HKSAR v. NG CHI TUNG

CACC 218/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 218 OF 2003

(ON APPEAL FROM DCCC 75 AND 317 OF 2003)

____________________

____________________

__________________________

J U D G M E N T

__________________________

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

Background

1. On 16 May 2003, the Applicant was convicted of conspiracy to use a false instrument, contrary to sections 73, 159A and 159C of the Crimes Ordinance, Cap. 200, following a trial in the District Court before Judge Chua. He now seeks leave to appeal against conviction.

2. The charge on which the Applicant was convicted was the seventh on the charge sheet. All of the six other charges concerned only Mok Kwun-nam (D1). Charge 7 was the sole charge against D1 and the Applicant.

3. At the commencement of the trial, D1 pleaded guilty to all the charges against him except charge 5 which was left on the file.

4. The particulars of charge 7 alleged that, on 7 November 2002, D1 and the Applicant:

".... conspired together, to use an instrument, namely, one Visa Card bearing number 4539-9739-4245-9447 in the name of NG Chi-tung, which was and which they knew or believed to be false, with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice."

5. It is to be noted, for reasons to which we shall come in due course, that this charge contained no reference to the existence of any other conspirators apart from the Applicant and D1 and that it related to one visa card alone which had purportedly been issued in the Applicant's name.

The facts

6. The facts could not have been more straightforward. D1 was using a number of counterfeit credit cards to obtain property by deception in the course of a two-day shopping spree in Tuen Mun. However, D1 brought suspicion on himself during the second day, 7 November 2002, and he was arrested. At that time, he was holding some of the purchases he had made with the false credit cards and he was talking to one Wong Yau-ming ("Wong").

7. When police searched Wong, they found a key on him which fitted a car with the registration number HX 9186. The car was located nearby.

8. The Applicant came out of an adjacent restaurant claiming to be looking after the car for Wong. The car was searched and found to contain a number of items obtained on 6 and 7 November 2002 on counterfeit credit cards. Amongst them were a computer notebook, four shirts, a coat and some DVDs bought in shops at the Tuen Mun Town Plaza by a man who had been using a false credit card bearing the Applicant's name. This card was never recovered in the course of the police investigation. However, the receipt for the shirts was later discovered to bear the Applicant's thumbprint and his fingerprints were also found on the inside and outside of the car windows.

9. All of the prosecution's evidence was produced in the form of Admitted Facts together with the video-recorded interview of the Applicant. A completely separate set of Admitted Facts had also been handed to the judge in respect of D1's pleas of guilty.

Defence case

10. The Applicant elected not to give evidence at his trial. However, he replied to questions in his interview with the police on 22 January 2003. This was at a time when the police had received the results of the fingerprint examination of the car and its contents. The Applicant admitted that he had been looking after the car for Wong. Accounting for his thumbprint on the receipt, he stated that he had noticed the car boot had not been properly closed. He opened it and saw several things inside including a bag containing the shirts. He then examined these and, out of curiosity, he also handled the receipt for them. He denied any knowledge of the counterfeit credit card in his name and said that he did not know who was responsible for the items in the car.

Criticisms of the Reasons for Verdict

11. At trial, the counterfeit visa card in the Applicant's own name was referred to as "card F". This was the sole card which had any relevance to the seventh and only charge in which the Applicant was alleged to be involved. In addition, the entirety of the evidence for the judge's consideration in her Reasons for Verdict arose from the Admitted Facts, signed by the Applicant's counsel, together with the record of interview. Unfortunately, however, it seems that the judge had not fully appreciated this because she also took into account, when giving her reasons for convicting the Applicant, the Admitted Facts which had been prepared for D1's pleas of guilty despite the fact that they were irrelevant and inadmissible in the Applicant's case.

12. For this reason, Mr Nicholas Adams, on the Applicant's behalf, on whom we did not need to call to augment his written argument, criticised with some justification the judge's opening remarks in her Reasons for Verdict which were as follows:

"1. D1 has pleaded (guilty) to all charges against him on the indictment save the 5th charge.

2. Because of the common charge of conspiracy, the 7th, to which D2 has pleaded not guilty, it is necessary to provide some background facts involving D1, from which I judge certain inferences, regarding the modus operandi of this operation, can be made.

