HKSAR v. KHALIFA ABDUL NASSOR AND OTHERS

DCCC 928/2018

[2019] HKDC 1176

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 928 OF 2018

--------------------------

--------------------------

--------------------------------

R U L I N G

--------------------------------

1.  There are 3 defendants in this case.  The Amended Charge Sheet contains a total of 12 charges. 

2.  The 1^st Charge is a joint charge against the 1^st Defendant (D1) and the 2^nd Defendant (D2) for the offence of conspiracy to steal, contrary to section 9 of the Theft Ordinance (Chapter 210) and sections 159A and 159C of the Crimes Ordinance (Chapter 200).  D1 pleads not guilty to this charge.  D2 pleaded guilty and was sentenced on 20 June 2019.

3.  The 2^nd and the 3^rd Charge are each for the offence of theft, contrary to section 9 of the Theft Ordinance.   The 3^rd Defendant (D3) is the only defendant charged in these two charges.  D3 pleads not guilty.

4.  The 4^th to the 11^th Charge are each for the offence of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance.  The 12^th Charge is for the offence of breach of condition of stay, contrary to section 41 of the Immigration Ordinance (Chapter 115).  D1 is the only defendant.  D1 will plead guilty to these charges.

5.  Hence, there will be a trial involving only the 1^st to the 3^rd Charge.  Trial dates have already been fixed.  The trial will commence on 18 November 2019 with 5 days reserved.

6.  Mr. Duncan Percy, learned counsel for D1, applies on behalf of D1 that D1’s trial should be severed from that of D3.  D3 takes no part in the hearing of this application.

7.  Miss Samantha Chiu, Senior Public Prosecutor acting on behalf the prosecution, opposes the application.

Ruling

8.  Having heard and considered submissions from Mr. Percy and Miss Chiu, I rule that the trial of D1 is to be severed from that of D3 with reasons for the decision to be handed down in writing.  

9.  I now state the reasons for the ruling.

The prosecution’s case in respect of the 1^st to the 3^rd Charge

10.  According to the Amended Summary of Facts dated 27 November 2018 and the submissions of Miss Chiu, the prosecution relies almost entirely upon the evidence of a Mr. Lei Chong Fung (PW1) to support the 1^st Charge against D1 and the other two charges against D3.

11.  PW1 is named as one of the co-conspirators in the 1^st Charge.  He will testify under immunity against D1 and D3.  The prosecution says that his evidence will prove the following facts:

(a) PW1 started working in a 7-11 Convenience Store (“the Store”) since February 2015 as a night shift cashier.

(b) In September 2017, D3 approached PW1 and asked PW1 if there were any people of African descent “testing credit cards”[1] at the Store.  PW1 said he would keep an eye and inform D3.

(c) In February 2018, D1 and D2 started frequenting the Store.  PW1 noticed that D1 made use of different credit cards bearing different names.  D1 and D2 told PW1 that the cards were stolen property.

(d) In early March 2018, D1 asked PW1 to help testing stolen credit cards for him with the credit card terminals in the Store. D1 said he would reward PW1 with things like wine and cigarettes for his assistance.  PW1 agreed.  PW1 also gave D3’s telephone number to D1 and told D1 that D3 could withdraw cash from credit cards.

(e) On 18 March 2018, pursuant to the agreement with D1, PW1 helped D2 make use of a stolen credit card to settle a transaction of HK$1,394 at the Store (the 1^st Charge).

(f) On 24 March 2018, D3 made use of a stolen credit card at the Store to settle two transactions, one of HK$570 and the other of HK$500 (the 2^nd and the 3^rd Charge).

(g) On 27 March 2018, D1 asked PW1 to contact D3 because D3 could not communicate with him in English.  PW1 called D3, but D3 did not pick up the phone.  When PW1 eventually reached D3, D1 had already left the Store.

(h) On 28 April 2018, D1 and an unknown person queued up for payment in the Store.  PW1 knew they were going to test the validity of credit cards again.  The unknown person repeatedly murmured in English “work? It’s (sic) work”.  Since PW1 knew that the CCTV in the Store also made audio record, he immediately sent a text message to D1 via WhatsApp, reminding D1[2] not to let the unknown person speak recklessly.  D1 replied, “Okay.”  When it was D1’s turn to pay, D1 presented to PW1 a credit card for the purchase of some cigarettes.  PW1 declined the transaction and returned the card to D1.

D1’s submissions

12.  Mr. Percy submits that there is no CCTV or other evidence to show that D1 and D3 were present together in the Store during the relevant period of time when purchases were made, nor that D1 and D3 knew each other.  There is also no evidence to show that the credit cards that D1 and D3 used were obtained in the same way, or that they were acting in a joint enterprise, or their acts were connected in any way. 

