R. v. LEE WING CHEONG and Another

IN THE COURT OF APPEAL

1993, No. 695
(Criminal)

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J U D G M E N T   O F   T H E   C O U R T

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Macdougall, V.-P.:

1. The applicants, who were D2 and D3 at trial, were jointly charged with D1, who pleaded guilty, with conspiracy to defraud and a number of other related counts. Having been convicted after a contested trial before His Honour Judge Wilson in the District Court of the conspiracy charge, they now apply for leave to appeal against their convictions.

2. The particulars of the conspiracy charge were as follows:

Chan Yet-wai, Lee Wing-cheong, and Wong Tak-hung on the 22nd day of October, 1992, in Hong Kong, conspired together to defraud merchants, banks and the account holder of Visa Card No. 4938-8000-2356-0412 in the name of NG Wing-tsan issued by the Nanyang Commercial Bank, by dishonestly:-

(a) falsely representing that the person producing the said Visa card in payment for goods obtained from the said merchants was a person authorized to use the said Visa card,

(b) falsely representing that the person signing credit card sales slips in respect of the purchase of the said goods was a person authorised to do so,

(c) causing merchants to thereby provide the person producing the said Visa card with goods,

(d) stealing goods from the said merchants and executing sales invoices and credit card sales slips using the said Visa card to create the false impression that the said goods had been purchased by the account holder of the said Visa card.

3. The evidence for the prosecution was that during a period of 3 hours on the 22 October 1992 a false credit card ("the false credit card) in the name of Mr Ng Wing-tsan was used in a number of shops in the Tsimshatsui area to purchase a variety of goods. At the time, Mr Ng was in China and in possession of his genuine credit card. The shops at which the transactions occurred, the times of those transactions and the goods involved were as follows:

4. On each occasion the person who used the false credit card signed with what the judge described as a squiggle resembling the figures "2-11", and at the time of the commission of the frauds D2 was the manager of the Park Lane branch of City Chain. D1 and D3 were friends of D2.

5. A salesgirl at the Sasa Co. who had sold the cosmetics to a male person who presented the false credit card in payment for them was unable to identify him at an identification parade, but did identify cosmetics seized by the police from D1's premises on 23 October as being those which she had sold to the man. The Sasa Co. tag was still affixed to the cosmetics.

6. A salesgirl from the Boy London Shop testified that, on 22 October, two men each selected a variety of articles from her shop. The men, one of whom she later identified at an identification parade as D3, requested her to charge the items to one account. The other man then produced the false credit card to pay for them. The man whom she identified as D3 told her that he had just arrived from China, but she thought that this was strange as he did not have the appearance of a mainlander. This identification was not challenged in cross-examination.

7. A salesgirl from Enrico Co., which is located next door to Sasa Co., testified that, on the 22 October, a man entered her shop and, after trying on two pair of K-Swiss shoes, eventually bought them, saying that one pair was "for someone else". He used the false credit card to effect payment. She identified two pairs of shoes seized from D1's premises as being the same type, colour and size of shoes as those which she had sold to the man. Moreover, the serial number on the boxes in which the shoes were found were the same as those recorded on the sales memorandum. She also identified D2 at an identification parade as being the man who bought the shoes from her. At the conclusion of her evidence, in response to the question "How certain were you of the man when you pointed him out?", she replied that she had been "half certain" that D2 was the man.

8. A salesgirl employed by Theme Shop in Tsimshatsui gave evidence that after 9 o'clock on the same evening a man entered her shop and bought two pairs of K-Swiss shoes saying that he was buying them for another person. He then used the false credit card to buy the shoes. She later identified those shoes from the boxes in which they had been found at D1's premises because the boxes bore numbers used by the Theme Shop and matched those which she recorded on the sale documentation. She also identified D2 at an identification parade as the man who had bought the shoes. He had spent some 10-15 minutes in the shop. At the trial, which was held a year later, she pointed to D1 as the man, although she went onto say that her memory at the identification parade was better than what it was at the trial.

9. Another witness, a salesgirl from the Puma Shop in Tsimshatsui, testified that at about 6.45pm on 22 October a man entered the shop and asked what value of goods he would need to purchase in order to receive a discount. When told that it was $6000, the man began to choose track suits and shoes. He then asked for a calculator to add up the prices of the goods he had selected. On being told that he was still short of the $6000 figure, he selected more track suits and some underwear. He then produced the false credit card and signed. The salesgirl was present with the man for the entire period of 30 minutes that he was present in the shop.

