THE QUEEN v. WONG FU KEUNG

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JUGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant was convicted after trial by Mr. G.P. Muttrie sitting as a Deputy Judge of the District Court of being in possession of forged dies contrary td section 76(2) of the Crimes Ordinance, Cap. 200 and of handling stolen goods contrary to section 24(1) of the Theft Ordinance, Cap. 210. He was sentenced to 4 years' imprisonment on the first charge and to 2 years' imprisonment on the second, these sentences to be served concurrently. It is against both conviction and sentence that he how seeks leave to appeal.

2. The evidence for the prosecution was that the applicant, having first been detained by officers of the Immigration Department at Kai Tak Airport oh 25th September 1989, was taken by police officers to Tsim Sha Tsui Police  Station. There he was searched and found to be carrying in the inside pocket of his jacket a wallet which contained 13 credit cards, each bearing the name of a different person, and 9 travellers cheques, each of which was signed in only one of the two places reserved for the signature of the payer. The cheques had been stolen one month earlier from a Mr. Teng in Snenzhen and it was his signature which appeared on each of them.

3. After having been cautioned, the applicant stated that he had acted upon a moment's greed, that he had intended to take the cards and cheques to Korea to deceive Koreans and use them "for dancing". He then retracted this admission by stating that that he had merely been in possession of the cards and cheques. The judge however found that the applicant had voluntarily made the admission.

4. There was evidence from two witnesses that the process by which a credit card is made is that the particulars of the name and number of the card holder to be embossed on the card are fed into a dymo machine from a computer. These particulars are imprinted on a strip of metal which in turn comes into contact with a blank plastic card in the machine and imprints them onto the card by way of embossment omits face and indentation on its reverse side.

5. The applicant elected to give evidence. He denied that the travellers cheques had been found in his wallet. According to him they had been handed to him in a sealed envelope at the airport by a Filipino who owed him money. He had requested the Filipino to cash the cheques at the airport money changer but, as time was running short before the applicant's departure on an overseas flight, the Filipino simply handed him the envelope as he was entering the closed area. When he arrived at the police station, he was therefore unaware of what was in the envelope. However, when his statement was being recorded by a police officer, he took the envelope from his right side pocket, opened it, removed his wallet from the inside pocket of his jacket and transferred the credit cards and the cheques to one of the large compartments in his wallet.  His evidence was that he performed this manoeuvre while his left hand was handcuffed to the chair on which he was sitting. The police officer was so engrossed in recording the statement that he failed to notice what the applicant was doing. Contrary to the evidence of the police, the search in which the credit cards and travellers cheques were discovered on the applicant's person was not conducted until after the taking of the statement.

6. If this version of what had happened were true it would not have been possible to draw the almost irresistible conclusion that followed on acceptance of the police evidence that the applicant, having the cards and cheques distributed in his wallet in the way in which they were found, must have placed them there in full knowledge that they belonged to other persons and have intended to put them to improper use. It is not surprising that the deputy judge did not believe the applicant's highly improbable story.

7. Mr. McCoy, who appeared for the applicant in this court but not in the court below, originally filed three perfected grounds of appeal. At the hearing before us he abandoned two of these grounds and proceeded on the sole ground that the judge erred in law in ruling that the credit cards were dies within the meaning of the definition of that word in section 68 of the Crimes Ordinance. Section 68 defines "die" as follows:

"Die' includes any plate, type, tool, chop or implement whatsoever, and also any part of any die, plate, type, tool, chop or implement, and any stamp or impression thereof or any part of such stamp or impression."

8. Mr. McCoy submitted that a credit card is not a plate, type, tool, chop or implement or any part thereof in that it cannot make a permanent change in the structure of the paper slip with which it is brought into contact in order that the details embossed on it may be recorded. Moreover, he contended that, although subsections (2) and (3) of section 76 of the Crimes ordinance were not mutually exclusive, it was more reasonable and more in accordance with the natural meaning of the word "die" that a credit card, which in his submission was unquestionably a document corning within the meaning of subsection (3), should be treated as a document and not as a die. He submitted that where in criminal proceedings there are two reasonable interpretations the court should lean to that which is more favourable to the defendant, and that this principle was of particular relevance in the present case as the maximum sentence for an offence against subsection (2) is 7 years' imprisonment whereas that for an offence against subsection (3) is 3 years' imprisonment. Thus, according to Mr. McCoy if this court were to find that a credit card was not a die but a document, a conviction for being in possession of a forged document could be substituted by virtue of section 83A of the Criminal Procedure Ordinance Cap. 221.

9. However, our attention was not drawn to, nor are we aware of, any provision which would have enabled the deputy judge to have found the applicant guilty of an alternative offence which would in turn have empowered this court to substitute for the verdict of guilty found by him a verdict of guilty of possession of forged documents. Be that as it may, we are of the opinion that Mr. McCoy's submissions are fundamentally flawed. Indeed, during the course of further development of his argument Mr. McCoy frankly conceded that in view of the extended nature of the definition of "die", and in particular the reference therein to the words "chop" and "impression", he faced a formidable cask in seeking to make good his basic contention.

10. In the light of the evidence before the deputy judge and the manner in which transactions involving the use of credit cards are recorded, we have no hesitation in concluding that a credit card comes within the very wide definition of "die" in section 68. That being so the application for leave to appeal against conviction is refused.

11. With regard to sentence Mr. McCoy submitted that the overall sentence of 4 years was manifestly excessive. In his Reasons for Sentence the deputy judge referred to R. v. LEE wing-keung Cr. App. 76/90 Mr. McCoy suggested that in view of the sentence he imposed it is likely that the deputy judge misunderstood this case to have established a tariff which he was obliged to follow. We find no justification for thinking that the deputy judge did anything more than to have regard to it for general guidance.

12. We accept that in Lee Wing-keung the defendant actually used a forged credit card on two occasions whereas in the present case there was no evidence that the applicant had done so. However, in the light of his confession and the number of credit cards in his possession, there can be no doubt that he was on the verge of embarking on a spending spree involving their use. It is a notorious fact that the illegal use of credit cards has become widespread. Those who are engaged in this type of activity can expect to be dealt with severely by the courts. In our view the sentences are not excessive. The application for leave to appeal against sentence is also refused.