HKSAR v. SYED RASHID ASLAM

DCCC 895/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 895 OF 2016

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Reasons for Verdict

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1.  The defendant faces a single charge of obtaining property by deception. This relates to the date of the offence, 8 September 2014 and is alleged to have occurred at a shop in Witty Commercial Building in Mong Kok the defendant is alleged to have dishonestly obtained a watch by a false representation. That is the representation that he was the genuine holder of a Bank of China VISA card in the name of a person called “Law Kam Tong”.

2.  The prosecution allege simply that the defendant used a stolen VISA card to obtain a watch from a watch company in Mong Kok.  It is said the defendant can be identified from a left thumbprint left by him on the credit card receipt for the watch, which the prosecution say the defendant must have left when he signed the credit card receipt for that watch.

3.  The defendant is not in a position to deny that his left thumbprint appears on the relevant credit card, but contends that it must have been left there on a different occasion.  He accepts that he had been in the watch shop, but says that he had handled the receipt when it was handed to him by the staff of the watch company who had tried to show him the prices at which similar watches had been sold. 

4.  Thus the issue presented to the court is purely one of fact, namely, how did the defendant’s fingerprint come to be on the receipt for the sale of a watch, for which a stolen credit card was used to make the purchase and what, if any inference, can be drawn in the circumstances of this case from the presence of the defendant’s thumbprint on the relevant credit card receipt?

5.  Mr Lam was the first prosecution witness.  He was the owner of the credit card.  He is a taxi driver.  He had a Bank of China credit card, VISA card.  This was the card later used to purchase the watch at the watch shop.  He kept the credit card in a bag that was kept in the cab of his taxi with other personal belongings.  He placed the bag next to himself by the driver’s seat.  He said this bag was with him in the taxi when he was working in the early hours of the morning, and that would have been 8 September 2014.

6.  He recalled that the last passengers he collected were two South Asian males around the Sham Shui Po area.  PW1 said he stopped work in the early hours of the morning and it was not until, he said, the evening that he noticed the credit card was not in the bag.

7.  The second witness was a Mr Mok, PW2.  He was the proprietor of the watch shop, the Man Kee Watch Company.  He ran the company with his wife, PW3.  This was the watch company from where the watch was obtained by the use of the credit card.  He, in fact, provided the credit card slip in question to the police on 10 September 2014.  He dealt with repairing watches mainly.  He said his wife, PW3, had sold the watch that related to the credit card receipt in question. 

8.  PW3 - that is, the wife of the second prosecution witness - said that the transaction in respect of the watch occurred at 11.49 hours on 8 September 2014.  The shop opens at 11.30.  She said not long after opening a man came in.  He spoke Cantonese.  It was established he spoke it well.  He wanted to buy a watch for his wife or girlfriend.  She said he looked like a South Asian.  She showed him a watch.  Eventually he agreed to buy it. 

9.  He then paid by using the credit card that had belonged to Mr Lam.  The man handed PW1’s credit card to PW3.  The card was approved.  The machine created a slip for signature.  The receipt was given to the customer to sign.  The customer signed the receipt in her presence.  He returned the receipt to her.  She gave a copy of the receipt to the customer and retained the original.  The original was put inside a drawer together with all the other signed receipts in a stack and they were clipped together. 

10.  She, in fact, said she had some doubts as to whether the customer was the genuine holder of the card, but, as the transaction was approved, she approved it.  She said it was not possible for members of the public to access the receipts in the drawer.

11.  The prosecution also established by evidence that the defendant’s left thumbprint was present on the original credit card receipt that PW3 produced. 

12.  As far as the defence case was concerned, both the defendant and his girlfriend/partner gave evidence.

13.  The defendant is a torture claimant in Hong Kong.  He told the court that in August of 2014 he was attacked and robbed.  He suffered extensive injuries, especially to the head.  There was a medical report to support this evidence. 

14.  In September 2014 the defendant was recovering from his injuries.  He was looked after by the lady who was described as his fiancée he called “Joey”.  The defendant found it difficult to go out, as they lived on a high floor.  He needed constant assistance from his girlfriend.  He said he had not been out at all on the evening or early morning of 8 September.

15.  The Man Kee Watch Shop, where the credit card was used, was in fact known to the defendant.  It was nearby to where he and his girlfriend were living at the material time.  He said that on 7 August of that year he and Joey had gone to the shop to repair her watch.  They had made this outing together as the defendant could not be left at home.  They had spoken to PW2 and he had repaired the watch. 

16.  On 9 September 2014 the defendant and his girlfriend had returned to the Man Kee Watch Company, as the watch that that had been repaired was still not working properly.  PW2 was the person who did the watch repairs and said the watch would give them continuing problems.  He advised them to buy a new watch.  He showed them some watches that could be purchased.  There was a ladies’ watch the defendant asked the price of.  PW2 is said to have offered a price of $2,800. 

17.  PW2 is said to have removed a file from inside the cashier box.  That file had receipts clipped together.  He said, “You can see we sold such a watch for $2,800 to another customer.”  PW2 then gave defendant the file.  The defendant looked at receipts, placing his left hand on the receipts.  The file, he said, had watch receipts and credit card receipts clipped together. 

