HKSAR v. KAM TO FUNG

HCMA565/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 565 OF 2007

(ON APPEAL FROM TWCC 268 OF 2007)

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REASONS  FOR  JUDGMENT

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Background

1. On 22 May 2007 the appellant was convicted after trial by Mr J.T. Glass, Magistrate of one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap. 210.  He was fined $5,000.

2. On 6 May 2008 I allowed the appellant’s appeal, quashed the conviction and ordered that the fine imposed be repaid in the event that it had been paid.  I indicated on that day that I would hand down my reasons in due course.  These are my reasons.

3. The particulars of the charge alleged that the appellant :

“… on the 17^th day of August 2000, at Flat G, 15^th Floor, Block 10, Mayfair Garden, Tsing Yi, Hong Kong, dishonestly received certain stolen goods, namely 379 credit card receipts, the property of Watson’s the chemist, knowing or believing the same to be stolen goods.”

4. The circumstances which led to this charge were that whilst police were making enquiries with regard to another and unrelated matter (in which no charges were laid against this appellant) he was found to be in possession of 379 credit card receipts (“the credit card slips”), each dated 28 June 2008.  All of the credit card slips had the name “Watson’s the Chemist” on them. 

5. After his arrest he was released on police bail.  In August 2000 he was released unconditionally and went to Australia to attend university where he remained until 20 December 2006.  On that date he returned to Hong Kong and was arrested and charged with this offence.

The evidence

6. Miss Law Wai Fong (PW1) was an employee of Watson’s the Chemist (“Watson’s”).  It was her evidence that when a customer purchased goods at Watson’s stores using a credit card, a document in three parts is created.  One part of that document is given to the customer, one part is retained by the individual Watson’s store.  The third part was known as “the bank copy”.  The bank copies are collected from individual stores and delivered to Watson’s Head Office.  Those bank copies are used then to recover the purchase price from the credit card issuing bank.  They are then retained by Watson’s for six months before being destroyed.  It was PW1’s evidence that whilst they did not have to Watson’s a monetary value after the transaction had been processed, nevertheless they were required to retain them.  If the need arose and if they could not produce them then the bank may have the right to demand repayment from Watson’s.  It was her evidence that the credit card slips were kept in individual boxes bearing the date of the transaction.  These were then placed on shelves in the accounts department. 

7. PW1 said that on or about 22 July 2000, one of her colleagues had cause to access the credit card slips for 28 June 2000.  That colleague found the box dated 28 June 2000 in the vicinity where the credit card slips were stored but it was empty and the credit card slips were missing.  The staff member concerned assumed that they had inadvertently been destroyed or misplaced and no further action was taken.  No report was made to the police.  She identified the credit card slips seized from the appellant’s home as being part of the bundle of credit card slips that should have been in the box dated 28 June 2000.  Each bore the name of Watson’s as the vendor in a transaction dated 28 June 2000.

8. PW1 accepted that as there was no lock or other form of security where the credit card slips were stored, it was possible that they could have been removed by decoration workers then engaged in refurbishment at the office.  Similarly she accepted that they could have been removed by staff or visitors.  What emerged from her evidence was the fact that Watson’s regarded them as important enough to retain them for the requisite six months and then to destroy them.  Whilst there was security in place this had in part been compromised as a consequence of the refurbishment then in progress.

9. After the appellant had been arrested on 17 August 2000 he was interviewed under caution.  The interview was video recorded.  In that interview the appellant acknowledged that he had come into the possession of the credit card slips some two weeks earlier from his friend “Ah Shun”.  He had used the information on the credit card slips to open accounts at online casinos on the internet.  By doing this he was able to earn cash bonus points without causing any permanent loss to the account holder of the credit card.  This, he said, he had done on about 10 occasions.

10. The video recorded interview was admitted into evidence in the appellant’s trial.  There was no challenge to its voluntariness.  The interview was conducted in Chinese.  A transcript and an English translation were in evidence before the magistrate.

11. In that video recorded interview the appellant explained how it was that he had come into possession of the credit card slips.  The appellant said (A is the interviewing officer and B is the appellant) :

“A :    … Do you know through what ways ah Shun got (this information)?