3. The undisputed facts come from facts admitted separately by the defendants pursuant to section 65C of the Criminal Procedure Ordinance and answers D2 has given in a cautioned video interview, (Exhibit P49) which was admitted by consent." (Appeal bundle p. 20)

13. In fact, although it was perfectly justified to join D1 and the Applicant in the same indictment on the strength of the allegation in charge 7, there was much in D1's case which bore no relevance to the case against the Applicant. The judge's later references to some of this irrelevant material in her Reasons for Verdict were generally insignificant until she made the following observations:

"11. Behind the driver's seat, on the back passenger's seat, in a plastic bag were five DVDs purchased from a shop in Tuen Mun Town Plaza the same afternoon with credit card F. Credit card F has not been found. Under the carpet of the rear passenger's seat were two more false credit cards in D2's name, cards D and E. These were made subject of the 6th charge against D1 to which he has pleaded. Why D2 was not charged is a mystery only Government counsel who drafted the charges can explain." (Appeal bundle p. 22)

14. The sixth charge in relation to D1 referred to two visa cards, not in the Applicant's name but in the name of Ng Chi-man (cards D and E). The importance of this unfortunate error is, firstly, that it reveals a misunderstanding on the judge's part that there were two more credit cards in the Applicant's name hidden in the car when there were not and, secondly, that it provides an illustration of how the judge had allowed evidence which had been admitted solely for the purposes of D1's pleas of guilty to strengthen the case against the Applicant.

15. The matter was compounded by the penultimate paragraph in the Reasons for Verdict where the judge said:

"19. From all the evidence in the case I infer there was a conspiracy to buy goods using false credit cards, to which D1 and D2 were parties. Wong was to drive them around; D1 would use false credit cards in his name to make purchases while D2 made purchases with the use of credit cards (F, D and E) which were in his name, after which shopping spree they would either share in the profit made when the goods were sold on or they were paid by the person who had engaged them to go shopping." (Appeal bundle p. 23)

16. As we have already said, the conspiracy in charge 7 had been specifically confined to the use of the one false credit card in the Applicant's name. There was no admissible evidence against the Applicant that more than one card had been used. Indeed, even the driver of the vehicle appears, on the evidence, to have been misidentified by the judge because the Applicant, in his interview, named D1 as the person he believed had driven the car. There was no evidence of a third conspirator.

17. Prosecuting counsel on fiat, Ms Alice Lee, very properly pointed out the most important of the errors she believed the judge had made when the Reasons for Verdict had been delivered. The following dialogue (where the Applicant is referred to as D2) then took place:

"	COURT:	Yes?
	(Prosecuting Counsel): Another matter perhaps, your Honour, if I could draw your attention to it, that the
	cards - card D and card E were not in the name of the 2nd defendant. It was in the name of a person called Ng Chi-man.
	COURT:	I see
	(Prosecuting Counsel): I believe that was a slip of tongue in your ...
	COURT:	No, it's not, because I thought it was in D2's name.
	(Prosecuting Counsel): It's just that it's Ng Chi-man. The last character is different.
	COURT:	All right. I'll have to correct my verdict on that. This relates to:
		'Under the carpet of the rear passenger seat were two more false credit cards in the name of ...'
	That is D and E. I wish you had said to me at that time. So I will cancel that whole paragraph. Is that right, I'll cancel that whole paragraph?
	(Prosecuting Counsel): In fact, your Honour, you mentioned that they were in the name of the defendant at
	the end of your reasons for verdict and therefore that was the time...
	COURT:	Are cards D and E under a different name?
	(Prosecuting Counsel): Yes.
	COURT:	All right. So that whole paragraph will go. Next time bring it up at the time, please.
	(Prosecuting Counsel): Yes, your Honour.
	COURT:	So only one card is D2's card?
	(Defence Counsel): Only one card, as I understand. Yes, that is the...
	COURT:	That's card F.
	(Prosecuting Counsel): Card F, yes.
	COURT:	That's all?
	(Prosecuting Counsel): That's correct.
	COURT:	All right.
	The last paragraph of my verdict will be amended.
		'Wong was to drive them around; D1 would use false credit cards in his name to make purchases while D2 made purchases with the use of credit card F...'
	That's it.
		'...after which shopping spree they would... etc.'
	All right, thank you." (Appeal bundle pp. 25-26)

18. The case against the Applicant, when looked at in the light of the admissible evidence against him, was not especially strong. Mr Cheung Wai-sun, on the Respondent's behalf, has conceded that material errors were made by the judge. However, to begin with, he invited us to consider upholding the conviction by applying the proviso. He appeared to give further consideration to his stance when portions of the transcript to which we have referred were pointed out to him. Eventually he indicated that he would concede that the appeal would have to be allowed.

19. We consider that this is very obviously not a case where it would be appropriate to take the course of applying the proviso. There may have been sufficient evidence to convict the Applicant on the charge he faced but once it was shown that the judge had been relying on evidence which only had relevance to D1 and was, in any event, inadmissible against the Applicant and had, in some important respects, also been mistakenly interpreted adversely to him, we were left in no doubt that it would have been wholly inappropriate to consider applying the proviso.

Conclusion

20. We shall grant leave to appeal. Treating the hearing as the appeal, we shall allow the appeal and quash the conviction.

21. Having heard the representations of counsel, we do not propose to order a retrial.

22. We shall make an award of costs to the Applicant in the sum of $45,000 which we were informed by Mr Adams was the amount the Applicant paid for his legal representation in the court below.