10. On 24 October, the salesgirl identified seven Puma tracksuits and four pairs of shoes as being items which she had sold to the man. The labels on the tracksuits were unique to her Puma Shop, and the Puma shoes were the same size as those which she had sold to the man. Furthermore, their laces were unattached to the shoes. She recalled that this was the condition in which she had sold them. She recalled that it had struck her as strange at the time that someone would buy shoes without trying them on for size. Later she identified D2 at an identification parade as the man to whom she had sold these items and who had presented the false credit card.

11. The remaining three prosecution witnesses were all employees of the Park Lane Square branch of City Chain.

12. One of those witnesses, a Mr Andy Lam, testified that on 22 October D1 and D3, who had come to the shop on previous occasions to visit D2, arrived at the shop and that at 5pm the three of them retired to the office at the rear of the shop and closed the door. When they emerged, Mr Lam noticed that D2 had changed his City Chain tie for an ordinary tie and that he and D1 and D3 then left the shop and returned some time after 7pm, carrying shopping bags and again retired to the office.

13. A few minutes later, D3 left the office and inquired an employee, a Miss Chan, about the model number of a Universal Geneve watch that was on display in the shop. After this information had been given to Lam by Miss Chan, the three defendants again left the shop and returned after 9pm again carrying shopping bags. Again they all went into the office. One of the bags was seen to have K-Swiss marked on it.

14. Much to Mr Lam's surprise, D2 then presented him with a new shirt which was still in its original wrapping. This shirt was identical to the one which the salesgirl at the Boy London Shop had said that she had sold to the men on 22 October. Mr Lam saw D2 present a similar shirt to Miss Chan.

15. On the following day D2 told Mr Lam that, if anyone should inquire about him, Mr Lam, should say that he, D2, was in the shop that morning. A few days later Mr Lam overheard D2 say over the telephone that D1 and D3 had been arrested and that D3 was "all right" as a solicitor had been instructed.

16. Within a few days of the fraudulent transactions D2 telephoned Mr Lam at home at the most unusual hour of 1am and told him that in the event that anyone inquired as to his, D2's, whereabouts on a certain date, Mr Lam was to say that he could not remember when D2 was absent from the shop. Mr Lam could not remember what date it was that D2 had mentioned, but he recalled telling D2 that he would do his best.

17. Then on abut 28 October D2 telephoned Mr Lam while he was at work and told him that he had used Mr Lam's number to buy a Universal Geneve watch on 22 October, that if anyone was to inquire, Mr Lam should say that two persons had made the purchase and that one of them was Mr Lam's friend and that, after the credit card had been run, the customer's identity card number had been jotted down and given to D2 for checking.

18. The Universal Geneve watch was recorded on documentation as having been sold under Mr Lam's staff number and name but in fact he did not carry out or authorize any such transaction. The same false credit card had been used to create a cash sales memo and a credit card sales slip in respect of the watch.

19. Miss Chan confirmed Mr Lam's evidence that D1 and D2, who had previously visited D2 at the shop and with whose names she had become familiar, visited D2 at the shop on 22 October and that at some time between 5.30 and 6pm D2 replaced his company tie with his own tie and left the shop with D1 and D2, telling Miss Chan to take charge.

20. Later she saw all three defendants return to the shop carrying items of clothing and shoes in Puma, K-Swiss and Theme bags. They deposited these items in the rear room. She further testified that the three defendants "went out and came back that evening two times". She then said that D1 and D3 went out again and returned less than an hour later carrying items of clothing and shoes in shopping bags. Miss Chan testified that D2 presented Mr Lam and her with a shirt each without giving any reason for so doing. D1 and D3 left the shop at about 9.45pm, taking all the shopping bags and their contents with them. D2 left at closing time, which was 10pm.

21. Miss Chan confirmed that D3 had asked her to tell him the number of a Universal Geneve watch which was on sale in the shop. Some time later she heard D2 say that "Ah Wai", which was the name by which D1 was known, had been arrested. D2 told her that if the police made enquiries concerning his movements, the staff were to say that he had been in the shop "in those few days".