13.  Mr. Percy stresses that the prosecution cannot establish on a prima facie basis that D1 and D3 ever knew each other, and that the only common factor between D1 and D3 is PW1.  Mr. Percy points out that a joint trial will only serve the purpose of sparing PW1 from giving evidence on two separate occasions, but the convenience of a prosecution witness is not a justification for holding a joint trial for D1 and D3.

Prosecution’s submissions

14.  Miss Chiu submits that the prosecution evidence shows that D1 and D2 forming one party and D3 as the other party approached PW1 separately for the purpose of testing stolen credit cards, and that PW1 as a middleman introduced the two parties to one another.  Miss Chiu disagrees that there is no prima facie evidence to prove that D1 knew D3. Miss Chiu further submits that the 1^st to the 3^rd Charge were so related in terms of time, location, common witness and modus operandi that the interest of justice will be best served by having D1 and D3 tried together.  Alternatively, Miss Chiu submits that these 3 charges are part of a series of offences of the same or a similar character that should be jointly tried together.

The applicable legal principles

15.  Mr. Percy and Miss Chiu have no disagreement over the applicable legal principles.

16.  Section 18(1) of the Criminal Procedure Ordinance (Chapter 221) provides:

“Subject to the provisions of the rules made under this Ordinance, charges for more than one offence may be joined in the same indictment.”

17.  Rule 7 of the Indictment Rules (Chapter 221) stipulates that charges for any offences may be joined in the same indictment “if those charges are founded on the same facts, or form or are a part of a series of offences of the same or similar character”.

18.  Section 23(3) of the same Ordinance on the other hand provides that:

“Where, before trial or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of his being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.”

19.  The above statutory provisions deal with joinder of charges, but D1’s application involves the appropriateness of joinder of defendants.  Although there is no express statutory provision governing this situation, I accept the submission of Miss Chiu which is not disputed by Mr. Percy that the proper test was propounded by Sachs J. in R v Assim [1996] 2 QB 249, at 261 B-D:

“Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interest of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases.”

20.  In R v Christou [1997] AC 117, at 129 D-F, Lord Taylor of Gosforth considered the factors that should be taken into account in determining whether trials of different charges in the same indictment should be severed:

           “Lord Lane C. J., in the quoted passage, refrained from specifying the factors a judge should consider when “taking into account all things he should”.  They will vary from case to case, but the essential criterion is the achievement of a fair resolution of the issues.  That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means the exhaustive list, of the factors which may need to be considered are: -- how discrete or inter-related are the facts giving rise to the counts, the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. …”

21.  There is no dispute that the same factors should also be considered when it comes to the question whether different defendants should be tried in the same trial. 

Reasons for the Ruling

22.  The outcome of D1’s application for severance depends on the answers to the following two questions:

(a) Are D1 and D3 properly joined in the same charge sheet?

(b) Even if the answer to (a) is yes, should the court exercise its discretion to order the trial of D1 and D3 to be severed?

23.  The answer to the first question depends on whether or not there is any factual nexus in the alleged offences linking D1 and D3 which makes it in the interest of justice to try D1 and D3 and the offences together.  In other words, although D1 and D3 are charged in different counts, upon the evidence alleged by the prosecution, are these offences allegedly committed by D1 and D3 in substance the same event, or do they arise out of the same event or series of events?

24.  According to the particulars of offence stated in the 1^st Charge, the prosecution alleges that “between the 1^st day of February, 2018 and the 28^th day of April, 2018”, D1 and D2 conspired together and with PW1 to “steal a chose in action, namely, a debt in the sum of $1,394 Hong Kong currency owed by Hang Seng Bank Limited” to the victim named therein.

25.  It is clear from these particulars that D3 was not named as one of the co-conspirators of the alleged conspiracy.

26.  It is also clear from these particulars that the prosecution is alleging that D1, D2 and PW1 had entered into an illegal agreement to commit a specific crime, namely, to “steal a chose in action, namely, a debt in the sum of $1,394 Hong Kong currency owed by Hang Seng Bank Limited” to the victim named therein. 

27.  It is further alleged from these particulars that D1, D2 and PW1 entered into the illegal agreement at some point in time “between the 1^st day of February, 2018 and the 28^th day of April, 2018”.

28.  As to the evidence the prosecution may produce to prove the 1^st Charge, references have to be made to the Amended Summary of Facts dated 27 November 2018 and Miss Chiu’s written submissions dated 28 August 2019.

29.  It is alleged that D3 approached PW1 in September 2017.  It is not alleged that D1 or D2 was present or involved in that meeting.

