HKSAR v. MAK CHUN KONG

DCCC483/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 483 OF 2013

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Reasons for Verdict

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1.   The defendant faces 4 charges.  The 1^st Charge is for the offence of conspiracy to defraud[1]. The 2^nd and the 3^rd Charge are each for the offence of handling stolen goods[2]. They are alternative charges to the 1^st Charge.  The 4^th Charge is for the offence of resisting a police officer in the execution of his duty[3].  He pleads not guilty to all charges.

The prosecution case

2.     In respect of the 1^st Charge, the prosecution alleges that between 28March 2012 and 8 October 2012, the defendant conspired with Tam Wing-hung and other persons unknown, to defraud the Standard Chartered (Hong Kong) Bank (“SCB”) and Citibank (Hong Kong) Limited (“Citibank”).  It is the prosecution’s case that they had dishonestly agreed to use the identities of other persons to apply for credit cards from these banks with false or forged documents, and to use such credit cards after they had been issued to draw cash, make payments and make purchases, so as to bring benefits to themselves and to cause losses on the banks.  The prosecution further says that the illegal agreement had in fact been carried out, and the banks had been misled into issuing a number of credit cards which had been used dishonestly to draw cash advances and pay for goods and services, and that the two banks have suffered a total loss of $527,457.26 as a result.

3.     In the 2^nd and the 3^rd Charge, the prosecution says that if the 1^st Charge is not proved beyond reasonable doubt against him, the defendant should nevertheless be guilty of handling stolen goods on 27 July 2012 and 8 October 2012 respectively.  The prosecution alleges that the defendant had received and/or disposed of the goods that were stolen by the use of credit cards obtained in the circumstances aforesaid.

4.  In respect of the 4^th Charge, the prosecution alleges that the defendant resisted the police officer who was lawfully arresting him when he was handling the stolen goods on 8 October 2012.

The defence case

5.     In respect of the 1^st Charge, the defence denies the existence of the alleged conspiracy.  Nor does it admit that the defendant had played any part in it. In a nutshell, the defendant puts the prosecution to strict proof.  There is also the issue whether, as a matter of law, the defendant could conspire with Tam Wing-hung who was named in the charge as one of the co-conspirators on the ground that she was the defendant’s wife.  According to the Admitted Facts (Exhibit P36) and the marriage certificate produced with it (Exhibit P27), the defendant and Tam Wing-hung were lawfully married in Hong Kong on 17 May 2012.

6.     In respect of the 2^nd and the 3^rd Charge, the defendant does not dispute that the goods particularized in the charges were stolen and that he had received them.  The defendant however puts the prosecution to strict proof that he knew or believed that the goods were stolen at the time when he received them.

7.     In respect of the 4^th Charge, the case put by counsel on his behalf is that none of the police officers had declared their police identity to the defendant, that they had not told him that he was under arrest, and that he had not resisted the police officer.

The evidence

8.     The prosecution has called 7 witnesses to testify in court.  They include Miss Lau Suk-han (PW1), Mr. Lau Kai-man (PW2), Detective Police Constable 58504 (PW3), Detective Inspector Leung Yiu-man (PW4), Detective Police Constable 33522 (PW5), Detective Police Constable 34704 (PW6), and Detective Police Constable 51577 (PW7). 

9.     The remaining prosecution evidence are produced either in the form of admitted facts pursuant to section 65C of the Criminal Procedure Ordinance (Chapter 221) or in the form of witness statements read into the record pursuant to section 65B of the same Ordinance.  All documentary evidence referred to in the Admitted Facts and the witness statements are produced without objection from the defendant. 

10.    The defendant does not argue that he has no case to answer in respect of any of the charges.  He also elects not to give evidence.  Nor does he call any witness.

The directions

11.    I have directed myself that the burden is on the prosecution to prove each and every charge against the defendant beyond reasonable doubt, and that no adverse inference can be drawn against him from the fact that he has elected not to testify or call any witness.  I note that the defendant is just exercising his statutory right of silence, and that he is perfectly entitled to do so.  He has simply chosen not to adduce any evidence to contradict, undermine or explain any part of the prosecution evidence.  This by itself does not change the burden and standard of proof that the prosecution must discharge.

12.    I note that the 2^nd and 3^rd Charges are alternative charges to the 1^st Charge.  It means that if I find the prosecution has succeeded in proving the 1^st Charge, it will not be necessary for me to consider the 2^nd and the 3^rd Charge.  It is only when I find that the prosecution has failed to do so should I proceed to consider the 2^nd and the 3^rd Charges.

13.    I note that there are 4 charges.  I shall consider and decide each charge separately according to the whole of the evidence, subject to the qualification that if I find that the 1^st Charge has been proved, it will not be necessary to consider the 2^nd and the 3^rd Charge.

14.    I note that I am entitled to infer existence of other facts from facts.  However, the primary facts upon which I may draw any inference of facts must be either facts admitted by the defendant or facts found to have been proved beyond reasonable doubt.  I also note that no inference of facts can be drawn against the defendant unless that inference is the only reasonable and irresistible inference arising from the facts admitted or proved.  On the other hand, even if pieces of facts each on its own would not be sufficient to support any inference of facts to be drawn, they may be taken together to form a body of facts upon which a proper inference of facts may be drawn.  It is because circumstantial evidence works cumulatively, in geometrical progression, eliminating other possibilities[4].

15.    In the course of the trial, I have been told that the defendant’s wife Tam Wing-hung who is alleged to be one of the co-conspirators has not been located by the police since the alleged offences have come to light.  I remind myself that the fact that Tam Wing-hung has not been located does not by itself prove that she had conspired with the defendant and/or any other person to commit the offence alleged.  Nor does it prove that she had performed any of the acts alleged by the prosecution.  I shall consider the verdict against the defendant in respect of each charge as if Tam Wing-hung had taken part in this trial, pleaded not guilty to the conspiracy charge, and denied all allegations made by the prosecution against her.

The 1^st Charge

16.    The offence of conspiracy to defraud is constituted by becoming a party to an agreement with another or others to use dishonest means: (a) with the purpose of causing economic loss to, or putting at risk the economic interests of, another; or (b) with the realization that the use of those means may cause such loss or put such interests at risk[5].

17.    The prosecution has sought to adduce evidence to prove various acts which it says were acts done in furtherance of this conspiracy so that these acts prove (1) the existence of the conspiracy, and (2) the defendant being part of it.  

18.    The defendant does not challenge the evidence adduced by the prosecution relating to these acts.  Nor does he adduce any evidence to contradict undermine or explain the prosecution evidence.  I accept the prosecution evidence and find the various acts referred to in the evidence had in fact been done.  The issue is whether such acts are sufficient to prove the 1^st Charge against the defendant.

19.    From the evidence of PW1[6], the 4 sets of Admitted Facts[7] and the two bankers’ affirmations provided by SCB and Citibank as well as the bank records exhibited therein[8], it has been proved beyond reasonable doubt that between 28 March 2012 and 6 September 2012, a total of 13 applications had been made to SCB and Citibank for issuance of credit cards in the names of 9 persons (“the purported applicants or cardholders”) by using their identities supported by what purported to be copies of their Hong Kong identity cards, proofs of address and proofs of income.  However, the purported applicants or cardholders had not in fact made those applications.  It follows that they had not submitted any document to the banks to support the purported applications made in their names.  While there is no evidence or admissible evidence to prove whether the copies of Hong Kong identities cards submitted to the banks were copies of genuine or forged identity cards, there is no doubt whatsoever that the proofs of addresses of these purported applicants or cardholders were forged documents because they did not in fact reside at or have any connection with the addresses stated in their respective applications.  As to whether the employment information contained in the credit card applications were true or false, and whether the proofs of income submitted to support these applications were genuine or forged documents, I shall elaborate further later.  The purported applicants or cardholders of all these 13 applications also did not use the email addresses and various phone numbers (i.e. home phone numbers, mobile phone numbers and office phone numbers) falsely alleged to be theirs in the credit card applications purportedly made by them respectively.  According to the two bankers’ affirmations provided by SCB and Citibank, a person wishing to open and operate a credit card account in their banks had to complete a credit card application in person or online, and had to submit his proof of identity, proof of address and proof of income so as to satisfy the bank officer that he was the person in whose name the account was to be opened.  As a result of these applications, SCB issued a total of 10 credit cards to some of the purported cardholders (with some of them being issued with two credit cards), while Citibank issued 2 credit cards to two of them (who were also issued with SCB credit cards).  Only one application for credit card made to Citibank was rejected.

20.    According to the banker’s affirmation provided by Citibank, the credit card applications made to Citibank were all made online.  The respective dates of the applications were stated in the main body of this banker’s affirmation. 

21.    For the credit cards applications made to SCB, it has been stated in the prosecution opening that SCB accepted applications made both online and by fax, and one of the applications was handwritten.  It was however not clear from the banker’s affirmation provided by SCB and the attached bank record what was the mode of application in respect of each application.  This however was not a matter of importance because there is no dispute that these applications had in fact been made, and that they were in fact not made by the purported cardholders who had no knowledge of the applications.  As to the date of each credit card application, save for those applications that bore the date of application on the face of the document, it was not entirely clear when each application was made.  Sometimes, a date was chopped or written on the top of the application, sometimes a date was printed on the top of the application which appeared to be the date printed by a fax machine, and sometimes dates were written immediately after some handwritten records like “rec’d by fax” or “signature waived”. However, despite these differences, it was clear that each of the credit card applications must have been made either on the date or not later than the date shown by whatever means on the applications, and “the date of application” in the table to be particularized below will bear this extended meaning.

22.    Details of the 11 false credit cards, or perhaps to be more precise, 11 genuine credit cards issued by SCB and Citibank upon false information contained in their respective applications, have been particularized in the written opening of the prosecution and termed as Cards 1 to 11.  I shall not repeat the respective card numbers.  I adopt the same nomenclature.  As to the credit card issued by SCB to the purported cardholder Leung Tung-ki, I shall refer to it as “Card 12”. 