 B : Er, through those, er, can I say, crafty guys, in the society? Ha –

 A : Er. y-you can u-use your own expression, it is alright.

 B : Half --- part (of the information) of his, er, (was from) the crafty friends.”

He was then asked whether he knew how to contact these people and replied :

“B : I do not know, because I entirely do not have (any contact with) them --- just nodding acquaintance, that (I) saw them.”

12. In the course of giving evidence the appellant confirmed that whilst he was born in China he had come to Hong Kong at an early age and was educated here until going to Australia to complete his tertiary education.  He spoke Cantonese but did not consider that he was fluent.

13. In his evidence-in-chief he was taken by his counsel through the transcript of his video recorded interview.  With reference to the passage at paragraph 11 above he was asked by his counsel :

“Q : …. Where did this crafty guys bit come from?  How did you know about it?”

 “A :   Actually, I do not know.  Ah Shun, I was just guessing.

 Q :    What were you guessing?

 A : I don’t know because, at that time, the officer asked me questions and I did not know Ah Shun’s friends.  So, I was just guessing.”

When asked why it was he had used the expression “can I say they were crafty guys”, he replied :

“Because I wanted to finish the interview as soon as possible, so I just made a guess.”

14. Later in his evidence-in-chief, he was asked by his counsel what it was that he understood the expression “crafty guys or crafty friends” to mean, and he replied :

“A group of young people who are close friends with each other.  Because I was not born in Hong Kong, so I understand this term as that.”

15. It was suggested to him in cross-examination that he knew Ah Shun’s friends well enough to describe them as he had in the interview.  He did not agree and reiterated that as his Cantonese was not fluent his understanding of that expression was as he had said in his evidence-in-chief.

16. The magistrate concluded that the credit card slips were stolen from Watson’s Head Office accounts department some time after 28 June 2000.  He found, inter alia, that once the transactions had been completed at the various Watson’s outlets on 28 June 2000 the bank copies of the credit card slips would be collected, combined and processed, after which they were stored in secure area in the Head Office accounts department.  They would be retained in that secure area until collected some six months later to be destroyed. 

17. The magistrate was satisfied that whilst the appellant had not stolen the credit card slips he was aware that they were stolen.  He was satisfied that there was no evidence that Ah Shun was the thief but that in all the circumstances the appellant knew that they had been stolen. 

This appeal

18. There are four grounds of appeal advanced on behalf of the appellant by Mr McGowan of counsel (together with Mr Khosa who appeared for the appellant in the court below).

19. Ground 1 reads :

“The learned Magistrate erred in drawing the inference that the slips were stolen from Watson’s Head Office.”

20. In support of this ground of appeal, Mr McGowan argues that the evidence upon which the magistrate inferred that the credit card slips were stolen would admit of other inferences in the circumstances and therefore it was incumbent upon the magistrate to exclude those possibilities.  In particular it was suggested that the possibility existed that the credit card slips could have been removed from the Watson’s Head Office innocently and thereafter obtained by others who passed them on to the appellant.  In support of this argument Mr McGowan refers to the evidence that :

(1) There would probably have been more than 1,000 credit card slips in the box dated 28 June 2000 and only 379 were found in the appellant’s possession.

(2) The evidence of PW1 that the credit card slips could have been taken by anyone including members of staff and decoration workers then engaged in refurbishment work at the Head Office.

21. Regarding (1) above, for my own part I do not consider this a significant matter.  What was at issue was whether these 379 credit card slips had been stolen.  Regarding (2) above, again, I do not see the relevance of this evidence.  Whether the credit card slips were removed by members of staff, decoration workers or someone else was not the issue.  The issue was when they were removed, were they stolen? 

22. The evidence was more than sufficient to be able to conclude that Watson’s would not have willingly parted with the credit card slips, and if they were taken from Watson’s Head Office then whoever it was that took them must have done so dishonestly. 