30.  It is further alleged that D1 and D2 started frequenting the Store in February 2018 and got acquainted with PW1.  PW1 noticed that D1 used different credit cards bearing different names to make purchases, and he was told by D1 and D2 that the credit cards were stolen property.  It is therefore not alleged that PW1 came to know D1 and D2 through D3, or that D1 admitted to PW1 that he obtained the stolen cards from D3.

31.  The prosecution alleges that in early March 2018, D1 invited PW1 to help testing stolen credit cards for him with the credit card terminals in the Store, and offered to reward PW1 with wine or cigarettes, and that PW1 agreed.  It is not alleged that D3 had played any part in bringing D1 and PW1 together, or in some other way contributed to the making of this illegal agreement.  It is also not alleged that this illegal agreement involved using stolen credit cards to be provided by D3.

32.  According to PW1, the conspiracy referred to in the 1^st Charge was executed on 18 March 2018 when he helped D2 use a stolen credit card to settle a transaction of HK$1,394 at the Store pursuant to the agreement he had made with D1.  It is not alleged by the prosecution that D3 played any part in carrying out the conspiracy, or that he had a share in the illegal gains.  It is not even said that D3 was aware of this crime.

33.  As far as the 2^nd and the 3^rd Charge are concerned, it is the prosecution’s case that D3 made use of a stolen credit card at the Store on 24 March 2018 to settle two transactions for the sums of HK$570 and HK$500 (Charges 2 and 3).  The offence date was subsequent to the time when the illegal agreement referred to in the 1^st Charge was made as well as after the date when that illegal agreement was carried out.  It is also not alleged that D1 played any part in these crimes committed by D3, or that D1 shared in the illegal gains, or that D1 was aware of these crimes.

34.  It is also important to note the other parts of PW1’s evidence.  According to paragraphs 15 and 18 of Miss Chiu’s written submissions, PW1 will testify that when D1 invited him to help test stolen credit cards in early March 2018 and he agreed to help, PW1 also gave the telephone number of D3 to D1 and told D1 that D3 could withdraw cash from credit cards.  Then, on 27 March 2018, D1 asked PW1 to help him contact D3 because D3 could not communicate with him in English.  PW1 then called D3 but D3 did not pick up the call.  By the time when PW1 finally reached D3, D1 had already left the Store.

35.  From such parts of PW1’s evidence, the only reasonable and irresistible inference is that in early March 2018 when PW1 agreed to help testing stolen credit cards, D1 and D3 were not known to each other, otherwise it would not be necessary for PW1 to provide the telephone number of D3 to D1.  This state of affairs that D1 and D3 did not know each other must have continued at least until 27 March 2018 because, while it might be inferred that D1 had made a telephone call to D3 sometime before that day, D1 was unable to communicate with D3 because of D3’s language ability in English.  When D1 and D3 were unknown to each other or they could not communicate with each other by as late as 27 March 2018, it must be impossible for D3 to have played any part in the making or the execution of the alleged conspiracy referred to in the 1^st Charge because the prosecution says that the conspiracy had already been carried out on an earlier date, i.e. 18 March 2018.

36.  I also note that even Miss Chiu has stated in paragraph 19 of her written submissions that “the prosecution evidence shows that two parties engaged in credit card fraud separately approached the immunized witness [PW1] for the purposes of testing stolen credit cards”. 

37.  For completeness, I refer to paragraph 8 of the Amended Summary of Facts which alleges that on 28 April 2018 when D1 together with an unknown person appeared in the Store intending to test stolen credit cards and the unknown person kept on asking in English whether or not the cards could work in his murmurs, and PW1 sent a text message to D1 via WhatsApp reminding “D3” not to let that person speak recklessly since the CCTV in the Store also made audio recording.  Miss Chiu confirms that the reference in that paragraph to D3 is a typing error, and that PW1 was sending a message to D1 to remind D1 not to let that unknown person speak recklessly.  In other words, D3 was not linked at all to the event that allegedly occurred on 28 April 2018.

38.  From the above analysis, it is clear that there is not a scintilla of evidence that may suggest that D1 and D3 were linked in any way in the commission of any of the offences alleged against them.  In the absence of any factual nexus that brings or may bring D1 and D3 and their alleged offences together, I hold that it is improper and wrong to join D1 and D3 together in the same Charge Sheet.

