HKSAR v. YU YAT LEUNG

CACC 210/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 210 OF 2001

(ON APPEAL FROM DCCC NO. 98 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 31 May 2001, the Applicant was convicted in the District Court on a total of five charges alleging the use of false instruments, contrary to section 73 of the Crimes Ordinance, Cap. 200, following a trial before Judge Wright. The Applicant received a concurrent sentence of three and a half years' imprisonment for each offence. He now seeks leave to appeal against conviction on all charges.

2. The facts were relatively straightforward. The five offences were alleged to have occurred at three separate locations. They all involved credit cards which were admitted to have been false instruments bearing the name Lai Sin-man as the cardholder. Four different credit cards were used, all of which were counterfeit. The issue at trial was one which focused on the identification of the Applicant as the guilty culprit who had used the cards in question.

Prosecution's case

3. The first two offences were committed on 20 July 1999. These related to the obtaining of sports equipment, using two Visa cards, from a shop in Mongkok. Charges 4 and 5 were offences which were committed when two purchases were made, again using different Visa cards, at about 5.00 p.m. on 27 July 1999 at a shop in the Landmark Building in Central. About five hours later, the counterfeit card used in the commission of the fourth charge was again used when the culprit committed the offence in charge 3 at shop premises known as "Mr Brown" in Mongkok.

4. PW2 served the male customer, accompanied by two women, who produced the two counterfeit Visa cards in payment for the separate purchases referred to in charges 1 and 2. PW2 was informed on 21 July 1999 that payment on those transactions should not have been authorized. PW2's sports shop was located in Nelson Street, Mongkok. Close to this shop, also in Nelson Street, is the shop known as "Mr Brown".

5. It so happened that on 27 July 1999, PW2 saw the culprit he believed was responsible for passing the two counterfeit Visa cards in his shop a week earlier, just outside "Mr Brown". As it turned out, the culprit had just made a purchase inside that shop. On this occasion, the culprit was accompanied by only one woman but she appeared to PW2 to be one of the two women in whose company the culprit had been when in PW2's shop on 20 July 1999. It also happened to be the case that "Mr Brown" was managed by PW3 who was PW2's younger brother.

6. PW2 asked PW3 to show him the Visa authorisation slip for the purchase just made by the culprit. He recognized the signature as being the same as the signature on the slip relating to charge 1. PW3 was then asked to intercept the culprit and his female companion with assistance from PW4 who worked in another shop nearby. In due course, the culprit and his companion were brought back to "Mr Brown".

7. The culprit gave $1,000 in cash to PW3. After this, at PW2's shop, the culprit gave a further $2,000 to PW2 to compensate him for the transactions covered by charges 1 and 2. This was, however, insufficient to do so. The culprit then claimed that he had further money in his car. On the way to the car, the culprit purported to show his identity card. He then wrote the number down on a piece of paper which was given to PW4. The name on the identity card tallied with the name on all the culprit's counterfeit Visa cards, namely Lai Sin-man. In fact, Lai Sin-man, whose name and identity card were being used, had reported his identity card to be missing three months earlier and had already been issued with a replacement by the Immigration Department.

8. The culprit then made off when PW5, a police officer, arrived at the scene. As he left, he gave the small black bag he was carrying to the female who was with him. She then got into a taxi which was intercepted. In the bag she was by then carrying were found two counterfeit credit cards in the name of Lai Sin-man as well as an identity card, number H093422(6), bearing the name Yu Chi-man.

9. One of the credit cards in the bag had been used to make the purchase at PW3's shop (charge 3) and also the purchase in charge 4. The identity card was in a name which had previously been used by the Applicant (a factor completely ignored by Mr Grounds in his oral submission and written argument). It provided powerful support for the evidence of identification given by PWs 2-4 inclusive. This aspect was covered by agreed facts in which the defence admitted:

"2. (i) That .... the Identity Card number H093422(6) in the name of Yu Chi-man, was the (Applicant's) identity card on 27th July 1999. He had applied for it on 26th May 1999.

(ii) That on 9th November 1999 the (Applicant) obtained a new identity card with the same number H093422(6) and the same name.

(iii) That on 16th June 2000 the (Applicant) was advised by the Registration of Persons Office that his identity card with the same number H093422(6), now at his request in the name of Yu Yat-leung, was available for collection.

3. The (Applicant) was arrested by PC 33807 at the China Ferry Terminal at Tsim Sha Tsui on 13th December 1999 on his return from China. At the time the (Applicant) was travelling on the said identity card referred to in paragraph 2(ii) above." (Appeal bundle p. 11)

10. Returning for a moment to the events covered by charges 4 and 5, some hours earlier on 27 July 1999, two purchases were made by a man who was accompanied by a woman in a shop in the Landmark. He used two counterfeit credit cards in the name of Lai Sin-man, one of which was the same as the one used later in charge 3. PW1 served the culprit in the Landmark on both occasions he purchased goods.