23.    It has also been proved beyond reasonable doubt by the Admitted Facts and the bankers’ affirmations that Cards 1 to 11 had been used dishonestly and caused economic losses to SCB and Citibank in the following manner and to the following extent: -

(1) 8 credit cards (i.e. Cards 3 to 8, 10 and 11) had been used to place orders and pay for goods ordered online from Apple South Asia Pte Ltd. (“Apple Store”) for the total sum of $366,754 between 9 May 2012 and 30 September 2012 (both dates inclusive) when none of the purported cardholders of these cards had placed any order for the goods[9].

(2) 6 credit cards (i.e. Cards 1, 2, 4, 8, 9 and 10) had been used to obtain cash advances in the total sum of $138,600 from SCB on 16 occasions between 29 April 2012 and 20 July 2012 (both dates inclusive) when none of the purported cardholders of these cards had drawn the money or was aware of the withdrawals[10].

(3) Card 1 was used to pay $2,400 on 6 August 2012 to engage the secretarial services of Servcorp Hong Kong Limited (“Servcorp”) which would inter alia receive letters and parcels on behalf of its clients[11]. Card 2 was used for the same purpose to pay another sum of $2,400 to Servcorp on 15 August 2012. However, the purported cardholder of these two cards (i.e. Chan Lai-ha) had not engaged the service of Servcorp.

(4) In addition to the losses referred to earlier on, the banks also lost late charges and service charges for the sum of $7,290 and loss of interest for the sum of $10,013.26 arising out of these credit card transactions.

24.    The Admitted Facts and the bankers’ affirmations have also proved beyond reasonable doubt that although SCB and Citibank did not actually suffer any losses in respect of the following transactions, dishonest acts had been done to put, or attempt to put, the economic interest of SCB and Citibank at risk in the following manner: -

(1) Cards 1 and 2 had been used to order goods online from Apple Store, both on 25 July 2012 and each for goods worth $12,376 (totaling $24,752) when the purported holder of these two cards Chan Lai-ha did not order the goods. SCB did not suffer any loss because of these two orders since they were subsequently cancelled with no goods delivered or paid. However, SCB had been at risk of suffering such losses before the orders were cancelled.

(2) An application was made to Citibank on 8 August 2012 for issuance of a credit card by using the identity of the purported applicant Lee Ho-leung who did not actually make the application. Citibank had however rejected the application. Since no credit card had been issued and none was used, Citibank suffered no losses. It was nonetheless a failed attempt to put the economic interest of Citibank at risk.

(3) An application was made to SCB on 3 September 2012 for issuance of a credit card by using the identity of the purported cardholder Leung Tung-ki who did not make the application. SCB approved the application and issued Card 12. SCB however did not suffer any loss because the card was not used or had not yet been used. However, the mere fact that SCB had been deceived into issuing Card 12 meant that its economic interest had already been put at risk.

25.    On the basis of these facts, it has been proved beyond reasonable doubt that these 13 applications for credit cards were applications made dishonestly by deceit with the use of false personal information of other persons supported by false and forged documents by a person or by a number of persons (whether acting on an individual basis or as a group or in different groups) who deliberately concealed his/her or their true identity to induce SCB and Citibank to issue credit cards to them.  I draw the only reasonable and irresistible inference that, at the time when each of these applications was made, the person or the persons making the application had the dishonest intention of defrauding the bank concerned in that he/she or they would use the credit card, or make the credit card available for others to use, after it had been issued by the bank as a result of that application, to obtain economic benefits either personally or for others, and/or to cause economic losses to the bank.  There was simply no conceivable explanation for anyone deceiving a bank into issuing a credit card without such an intention.  As a matter of fact, Cards 1 to 11 had been used after their issuance to draw cash advances and/or to pay for goods and/or services, with SCB and Citibank suffering economic losses as a result. 

26.    It is therefore clear beyond any shadow of doubt that each of the applications which resulted in the issuance of Cards 1 to 12 respectively amounted to an offence of fraud or obtaining pecuniary advantage by deception, and that the application made in the name of Lee Ho-leung but rejected by Citibank amounted to an offence of attempted fraud or attempted obtaining pecuniary advantage by deception.  The victim of each of these offences was SCB or Citibank as the case might be.  The culprit of each of these offences was the person or the group of persons who put in the application for the related credit card to the bank concerned.

27.    As to who had used Cards 1 to 11 in the manner as stated in the Agreed Facts, I draw the only reasonable and irresistible inference that the person or the group of persons who dishonestly applied for and obtained each of these credit cards was also the person or the group who had dishonestly used that credit card, or made it available for others to use, in the stated manner so as to obtain economic benefit either personally or for others, and/or to cause economic losses to SCB and Citibank, as the case might be.  There is simply no conceivable explanation for anyone who had obtained the credit card dishonestly in this manner would not use the card personally, or control/permit the dishonest use of it by others.

28.    In fact, there is evidence which established that some of the credit cards had been used personally by the person or the group of persons who applied for and obtained them.

(1) Cards 1 to 8, 10 and 11 had been used dishonestly to place purchase orders with Apple Store in the names of the purported cardholders. In addition, the billing address and the billing/shipping contact telephone number of the purchaser stated in each of the purchase orders that were placed with the use of Cards 3 to 8, 10 and 11 respectively were identical to the residential address and the contact telephone number stated in the credit card application of the purported cardholder of the credit card that had been used to place that particular purchase order. The only reasonable and irresistible inference is that the person or the group of persons who had obtained that credit card from the bank concerned did not give it away but used it personally to order goods from Apple Store, or else the contact telephone number of the purchaser given to the Apple Store would not be identical to the contact number of the purported cardholder given to the bank. In so far as the two purchase orders placed with the use of Cards 1 and 2 both of which were in the name of Chan Lai-ha were concerned, the billing address stated in each purchase order was identical to the residential address of the purported Chan Lai-ha given to SCB in the credit card applications, but the billing/shipping contact number stated in each purchase order was 9381 5378, and the contact telephone number of the purported Chan Lai-ha given to the SCB was 9381 5379. The two telephone numbers were different in their last digit and appeared to be consecutive numbers. It is not necessary to find out the reason for this discrepancy. In my view, the mere fact that the billing address in each of these purchase orders was identical to the residential address of the purported Chan Lai-ha as stated in the credit card application is cogent and compelling enough to support the only reasonable and irresistible inference that the person or the group of persons who applied for and obtained Cards 1 and 2 were also the same person or the same group of persons who placed the purchase orders with the use of these two cards with Apple Store. As a matter of fact, these two orders had been cancelled, and the difference in the telephone number might well be the reason for the cancellation. However, it is not necessary for a finding to be made.

(2) Cards 1, 2, 4 and 10 had been used dishonestly to obtain a total of 10 cash advances. These cash advances were obtained before these 4 credit cards were used respectively to place purchase orders with Apple Store. Since the person or the group of person who applied for and obtained these credit cards had used these credit cards all the time up till orders were placed with Apple Store, the only reasonable and irresistible inference is that these cash advances were also obtained by the same person or the same group of persons personally.

29.    As to the other dishonest uses of the credit cards, Cards 1 and 2 were used to pay Servcorp to obtain its services and Card 8 was used to obtain 3 cash advances after these 3 credit cards had been used respectively to place purchase orders with Apple Store.  Card 9 had been used to obtain 3 cash advances and it had not been used in any other manner.  The evidence does not show who had used these cards for these purposes personally, but the evidence certainly does not rule out the possibility that the person or the group of persons who applied for and obtained each of these cards had used that card personally.  In any event, even if this person or this group of persons did not use that card personally, he/she or it must have made it available for others to use it dishonestly.  The same criminal liability will still be attached.

30.    It is therefore beyond any shadow of doubt that for every dishonest use of Cards 1 to 11 in the manner as stated in the Agreed Facts, an offence of obtaining pecuniary advantage by deception was committed with SCB or Citibank as the case might be as the victim if the bank concerned actually made payment to Apple Store or Servcorp, or provided cash advances to any of the purported cardholders, and the offence of attempted obtaining pecuniary advantage by deception was committed when each of Cards 1 and 2 was used to place purchase order with the Apple Store even though the two orders were subsequently cancelled with no payment made by SCB to Apple Store.

31.    The prosecution is of the view that these 13 applications for credit cards and the uses of 11 of the credit cards issued in the manner as stated in the Agreed Facts were acts done in furtherance of the conspiracy which it says the defendant was part of it.  It submits that a criminal enterprise was underway by 28 March 2012 when the first application for credit card in the name of Lai Chun-lun resulting in the issuance of Card 6 was made, and that other applications pursuant to this criminal enterprise had been made at regular intervals thereafter until 6 September 2012 when the last application was made in the name of Woo Ka-yee, and goods obtained dishonestly were received by the culprits on 8 October 2012.

32.    I shall first examine whether these 13 applications for credit cards were made by the same person or the same group of persons, or whether each one of them was separate and unconnected with the other and was made by 13 different persons and/or groups at different times, or whether there were several persons and/or several groups of persons each making one or more of these 13 applications.

33.    In considering this issue, I note that these 13 applications for credit cards can be divided into two groups.  The first group comprised of the first eleven applications according to the time sequence involving the applications made between 28 March 2012 and 8 August 2012.  The first 10 applications were successful resulting in the issuance of Cards 1, 2, 4 to 11.  The 11^th application was made in the name of Lee Ho-leung to Citibank but was rejected by Citibank.  The second group comprised of the two applications made on 3 September and 6 September 2012 resulting in the issuance of Cards 12 and 3 respectively.

34.    I now consider whether the first group of applications for credit cards was made by the same person or the same group of persons.  The following facts are important:

(1) False residential address

The residential addresses of all these 11 purported applicants or cardholders as stated in their respective applications were identical, i.e. “11/F, 10 Shek Kip Mei Street, Sham Shui Po”, but none of them in fact lived at the stated address.

