HKSAR v. NG PAK YIK

CACC 171/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 171 OF 1999

(ON APPEAL FROM DCCC NO. 947 OF 1998)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. The Applicant was tried with two co-defendants in the District Court by Judge Whaley on a charge sheet containing eight charges. The Applicant was the 2nd Defendant. The 1st Defendant ("D1") pleaded guilty to the only charge he faced (charge 8), and he gave evidence in the trial of the Applicant and the 3rd Defendant ("D3"). The Applicant faced the other seven charges. In two of them (charges 1 and 4), he was charged alone. In the other five charges (charges 2, 3, 5, 6 and 7), he was charged with D3.

2. At the end of the prosecution's case, the judge found that the Applicant had no case to answer on charge 1. However, on 12 February 1999, he convicted the Applicant and D3 on the remaining charges they faced. On 11 March 1999, he sentenced the Applicant to 3 1/2 years' imprisonment on each charge, to be served concurrently with each other. The Applicant now applies for leave to appeal against his convictions, his application for leave to appeal against his sentences having been dismissed on its abandonment.

The charges

3. The prosecution's case was that the Applicant had organised a fraudulent scheme to obtain money through the unauthorised used of credit cards issued by the Standard Chartered Bank ("the Bank"). He was said to have enlisted the assistance of D1 and D3, and of two other people, Chui Ho Tung and Godwine Lee.

4. The six charges on which the Applicant was convicted were all charges of conspiracy. They fell into three categories. First, in charges 3 and 6, the Applicant was charged with conspiring to steal credit cards and mail belonging to the Bank. The plan was for D3, who worked for the Bank, to find out the particulars of some of the Bank's existing credit card holders who had cards which were about to expire. On the basis of that information, the Bank would be informed that the credit card holders had changed their mailing addresses. The Bank would then mail the new credit cards to the false mailing addresses which had been provided to the Bank, and the new credit cards and accompanying mail would be retrieved from those addresses.

5. Secondly, in charges 2, 4 and 5, the Applicant was charged with conspiring to steal money belonging to the Bank. The plan here was for the accounts of the credit card holders whose new credit cards had been retrieved from the false mailing addresses to be accessed by means of those new credit cards. Once accessed, either money would be withdrawn from cash dispensers or Jockey Club cash vouchers would be obtained from Jockey Club outlets which could then be redeemed in cash.

6. Thirdly, in charge 7, the Applicant was charged with conspiring to defraud the Bank. The plan here was for applications for credit cards to be submitted to the Bank in fictitious names. Once the Bank had processed the applications and mailed the credit cards to the mailing addresses which the Bank had been given, the credit cards would be retrieved.

The trial

7. The evidence against the Applicant was strong. It included the evidence of D1, Chui and Lee. If their evidence was accepted, the Applicant had to have been guilty. In the event, the judge accepted their evidence and disbelieved the evidence of the Applicant. Although the judge was impressed by the Applicant's demeanour when he gave evidence (which was not all that surprising because the Applicant had been a serving police officer in the past), what the judge said in the Reasons for Verdict was:

"The content and substance of his evidence, however, was another matter. I did not believe that he was telling the truth. The whole elaborate story which he wove about intending to go into business with Godwine Lee and to that end accessing the database of the Standard Chartered Bank to obtain information to pass on to Godwine Lee about potential customers to invest in their proposed business was clearly not a genuine story, in my view. It was rather a smokescreen to hide the reality of what he was really doing, as revealed by the evidence as a whole."

The application for an adjournment

8. The Applicant was not represented on the hearing before us. At the commencement of the hearing, he applied for an adjournment so that transcripts could be obtained of the evidence which he and a Prof. Ng had given at the trial. We refused that application. We said that we would give our reasons for doing so in our judgment, and this we now do.

9. The judge had summarised the Applicant's evidence in the Reasons for Verdict, and the Applicant could not point to any significant part of his evidence which the judge had failed to record in the Reasons for Verdict. In those circumstances, the only reason which the Applicant gave for wanting the transcript of his evidence was to remind himself of what he had said. It seemed to us that if the judge had omitted in the Reasons for Verdict a part of the Applicant's evidence which the Applicant regarded as significant, the Applicant should have been able to recall at least the gist of what he had said.

