HKSAR v. HO KA YEE

CACC171/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 171 OF 2007

(ON APPEAL FROM DCCC66 OF 2007)

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J U D G M E N T

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Burrell J (giving the judgment of the Court) :

1. On 27 May 2007 the applicant was convicted after trial of two offences of obtaining property by deception, contrary to section 17(1) of the Crimes Ordinance, Cap. 210 and was sentenced to 30 months’ imprisonment by Judge Chua in the District Court.

2. Her application for leave to appeal against conviction was refused by Cheung JA on 26 March 2008.  She now renews her application for leave before this court.

The facts

3. On 1 February 2005, two females entered the Sa Sa Cosmetics shop in Tsing King Road, Tsing Yi.  They were attended to by one of the staff of the shop, Ms Ho Fei Yin who was PW1 at the trial.  The prosecution case was that one of the two females was the applicant and the other was a Ms Siu Kwan Yee.

4. Some cosmetics were selected for purchase.  The applicant presented a DBS Bank Visa Card for payment but it did not work.  She then presented an HSBC Master Card.  This card worked successfully and the purchase slips were duly printed out.  However, PW1’s suspicions were aroused by the blurred logo on the card.

5. PW1 started to make enquiries with a view to verifying the card.  At this moment Ms Sui left the shop and the applicant retrieved her Master Card from PW1’s hand and hurriedly followed Ms Sui out of the shop.  PW1 pursued them and they started to run.  Luckily there were two uniformed police officers nearby.  One of them, PW4, had already noticed the two women running.  PW1 very briefly explained what had happened in the shop and the police then ran after the women and stopped them nearby.

6. PW1 arrived at the scene very soon after and identified the woman who was by then in the custody of PW4 as the woman who had used the two credit cards.

7. At trial the only issue was one of identification.  No challenge was made to the details of the transaction in the shop and it was not disputed that the credit cards used had been forgeries.  It was accepted that the offences had been committed.  The applicant’s defence at trial was that the evidence did not prove to the necessary standard that she had been in the shop and used the credit cards as alleged.  She elected not to give evidence.

8. The judge’s evaluation of the evidence cannot be faulted.  She was aware of the dangers in identification cases and the guidelines in R. v. Turnbull.

9. She correctly concluded that this was not a fleeting glance case.  The applicant had been in view of PW1 in normal daylight conditions for about 10 minutes.  PW4 had seen the applicant and Ms Sui running soon after they had left the shop and the applicant had never left his sight up to the moment of arrest less than a minute later.  There can be no criticism of the judge’s finding that the identification evidence which implicated the applicant was correct.

10. An issue arose at trial as to the colour of the applicant’s jacket.  PW1 had described it as dark grey, whereas PW4 had said it was black.  The judge considered this to be a minor discrepancy which had no bearing on the correctness of the identification or the credibility of the prosecution witnesses.

11. The judge also considered the fact that no credit cards were found on the applicant at the time of her arrest.  In the context of the totality of the evidence it was reasonable and proper for her to conclude that “although PW4 did not notice the defendant discard the cards, I have no doubt she had done so as she ran which may explain her remark to PW4 regarding the lack of evidence”, the remark being “Ah sir, you have no evidence, how can you arrest me?”

12. The applicant, who has appeared in person, has not filed any written grounds in support of her application.  She has been given the opportunity to address the court today but has raised no new issues which require our further consideration.

Conclusion

13. Having considered the whole of the evidence, the judge’s written reasons for verdict and the applicant’s submissions, we find there to be no merit whatsoever in this application and we dismiss it.