22. Miss Fung, another employee at the City Chain shop testified that, on 23 October, D2 told her that if anyone was to ask where he had been that morning she was to say that he had been present in the shop.

23. On the afternoon of 24 October D2 presented Miss Fung with a Boy London shirt for no apparent reason; saying that he had also given shirts to Mr Lam and Miss Chan. He had never given her a present before. The shirt was the same type of shirt as had been bought from the Boy London store with the false credit card.

24. A ladies handbag which was identical to that bought at the Boy London shop with the false credit card was found by the police at premises occupied by D2's wife.

25. Neither D2 nor D3 gave evidence. D1, as previously mentioned, had pleaded guilty to the conspiracy charge.

26. In his Reasons for Verdict the judge set out the evidence to which we have referred. While noting that there had been variations between the evidence given by two of the witnesses regarding times, he concluded that the direct and circumstantial evidence against D2 was overwhelming and that, although D3 had been identified as having been present in one of the shops in Tsimshatsui in which fraudulent transactions had been carried out on the evening of 22 October, he was satisfied that he too was a member of the conspiracy.

27. It was contended in this Court by Mr Wong for D1 that there was a material irregularity at the trial in that the judge wrongly ruled that the Crown had justified the joinder of the conspiracy charge with substantive obtaining property by deception charges.

28. We do not agree. These substantive charges were stated to be alternative charges to the conspiracy charge. In making out the conspiracy charge it was inevitable that evidence as to the events to which the substantive charges related would be given. We do not think that the judge erred in ruling as he did. The Crown had to cover the possibility that since only one man had been present at all but one fraudulent transaction, the court might conclude that each fraud had been committed by different persons acting independently of each other. The Crown was entitled to bear this possibility in mind in framing the charges and seeking to proceed on both the conspiracy and substantive charges. The judge was entitled to exercise his discretion to allow the charges to be tried together.

29. Mr Wong also contended that the judge did not sufficiently analyse the evidence; that he drew adverse inferences from evidence which was capable of supporting equally innocent inferences; that he failed to resolve discrepancies on the evidence and that he failed to state how he had concluded that D1, D2 and D3 were involved in one conspiracy.

30. In our view these criticisms are not justified. A judge is not obliged to enter into an exhaustive analysis of every piece of evidence given at the trial. The evidence which he was at pains to set out, when considered overall, compellingly led to the conclusion that D2 had entered into a conspiracy to defraud.

31. It is true that the judge did not refer to what Mr Wong contends was a contradiction between Miss Chan's assertion that all three defendants went out and returned on two occasions that evening and her later testimony that D1 and D3 "went out again". Although counsel understood Miss Chan to have been amending her evidence it seems that the judge did not view it in the same way. In considering whether it could properly be concluded from Miss Chan's testimony that she was saying that the three defendants went out and returned twice on that evening, Mr Lam's evidence that the three men had done so is of considerable assistance. Be that as it may, even if it were accepted that he had left the City Chain shop with D1 and D3 only once that evening, the evidence against D2 was overwhelming.

32. The judge was required to look at the evidence as a whole. While it is true that single piece of evidence considered in isolation may not be sufficient to prove a charge, it is trite to say that an accumulation of all of the items of evidence may constitute proof of guilt.

33. In order to make good the conspiracy charge it was not necessary to prove that all three defendants entered each shop at which the frauds were perpetrated. The fact that the same squiggle was made on the transaction docket in each case, that the three defendants had gone out together that evening and that goods which were the proceeds of the frauds were brought back to the City Chain shop on two occasions was very telling evidence. Moreover, D2 and D3 were each identified by salesgirls at identification parades as having been involved in different fraudulent transactions involving the same credit card in respect of goods which were later found at the home of D1. And, as already mentioned, an article concerned in the fraudulent transaction at the Boy London Shop was found at D2's wife's home. While we accept that the strength of the identification of D2 by the salesgirl at the Enrico shop was weakened as a result of the question to which we have referred, and which this court has frequently disapproved of as illogical and misleading, the other evidence, including that of his identification by two other salesgirls put the matter beyond any doubt.

34. We are satisfied that the judge was fully aware of the evidence given at trial which counsel submitted to him had detracted from the reliability of two of the identifications of D2. We repeat that he was entitled to look at the evidence as a whole in determining whether it persuaded him of the guilt of the applicants.

