.

GROUNDS OF APPEAL AGAINST CONVICTION

9. Mr Oliver Davis who appeared at trial for the applicant and appeared for him at the hearing advanced two grounds of appeal against conviction.  First, he submitted that the judge erred in finding that the applicant was in custody and control of the credit cards.  There was no evidence that the applicant was ever in physical possession of the credit cards.  His role was merely to introduce Pang to the supplier of the credit cards in Shenzhen.  Second, the judge erred in finding that the applicant knew the nature of the credit cards, in particular that they were inoperative, and that he intended that they be made into an operative form and used to deceive others to act to their prejudice.

10. His attention having been drawn by the court to section 3(2) and (3) of the Criminal Jurisdiction Ordinance, Cap. 461 Mr Davies accepted that, so long as one ‘relevant event’, proof of which is required for conviction of the offence, occurred in Hong Kong any question of where the applicant’s other admitted conduct occurred, namely in Shenzhen and outside Hong Kong, proof of which was also required for conviction of the offence, was to be disregarded, given that the offence charged fell within the Group A offences to which the Ordinance applied.

A CONSIDERATION OF THE SUBMISSIONS

11. As the judge noted, the applicant’s role was much greater than merely introducing Pang to Ah Sun in Shenzhen.  Having recruited his friend Pang to act as the courier, he had gone there together with Pang on successive days, namely 5 and 6 January 2011.  On each occasion he contacted Ah Sun by telephone and arranged to meet him.  A month earlier, Ah Sun had asked him to find someone to bring credit cards into Hong Kong and to do so for $500.  He said that he thought that he made the request because it was against the law.  That is why Ah Sun did not bring them into Hong Kong himself.  On each occasion Ah Sun handed over a plastic bag to Pang, which the latter put in his shoulder bag.  When the applicant was shown photocopies of the various credit cards he said that he had not seen them before, but he knew that credit cards were being handed over by Ah Sun.

12. The applicant accepted that on each occasion he had accompanied Pang on the journey back into Hong Kong.  On 6 January 2011, he had seen him intercepted by Customs and Excise officers in the Arrival Hall at Lok Ma Chau.  Immigration Department records of movement evidence the departure of Pang and the applicant 4 seconds apart as they went to the Mainland and 18 seconds apart as they returned to Hong Kong 35 minutes later.

13. Of the applicant’s role, the judge found that he had accompanied Pang :

“ … to ensure that the 1^st defendant would return to Hong Kong and would remain in possession of the cards for onward delivery. The court therefore finds that the 2^nd defendant had constructive custody and control of the cards and was in possession of them jointly with the 1^st defendant.”

In light of all the evidence, that finding was obviously open to the judge.  At the behest of Ah Sun the applicant had recruited Pang to act as a courier of the credit cards.  Since Pang was unknown to Ah Sun and the credit cards were clearly of some value, the judge was entitled to find, in effect, that the applicant acted as a guardian and supervisor of Pang, in which role he was in joint possession of the credit cards.

14. It was suggested to us that an alternative reasonable inference was that the applicant had agreed merely to be an introducer and that his subsequent conduct was consistent with the behaviour of a friend keeping Pang company.  On the facts of this case, that is an unrealistic suggestion.  The contention that the applicant was a non-willing party to the enterprise, save only to the extent of an introduction, sits ill with the uncontested evidence that the applicant was instrumental in making the appointment for the second meeting and accompanied Pang across the border for that purpose and accompanied Pang back to Hong Kong after the second meeting.

15. As he was entitled to do, the judge determined to attach no weight to be applicant’s exculpatory out-of-court statements in which he denied knowledge of the falsity of the credit cards.  On the other hand, the applicant admitted that he knew that the enterprise was to bring credit cards into Hong Kong and, from the fact that Ah Sun was prepared to pay for that to be done, that he knew it to be illegal.  In those circumstances, in the absence of evidence to the contrary, the judge was entitled to find that the applicant knew the nature of the illegality, namely that the credit cards were illegal counterfeit credit cards and that they were incomplete.  Further, that they were to be made complete and operative by others and used to induce others to accept them as genuine and to act to their prejudice.

16. In any event, it is clear that the applicant had arranged that Pang should take custody and possession of the credit cards from Ah Sun in Shenzhen, after which he and Pang returned to Hong Kong together.  In those circumstances, section 77 of the Crimes Ordinance is operative.  It provides that, for purposes of an offence under Part IX of the Ordinance, which includes section 76:

“ a person shall be deemed to have such… thing in his custody or under his control, notwithstanding that it is not in his personal custody or possession, if he knowingly and wilfully has it in the actual custody or possession of some other person…. whether the.. thing is in such custody, possession…for the use of such person or for the use or benefit of another person.”

Accordingly, having arranged for Pang to have actual custody or possession of the credit cards, the applicant was deemed to have them in his custody or under his control.

17. In the result, we are satisfied that there are no merits in the application for leave to appeal against conviction, which is refused.