(2) False employment and forged proofs of income

(a) In 9 of these 11 applications for credit cards (i.e. the applications for Cards 1, 2, 5, 6, 7, 9, 10 and 11 as well as that of the purported applicant Lee Ho-leung), they involved 7 purported applicant or cardholders and all of them were stated to work for Kon Cheong International Limited. Chan Lai-ha was the purported cardholder for both Cards 1 and 2. Leaving aside the case of Chan Lai-ha for the time being, none of the other purported applicant or cardholders in fact worked for Kon Cheong International Limited according to the undisputed evidence of Lau Suk-han (PW1) and the Agreed Facts (Exhibit P35). For the remaining two purported cardholders for Cards 4 and 8, it appears from their respective applications that they worked for the same employer, i.e. Shenzhe Complete Co. Ltd. None of them in fact worked for this employer according to the evidence of PW1 and the Agreed Facts.

(b) Citibank issued Cards 5 and 7 but rejected the application made in the name of Lee Ho-leung. The proofs of income submitted in support of these 3 applications were exhibited in the banker’s affirmation provided by Citibank. All of them were purportedly issued by Kon Cheong International Limited. Since the evidence is undisputed that none of the purported applicant or cardholders involved in these applications worked for Kon Cheong International Limited, these proofs of income must be forged documents.

(c) SCB issued the remaining 8 credit cards. The banker’s affirmation provided by SCB only exhibited the proofs of income submitted to support 5 of these applications.

(i) 4 of the proofs of income were purportedly issued by Kon Cheong International Limited to support the applications for Cards 1, 2, 6 and 9. It is an admitted fact that the purported cardholders for Card 6 and 9 did not work for Kon Cheong International Limited, the proofs of income submitted must be forged documents. In the applications for Cards 1 and 2, while the Admitted Facts (Exhibit P35) had not made clear whether or not Chan Lai-ha was working for Kon Cheong International Limited at the material times, I note that the proofs of income in the name of Chan Lai-ha was in the identical format as those purportedly issued by Kon Cheong International Limited to the other purported applicant or cardholders who were falsely said to work for this company. When all these documents were in identical format and when it has been admitted or proven that the purported proofs of income of these other purported applicant or cardholders were forged documents, I draw the only reasonable and irresistible inference that the two proofs of income submitted in the name of Chan Lai-ha were likewise forged documents, and that the employment information stated in the applications for Cards 1 and 2 made in the name of Chan Lai-ha must also be false.

(ii) The remaining proof of income exhibited was purportedly issued by Shenzhe Complete Co. Ltd. to support the application for Card 8. It was an admitted fact that the purported cardholder for Card 8 did not work for this company and the proof of income must be forged.

(d) It is noted that the holders of Card 4 and 5 were purportedly the same person, i.e. Lau Suk-han (PW1). The identity card numbers of the Lau Suk-han shown in the respective applications for credit cards to SCB and Citibank were identical. However, these two applications contained different employment information, and both of them were false.

(e) I have already said that the 7 proofs of income purportedly issued by Kon Cheong International Limited that had been exhibited in the two bankers’ affirmation were in identical format. It is also apparent from the document that the proof of income purportedly issued by Shenzhe Complete Co. Ltd. was also in a format identical to that purportedly used by Kon Cheong International Limited. Both formats started with the name of the company printed on the top of the document, both were headed “monthly salary summary report”, followed by the name, the position and HKID number of the purported employee. In the main body of the document, the entry columns were identical and in the same sequence, starting with “basic salary”, followed by “allowance”, “leave”, “commission/incentive”, “MPF deduction”, and ended with an amount allegedly paid to the employee which was described in identical terms as “actual pay out”. The sub-items under each heading were also identical in description and in sequence.

(f) The purported cardholders of Cards 10 and 11 were the same person Cheung Wan-nin. She was said to work for Kon Cheong International Limited. The purported cardholder of Card 4 Lau Suk-han was said to work for Shenzhe Complete Co. Ltd. While the banker’s affirmation provided by SCB had not exhibited their proofs of income, it was noted that the office phone number of Kon Cheong International Limited stated in the purported credit card application by Cheung Wan-nin was identical to the phone number of the Kon Cheong International Limited stated in the credit card applications of the purported applicants for Cards 1, 2 and 9 whose proofs of income had been exhibited[12]; and that the office phone number of Shenzhe Complete Co. Ltd. stated in the purported credit card application by Lau Suk-han to SCB was identical to the office phone number of the Shenzhe Complete Co. Ltd. stated in the credit card application of the purported applicant for Card 8 whose proofs of income had been exhibited.

(3) Dishonest use of credit cards to obtain goods from Apple Store

(a) Cards 1, 2, 4 to 8, 10 and 11 (i.e. 9 out of these 10 credit card issued as a result of these 11 applications) had been used to order goods from Apple Store, although the two purchase orders placed with the use of Cards 1 and 2 were cancelled subsequently with no payment made. Card 9 was the only card not used to place order with Apple Store.

(b) The billing addresses stated in each of these purchase orders were identical, i.e. 11/F, 10 Shek Kip Mei Street, Sham Shui Po, which was the also the home address of each of the purported cardholders of the credit card that was used to place the purchase order as stated in the related credit card application.

(c) All purchase orders designated the same delivery address, which was “6/F Prosperity Place, 6 Shing Yip Street, Kwun Tong”. This was the address of Business Centre (Hong Kong) Limited (“Business Centre”) which provided secretarial services to clients including receiving letters and parcels on behalf of clients[13].

(4) Engagement of Business Centre:

The undisputed evidence contained in the witness statement of Ko Tuen-ling has proved beyond reasonable doubt that: -

(a) Business Centre received an application via e-fax on 3 May 2012 from a client described as “光昌有限公司” in Chinese and “Kon Cheong” in English in the application by which Kon Cheong engaged Business Centre to provide it with secretarial services including receiving parcels.

(b) There is no evidence as to who sent this e-fax to Business Centre or paid for its service. The payment was made by way of cash deposited into its bank account. It was however stated in the application that the main contact person of Kon Cheong was Lai Chun-lun (i.e. in the same name as the purported cardholder of Cards 6 and 7), with two registered persons including Lau Suk-han (i.e. in the same name as the purported cardholder of Cards 4 and 5). There is no doubt that this purported Lai Chun-lun was the same purported Lai Chun-lun stated in the credit card application for Card 6 to SCB because they had the same contact phone number, i.e. 6674 2349, as stated in the two applications[14]. Since a forged proof of income purportedly issued by Kon Cheong International Limited had been submitted to support the application for Card 6, the “Kon Cheong” in English or “光昌有限公司” in Chinese stated in the application to Business Centre must also mean the Kon Cheong International Limited stated in the credit card application.

(c) Business Centre had received parcels of electronic products bearing Apple logos on 4 occasions for this client on 31 May, 15 June, 5 July and 27 July 2012. Since all the purchase orders placed with the credit cards mentioned earlier directed Apple store to deliver the goods to Business centre, Business Centre was clearly engaged for the purpose of receiving goods dishonestly obtained.

35.   In light of these facts, my view is as follows:

(1) All these credit card applications were made with the use of false information fabricated by the culprit(s) of the offences. As a matter of random probabilities, the chances to have 11 credit card applications originating from two or more different sources to contain identical false information (which was supposed to have been separately fabricated) relating to the residential addresses of the purported applicants out of sheer coincidence were so remote that they virtually did not exist. Besides, the residential address stated in each application was of particular importance in the whole criminal venture because when SCB or Citibank approved any of these credit card applications, it would send the credit card issued and the personal identification number for its activation to the purported cardholder at the residential address stated in the application. It meant that the person or the group of persons making each application was definitely in a position to and did monitor the mails coming to that address so as to collect the credit card and the personal identification number from the bank. When such monitoring was in place, he/she or they could easily find out if anybody else was also using the same address for the same or any other illicit purposes, and if so, avoid using that address because of the fear that the other person or persons would likewise do the same monitoring on that address. Nobody would like to be watched or run the risk of being watched when committing crimes. In other words, using the same false residential address in these 11 applications by itself pointed to the cogent, compelling and irresistible inference that all these applications originated from the same source.

(2) In addition to the identical false information in the residential addresses, in 9 of these 11 applications concerning 7 purported applicants or cardholders, false information relating to their employment was fabricated in that all of them were falsely said to work for Kon Cheong International Limited, while in the remaining two applications, another two purported cardholders were falsely said to work for Shenzhe Complete Co. Ltd. There is no doubt that the Kon Cheong International Limited stated in each of those 9 applications was meant to be the same company because the 7 proofs of income purportedly issued by Kon Cheong International Limited submitted to the banks to support the applications for Cards 1, 2, 5, 6, 7 and 9 as well as the failed application of Lee Ho-leung were identical in format, and even though the proofs of income submitted to support the applications for Cards 10 and 11 had not been exhibited in the banker’s affirmation of SCB, the application for Cards 10 and 11 itself contained the office phone number of Kon Cheong International Limited which was identical to the office phone number of the Kon Cheong International Limited stated in the applications for Cards 1, 2 and 9. With these 9 credit card applications containing identical fabricated false information relating to both residential addresses and employments of the purported applicants or cardholders, there can be no doubt whatsoever that they were originating from the same source. Likewise, the Shenzhe Complete Co. Ltd. stated in each of the remaining two applications was meant to the same company because the same office phone number was given in each of the applications for Cards 4 and 8. Even though only the proof of income purportedly issued by Shenzhe Complete Co. Ltd. submitted to support the application for Card 8 had been exhibited, the fact that the two applications for Cards 4 and 8 contained identical fabricated information relating to residential address and employment of the purported applicants leads reasonably and irresistibly to the inference that they were originating from the same source. I have also had no doubt whatsoever that all these 11 applications were originating from the same source, even though the names of the alleged employers in all applications were not exactly identical, because all the proofs of income exhibited had identical format even though they were alleged to be issued by different companies. It just defies common sense to say that forged documents created by different people at different times happened to have identical format out of sheer coincidence. The fact that the purported applicant Lau Suk-han (PW1) was falsely said to work for both Shenzhe Complete Co. Ltd. and Kon Cheong International Limited clearly indicates that the difference in the employment information in these 11 applications is not inconsistent with the inference that these 11 applications were originating from the same source.

