HKSAR v. LEUNG SIU LUNG

HCMA271/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.271 OF 2002

(ON APPEAL FROM NKCC 6081 OF 2001)

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J U D G M E N T

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1. On 15 February 2002, the appellant was convicted after trial by Mr Chan at the North Kowloon Magistrates' Court on five charges which were as follows : -

(1) Attempting to obtain property by deception; charged that on 2 January 2001 at G/F, Sam Wai Hong Ginseng Sea Products, 72 Argyle Street, Mongkok, Kowloon, in Hong Kong, he had attempted to dishonestly obtain from Tong Wai Chung ("Mr Tong"), three Chinese caterpillar fungus and six taels of edible nest of cliff swallows, worth $10,000 with the intention of permanently depriving Mr Tong, by deception, namely by falsely representing that he was Cheung Tak Chuen, the holder of AEON Mastercard No.5279-1677-8191-9066, contrary to section 17(1) of the Theft Ordinance, Cap.210 and section 159G of the Crimes Ordinance, Cap.200.

(2) That, he was in possession of an identity card relating to another person, charged that on the same date outside 89, Sai Yee Street, Mongkok, Kowloon, in Hong Kong; he without lawful authority or reasonable excuse had in his possession an identity card number E183640(8), relating to Cheung Tak Chuen, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177.

(3) That, he was in possession of a false instrument, charged on 2 January 2001 outside No.89 Sai Yee Street, Mongkok, Kowloon, in Hong Kong, without lawful authority or reasonable excuse, he had in his custody an instrument, namely a Chase Visa Card No.4282-0880-9261-8814 in the name of Cheung Tak Chuen, which was false and which he knew or believed to be false, contrary to section 75(2) of the Crimes Ordinance, Cap.200.

(4) Possession of a false instrument, he was charged on 2 January 2001 outside 89, Sai Yee Street, Mongkok, Kowloon, in Hong Kong, without lawful authority or reasonable excuse, he had in his custody an instrument, namely an AEON Mastercard No.5279-1677-8791-9006 in name of Cheung Tak Chuen, which was false and which he knew or believed to be false, contrary to section 75(2) of the Crimes Ordinance, Cap.200.

(5) Resisting a police officer in the execution of his duty, he was charged that on 2 January 2001, outside 89, Sai Yee Street, Mongkok, Kowloon, in Hong Kong, he resisted PC54535 Lam Fat Keung, a Police Officer in the execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap.212.

He was acquitted on a sixth charge of obtaining property by deception, but for the purposes of this appeal, nothing turns on that acquittal. The appellant was sentenced to terms of imprisonment totalling 20 months on the first four charges and he was fined $2,000 on the fifth. He now appeals against his conviction only.

2. The prosecution case can be stated shortly. At 5:20 p.m on 2 January 2001, the appellant entered a Chinese delicatessen at 72, Argyle Street, Mongkok and asked to purchase caterpillar fungus and six taels of bird's nest. The purchase came to $10,000 and he presented an AEON Mastercard Credit card for payment which is the subject of charges 1 and 4. The card bore the name of man called Cheung Tak Chuen. Because of the amount concerned, the shopkeeper(PW2) told the appellant that he would need to telephone the credit card centre to get authorisation for the transaction. On being told this, the appellant said "no problem", but before the shopkeeper had got through on the telephone he asked for the card back saying that he would pay by EPS, which would have been a confirmed cash transaction, and which was acceptable to the shop. He then appeared to change his mind about that and said that he would go and withdraw cash from an ATM machine and that he would return. Whilst this was going on, it happened that two off-duty police officers (PW3) and his colleague, who did not give evidence, were in the shop making purchases of their own. They overheard and saw what had gone on and, suspecting that the appellant was trying to pass a forged credit card, they followed him out of the shop in order to stop him and make enquiries as to his conduct and presumably about the card that he had presented to the shopkeeper. They followed him to outside 89, Sai Yee Street which I presume is not very far way, and told him who they were and asked to search him because they believed that he had a forged credit card. He struggled with the officers, resisting their attempts to perform their duty (charge 5) but they eventually got him under control. He was searched. In his wallet they found the AEON card and a Hong Kong identity card both in the name of Cheung Tak Chuen. They took him to Mongkok Police Station where he was further searched. They looked into his wallet again and also a brown paper bag that he was carrying. In the wallet they found a Visa card payment slip and a Chase Visa Credit Card which related to the payment slip, also in the name of Cheung Tak Chuen. From the paper bag, they removed a Mastercard payment slip, relating to the AEON credit card, a sales receipt and three cartridges of Canon printing ink.