35. It was contended by Mr Wong and also by Mr Macrae, who appeared on behalf of D3, that by saying "D2 was in and out and about with both D3 and D1, an admitted conspirator" the judge wrongly took into account in determining the cases of D2 and D3 on the conspiracy charge the fact that D1 had pleaded guilty on the conspiracy charge.

36. There can be no doubt that this was a most unfortunate observation by the judge. However, it is clear that goods which had been obtained by different males from each of the shops in which the frauds were perpetrated were found at D1's home. Even in the absence of D1's plea of guilty the judge would have been left in no doubt on the evidence before him that D1 was involved in a conspiracy.

37. Criticism was also made of the judge's finding that D2 had "attempted to persuade all of the staff to set up an alibi". Mr Wong submitted that, since no specific time had been mentioned, what D2 had said could not constitute an attempt to set up an alibi. We reject this submission. D2's request to Miss Chan that, in the event of an inquiry, the staff were to tell the police that he had been in the shop "in those few days", clearly covered the night of 22 October.

38. Mr Wong further submitted that the judge was wrong to rely on the evidence that "D3 had made a preliminary inquiry about [the Universal Geneve] watch when D2 was present". The judge was referring in that passage to the evidence that, after the three defendants had returned to the office and closed the door, D3 emerged and made the inquiry. This was perfectly correct. The judge was analysing the evidence relating to a conspiracy charge. It was therefore pertinent to determine whether one or more persons were involved. This evidence had to be considered in the light of the other events of that evening, the fact that D2 was the manager of the shop and the admissions that he had made to Mr Lam about the purchase of the Universal Geneve watch on 22 October.

39. We find no substance in Mr Wong's complaint that the judge treated as an admission by D2 the evidence that D2 had told Mr Lam that he had used Mr Lam's staff number to buy a Universal Geneve watch and had instructed Mr Lam to say, if asked, that two persons, one of whom was Mr Lam's friend, had come to purchase it, and that, after the credit card had been run, the customer's identity card number had been jotted down and given to D2 for checking.

40. Lastly we reject the contention that Mr Lam's evidence was clearly unreliable because he had used the expressions "it seems" and "it appears" on a number of occasions during the course of his evidence. We have examined each such instance and are satisfied that they were not such as to lead us to conclude that Mr Lam's testimony was unreliable on material matters or that the judge was in error in placing weight on it.

41. Indeed, on several material matters such as the evidence that the three defendants had left the City Chain shop together; that they had returned carrying shopping bags containing clothes and sports shoes; that D3 had made the inquiry about the model number of the Universal Geneve watch; and that D2 had made a request that lies should be told about his whereabouts, Mr Lam's testimony was supported by that of Miss Chan.

42. We now turn to other grounds which were advanced by Mr Macrae on behalf of D3. Leaving aside the evidence as to D3's inquiry in the City Chain shop prior to the bogus transaction concerning the Universal Geneve watch, Mr Macrae correctly submitted that there was no evidence that D3 had entered any of the shops in which the false credit card was used other than Boy London shop; that he was accompanied by another man on that occasion; that it was that other man who produced the false credit card and signed the credit card slip; and that on all other occasions when the false credit card was used only one man was present in the relevant shop.

43. Mr Macrae submitted that the evidence against D3, put at its highest, was his association with D1 and D2, his presence at Boy London shop and his presence at City Chain shop. He queried whether it could properly be inferred from this evidence that D3 must have agreed to participate in the use of a false credit card to obtain goods on the evening of 22 October.

44. However, the evidence also disclosed that D3 and his companion had each selected items at Boy London shop and that both had told the salesgirl to charge these items to the same credit card. On both occasions when D3 left the City Chain shop he returned with the others carrying goods which were undoubtedly obtained with the use of the false credit card. He made the inquiry concerning the model number of the Universal watch at about the same time as the preparation of the document which falsely purported to represent the details of a sale by Mr Lam of a Universal Geneve watch bearing the same model number. The judge was justified in finding that D3 was not a mere innocent dupe, as Mr Macrae submitted was all that the evidence disclosed, but was a member of a conspiracy with D1 and D2 to defraud as alleged.

45. Moreover, since D3 did not elect to give evidence there was no innocent explanation for his conduct before the judge to weaken the inference of guilt. The applications for leave to appeal against conviction are therefore refused.