(3) This issue must be put beyond doubt when it is considered that 9 out of the 10 credit cards issued as a result of these 11 applications had been used to make purchases online from Apple Store, and all these orders directed Apple Store to deliver the goods to the same address of the secretarial services company Business Centre, though the two orders placed with the use of Cards 1 and 2 respectively had been cancelled subsequently. In other words, not only did these 11 applications contain identical false residential addresses, all of the credit cards issued as a result except one of them had also been used in the same criminal way in terms of obtaining goods dishonestly from the same source via the same deceptive method, and of receiving these goods dishonestly via the same secretarial services company at the same address. These could not be mere coincidence and the only reasonable and irresistible inference to be drawn from these facts is that all these 11 applications for credit cards were put in by the same person or the same group of persons, and the cards issued by SCB and Citibank after approving these applications had been used dishonestly by the same person or the same group of persons. The fact that Card 9 had not been used to order goods online from Apple Store is not inconsistent with this inference. It just meant that it was not used or had not yet been used for this purpose. The fact that Business Centre was designated to receive all goods ordered online from Apple Store irrespective of the name of the purported purchaser and the name of the company he/she worked for when Business Centre was engaged just by “Kon Cheong” with only two names of the purported cardholders (i.e. Lau Suk-han and Lai Chun-lun) given to Business Centre provided further support to the inference that all these 11 applications for credit cards were made by the same person or the same group of persons.

36.    I shall now consider whether the second group of applications for credit cards was made by the same person or the same group of persons.  Just to recap, the second group comprised of the two applications made on 3 September and 6 September 2012 resulting in the issuance of Cards 12 and 3 respectively.

37.    It is clear that there were differences between the information filled in the respective credit cards applications purportedly made by Leung Tung-ki for Card 12 and Woo Ka-yee for Card 3.  First, the residential addresses were not exactly identical.  While both were stated to be residing in Yee Wa Building in Un Chau Street, Cheung Sha Wan, Leung was stated to live on the 11/F whereas Woo was on the 10/F.  The street number of the building in which they were alleged to live in was also stated differently.  While the building was stated to be situated in Un Chau Street, the street number was stated to be No. 405 in the application of Leung and 403 in the application of Woo.  Second, their alleged employments were not identical.  Leung was stated to work for Xieguang Technology (HK) Co. Limited while Woo was stated to work for Heng Yue Network Technology HK.  Third, it is not possible to compare the format of the income proofs submitted to SCB to support these two applications because only the proof of income purportedly issued by Xieguang Technology (HK) Co. Limited was exhibited in the banker’s affirmation provided by SCB.  Hence, the factors that have led me to conclude that the 11 applications in the first group were originating from the same source were not applicable to the second group.  On the contrary, these differences may be used to support the argument that these two applications were made by different persons and/or groups of persons.

38.    However, the evidence contained in the witness statement of Fong Yuet-mei who was a receptionist employed by Servcorp is crucial in determining this issue.  Her evidence has not been disputed and I accept her evidence has proved the following facts beyond reasonable doubt.  On 6 August 2012, Servcorp received an application in its company system from a client purported to be Chan Lai-ha (i.e. the same name as the purported cardholder of Cards 1 and 2) to provide secretarial services including receiving parcels to “Kon Cheong International Limited”, and Card 1 had been used to pay Servcorp for its services.  Servcorp started to provide services to this purported Chan Lai-ha the following day and its staff tried to contact this client through the telephone number she had provided (i.e. 9381 5379 which was identical to the contact telephone number of the purported Chan Lai-ha as stated in her application for Cards 1 & 2), but in vain.  Servcorp then sent an email to the purported Chan Lai-ha via the email address she had left and asked her to provide either by fax or by email documents for identification, including a copy of her Hong Kong identity card, a copy of the front and a copy of the back of the credit card that was to be used to pay for the monthly service fees, and a copy of the business registration.  There was however no response from this purported Chan Lai-ha until 8:50 p.m. on 23 September 2012 when Servcorp received from the email account of the purported Chan Lai-ha directing or notifying Servcorp that her company should be changed from Kon Cheong International Limited to “Minwin Group (HK) Ltd.” and that the contact person should be changed from Chan Lai-ha to 3 persons, including Woo Ka-yee and Leung Tung-ki.  There were further dealings between this client and Servcorp which I shall go into later.  Suffices to say at this stage that subsequently, on 3 October 2012, a female purported to be the Woo Ka-yee spoke to Miss Fong over the phone and left behind a contact phone number 9456 4641, and Miss Fong did on subsequent occasions contacted this purported Woo Ka-yee using this phone number.  This phone number was identical to the home and contact phone number of the purported cardholder Woo Ka-yee as stated in her application for Card 3.  There is therefore no doubt whatsoever that the Woo Ka-yee named to Servcorp was meant to be the same Woo Ka-yee who had made the application to SCB for Card 3.  It was an admitted fact that Card 3 had been used on 23 September 2012 to place order for goods in the name of Woo Ka-yee with Apple Store which was directed to deliver the goods to the office address of Servcorp when the real Woo Ka-yee had not made such purchase or given such direction. Goods for the purported Woo Ka-yee had actually been delivered to Servcorp on 3 October 2012.  There is therefore no doubt whatsoever that similar to Business Centre, Servcorp was engaged for the purpose of receiving goods dishonestly obtained through the fraudulently use of credit card illegally obtained.  The person naming Woo Ka-yee to Servcorp must accordingly be the culprit or one of the culprits responsible for this offence.  The fact that this person named both Woo Ka-yee and Leung Tung-ki to Servcorp at the same time, when their identities were misused to apply to SCB for credit cards within a period of merely 4 days between 3 and 6 September 2012, leads to the only reasonable and irresistible inference that the applications for Cards 3 and 12 were originating from the same person or the same group of persons.

39.    As to whether these two groups of 13 credit card applications were originated from the same source or from different sources, the undisputed evidence of Fong Yuet-mei has proved beyond reasonable doubt that the person or the group of persons engaging the services of Servcorp was in possession of the false information in respect of the purported Chan Lai-ha, Woo Ka-yee, and Leung Tung-ki at the same time.  There is no doubt that when this person or this group of persons used the identity of Chan Lai-ha to engage Servcorp for its services, he/she or it was using the same false information relating to Chan Lai-ha that had been used to apply for Cards 1 and 2 because the residential address, the contact phone number and the email address stated in all these applications were identical.  On the other hand, the purported Woo Ka-yee who had spoken to Miss Fong Yuet-mei was meant to be the purported cardholder of Card 3 because they had the same contact telephone number.  There is therefore no doubt whatsoever that the person or the group of persons responsible for making the first group of credit card application gave instructions to Servcorp on 23 September 2012 that from that day onward, it should serve or take instructions from the person or the group of persons making the second group of applications.  Both sets of credit cards applications were made for the purpose of defrauding the banks.  It was inconceivable that the culprit behind the first group of credit card applications would transfer the service of Servcorp to the culprit behind the second group of credit card applications if they were different persons or different groups, or for the latter to accept the transfer of service, because each of them would not want to be linked up with any offences that had been or would be committed by the other.  Hence, the only reasonable and irresistible inference to be drawn is that there was only one person or one group of persons that was responsible for all these crimes.  The fact that the email account of the purported Chan Lai-ha was used on 8 October 2012 to provide copies of identification documents to Servcorp so that Servcorp would agree to accept parcels delivered for Woo Ka-yee, coupled with the fact that the proof of income purportedly issued by Xieguang Technology (HK) Co. Limited was in a format identical to that used in the proof of income issued by both Kon Cheong International Limited and Shenzhe Complete Co. Ltd., also lead to the only reasonable and irresistible inference that all these 13 applications were originating from the same source.

40.    It is noteworthy that this person or this group of persons had used the same false residential address in Shek Kip Mei Street to make 11 consecutive applications for credit cards before he/she or it changed to use the false residential address in Un Chau Street in the 12^th and 13^th application.  It was clearly a deliberate decision taken by this person or this group of persons not to use the same false information again after the 11^th application made in the name of Lee Ho-leung was rejected.  While the banker’s affirmation provided by Citibank and the other evidence do not disclose why Citibank rejected this application, the only reasonable and irresistible inference is that this person or this group of person believed or worried that Citibank found the information contained in the 11^th application including the residential address, employment and/or other details of the purported applicant doubtful, and hence this person or this group decided not to use again any of these false information so as to avoid arousing suspicion of the banks.  This person or this group however did not stop but made further applications for credit cards in the name of Woo Ka-yee and Leung Tung-ki with the use of new false information.  This fact clearly points to the only reasonable and irresistible inference that all these 13 applications for credit cards were part and parcel of a continuous course of conduct pursued by the same person or the same group of persons to defraud SCB and Citibank.

41.    The next question to consider is whether these 13 applications for credit cards and the subsequent uses or attempted uses of the credit cards issued as a result of these applications were crimes committed by one person or by one group of persons.  Since a conspiracy involved an illegal agreement between two or more persons, it is only in the later case that the conspiracy charge can sustain. 

42.    When this issue is analyzed, it will be convenient to consider at the same time whether the defendant was the person or within the group of persons who committed these crimes.  I shall set out some findings of facts first.

43.    The evidence of Miss Fong Yuet-mei is not disputed and proves the following facts beyond reasonable doubt:

(1) After the purported Chan Lai-ha had sent the email mentioned earlier to Servcorp at night on 23 September 2012 directing or notifying Servcorp to change company from Kon Cheong International Limited to Minwin Group (HK) Ltd. and contact persons to include Woo Ka-yee and Leung Tung-ki, Miss Fong replied by email to the purported Chan Lai-ha to acknowledge receipt of her mail and asked her (Chan) to provide documents including copy of her Hong Kong identity card or passport, copy of the front and back of the credit card to be used to pay monthly service fees and business registration. Servcorp received no immediate response.