3. The two credit cards were forensically examined and found to be forgeries. Mr Cheung Tak Chuen had lost his identity card on 7 October 2000 and had reported its loss two days later. He had never applied for an AEON Mastercard nor a Chase Visa credit card.

4. The appellant who was a person of good character gave evidence to explain how he came to be in possession of these items and to be in the shop buying bird's nest. He told the magistrate that in mid-December 2000 he had met a young woman by the name of Chan Yuek Lam at a Mongkok discotheque. He had seen her again, by chance, on three or four other occasions. In the early hours of 2 January 2001 (the day of his arrest) they had met there again. He took her to his home at about 6 a.m. where they had sex and at 2 p.m. they went out to lunch and then they did some shopping. She had bought some cosmetics and three cartridges of printing ink for which she had paid using a green credit card. After this purchase and when they had left the shop the young woman received a telephone call on her mobile telephone. She told the appellant to go across the road to the delicatessen to make the purchase of the bird's nest and the fungus whilst she dealt with the telephone call and once she finished she would come and sign the credit card slip. He entered the shop, made his selections and presented the green credit card from the woman's wallet. When he had done that he looked into the wallet and found that it also contained another credit card and an identity card in the name of Cheung Tak Chuen (a man's name) and so, for that reason he asked the shopkeeper to return the card to him so that he might have a look at it. He then thought of paying by EPS but changed his mind and said he would leave the shop and go and fetch cash from an ATM.

5. After he had left the shop and crossed the road, two unknown men stopped him. They put their hands in his pockets and had not at this stage told him that they were police officers. He thought they might be robbing him so he struggled. He only knew who they were after they borrowed handcuffs from a passing traffic policeman. He says that he had no way of knowing that the credit cards were forged nor did he know about the Hong Kong Identity Card belonging to Mr Cheung and he did not know that it had been unlawfully obtained or anything of that sort.

6. This therefore it is how the case was presented to the magistrate for resolution. Leaving aside charge 5 for the moment, the prosecution was required to prove beyond reasonable doubt that the appellant knew that these cards were forgeries and that he knew of the existence of the identity card and that he had no right to have it, in other words, without lawful authority or reasonable excuse. As to the first charge of attempted deception, that flowed from proof by the prosecution that he knew that the AEON credit card that he had presented was not a genuine one. If that was so the issue of dishonesty effectively proved itself.

7. The applicant had given on account of himself which was consistent with his innocence. In practical terms it therefore was incumbent on the prosecution to negative all that he had said. To completely eliminate it from the case. There was no direct evidence of the appellant's knowledge that he had attempted to use a forged credit card and that he was in possession of another that was also a forgery. Accordingly, they were required to satisfy the court that he possessed that guilty knowledge from all the relevant circumstances of the case.

8. Mr McGowan has made a number of criticisms of the learned magistrate's approach to the evidence as it emerges from his reasons for verdict at the time and from his subsequent, and fuller, Statement of Findings once the appeal had been lodged.

9. The case finished late in the afternoon on 5 February 2002 and the magistrate adjourned his verdict to 15 February 2002, the Chinese New Year holiday intervening. Mr McGowan attaches importance to the reasons for verdict, which he complains are brief and short on reasoning, in circumstances where one might have expected something fuller given the fact that 10 days had passed since the evidence had closed. More particularly, he submits that the magistrate misdirected himself when he said at 30E : "The main issue, if I can correctly gathered [sic] it is credibility and whether the court accepts the defendant's evidence." Taken by itself, that sort of remark might give the impression that the magistrate was suggesting that the appellant had some sort of burden to discharge. In fairness to the magistrate, he had previously made it absolutely clear that the burden to prove the appellant's guilt lay fairly and squarely on the prosecution. This criticism must therefore fail. But Mr McGowan does make the other more general point that where the magistrate had taken time to deliver a verdict, one might have expected some analysis of the evidence and a demonstration by the court as to how it resolved the various disputes on the evidence and some of the alleged discrepancies in the prosecution's own case. It is fair to say that these reasons for verdict do no more than say the prosecution's evidence is true and that the appellant's evidence is rejected and accordingly, the appellant is guilty as charged.

10. A magistrate of course is not required to give reasons at the time when he returns his verdict but this matter shows the dangers of electing to say something, but probably not enough to hold the conviction if that were to go forward as a Statement of Findings. That having been said the Statement of Findings in this case is a comprehensive document and there is nothing in it which could be said to conflict or be inconsistent with what was said at the time of verdict. The magistrate did indicate in returning his verdicts he was doing so "in brief and oral form", so that he was not putting this forward as the definitive statement of why he was convicting the defendant, which is what the Statement of Findings is. That, I think, has the effect of disposing of Grounds 1 and 2 of the appeal.