10. As for Prof. Ng, he was called as a witness on behalf of the Applicant. His evidence was to rebut the inference which the prosecution had asked the judge to draw about the location of various cell sites at which various calls on mobile phones had been made. It is unnecessary to explain why the prosecution had relied on that evidence. It is sufficient to observe that the judge expressly stated in the Reasons for Verdict that he was not relying on any of the evidence which Prof. Ng was called to rebut. It followed that a transcript of Prof. Ng's evidence would not have advanced the Applicant's case further. Indeed, that is the answer to the Applicant's contention that the judge failed to give sufficient weight to Prof. Ng's evidence. There was no need for the judge to attach any weight to it at all in view of the lack of probative value of the evidence which Prof. Ng was called to rebut.

The grounds of appeal

11. For the most part, the grounds of appeal were unparticularised. For example, one of the grounds of appeal was that the judge drew inferences from the evidence which were adverse to the Applicant when other inferences were possible. The difficulty was that, apart from one occasion to which we shall refer later, the grounds of appeal did not identify the inferences which the Applicant claimed should not have been drawn. Unless that was done, this ground of appeal could not really be addressed. Although the Applicant made a few points when he was asked at the hearing what he wanted to add to his grounds of appeal, he added nothing of substance.

12. There are, however, two instances in the grounds of appeal in which the Applicant identified the evidence from which he claimed adverse inferences were drawn, namely evidence given about the Applicant's hiring of motor cars and the Applicant's lack of business success in the past. The only evidence on those topics was given by the Applicant himself, and the judge referred to them in his summary of the Applicant's evidence. However, an examination of the Reasons for Verdict shows that no inferences were drawn by the judge from that evidence.

13. Having said all that, we have read with care the comprehensive, clear and concise Reasons for Verdict. They do not disclose any occasion on which the judge drew inferences which the primary facts which the judge had found had not permitted him to draw. Nor do they disclose the judge failing to give proper weight to the Applicant's own evidence, or failing to take into account features in the evidence called by the prosecution which supported the Applicant's version of events, or failing to take into account discrepancies and gaps in the evidence of the accomplices - which were other unparticularised grounds of appeal.

14. We turn to the grounds of appeal which have been sufficiently particularised. First, D3 was interviewed on a number of occasions, and the judge ruled that the records of those interviews were admissible. He summarised their effect in the Reasons for Verdict. The Applicant complained that the judge took those records into account in his case. We reject that complaint. Nowhere does the judge suggest that he used the records in order to determine the Applicant's guilt. On the contrary: the judge identified the evidence which he regarded as probative of (a) the Applicant's involvement in a fraudulent scheme to obtain money through the unauthorised use of credit cards issued by the Bank and (b) the particular charges which the Applicant faced. That evidence did not include the records of D3's interviews.

15. Secondly, the Applicant complained that the judge failed to give proper weight to the fact that D1, Chui and Lee were all accomplices. We reject that criticism of the judge. He made it clear in the Reasons for Verdict that he had taken account of the fact that in giving evidence they had had their own motives to serve. In the case of all three, he specifically reminded himself that they were accomplices and of the danger of relying on accomplice evidence. He accepted their evidence despite that, even though he thought that D1 had deliberately played down the roles which he had attributed to the Applicant and D3.

16. Thirdly, the judge had drawn the inference that Chui had shown the Applicant and D3 around particular flats in Tai Cheung House and Tai On House in Sai Wan Ho. It is unnecessary to explain the relevance of that inference. It is sufficient to note that the Applicant complained that there had been no evidence which had enabled the judge to draw that inference. This is the only example of an allegation of this kind being particularised. However, the evidence of Chui had been that he had shown the Applicant and D3 around various buildings in Sai Wan Ho whose name began with Tai. In addition, the evidence of a colleague of Chui had been that the particular flats in Tai Cheung House and Tai On House had been on the market, and that their agency had shown customers around them at the material times. In our view, it was open on this evidence, when seen in the context of the whole case, for the judge to draw the inference which he did.