(2) On 3 October 2012, a staff from DHL Express Ltd. delivered 4 packages which were for Woo Ka-yee to Servcorp. Servcorp did not agree to accept delivery because it would not receive any mail that was without the name of a registered company unless its client had otherwise specified. The DHL staff took the goods away when he was unable to contact the purported Woo Ka-yee by phone.

(3) Around noon time on the same day, a female made a phone call to Servcorp which was received by Miss Fong. That female claimed to be Woo Ka-yee and from Minwin Group (HK) Ltd. She asked Miss Fong to explain why Servcorp did not receive the goods. Miss Fong gave the above explanation to her and reminded her to provide documents for identification as soon as possible. The female said she would do so later and left a contact telephone number 9456 4641 before she hanged up.

(4) In the morning on 5 October 2012, the DHL staff delivered goods to Servcorp again with Minwin Group (HK) Ltd. as the recipient. There were 4 packages of goods with the Apple logos. Miss Fong signed to acknowledge receipt of the goods. She then phoned the purported Miss Woo Ka-yee at the number left by her. Miss Fong told her that the goods had been delivered, but she had to submit the documents before collecting the goods. The purported Woo Ka-yee said the documents were not ready and asked to collect the goods first. Miss Fong turned down her request.

(5) Around 9 a.m. on 8 October 2012, the purported Woo Ka-yee phoned Servcorp and Miss Fong received her call. She asked again to collect the goods first on the ground that the documents were not ready. Miss Fong again turned down her request.

(6) Around 11:33 a.m. on the same day, Servcorp received from the email account of the purported Chan Lai-ha 4 images files purported to be a copy of the Hong Kong identity card of Woo Ka-yee, a copy of the front as well as a copy of the back of Card 3 which was to be used to pay the monthly service fees, and a scanned copy of the business registration in the name of “Minwin Group Hong Kong Company Limited”.

(7) Miss Fong suspected the information provided was forged because she found the colour of the words on the business registration uneven. She made enquiries to verify the documents. While she was doing so, the purported Woo Ka-yee called Servcorp several times and enquired about the progress of the verification of the documents. Miss Fong found her eagerness suspicious. She also found it rare for clients to request her company to receive valuable electronic products. She had also obtained certain information as a result of her enquiries[15]. After she had discussed with her manager, she made a report to the police.

(8) After Miss Fong had reported to the police, the purported Miss Woo made further calls to Servcorp. Miss Fong then asked her to attend the office of Servcorp to collect the goods at 3 p.m. on the same day. The purported Miss Woo then said that she might not be able to come in person and would ask her colleague to collect the goods. Miss Fong then asked her the identity of her colleague. The purported Miss Woo said she had not yet decided which colleague would come but would reply later.

(9) Around 3 p.m. on the same day, the purported Miss Woo told Miss Fong over the phone that she had assigned a staff surnamed Lau to collect the goods. Miss Fong asked her for the full name of that staff. The purported Miss Woo said she did not know the full name of that staff and did not know if that staff was willing to provide his personal particulars.

(10) About 4 p.m. on the same day, a man arrived at the office of Servcorp and asked to collect the packages of goods for Minwin. He told Miss Fong that his surname was Lau. At the request of Miss Fong, this man wrote down on a piece of paper his name “Lau Kai-man”, his identity card number with the last few digits omitted to preserve his privacy, and his contact telephone number 5191 8120. Miss Fong handed over the 4 packets of goods to him.

44.    This Mr. Lau Kai-man was PW2.  He was a driver by occupation and received orders through a company called Oriental Transportation at the material times.  The following parts of his oral testimony are not in dispute and prove these facts beyond reasonable doubt: -

(1) On 8 October 2012, PW2 was notified by Oriental Transportation to contact a client via a telephone number 5107 3157. He rang that number and a male received his call. This man told him to go to an address in Peking Road (which turned out to be the office address of Servcorp) to pick up some goods for a company called Minwin Group, and to deliver the goods afterwards to Panda Hotel in Tsuen Wan. The charges were agreed at $300.

(2) Before 3 p.m. on the same day, PW2 received a call from the same telephone number 5107 3157, but the caller was a female. She asked PW2 whether he had picked up the goods at No. 1 Peking Road. PW2 told her that he would be arriving there at around 3:30 p.m. The female then told him that he should say he was picking up goods on behalf of Minwin Group.

(3) PW2 arrived at No. 1 Peking Road at around 4 p.m. He rang the number 5107 3157 to advise his client that he had arrived. On this occasion, a male received the call. PW2 then went to the designated office address, and told a girl there that he was collecting goods for Minwin Group. The girl gave him 4 boxes of goods, and took down his personal particulars. He then delivered the goods to the defendant.

45.    According to the evidence of Detective Inspector Leung (PW4), he saw the defendant received the 4 boxes of goods from PW2 near Panda Hotel in Tsuen Wan, and he subsequently seized the goods which were attached with a packing list (Exhibit P1).  This part of PW4’s evidence is not disputed by the defence and I find it to be facts of this case.  According to the particulars stated in the packing list, the 4 boxes of goods were shipped to Woo Ka-yee with an Order number which was identical to number of the purchase order placed with Apple Store in the name of Woo Ka-yee with the use of Card 3 according to the Admitted Facts (Exhibit P34). 

46.    On the basis of these facts, there is no doubt whatsoever that the 4 boxes of goods delivered to Servcorp by DHL staff were goods delivered by Apple Store as a result of the purchase order placed with the use of Card 3, and hence, the goods were dishonestly obtained through the fraudulent use of Card 3.  There is also no doubt whatsoever that Servcorp had been made use of to receive the goods so dishonestly obtained.  While there is no direct evidence to prove who put in the online application via the company system of Servcorp to engage the services of Servcorp, there is no doubt whatsoever a female claiming to be Woo Ka-yee had followed up with the online instructions to Servcorp by telephone conversations on 3^rd, 5^th and 8^th October 2012 and by sending in or causing to send in the 4 images files for identification purposes so as to satisfy the requirements of Servcorp in order to collect the goods delivered to Servcorp by Apple Store through DHL.  From the fact that this female falsely claimed to be Woo Ka-yee, that she had requested twice to collect the goods without first providing Servcorp with identification documents thereby showing that she was reluctant to supply the documents which should be readily available, and that she had sent in or caused to send in a copy of the Hong Kong identity card in the name of Woo Ka-yee when she was well aware that this copy document could not be from the real Woo Ka-yee as she could not be the real Woo Ka-yee, the only reasonable and irresistible inference to be drawn is that not only was she directly involved in instructing Servcorp to provide services to receive goods dishonestly obtained with the fraudulent use of Card 3 to the economic prejudice of the bank concerned, she was also well aware of the illegal circumstances in which these goods were obtained and that she was acting dishonestly, and that she was involved in the fraudulent use of Card 3, leaving aside the question for the time being whether she was acting alone or in concert with others.  For reasons already explained, since I find that all 13 applications for credit cards and the subsequent dishonest use of the credit cards issued as a result were the criminal acts committed by the same person or the same group of persons, I find it has been proved beyond reasonable doubt that this female was also involved in the criminal acts relating to the fraudulent application and use not only of Card 3 but also of all other credit cards in question.

47.    From the evidence of PW2, there is also no doubt whatsoever that a female was following up with the delivery order that PW2 had received from a male client to go to the office of Servcorp to collect goods.  This female clearly knew of the inter-relationship between the purported Woo Ka-yee and Minwin Group (HK) Ltd., or else she would not be in a position to direct or remind PW2 that he had to tell the staff of Servcorp that he was collecting goods for Minwin.  According to Miss Fong, the female purported to be Woo Ka-yee told her that a Mr. Lau would attend Servcorp to receive the goods.  I draw the only reasonable and irresistible inference that this female who spoke to PW2 over the phone was also the same female who spoke to Miss Fong over the phone.  If I were wrong, it would just mean not only one but two females were involved in the offences.

48.    I may add that these 13 applications for credit cards involved purported applicants of both gender.  8 of them were made in the names of 5 females (i.e. Chan Lai-ha for Cards 1 & 2, Woo Ka-yee for Card 3, Lau Suk-han for Cards 4 & 5, Ng Wang-chau for Card 8, and Cheung Wan-nin for Cards 10 & 12), while 5 of them were made in the names of 4 males (i.e. Lai Chun-lun for Cards 6 & 7, Lee Chin-hung for Card 9, Leung Tung-ki for Card 12, and the failed application of Lee Ho-leung).  The home telephone numbers and mobile phone numbers of the purported applicants were stated in all these applications.  It was just reasonable and irresistible to infer that persons of both sexes had to be standing by and ready to masquerade as the purported credit card applicants to answer any enquiries or receive any notification from the banks via the telephone numbers given.

49.    Before I consider whether anyone else was involved in these offences in addition to this female, I shall analyze whether the evidence can prove beyond reasonable doubt the identity of this female.  The main thrust of the defence submission is that there is no evidence or no sufficient evidence to prove anyone, be it the defendant or anybody else, to have performed any of the acts alleged by the prosecution. In this regard, the evidence of DPC34704 (PW6) is important.

50.    According to the evidence of PW6, on 10 October 2012, he together with another police officer went to Room 835 Wan Yat House, Lok Fu Estate to look for Tam Wing-hung.  A male Tam Kam-chuen who claimed to be the father of Tam Wing-hung answered the door.  Mr. Tam told the officer that Tam Wing-hung lived there but she had not been home for a couple of days.  PW5 then searched the premise.  He found, amongst other things, the cardholders of two SIM cards with the respective telephone numbers of 9456 4641 (Exhibit P22) and 6571 6140 (Exhibit P23).  PW6 was not cross-examined.  I accept his evidence to be true and accurate.