11. On the Statement of Findings itself, Mr McGowan's criticisms can be subdivided as follows : Firstly, that a number of the magistrate's findings, some based on the appellant's demeanour were unreasonable and should not have been arrived that. Secondly, that he misunderstood some of the evidence and drew inferences from primary findings of fact that were wrong or, alternatively, in a case where he could only convict by drawing the only and irresistible inferences from the evidence, that he came to conclusions that were not the only ones that were reasonably available to him and, lastly, a popular ground this, if I may express it in that way, that he failed to resolve discrepancies in the evidence of the prosecution witnesses which did in fact require resolution by him before he could arrive at safe verdicts.

12. Before I consider these grounds, it is important to place the various criticisms of the magistrate's reasoning into proper perspective. This was very much a case about the credibility of the witnesses in what was essentially a straightforward issue of fact about whether the prosecution could prove that the appellant knew that these two credit cards were forged and that the identity card was one that he had no right to be in possession of. Whilst that does not absolve the magistrate from the requirement to arrive at a proper reasoned judgment about who was, and who was not telling the truth, or giving accurate evidence; as the trier of fact, he had the advantage of seeing and hearing the witnesses, which this court does not and so unless what he has said on matters of credibility are shown to be plainly unsustainable in all the circumstances, this court should not try to "second guess" the trial court's conclusions and substitute its own views of the evidence in circumstances where it has not seen the witnesses.

13. The appellant's case starts with the proposition that he went into the shop to select these expensive items on behalf of his friend, present her credit card for payment and wait for her until she followed him into the shop, presumably shortly afterwards, to sign the credit card slip. The basic facts were not in dispute; that he was in possession of what were in fact two forged credit cards and somebody else's Hong Kong identity card. Once these were discovered on him, in practical terms, this called for an explanation by him as to how he came to be in possession of them and why he had presented one of them for payment. He was therefore the most important witness in the case.

14. Clearly what he said and how he said it was going to be important in determining the outcome, mindful always, which the magistrate clearly was, that the burden was on the prosecution to prove guilt and that this appellant was a person of previous good character, going both to his credit as a witness of truth and to a lack of propensity to commit crimes such as these.

15. As to the demeanour of the appellant, there is really only one reference to it at S19 where the magistrate says that he "carefully observed the demeanour of the appellant when he gave evidence in Court and his evidence was thoroughly considered, I found him not a credible nor honest witness, and his evidence was rejected. The Appellants evidence with respect to the events occurred on the material day was unbelievable and self-contradictory". It is clear from that passage that the magistrate was not seeking to make any great play on the fact that he relied on demeanour in any conclusive way. His rejection of the evidence of the defence case was based much more on an analysis of its inherent probabilities. He was there merely seeking to indicate that amongst other matters he had observed the appellant's demeanour which, of course, is quite proper and part of the means by which a trial court will decide which evidence is to be accepted and which is to be rejected. The magistrate's reference to demeanour is therefore perfectly unobjectionable.

16. That having been said, Mr McGowan reserves his main criticisms for the magistrate's analysis of the evidence, to which I must now turn. Complaint is made that the magistrate found the appellant's behaviour once the shopkeeper (PW2) decided to telephone the card centre all pointed to guilty knowledge and that that was unreasonable and failed to have any regard, or any sufficient regard, to the fact that this reaction was at least equally consistent with innocence. I paraphrase what Mr McGowan has submitted but that is the effect of that he has advanced. The main conclusion arrived at by the magistrate is that once the shopkeeper said that he would call the card centre the appellant then took steps to get the card back, say he would pay by EPS, then say he would go and get cash from an ATM and in that way make his excuses and leave. This evidence led him to conclude that the only possible inference was that he knew that this was a forged card which was about to be exposed as such by the card centre. The appellant has given his explanation for what he did, which was that he had looked into the wallet and saw that the other credit card belonged to a man, as did the Hong Kong Identity Card, both apparently belonging to the same person. This prompted him to ask for the card back from the shopkeeper so that he might check it. He did and discovered that it also belonged to the same man.

17. Mr McGowan submits that the magistrate had overlooked some important matters in rejecting the appellant's account. He did say that he could not believe that the appellant, a consultant of some sort, would present someone else's credit card because he should have realised that he would have to sign the payment slip. That was to overlook the fact, says Mr McGowan, that according to him, his friend was due to arrive shortly in order that she might sign. He was expecting that to happen. That is a fair point to make but of itself, that comment or, perhaps error, by the magistrate, is not in my judgment sufficiently grave so as to undermine his verdicts.