39.  In my view, if there is any chance for D1 and D3 to be joined together in the same Charge Sheet, it must be that PW1 is also named as one of the defendants.  It is clear from the prosecution allegation that PW1 made use of his position as the night shift cashier of the Store and accepted D1, D2 and D3 using stolen credit cards to make purchases, knowing or believing that these credit cards were stolen ones, so as to facilitate the commission of the offences by these defendants. PW1 had therefore committed a series of offences arising out of the same event and of the same character.  Hence, if PW1 had been charged, it would have been proper to charge him together with D1 and D2 in the 1^st Charge, and charge him together with D3 in the 2^nd and the 3^rd Charge in the same Charge Sheet.  In that manner, D1 and D3 could have been indicted together in the same charge sheet because the trial of PW1 necessitated the involvement of D1 and D3.  However, this is not the position here.  PW1 is not charged.  He is to give evidence under immunity against D1 and D3.  As I see it, the position is no different from the situation where when PW1 was working as a cashier in the Store, two persons stole goods on display inside the Store on two different occasions.  Although both offences occurred in the same place and the same witness (i.e. PW1) will give evidence for the prosecution, it is beyond argument that these two persons will not be prosecuted together in the same Charge Sheet as their offences were completely distinct and separate.

40.  Since I find that it is improper and wrong to join D1 and D3 together in the same Charge Sheet, this ground alone will be sufficient for me to rule that the trial of D1 should be severed from that of D3. 

41.  If I were wrong in this ruling, I shall still exercise my discretion to order severance of the trials.  In my view, if D1 is to stand trial together with D3, the rights of D1 and/or D3 to have a fair trial may be jeopardized because evidence prejudicial to both or either of them may be allowed to creep in.

42.  First, if there is a joint trial involving D1 and D3, PW1 will be allowed to give evidence on the alleged conversation between PW1 and D3 in September 2017 in which D3 asked PW1 if there were people of African descent testing stolen credit cards in the Store.  This piece of conversation implies or may imply that people of African descent were prone to commit credit card fraud.  D1 is a Tanzanian.

43.  Second, if there is a joint trial, PW1 may be allowed to testify that he had told D1 that D3 was able to withdraw cash from stolen credit cards in early March 2018 when D1 invited him to help testing stolen credit cards.  This piece of evidence is prejudicial to the interest of D3 because, even though D3 did not take part in this piece of conversation, it may create an impression in the mind of a fact-finder that D3 could withdraw cash from stolen credit cards, but this is not the allegations raised in the charges that D3 is facing.  The allegation in the 2^nd and the 3^rd Charge is only that D3 used a stolen credit card to make purchases in the Store with the assistance of PW1 on one particular day.  It is also prejudicial to the interest of D1 because it is not alleged in the particulars of the 1^st Charge that D1 was involved in any conspiracy to use stolen credit cards to obtain cash.  In addition, PW1 may also be allowed to give evidence on the alleged event that occurred on 27 March 2018 when it is alleged that D1 asked for PW1’s help to contact D3.  This piece of evidence may create an impression in the mind of a fact-finder that D1 was interested in teaming up with D3 to commit other offences, i.e. using stolen credit cards to obtain cash, but the particulars of the 1^st Charge only allege that D1 conspired with D2 and PW1 to commit a specific crime of using a stolen credit card to make purchase worth HK$1,394 in the Store. Evidence of this kind is prejudicial to the interests of D1 and/or D3.

44.  It has been said that the trial judge can give proper direction to himself as to what evidence can be used and cannot be used to prove the allegations against the defendants, and that the trial judge, being a professional judge, can ignore prejudicial evidence so that there is no danger to have an unfair trial.  Even so, it does not mean that so long as it is a trial by a professional judge, it is not necessary to consider whether different defendants and the offences allegedly committed by them are properly joined in the same charge sheet.  In my view, it is not right to put the trial judge at the edge of any possible pitfall, and the trial should not be made unnecessarily complicated by the possible inclusion of irrelevant and/or prejudicial evidence.  In any event, any possible room for error should be removed as soon as possible after it has been spotted.

45.  Miss Chiu refers to the inconvenience that PW1 may suffer if he has to testify in two different trials, and cites the case of HKSAR v Zheng Wan Tai [2000] 1 HKLRD 839 to support the proposition that the Court must consider the inconveniences to witnesses if separate trials are ordered.  While this is a factor that must be taken into account, it is my view that the inconvenience to PW1 is only minimal, and that any inconvenience will be balanced out by the fact that he is not charged with any of the alleged offences when, according to his own evidence, he had played a major role in these alleged offences.  It is his evidence that he knew or believed that the credit cards used by D1, D2 and D3 were stolen ones.  He was therefore definitely in a position to prevent the commission of the offences by D1, D2 and D3 if he had performed his duty faithfully as the cashier of the Store.  But on his own version, he failed in his duty for the purpose of getting personal gains.

46.  For these reasons, even if D1 and D3 were properly joined together in the same Charge Sheet (which I hold not to be so), I will exercise my discretion to order the trial of D1 to be severed from that of D3 to ensure that each and every defendant will receive a fair trial.  In my judgment, the interest of justice will be best served when the trial of D1 and that of D3 are to be held separately.