51.    In my judgment, the fact that the SIM cardholder for the telephone number 9456 4641 was found inside the home of Tam Wing-hung leads to the only reasonable and irresistible inference that she was the user of this telephone number.  A SIM card has to be removed from its holder before it is inserted into a mobile phone for use.  After the SIM card has been removed, the cardholder will become useless, and for this reason, nobody other than the owner would still have it after the SIM card has been removed.  Hence, the only reasonable and irresistible inference is that whoever in possession of a SIM cardholder must also be the person using that SIM card and the related telephone number.  The evidence of Miss Fong proves beyond reasonable doubt that the female purported to be Woo Ka-yee had left a contact telephone number 9456 4641 on 3 October 2012, and she did manage to contact this female using this number afterwards.  The same telephone number was also stated to be the home telephone number and mobile telephone number of the purported applicant Woo Ka-yee in the application for Card 3 made on 6 September 2012.  Although when the SIM cardholder was seized by the police, Tam Wing-hung was not at home and only her father was present, I have no doubt whatsoever that this SIM card was not used by her father but by Tam Wing-hung because there must be a female standing by to masquerade as the real Woo Ka-yee to receive phone calls at that number from the bank so as to answer any telephone enquiry or to receive any oral notice from the bank relating to the credit card application.  The same telephone number was also given to Apple Store in the purchase order placed with the use of Card 3.  There must also be a female ready to masquerade as the real Woo Ka-yee to receive calls if any from Apple Store or its delivery agent like DHL.  In fact, although there is no evidence from the staff of Apple Store or DHL, there can be no doubt whatsoever that they or either of them had spoken to the female purported to be Woo Ka-yee since this female was able to phone Miss Fong to demand for an explanation why Servcorp did not accept the goods from DHL on 3 October 2012 within a few hours of Servcorp’s refusal.  For these reasons, I draw the only reasonable and irresistible inference that Tam Wing-hung was the user of this phone number 9456 4641, that she was the person or a member of the group of persons who put in the application for Card 3, that she had spoken to Miss Fong and PW2 in the manner as stated in their evidence, and that she had spoken to the staff of Apple Store or DHL concerning delivery of the goods dishonestly obtained.

52.    In addition, the evidence of PW6 has also proved beyond reasonable that the SIM cardholder for the telephone number 6571 6140 was found inside the home of Tam Wing-hung. For the same reason, I draw the only reasonable and irresistible inference that Tam Wing-hung was the user of this telephone number.  This telephone number appeared in the credit card application made in the name of Lau Suk-han for Card 4.  Since the application also made in the name of Lau Suk-han for Card 5 has not been exhibited, it is not known whether the same number was given in that application as the home and contact phone number of the purported Lau Suk-han, but it was most likely to be the case because the same telephone number was given to Apple Store when Cards 4 and 5 were used to place two purchase orders in the name of Lau Suk-han.  For the same reasons as stated before, I draw the only reasonable and irresistible inference that Tam Wing-hung was the person or a member of the group who put in the applications for Card 4 and 5, and used these cards dishonestly to obtain goods subsequent to their issuance.

53.    There is also the agreed evidence that Tam Wing-hung had worked for a company called Talent Direct between 12 July 2010 and October 2012 when she suddenly left her employment without warning.  Talent Direct was a human resources company that recruited staff members for PCCW.  Tam Wing-hung was hired by Talent Direct to work as a customer service officer at PCCW call centre in Siu Lek Yuen Road. The salary statements issued to her by Talent Direct were sent to her working place monthly.  Her monthly salary statements between July 2010 and September 2012 were produced as Exhibit P30.   The two bankers’ affirmations made it clear that proofs of identities had been submitted to support these 13 applications for credit cards using the identities of 9 persons.  The Agreed Facts (Exhibit P35) prove that 6 of these 9 persons were subscribers of PCCW but I shall not make the finding that Tam Wing-hung provided copies of their identity documents to support these fraudulent applications for credit cards because there is no evidence that she was in a position to or did come into contact with the identity documents of PCCW customers.  However, there is no doubt whatsoever that the salary statements issued by Talent Direct to Tam Wing-hung were genuine documents, whereas the proofs of income submitted to support all 13 credit cards applications, be they issued in the name of Kon Cheong International Limited, Shenzhe Complete Co. Ltd. or Xiequang Technology HK Co. Ltd., were forged documents.  However, all of them were in the same format. This could not be sheer coincidence, but leads to the only reasonable and irresistible inference that Tam Wing-hung had copied the format of her own salary statement issued by Talent Direct, or make her salary statement available to others to copy, so as to forge the proofs of income submitted to SCB and Citibank to support these 13 applications for credit cards.

54.    On the basis of these facts, I draw the only reasonable and irresistible inference that Tam Wing-hung was the person or one of the group of persons who had committed these offences.  It is also important to note that the application for Card 4 was made not later than 13 April 2012.  I therefore find that it has been proved beyond reasonable doubt that Tam Wing-hung was involved in these offences at least from 13 April 2012 onwards until the offences first came to light on 8 October 2012.  It is also noted that card 4 had been used to obtain cash advances on 29 and 30 April 2012, and on 3, 4, 6 and 7 May 2012, and Card 4 had been used to pay for goods ordered from Apple Store on 9 May 2012.

55.    I shall now consider whether any other person was involved in these offences in addition to Tam Wing-hung.

56.    The obvious starting point is of course the undisputed evidence of PW2 that he was engaged by a male to collect goods from Servcorp on 8 October 2012.  He spoke to this male whose telephone number was 5107 3157.  PW2 stated that his own mobile phone number was 5191 8120.  There is no doubt that PW2’s evidence is correct because the call record of the telephone number 5107 3157 (Exhibit P26)  shows that there were 9 calls between these two numbers between 12:25 noon and 5 p.m. on 8 October 2012. 

57.    I have already referred to what had happened when PW2 attended the office of Servcorp at about 4 p.m. on 8 October 2012.  As to what happened thereafter, the following parts of PW2’s evidence is not in dispute.  I find them to be facts of this case: -

(1) After PW2 had received 4 boxes of goods from the staff of Servcorp, he took them to his van in the car park, but he was stopped by police officers who asked him for help because they were interested in the person who was going to pick up the goods. PW2 agreed and drove to the vicinity of Panda Hotel with two plain-clothed police officers on board his van. Other police officers also went to the Panda Hotel in their own vehicles.

(2) Whilst PW2 was on his way to Panda Hotel, he received a call from the number 5107 3157. The male caller asked him whether he had arrived. He further told PW2 to ring that number when he arrived at the Panda Hotel. Around 5 p.m., PW2 arrived at the Panda Hotel. He rang that number to notify the client of his arrival, but he could not recall whether it was a male or a female who received this call.

(3) After PW2 had arrived at Panda Hotel for about 10 minutes, his phone rang and he was asked whether he was in a silver-coloured van. PW2 said he was. When he was saying that, the defendant came up to PW2 and said that he came to pick up the goods. The defendant paid $300 transportation fees to PW2 and took the 4 boxes of goods which were given to him by one of the plain-clothed police officers. After the defendant had received the goods, he walked away to hire a taxi. The defendant got into a taxi but was later arrested by the police.

58.    The next important piece of evidence came from DPC58504 (PW3).  He testified that he arrested the defendant for the offence of fraud and the defendant resisted his arrest.  This part of his evidence is in dispute.  On the other hand, according to PW3, after he had arrested the defendant, he found the defendant had 3 Nokia phones (Exhibit P40) on his person.  This part of his evidence is not disputed.  I find it to be facts of this case.

59.    DPC33522 (PW5) testified that he was the exhibits officer of this case.  He had checked the SIM card numbers of the 3 mobile phones seized from the defendant at the time of his arrest (i.e. Exhibit P40).  He found one of the SIM cards had the number 5107 3157.  This part of PW5’s evidence is not in dispute.  I find it to be facts of the case.

60.    On the basis of these facts, there can be no doubt whatsoever that the defendant was the user of the telephone number 5107 3157 on 8 October 2012.  From the fact that the defendant was in possession of a mobile phone using the number of 5107 3157 and from what he had said to PW2 immediately before and at the time when he went up to the van of PW2 outside Panda Hotel, Tsuen Wan and collected the goods, the only reasonable and irresistible inference is that the defendant was the male who engaged the service of PW2 over the phone to collect goods from Servcorp.   From the fact that the female whom I find to be Tam Wing-hung was able to tell Miss Fong that a Mr. Lau would attend the office of Servcorp to collect the goods, the only reasonable and irresistible inference is that the defendant had notified Tam Wing-hung that he had engaged the service of PW2.  It is therefore beyond any doubt that the defendant and Tam Wing-hung were acting together to collect the goods dishonestly obtained through the use of Card 3. As to whether the defendant was aware that these goods were dishonestly obtained, it is important to note that the defendant instructed PW2 to deliver the goods to a public street near Panda Hotel, Tsuen Wan, for his collection.  It is an admitted fact that the defendant was at the material times living in Cheung On Estate, Tsing Yi.  The evidence of DPC34704 (PW6) proves that Tam Wing-hung was living in Wan Yat House, Lok Fu Estate.  The fact that the defendant paid $300 to PW2 for his service to collect goods from Servcorp, but did not instruct PW2 to deliver the goods to either his home or the home of Tam Wing-hung, and took the trouble to receive the goods in person in a public street in Tsuen Wan which had no connection with him points to the compelling and irresistible inference that he did not want to leave any clue that might be used to trace him after he had collected the goods, and that he would not have adopted this stance but for the fact that he knew full well that the goods delivered to Servcorp were goods dishonestly obtained through the fraudulent use of Card 3 illegally obtained.

