HKSAR v. DASHPAL SINGH

CACC 176/2021

[2023] HKCA 182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 176 of 2021

(ON APPEAL FROM DCCC NO. 798 of 2019)

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REASONS FOR JUDGMENT

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Introduction

1.  The applicant (D1 at trial) was charged with 4 counts of theft[1] (Charges 1, 2, 3, and 7), 1 count of attempted theft[2] (Charge 4) and 1 count of possession of five identity cards relating to other persons[3] (Charge 8).

2.  He pleaded guilty to Charge 8 and the prosecution offered no evidence in respect of Charge 2. At the conclusion of the trial before Judge Dufton (the judge), the applicant was convicted of Charges 1, 3, 4 and 7. Together with the sentence passed for Charge 8, he was ordered to serve a total term of 4 years and 4 months.

3.  On 12 August 2021, the applicant applied for leave to appeal against conviction and sentence. On 11 March 2022, he abandoned his application for leave to appeal against sentence and the application was accordingly dismissed. The applicant continued with his application for leave to appeal against conviction which I dismissed at the conclusion of the hearing on 10 February 2023. These are my reasons.

Issues at trial

4.  The main issue was identification.

5.  The prosecution alleged that the applicant used others’ credit cards (obtained when the victims lost consciousness due to their drunken state) to conduct fraudulent transactions in a Circle K convenience store (“Circle K”) on different occasions set out in the counts and that the transactions were captured on the relevant CCTV footage which was adduced by way of Admitted Facts. When arrested and under caution, the applicant said “I just helping my friend to buy iTunes card in OK”.

6.  The applicant elected not to testify at trial and did not call any witness. The contentions were that the CCTV footage did not capture the subject transactions and that if it did, then the person depicted was not the applicant.

Reasons for verdict

7.  The judge was satisfied that the CCTV footage did show the fraudulent transactions although there were some differences in time between the footage and the relevant receipts.

8.  The judge then conducted a very careful and detailed comparison between the appearance of the male depicted on the footage and that of the applicant as shown in the video-recorded interview which was conducted within 1 month to 3 months after the respective incidents. The judge also made a comparison between the male’s clothing and the items (some with distinct holes and stripes) seized from the applicant’s home after his arrest, as well as the tattoo the applicant had on his right arm and that on the male depicted on the footage. The judge further noted that the applicant’s place of residence was near to the Circle K where the offence took place. Having considered all the evidence, the judge concluded that the applicant was the person who conducted the transactions in question.

Fresh evidence

9.  By way of a Notice of Motion supported by affirmations, the applicant applied[4] for leave to adduce three photographs as fresh evidence. The applicant contended that those photographs retrieved from his girlfriend’s mobile telephone would help proving that he was at home at the time of the alleged offences. At one stage, the applicant suggested that the said photographs were given to his legal representatives but they failed to produce them. After he had been explained by the court as to the proper procedure if he meant to rely on flagrant incompetence of counsel as a ground of appeal, the applicant did not pursue the matter further.

10.  Since the photographs sought to be adduced were only screenshots of a mobile telephone said to belong to the applicant’s girlfriend and since the applicant elected not to testify at trial, I was not persuaded that the photographs should be admitted at the appeal stage as fresh evidence. I refused the application.

Grounds of appeal

11.  In his homemade written submissions dated 16 May 2022, the applicant essentially raised three grounds of appeal.

12.  Firstly, he argued that the judge erred in not taking the time discrepancies into account when accepting the CCTV footage as a correct record of the transactions.

13.  Secondly, the applicant asserted that he was wrongly identified as the person depicted on the footage and that he was actually at home with his girlfriend at the time of the offences.

14.  Lastly, in respect of Charge 3, the applicant claimed that it was a “stage managed event” on the part of the owner of the card who worked together with the real culprit to defraud the bank for compensation.

Consideration

15.  Insofar as the time difference is concerned, instead of missing the point, the judge was the one who raised the matter with the parties and in the absence of an admitted fact dealing with it, the judge said,

“44. In the absence of any admission about the time difference between the admitted facts and the CCTV footage, the court must be satisfied as to which parts of the CCTV footage actually show the fraudulent transactions. This is of particular relevance to charges 1, 3 and 4 where the CCTV footage covers a much longer period than the time of the fraudulent transactions.”[5]

16.  The judge then took care to examine all the evidence adduced before concluding that the CCTV footage indeed captured the subject transactions.[6]

17.  Given the painstaking analysis conducted by the judge, it could not in any way be argued that he had either ignored the time differences or had erred when concluding that the footage was a correct record of the fraudulent transactions.

18.  In respect of the applicant’s second ground, Mr Nicholas Wong, SPP for the respondent, submitted that the judge had given himself the Turnbull warning on identification and that the CCTV footage was of good quality and reliable. Further, the judge was satisfied that the applicant was the culprit not just by comparing the appearance of the South Asian male with that of the applicant in the video-recorded interview, but also by the distinguished features of some of the clothing worn by that male at the material time which items were subsequently recovered in the applicant’s home.

19.  I agree with the observations made by Mr Wong. In fact, it is clear from the judge’s reasons for verdict that he had conducted a meticulous exercise and had put in tremendous effort in his analysis before concluding that the applicant was the man captured on the footage.

20.  Concerning the applicant’s third ground, I need only to say that, for the transactions in question, it was an admitted fact that the cards were used without the owner’s authorisation.

Conclusion

21.  In short, there was no substance in any of the grounds advanced by the applicant and I refused his application for leave to appeal. The judge’s findings were well-reasoned and the applicant was, in my view, rightly convicted.

22.  The applicant was told that he could renew his application before the Court of Appeal but should he do so and should the Court of Appeal find no merit for the renewal application, the Court of Appeal may order loss of time which the applicant has spent in custody pending his appeal.