23. Mr McGown submits the fact that Watson’s Head Office did not report that they were missing suggests that they may not have been stolen.  This argument ignores the evidence of PW1 that initially when it was discovered that they were missing she and other staff members assumed (incorrectly as it turns out) that they had been inadvertently misplaced or destroyed. 

24. There was to my mind an abundance of evidence upon which the magistrate could properly infer that the credit card slips were stolen from Watson’s.

25. This ground of appeal fails.

26. Ground 2 reads :

“The learned Magistrate erred in relying on irrelevant evidence which did not allow or support the inferences that were drawn.”

27. Having considered the magistrate’s reasons for concluding that the credit card slips were stolen, I am satisfied that he was not in error and did not take into account irrelevant evidence.  This ground of appeal fails.

28. Ground 3 reads :

“The learned Magistrate erred in giving a meaning to ‘crafty guys’ in the absence of expert evidence an evidence contrary to that of the Applicant.”

29. Having determined in my opinion correctly that the credit card slips had been stolen from Watson’s, the magistrate then had to determine whether it had been established that the appellant knew that they were stolen when they came into his possession.  In these circumstances the appellant’s appreciation of the circumstances of how it was that Ah Shun came into possession of them was critical as was the evidence in the prosecution case that this was from “crafty guys”.  The use of the expression “crafty guys or crafty friends” by the appellant when interviewed was an integral part of the prosecution case.

30. The rejection of the appellant’s explanation for his use of that expression and the finding that he was not a truthful witness led the magistrate to draw the irresistible inference that the appellant knew that the credit card slips were stolen.

31. The magistrate said at paragraph 13 of his Statement of Finding :

“13.  I did not accept the defendant’s definition of ‘crafty guys’.  I believed he spoke Cantonese well enough to understand that the word meant ‘people who had some sly or cunning underlying motive’, and I believed that was why he had used that particular word in the interview.  I also believed he knew who these people were as he admitted at Pointer 457 in the interview and I found the defendant confirmed that he had seen these crafty friends.  I disbelieved his explanation given in evidence as to why he had said this at the time of the interview.”

32. When this matter was first listed before me on 22 November 2007, I adjourned the hearing and ordered that a transcript be prepared of the trial to determine whether or not there was evidence before the magistrate of what that expression meant.  As it transpired nowhere in the material is the expression “crafty guys” defined other than in the magistrate’s conclusion referred to in paragraph 32 above.  

33. The magistrate was entitled to reject the appellant’s evidence of what he thought the expression “crafty guys” meant but here the magistrate went beyond that and attributed to the expression a meaning which was unsupported by evidence.

34. The attribution of the meaning given by the magistrate to the expression directly impacted upon the prosecution’s obligation to establish the appellant’s state of mind when he came into possession of the credit card slips.  Whilst he might have had his suspicions aroused when he later discovered that all of them were from the one source and bore the same date, it was critical to the prosecution case to establish that suspicion existed when he came into possession.  This they did by reference to his using the expression “crafty guys” when interviewed.

35. This is where the magistrate has fallen into error.  The magistrate determined that the appellant was not a witness of truth and it was in part because he was satisfied that :

(1) the appellant’s evidence as to what that expression meant was untruthful; and

(2) the appellant well knew that the expression he had used suggested that Ah Shun’s friends may have come by the credit card slips dishonestly.

36. The reasons for determining that the appellant was not a witness of truth were inextricably entwined with his determination that the appellant knew when he used that expression it meant “people who had some sly or cunning underlying motive”.

37. It is by reason of the definition of this expression used by the magistrate that this appeal must be allowed.  There was no evidence before the magistrate as to what the expression meant.  Both counsel for the appellant and the respondent have sought to persuade me of its true meaning and why the magistrate erred or did not err.  I am not greatly assisted by these arguments for in the final analysis the definition of the expression used by the magistrate who conducted the trial in English is not one that is supported by evidence.

38. Ground 3 must succeed.

39. Ground 4 reads :

“The Learned Magistrate erred in drawing the inference that the Appellant knew or believed the credit card slips were stolen property.”

40. I agree for the reasons set out above.

41. The appeal was therefore allowed.