61.    There is also the Agreed Facts (Exhibits P35 & P42) that there were telephone conversations on 21 occasions between 4 and 27 September 2012 between a person using this telephone number 5107 3157 and the staff members of SCB handling the customer service hotline and credit card applications.  3 of those conversations were recorded, and all of them took place on 17 September 2012. The transcripts of the recordings and the certified translations were produced as Exhibits P28 and P28A.  In these conversations, a male using the phone number 5107 3157 masqueraded as the real Leung Tung-ki and discussed with the staff of SCB about his credit card application when the real Leung Tung-ki had never applied for a credit card from SCB.  It is also clear that this male was fully aware of the details of this fraudulent credit card application because he was able to confirm to the bank staff not only that the name of the credit card applicant was Leung Tung-ki, but also his identity card number down to the last check digit number in bracket, and that he was able to say that the credit card application was made about 2 weeks prior to the conversation, and it matched exactly with what had happened because the application for Card 12 was made on 3 September 2012.  It is therefore clear beyond doubt that this male was the person pursuing the fraudulent application for Card 12.

62.    As to who this male was, it is a fact that the defendant was found in possession of a telephone using this number 5107 3157 on 8 October 2012.  There was of course a time gap of about 3 weeks between 17 September and 8 October 2012, and the telephone number 5107 3157 was that of a prepaid SIM card (see Exhibit P26), which meant that the SIM card could physically be transferred from one person to another.  However, it is inconceivable that the male who used this telephone number to speak to and deceive the SCB staff on 17 September 2012 would have transferred the SIM cards to others and let others use the same telephone number.  Firstly, he would need to retain that number to maintain communication with the bank.  He would need to stand by to masquerade as the real Leung Tung-ki to answer any enquiries or receive any notification from the banks via the telephone.  Secondly, he would not like to leave any link that might connect him with the offence to another person.  When his offence came to light as it was bound to since he would not pay the bank for the dishonest use of the credit card issued, the telephone number was a link that could connect him with the offence.  Hence, the safest course for him to take was to ensure that nobody else other than himself would use that SIM card and that telephone number, and that if he decided not to use that number anymore, he would just throw away that SIM card.  In my judgment, the only reasonable and irresistible inference to be drawn is that the defendant was also the male who spoke to the SCB staff on 17 September when he was pursuing with the fraudulent application for Card 12.  I find it has been proved beyond reasonable doubt that the defendant was a party to the criminal enterprise to deceive SCB in the application for Card 12.  For reasons I have already explained, I also find him a party to the criminal enterprise to deceive SCB and Citibank in all these 13 applications for credit cards and the subsequent uses of the credit cards issued, and that he was acting dishonestly throughout.

63.    If further evidence is needed, there is evidence that proves the defendant had received goods dishonestly obtained through the fraudulent use of credit cards illegally obtained.  The undisputed evidence of Ko Tuen-ling (Exhibit P38) has proved beyond reasonable doubt that Business Centre had received parcels of electronic products bearing Apple logos on 4 occasions for its client Kon Cheong on 31 May, 15 June, 5 July and 27 July 2012, and this client sent persons to collect these goods.  The persons collecting these goods had written down their identity card numbers on a form provided by Business Centre.  According to the record of Business Centre, a person with certain identity card number had collected 14 pieces of goods for this client on 27 July 2012.  Mr. Chung Cheuk-man is the person having that identity card number.  The witness statement of Mr. Chung (Exhibit P39) was admitted into evidence pursuant to section 65B of Criminal Procedure Ordinance.  His evidence is not disputed by the defence and I accept it true and accurate.  Mr. Chung was at the material times a self-employed driver and would collect and deliver goods for clients. Mr. Chung confirmed that he had collected 14 pieces of goods for a client on 27 July 2012 from a company the name of which he could not recall but the address he gave was that of Business Centre.  He was engaged by this client for this job over the telephone.  After he had collected the goods, he was asked by the client to deliver the goods to Tonkin Street, but the client later told him to deliver the goods to the entrance of Panda Hotel in Tsuen Wan.  Mr. Chung handed over the goods to this client as instructed at the designated location and received $300.  According to the Admitted Facts (Exhibit P34), Mr. Chung positively identified the defendant in a properly conducted identification parade to be the person to whom he delivered the goods on 27 July 2012 at the entrance to Panda Hotel. 

64.    Since there is no doubt whatsoever that Business Centre had been engaged by a client purported to be Kon Cheong to receive goods from the Apple Store, and the goods delivered to Business Centre were dishonestly obtained through fraudulent use of credit cards illegally obtained, there is no doubt whatsoever that the defendant had received such goods dishonestly obtained on 27 July 2012. According to the evidence of Mr. Chung which is not disputed, he had been engaged by the defendant on 6 occasions to collect and deliver goods for him. The first occasion was in early 2012 before the Chinese New Year.  I can take judicial notice that the First day of the Chinese New Year in 2012 was 23 January 2012.  The defendant spoke to Mr. Chung over the phone and claimed himself to be “Mr. Cheung”, and he had been using this identity when he dealt with Mr. Chung on subsequent occasions.  Mr. Chung’s evidence has also proved beyond reasonable doubt that on 27 July 2012 when the defendant engaged him to collect goods from Business Centre, the defendant told him again that he was Mr. Cheung and that he was the one who had asked him (Mr. Chung) to collect documents before.  The defendant’s surname is “Mak”.  There is therefore no doubt whatsoever that the defendant was using a false surname when he engaged Mr. Chung for his service and that he was hiding his true identity.  From the fact that the defendant was using a false identity to engage Mr. Chung to collect goods from Business Centre and the circumstances in which he received the goods including the fact that he directed Mr. Chung to hand over the goods in a public place to him, I draw the only reasonable and irresistible inference that he was well aware that the goods he engaged Mr. Chung to obtain were dishonestly obtained in the manner aforesaid.  It is also important to note that the defendant hid his true identity as early as in January 2012.  It points to the only reasonable and irresistible inference that he was as early as from that time onwards engaged in criminal activities involving obtaining goods dishonestly.

65.    There is also evidence that linked the defendant with Card 4.  According to the evidence of DPC33522 (PW5), he went to the defendant’s home in Tsing Yi with other officers and the defendant.  A lady who said that she was the mother of the defendant answered the door.  PW5 searched the house and found, among other items, a letter addressed to Lau Shuk-han which was placed between the gap of a cabinet and a bed inside the room of the defendant’s mother.  The defendant’s mother suddenly tried to snatch the letter.  She held the letter and in the course of snatching it, the letter was torn into several pieces.  PW5 eventually seized all those torn pieces and put them back together and produced it as Exhibit P3.  This part of PW5’s evidence is not in dispute and I find it to be facts of the case.  By this letter (Exhibit P3), SCB asked the purported Lau Suk-han to acknowledge receipt of Card 4 by calling its Credit Card Activation hotline, and SCB would send the personal identification number of the credit card to her afterwards.  SCB also told the purported Lau Suk-han that the credit card was effective from 19 April 2012 to 15 April 2015.  The address of the letter was 11/F, 10 Shek Kip Mei Street, Sham Shui Po. 

66.    There is an issue as to who possessed this letter since the evidence shows that the letter was found inside the room of the defendant’s mother who had also torn up the letter.  Under cross-examination, PW5 stated that when the defendant’s mother learned that his son had been arrested, she became quite agitated, and that she remained agitated throughout the search.  PW5 thought that the defendant’s mother tore up the letter when snatching it because she loved her son.  PW5 confirmed that he had seized another 6 letters near the television in the sitting room.  All these letters were sent to the defendant including one sent to him by the Government concerning some traffic contravention.  None of them was sent to him by a bank.  PW5 confirmed that the defendant’s room was smaller than the room of his mother, and that there was no mattress inside the defendant’s room.

67.    Since this letter was sent by SCB to the purported Lau Suk-han at the Shek Kip Mei Street address but it was found inside the defendant’s home, it was obvious that someone had taken the letter from Sham Shui Po to Tsing Yi.  This letter must have been sent out by SCB before 19 April 2012 when the credit card would become effective, and the person taking this letter must have done so before 29 April 2012 when the first cash advances was obtained through the use of Card 4.  This someone could only be a person who was fully aware of the fraudulent application to SCB for a credit card to be issued to the purported Lau Suk-han, and this person must also have the intention of activating the credit card according to the instructions given in the letter, or else the letter itself would be just a piece of waste paper that did not worth the trouble of taking it all the way from Sham Shui Po to Tsing Yi. In other words, whoever took the letter to the defendant’s home must be a party to the fraudulent application for Card 4.

68.    It was a fact that the defendant’s mother tried to snatch the letter from PW5 and it was torn in the process.  It was the opinion of PW5 that she was acting out of agitation and love for her son.  An alternative view of course was that she was also a party to the conspiracy.   It is not necessary for me to make a finding in this regard because I need to concern only with whether the defendant was a party irrespective whether his mother was a party.  I note that the letter was found between the gap of a cabinet and a bed inside the room of the defendant’s mother, but it appeared that the defendant did not place his letters in his own room as 6 letters sent to him were found in the living room.  On the other hand, from the fact that the defendant had at least from the time he first engaged the service of Mr. Chung in January 2012 been using a false identity when he engaged delivery man to collect goods, that he instructed Mr. Chung on 27 July 2012 to collect goods from Business Centre and he received such goods when he knew full knew that the goods were dishonestly obtained, that he was pursuing the fraudulent application for Card 12 in the name of Leung Tung-ki and that he had received goods that were obtained dishonestly through the fraudulent use of Card 3 on 8 October 2012, I draw the only reasonable and irresistible inference that the defendant was a party to the criminal venture involving these 13 applications for credit cards and the subsequent uses of the credit cards issued to obtain cash advances and to pay for goods and services. From that, I also draw the only reasonable and irresistible inference that the defendant was the person who took or instructed someone to take the letter Exhibit P3 from Sham Shui Po to his home in Tsing Yi.