18. Another matter which Mr McGowan complains of is that the magistrate appears to have relied on the appellant's behaviour after the shopkeeper had "expressed query on the card". Mr McGowan says that the magistrate has proceeded on an erroneous basis of the evidence. At no time had the shopkeeper considered that the card was anything but a genuine one. He had not "queried" the card. I have looked at the passage in the Statement of Findings where the magistrate has dealt with this, and whilst he has expressed it in this way, it is clear from a fair reading of this part of his findings that all he was saying was that the shopkeeper told the appellant that he would have to clear the card with the card centre. I do not believe that he misunderstood the evidence. Whilst the magistrate could have expressed this part differently its true meaning is plain.

19. Then Mr McGowan says that the magistrate was wrong to draw the inference, from the appellant's behaviour in doing what he did by asking for the card back and in making his excuses to leave, that he must have known that the card were forgeries. Mr McGowan has made some "jury points" and I do not mean that in any pejorative sense, which he says point the other way. The appellant had taken his time in the shop in selecting his purchases, and he had bargained over the cost of some of the items, securing a $50 reduction on one of them, and that he wore a yellow suit, a memorable colour which would have drawn attention to himself. When the shopkeeper said that he needed authorisation from the card centre, he had said "no problem". The magistrate had been addressed on these matters and it seems to me that he was entitled to reject them as reasons which should have forced a doubt in his mind. For my part, whilst they were undoubtedly points that were worth making, they are hardly so weighty, alone or in combination, to affect the general conclusion reached by the magistrate. So this point must also go.

20. That leaves over Mr McGowan's main complaint as I see it, which is that the magistrate failed to grasp the significance of the discrepancies between the evidence of the shopkeeper and that of the police officer PW3 and that he did not adequately resolve these. He merely said that he believed the prosecution evidence when such a finding was not open to him. He could not accept all of that evidence. He was required to reject some of it in his resolution of these discrepancies.

21. Mr McGowan has helpfully prepared a schedule of the discrepancies at page 9 of his written argument. The first three relate to how the shopkeeper addressed the question of the card and the appellant's response to the fact that the shopkeeper was going to telephone for authorisation. It should be remembered that there was really no conflict between the evidence of the shopkeeper and of the appellant. Both give the same account of it The shopkeeper said that he would telephone the card centre and that the appellant said "no problem". The magistrate proceeded to decide the case on this basis and so, although the officer's evidence may have differed from that of the shopkeeper, it is clear that the magistrate had in fact accepted the shopkeeper's evidence which accorded with the appellant's. Perhaps the magistrate ought to have explained these matters more clearly than he did, but where the evidential basis that he proceeded on cannot be faulted, which accords with the defence case, I do not think that Mr McGowan can have any genuine cause for complaint.

22. Items 4 and 5 are really matters of broad impression. These are differences, but they hardly called for resolution. One cannot expect the court to deal with every single matter said to amount to a discrepancy and these two matters certainly were not weighty enough to require an explanation by the magistrate as to how and why he resolved the differences as to whether or not the appellant had come to get his card back, and as to the precise circumstances of his arrest. As to the former, the shopkeeper was likely to be right, and as to the latter the officer was much more closely involved. The magistrate was clearly alive to the points that mattered in this case. He carefully took into account all of the evidence, including that of the appellant and came to the view that the prosecution had proved its case. I do not consider that the criticisms now made of the magistrate are such that I should have any doubt as to the correctness of any of his verdicts. This appeal must therefore stand dismissed.

23. But in any event, it seems to me that the appellant's position, on his own account, could not stand for some additional reasons which do not appear to have been addressed at any point in the trial nor now on appeal.

24. I observe from the appellant's evidence that at no time did he indicate to the shopkeeper that this was his friend's credit card and that she would be arriving shortly to sign the payment slip, which perhaps would have been the thing to say when he initially proffered the card, which according to him he had assumed was her card, in her name and which the shopkeeper might have been expected to notice almost immediately. A man was presenting a woman's credit card for payment - that would have required immediate explanation. Reliance has also been placed on the fact that when the shopkeeper said he needed to check with the card centre, the appellant said "no problem", indicating the reaction of an innocent man who does not know that the card was a forgery. But there would have been a problem on the appellant's own version of it, if that were true, because he presumed the card was her card, a legitimate card and that would have been the moment for him to point out to the shopkeeper that this was his lady friend's card that she would be there presently to sign it. His reaction of "no problem", without the explanation that it was a lady's card, can only make sense in terms of a man presenting a credit card that was in a man's name and that, I would have thought, would have been sufficient to indicate that the appellant knew from the outset that he had handed in a man's card and not a woman's card, which should have given the lie to the rest of his explanations.

25. But as the case has not conducted on this basis I have not resolved the matters with this in mind. Plainly it is an additional reason that would have indicated the falsity of the appellant's evidence.