18.  PW2, in fact, gave him the receipts on two occasions.  On the second occasion, he showed the bank merchant copy of the credit card payment slip.  The defendant had the documents in his hand for three to four minutes.  Eventually, the receipts were returned to PW2 and the watch was not purchased.

19.  The girlfriend also gave evidence.  She confirmed the injuries to the defendant and the difficulties that he had during the period when he was injured.  She spoke about his convalescence period when she was looking after him. 

20.  She was able to confirm she and the defendant had gone to Man Kee to get a watch fixed.  She thought it was in September, towards the middle of the month.  She said that they looked at the watch.  She said, “He wanted me to get a watch,” and the defendant had asked if the watch could be made cheaper.  She said he showed the receipts of the watches he sold.  She was sure he obtained the receipts from a table behind where he repaired watches.  She said the defendant had held the receipts for two to three minutes, then dropped them to the floor, and that was essentially the explanation by the defendant as to how his fingerprint, left thumbprint had come to be on the credit card receipt.

21.  The prosecution bring a charge under Section 17(1) of the Theft Ordinance.  Naturally, they must prove their case beyond reasonable doubt, the burden remaining on the prosecution at all times.  As I said, the defendant is charged with obtaining a property by deception.

22.  As far as proof is concerned, it is not disputed that the watch was obtained by deception, namely, the false representation that the purchaser was the genuine holder of the card used to obtain the watch, and clearly it would be a case that in those circumstances such an action would be both dishonest and committed with an intent to permanently deprive.

23.  The only issue that is in dispute is whether it was the defendant who obtained that property in question.

24.  There is, of course, no link between the defendant and the loss of the card by the first prosecution witness in the early hours of the same day.  The only evidence that can possibly link the defendant to the card is his fingerprint, left thumbprint, on the credit card receipt generated when the watch was bought on 8 September at the Man Kee Watch Shop.

25.  Neither the second prosecution witness or the third prosecution witness can identify the defendant as being present in the Man Kee Watch Company at the time the credit card was used to purchase the watch.  However, as I have said, the presence of the defendant’s left thumbprint or fingerprint on the credit card receipt is proven.  Therefore, the factual issue is:  how did that print come to be there?

26.  On this issue, I primarily have the evidence of the defendant and his girlfriend.  The essence of the defendant’s case was put to PW2.  It was clearly put to PW2 that he would show receipts and credit card receipts to customers when bargaining the price, and his response was simply this.  He said, “No, why would I need to do this?”  Then it was put:  “To show the actual price you charge customers.”  His answer was “No, I disagree.”  It was further put:  “In the process of negotiations, you showed the defendant a stash of credit card receipts.”  He responded as follows.  He said, “No, this, I can be certain, is impossible.” 

27.  He again later reiterated that this would be impossible, for him to show any customer the credit card receipts, that although PW2 could not say whether the defendant had been in the shop he could say with certainty that the defendant’s description of his dealings in the shop, especially being shown the credit card slips in the way the defendant described, was simply impossible.

28.  I am, of course, required, in order to resolve this factual issue, to consider the credibility and reliability of all the witnesses. 

29.  It is clear to me that none of the first three prosecution witnesses have any reason to lie, dissemble or mislead the court in respect of this matter.  They gave their evidence of the facts that they remembered occurring as best they could.  I found they were honest, trustworthy and reliable.

30.  However, I could not reach the same conclusion about the defendant and his witness.  I simply found the defendant’s account to be not credible.  It appeared on its face to be contrived and made-up story to account for the presence of his left print on the credit card receipt.  It was simply an absurd account.  It was no wonder that PW2 described it as being impossible. 

31.  I can see no credible reason why anyone selling an item, a watch, in these circumstances, would give access to credit card receipts.  The credit card slips themselves give no information about the items sold.  I see no reason why such receipts would ever be shown in such a negotiation.  It is simply unbelievable.  It is an obvious outright falsehood defying common sense and any normal commercial practice.  I completely reject the defendant’s account of him being shown and handling the credit card receipts in the course of some negotiation about buying a watch.

32.  I note his witness confirmed in part his account.  This simply shows that she has also lied.  It is pointed out to me she had convictions for dishonesty and she was apparently quite prepared to come to court to lie for her friend and partner.  I reject her evidence also.

33.  In fact, as has always been apparent, I am left with simply the defendant’s left thumbprint on the credit card, which is at this stage of my findings unexplained. 

34.  I find that the only available inference to be drawn from that fact is that it was placed there when the watch was bought using PW1’s credit card which had been stolen earlier, and that therefore the defendant was there to use the credit card and purchase the watch in question, thereby obtaining the watch by the operative deception of using PW1’s credit card.  This is the only conclusion I find that can be drawn on the evidence I have before me.

35.  I therefore draw that conclusion beyond a reasonable doubt.  All the elements of the offence are proved to that standard and defendant is convicted accordingly.