69.    It is therefore apparent from my findings that both the defendant and Tam Wing-hung were involved in these criminal acts.  I find that they were acting in concert with one another for the purpose of obtaining credit cards from SCB and Citibank so that these cards could be used to obtain cash advances and to pay for goods and services, and that they had defrauded SCB and Citibank. I draw the only reasonable and irresistible inference that there was an illegal agreement between them for these purposes and that they had actually carried out their agreement.  I find that each one of them had already participated in this criminal enterprise before they formally got married on 17 May 2012.  For this reason, the defendant cannot rely upon section 159B(2) of the Crimes Ordinance to exonerate his criminal liabilities.  Section 159B(2) provides that a person should not be guilty of conspiracy if the other party to the illegal agreement is his spouse but the pre-condition is that they are spouses “both initially and at all times during the currency of the agreement”.

70.    The prosecution contends that there were other persons involved in the conspiracy in addition to the Defendant and Tam Wing-hung.

71.    The undisputed evidence of Miss Ko Tuen-ling proves that when she contacted the client Kon Cheong after Business Centre received the fax from this client engaging its services, she called the contact person of this client Lai Chun-lun on 3 May 2012 at the contact telephone number 6674 2349, which was the contact telephone number of the purported Lai Chun-lun stated in the application for Card 6, but a man claimed to be surnamed “Lee” answered her call.  In late July 2012, she called Mr. Lee again at the same number and spoke to him concerning whether he would continue to use the service of Business Centre.  If this Mr. Lee was not the defendant, it would mean that there was another male who claimed to be a Mr. Lee being involved in the conspiracy.  If that Mr. Lee was the defendant, it would just strengthen the evidence further against him. Either way, he is guilty of the charge.

72.    The undisputed evidence of Mr. Chung Cheuk-man also proves that out of the 6 occasions when he was engaged by the defendant to collect and deliver goods, he had on one occasion handed over goods to a man other than the defendant and this man had tattoos on both arms.  This man could also be a party to the conspiracy but I don’t think the evidence is cogent enough to say that this man had the guilty knowledge when he received the goods.

73.    However, I am sure that there was at least one other party.  According to the evidence of DPC51577 (PW7), he went to 11/F, 10 Shek Kip Mei Street on 9 October 2012 and found 3 rooms there.  He noticed each of them was occupied by different people who according to investigation had nothing to do with this case.  A male resident there took him to the letter box on the ground floor.  He used a key to open the letter box for PW7.  Inside the letter box, PW7 found a pile of letters (Exhibits P8 to P21) that were addressed to that address by SCB to some of the purported cardholders.  It is only reasonable and irresistible to infer that Cards 1 to 11 had all been sent to that letter box and taken away by the conspirators, and that they or any of them could not have done so unless they had obtained the consent of the owner of that letter box to use that letter box, since a key was required to open that letter box. 

74.    For this reason, I find that there was at least one other person in addition to the defendant and Tam Wing-hung who were involved in this conspiracy.  It therefore means that I find the defendant “had conspired with Tam Wing-hung and other persons unknown” to defraud SCB and Citibank and hence he is guilty as charged.  If I were wrong in this regard, the defendant is still guilty because he can be properly convicted of the charge even though he and Tam Wing-hung were the only two conspirators.  The defendant is convicted of the 1^st Charge.

The 2^nd and the 3^rd Charge

75.    In light of the defendant’s conviction of the 1^st Charge, it is not necessary to deal with these two charges.

The 4^th Charge

76.    I have already mentioned the fact that after Mr. Lau Kai-man (PW2) had collected 4 boxes of goods from Servcorp, and he agreed to help the police to find the person who was going to receive them.  I have also mentioned the fact that the defendant eventually went up to PW2’s van, received the goods and walked away to take a taxi.

77.    According to Mr. Lau (PW2), after the defendant had got into a taxi, 3 or 4 police officers approached the taxi and told the defendant to get off.  The defendant then alighted from the taxi, and took the 4 boxes of goods with him. PW2 did not see the details because there was a distance between him and the officers.  Later, he saw the police officers want to arrest the defendant.  The defendant struggled and tried to run away.  But the police officers finally pinned him down and brought him under control.

78.    According to the evidence of DPC58504 (PW3), after the defendant had got into a taxi, he went forward to intercept him and prevented him from closing the door of the taxi.  He told him that he was a police officer and asked him to get off the taxi.  He then put one hand on the shoulder of the defendant and the other hand on his hand, and took the defendant off the taxi.  The defendant was co-operative at that time.  The 4 boxes of goods were left in the taxi.  PW3 took the defendant to one side of the pavement.  He conducted a quick search on the defendant and checked his identity card.  The defendant was still cooperative.  He then took the defendant to the outside of a restaurant called TV 30 which was about 5 to 10 metres away from the place where he searched the defendant to ensure the location where they were standing was safe.  On the outside of TV 30, PW3 declared arrest of the defendant for the offence of fraud.  The defendant then used his left hand to push the body of PW3 away.  PW3 sensed that the defendant wanted to run away or attack him.  He had a fierce struggle with the defendant.  In the struggle, the defendant swung his left hand towards the chest of PW3 and raised his right fist to attack PW3.  PW3 used his hands and body to press towards the defendant in an attempt to subdue the defendant, but the defendant used his elbow and foot to struggle with PW3.  Other police officers came to help PW3.  PW3 was not sure how many officers came to help him, but in his recollection, there was at least one police officer helping him.  PW3 finally succeeded in controlling the defendant with the defendant lying prone with his stomach on the ground.  DPC23356 then declared arrest of the defendant of resisting arrest.  As a result of the struggle, PW3 sustained abrasions on his right knee and right elbow, while the defendant had redness on the left side of his face, and abrasions on his both knees.  PW3 received medical examination and treatment later in the day in Yan Chai Hospital.

79.    Detective Inspector Leung Yiu Man (PW4) also gave evidence concerning how the defendant resisted PW3.  There is no discrepancy between his evidence and that of PW3.

80.    Having considered the evidence, I find that there are two areas that cause me concern.  First, according to the evidence of Mr. Lau (PW2), when the defendant got off the taxi as he was asked by the police to do so, he was holding the 4 boxes of goods in one pile with both of his hands.  However, PW3 and PW4 were both adamant in saying that the defendant had left the goods inside the taxi. I do not know whether some one of them was telling the untruth or made a mistake in recollection, but it is not possible to reconcile this factual discrepancy.  If the defendant were holding 4 boxes of goods with both of his hands, the defendant could not have resisted PW3 in the manner as testified to by the two officers.  Second, PW3 and PW4 both admitted under cross-examination that neither of them had stated in their witness statements that the defendant had pushed the chest of PW3 with his left hand, and raised his right fist in an attempt to punch PW3.  Their evidence in Court were however identical.  I have the concern whether their evidence was a result of discussion between them rather coming from the independent recollection of them.  It is true that PW2 testified that he saw the police officers want to arrest the defendant, and that the defendant struggled and tried to run away.  However, he also admitted that he was staying in his van all the time until the defendant was arrested and he was about 10 to 15 metres away.  He admitted that because of the distance, he could not hear the conversation between the police officers and the defendant when the conversation was spoken in soft tone, but he could only hear the conversation when the police officers spoke loudly.  PW2 was therefore not in a position to confirm whether PW3 had actually declared his police identity to the defendant and told him that he was under arrest.  For these reasons, I find that the prosecution is unable to prove the 4^th Charge beyond reasonable doubt and the defendant is acquitted of this charge.

[1] Contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Chapter 200.

[2] Contrary to section 24 of the Theft Ordinance, Chapter 210.

[3] Contrary to section 63 of the Police Force Ordinance, Chapter 232.

[4] DPP v Kilbourne [1973] AC 279; The Queen v To Luen-shun [1995] 1 HKCLR 318.

[5] See the judgment of Sir Anthony Mason NPJ in Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386, at 404 D-F.

[6] PW1 (Miss Lau Suk-han) is the only prosecution witness whose identity had been misused to apply for credit cards to testify in court before the defendant admits the evidence relating to other purported cardholders whose identities had likewise been misused.

[7] Exhibits P34, P35, P36 and P42.

[8] Exhibits P29 & P30 with respective certified English translations as Exhibit P29A & P30A.

[9]  For the payment on 9 May 2012, it was made to pay for the goods ordered with the use of Card 4, but according to the Admitted Facts (Exhibit P34), the date of the online order was 28 May 2012.  It was not known why the payment was made before the date of the order, but the payment was duly proved by the bank statement of the Card 4 account exhibited in the banker’s affirmation (Exhibit P30).

[10] The respective dates of cash advances have been set out in paragraph 24 of the Prosecution written opening and have been proven by the bankers’ affirmations (Exhibit P29 and P30). 

[11] This is the evidence of Miss Fong Yuet-mei whose witness statement was admitted into evidence pursuant to section 65B of the Criminal Procedure Ordinance as Exhibit 37.  The uncertified English translation of her witness statement was admitted into evidence as Exhibit P37A without objection from the defendant.  The evidence of Miss Fong has not been challenged.

[12] Citibank had not exhibited the credit card applications by the purported applicants for Cards 5 and 7 and Lee Ho-leung while the column for office telephone number in the application for Card 6 was not filled in.

[13] This is the evidence of Miss Ko Tuen-ling whose witness statement was admitted into evidence pursuant to section 65B of the Criminal Procedure Ordinance as Exhibit 38.  The uncertified English translation of her witness statement was admitted into evidence as Exhibit P38A without objection from the defendant.  The evidence of Miss Ko has not been challenged.

[14] It is noted that the application for card 7 made in the name of Lai Chun-lun to Citibank had not been exhibited in the banker’s affirmation (Exhibit P29).

[15] According to Miss Fong, she had searched the website of the Companies Registry and could not find the registration record of Minwin Group (HK) Ltd.  She also made enquiries with the Immigration Department to verify the authenticity of the copy of the Hong Kong Identity Card in the name of Woo Ka-yee.  She was told by a staff of the Immigration Department that the information on the card did not match those in the database of the Immigration Department.  The evidence of Miss Fong is inadmissible to prove Minwin Group (HK) Ltd. was a fictitious company or the copy of identity card in the name of Woo Ka-yee sent to Servcorp was a forgery because her evidence in these regards is hearsay.  It is however admissible to explain the subsequent action of Miss Fong.