11. Although the Applicant was arrested on 13 December 1999 as he returned from the Mainland, using his replacement identity card in the name of Yu Chi-man, for reasons which do not appear in the papers before us, the Applicant was not put on an identification parade until 19 June 2000. This was, as disclosed in the Admitted Facts to which we referred earlier, three days after the Applicant had been informed that a new identity card in the name of Yu Yat-leung was available for his collection from the Registration of Persons Office.

12. On 19 June 2000, four identification parades were held where PWs 1 to 3 all identified the Applicant as the culprit responsible for passing the counterfeit credit cards in their respective shops. PW4 also identified the Applicant as the person he had detained on 27 July 1999. In the result, therefore, there had been a delay of almost a year between the commission of the offences and the identification parades. This was followed by almost another year's delay before the trial in May 2001.

Defence case

13. Cross-examination of the prosecution witnesses (PWs 1-4) revealed that identification was in dispute. The Applicant did not give evidence.

Grounds of Appeal

14. Mr Christopher Grounds, who also appeared in the court below, submitted that the Applicant's convictions were unsafe and unsatisfactory because the judge had failed to consider "fundamental elements" about the evidence concerning the identification of the Applicant by PWs 1 to 4 as set out in R v Turnbull [1976] 63 Cr App R 132; [1977] 1 QB 224.

15. Mr Grounds conceded that the judge had correctly identified, as the most important principle arising from Turnbull, that an honest and convincing witness might be mistaken. He conceded also that the judge had stated that he had in mind all the principles arising from Turnbull. Mr Grounds argued, however, that if the danger of mistaken identification is to be avoided, there should be strict compliance by a District Court judge with the guidance given in Turnbull as to how juries should be directed. He also submitted that the judge had allowed himself to fall into the trap of becoming so impressed by the witnesses' honesty, with the possible exception of PW3, that he had allowed himself to think they must have been reliable.

Judge's approach to evidence of identification

16. Mr Grounds' concessions were hardly surprising. At the outset of the Reasons for Verdict, the judge said:

"The real issue in this matter is one of identification: was it the Accused who used the cards on each occasion? He was identified by PW1, PW2 and PW3 as having done so. A court always approaches identification evidence with especial caution for, at the risk of tedious repetition, an honest and convincing witness may still be a mistaken witness and that any number of such witnesses may each be mistaken. For the purposes of this matter this is probably the most important of the principles which emerge from the well-known case of Turnbull [1977] 1 QB 224, all of which I bear in mind as I am required to do. With the possible exception of PW3, in this matter there cannot be any serious submission that the civilian prosecution witnesses were other than honest: it is the reliability of their evidence which is challenged.

It is almost two years since the offences and almost a year since the identification parade at which the Accused was identified by all of the witnesses who testified. Seven months elapsed between the arrest of the Accused and the identification parade. There is no explanation for these delays. It is a factor which may affect the witnesses' recall of events but which in no way changes the burden or standard of proof. I remind myself that I have to ensure that there is a sufficiency of evidence on each individual charge." (Appeal bundle pp. 13-14)

17. We do not propose to go through the judge's careful examination of the evidence given by each of the identifying witnesses. The judge looked at the strength of that evidence as well as its potential weaknesses in a wholly balanced way. There could have been no clearer demonstration of the application of the guidance given in Turnbull.

18. None of the criticisms made by Mr Grounds merit detailed analysis. He appears to have laboured throughout under the misapprehension that the guidance given by Lord Widgery CJ in Turnbull as to how a jury should be directed "to examine closely the circumstances in which the identification by each witness came to be made" should be slavishly followed by a District Court judge setting out, in a direction to himself, each circumstance to be taken into account. It goes without saying that there is a world of difference between a lay jury, who must be taken to have no knowledge of the guidelines and cautionary words expressed in Turnbull, and a professional judge who has taken into account and kept in mind what is set out in that case.

19. Provided that a judge has demonstrated, as this highly experienced judge plainly has in the case presently before us, that his reasons for arriving at a particular verdict have taken into account all of the important matters which go to the quality of the identification evidence, there is no need for the judge to set out a check-list or set formula to himself of each individual piece of evidence which he has looked at. In fact, the judge went to considerable lengths to review some of the weaknesses in the prosecution's case which had arisen largely because of the delays to which the case had been subjected. His Reasons for Verdict demonstrate a keen awareness of the pitfalls which can be encountered by the unwary when dealing with the issue of identification.

20. When a jury is being given directions on its approach to evidence of identification, the situation, of course, is often quite different. The jury must usually be given detailed guidance by the judge on their approach to the circumstances in which a disputed identification has been made.

Conclusion

21. There is no merit whatever in this application and it is dismissed. We shall, in view of the wholly unmeritorious nature of this application, order that three months of the time the Applicant has spent in custody shall not count towards his sentence.