17. Fourthly, the Applicant complained that the judge regarded as significant the fact that his fingerprints were found on a false application form for a new credit card and on one of the Jockey Club cash vouchers, but failed to consider the Applicant's evidence as to how his fingerprints came to be on them. We reject this criticism of the judge. He dealt expressly in the Reasons for Verdict with the Applicant's explanations. He found that the former lacked credibility, and that the latter had an "air of unreality" about it.

18. Finally, the Applicant contended that the judge failed to consider each charge separately. In particular, it was claimed that the judge considered the evidence relating to charge 7 as admissible evidence on the other charges and did not appreciate that the "modus operandi" of charge 7 was different from the other conspiracies. In addition, it was contended that the judge only considered evidence which was relevant to substantive offences which were not linked to any of the conspiracies charged. We reject these complaints. As to the latter complaint, the judge was entitled to consider what, if anything, had been done to put the conspiracies into effect as that was relevant evidence to prove the conspiracies themselves.

The amendments of the charges

19. When originally framed, charges 2, 4 and 5 had alleged conspiracies to steal (a) money (belonging to named account holders) and (b) cash vouchers (belonging to the Jockey Club). However, at the conclusion of the prosecution's case, the prosecution applied to amend those charges. It may be that the prosecution was concerned that the charges might be regarded as void for duplicity. But since the evidence had been that the account holders' accounts had immediately been debited with the sums to which the Jockey Club cash vouchers related, the prosecution took the view that the obtaining of the cash vouchers could be treated as the appropriation of cash just as the withdrawal of cash from the cash dispensers was. Accordingly, the amendments which the prosecution sought and obtained for charges 2, 4 and 5 were that the conspiracies alleged should be amended to conspiracies to steal money belonging to the Bank. In his grounds of appeal, the Applicant contended that it was unfair for those amendments to have been made.

20. There was no question of the Applicant being prejudiced in any way by the amendments. He was merely being deprived of the windfall of which he would unjustifiably have been a beneficiary if he had eventually had to be acquitted on the basis that the wrong charges had been preferred against him. The amendments did not require any new evidence or affect in any way the thrust of the Applicant's defence.

21. However, the question now arises whether the amended charges on which the Applicant was convicted were still properly drawn. We do not think that they were. The cash vouchers were not money and they did not belong to the Bank. They were choses in action which were redeemable in cash and they had belonged to the Jockey Club. As choses in action, they came within the definition of property in section 5(1) of the Theft Ordinance (Cap. 210). The charges would have been properly drawn if instead of referring to money belonging to the Bank, they had simply referred to "property belonging to another". Such a formulation could also have covered the cash to be obtained from the cash dispensers, and would have avoided the thorny question of whether that cash belonged to the individual account holders (on the basis that it was their accounts which were being debited), to the Bank, or to the company which owned the cash dispensers.

22. The combined effect of section 83A of the Criminal Procedure Ordinance (Cap. 221) and section 83 of the District Court Ordinance (Cap. 336) is to enable the Court of Appeal to substitute for the convictions on charges 2, 4, and 5 convictions for other offences if on the findings of fact made by the judge the Applicant was guilty of those offences. That is the course which we propose to take. We therefore substitute, for the convictions on charges 2, 4 and 5, convictions for offences in the same terms as the particulars of charges 2, 4 and 5, save that

(a) the words "property belonging to another" must be substituted for the words "moneys, the property of the Standard Chartered Bank", and

(b) the words "the property of another" must be deleted.

23. We should add that we have also considered the language of charges 3 and 6. The allegations might have been better framed as conspiracies to obtain the credit cards by deception. But the retrieving of the credit cards and the accompanying mail from the mailing addresses would themselves have amounted to acts of appropriation of the credit cards and the mail at that stage in circumstances amounting to their theft, and in the circumstances charges 3 and 6 could be said to have been properly framed.

Conclusion

24. For these reasons, and save for the substitution of the reworded charges for charges 2, 4 and 5, the Applicant's application for leave to appeal against his convictions must be dismissed.