Case Detail

HKSAR v. CHENG HOK MAN

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3550-EN-2004-02-11

HKSAR v. CHENG HOK MAN

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CACC000367A/2003

CACC 367/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 367 OF 2003

(ON APPEAL FROM DCCC 247 OF 2003)

____________________

BETWEEN
	HKSAR	Respondent

	AND

	CHENG HOK MAN (鄭學文)	Appellant

____________________

Coram: Hon Stuart-Moore Ag CJHC, Stock and Yeung JJA

Date of Hearing: 21 January 2004

Date of Judgment: 11 February 2004

___________________

J U D G M E N T

___________________

Stuart-Moore, Ag CJHC (giving the judgment of the Court):

Background

1. On 13 August 2003, the Appellant was sentenced, following a trial in the District Court before Deputy Judge A. Wong, to a total of forty-eight months' imprisonment in respect, primarily, of offences of possessing false instruments (charge 4) and handling stolen goods (charge 6) of which he had been convicted on the previous day. On these charges, the Appellant was sentenced to thirty-nine months and sixteen months' imprisonment respectively, with eight months of the latter sentence being ordered to run consecutively, making forty-seven months in all. We are not concerned in these proceedings with the offence for which he received the balance of one month's imprisonment or other charges on which the Appellant received financial penalties. The Appellant only sought leave to appeal against conviction and sentence in respect of charges 4 and 6 and, on 24 December 2003, leave for each purpose was granted by the single judge.

2. The fourth charge against the Appellant alleged that on 23 October 2002, in contravention of section 75(1) of the Crimes Ordinance, Cap. 200, outside Yau Oi Refuse Collection Point, Upper Wong Tai Sin Estate in Kowloon, he had in his custody instruments which were and which he knew or believed to be false, namely two counterfeit credit cards, with the intention that he or another would use them to induce somebody to accept them as genuine and, by reason of so accepting them, to do or not to do some act to his own or any other person's prejudice.

3. The handling in the sixth count alleged that on the same date the Appellant dishonestly received a DVD player and nine VCDs. Although the judge convicted on this charge, this finding was in respect of the DVD player only.

The facts

4. The facts were a little complicated. Putting them as concisely as possible, on 23 October 2002, after the Appellant had been followed by police for some time, he was spoken to as he got out of the car, registration number KT 170, he had been driving. When he was searched, a number of items were found either on him or in the Gucci bag he was said to have had over his shoulder. These included a notebook containing numerous 16-digit numbers (Ex. P. 8) which were coded credit card numbers.

5. The car, KT 170, was also searched. Amongst the things found were ignition keys for two other cars, HF 2212 and DS 561, a photograph of the Appellant inside the car owner's manual, and two forged credit cards wrapped inside a piece of paper, the subject of the fourth charge. These were unsigned and were found in a compartment under the audio system next to the driver's seat. They were apparently hidden from direct view by a calculator which lay over the top of them. The Appellant was cautioned in respect of the forged credit cards and he replied that the car was not his.

6. Later, police searched the two other cars for which the Appellant had the ignition keys. In the boot of car HF 2212 were found two bags. These contained a total of nine VCDs. They had been bought with credit cards in two transactions without the authorisation of the cardholders. Also in the boot was a DVD player (Ex. P. 47) similarly purchased on a credit card without the cardholder's authorisation. All of these items were the subject of the sixth charge. When cautioned, the Appellant again replied that the car was not his.

7. For the purposes of this application, nothing of relevance was found in the third car, registration number DS 561.

8. The number of the credit card used to buy the DVD player found in car HF 2212 was discovered, in coded format, inside the notebook found on the Appellant (Ex. P. 8). In addition, the purchase order (Ex. P. 54) for this item (Ex. P. 47) was seized from a bedroom drawer in his flat. Also in the notebook, again in coded form, were found the credit card numbers appearing on the forged credit cards kept in car KT 170, the subject of the fourth charge.

9. Against this broad factual background, providing circumstantial evidence of the Appellant's involvement in the offences covered by charges 4 and 6, the Appellant chose not to give evidence. He did, however, call his wife (DW1) to testify about a number of matters relevant to these allegations. In particular, she said that the Appellant's elder brother ("the brother") was a trader who often went overseas. He sometimes stayed at their address and would leave some of his possessions there. It was, she said, the brother who owned the three cars which police had searched and she had even made an application for him to be able to park one of his cars at her address in Shaukeiwan because, as a flat owner, she was permitted to rent a space there. She said that she had seen the brother, and others including the Appellant and "Ah Ben" (who had also stayed in their flat and possessed a key to it), driving the car, HF 2212, and that all of them as well as herself possessed the keys to all three cars. Sometimes, she said, Ah Ben would also leave things at the flat.

10. In addition, DW1 provided evidence on the two potentially most important issues concerning, firstly, the Gucci bag and, secondly, the pink-coloured purchase order for the DVD player. She said that at some stage the Appellant had lent his Gucci bag to the brother and that a pink document, which happens to be the colour of the DVD player purchase order (Ex. P. 54), was tidied up by the domestic helper who had put it together with other documents into the drawer in the Appellant's bedroom.

11. The defence contended that the combined effect of DW1's evidence, if accepted, was that it left doubts about the Appellant's culpability which should have led to an acquittal.

12. The only real evidential dispute in the case arose over the whereabouts of the Gucci bag at the time the Appellant was intercepted on 23 October 2002 at sometime after 4.30 pm. It was suggested to the officers that it was in fact found by them in the back of the car which the Appellant had been driving. After a thorough examination of the police evidence, the judge found that it had been carried by the Appellant over his shoulder. However, the area of dispute did not quite end there. The officers who searched the Appellant had not made a record of what they found or from where each item had come. In the result, they were unable to say if the notebook containing the credit card numbers was found inside the Gucci bag or on the Appellant himself. However, in the event, for reasons we shall come to, this may not have been a matter of any real significance.

13. There was one other important aspect of the evidence. This concerned the brother or, as Mr Vincent Wong on the Respondent's behalf, in his most helpful address to the court aptly referred to him, the "bad" brother who was arrested on 28 August 2002 in possession of a forged visa card. In the boot of the car he was using, items of equipment including an encoder, capable of reading data from credit cards, and a laptop computer were recovered. The brother had been in custody since that time.

14. Bearing in mind that the events in the present case occurred almost two months after the brother's arrest in respect of his allegedly fraudulent activities concerning credit cards, the judge focused, with painstaking care, on the evidence which directly linked the Appellant to those offences while balancing this with the other admitted evidence about the brother and the testimony given by DW1.

15. What it amounted to was that a DVD player had been purchased during the evening of 22 October 2002 with the unauthorised use of a credit card bearing a number which was to be found (in code) in the notebook found either in the Appellant's Gucci bag or being carried in his clothing. There was no evidence that the Appellant was himself the purchaser although the DVD player had ended up in the boot of a car parked in Kowloon City Plaza to which the Appellant had a key. It was found there soon after the Appellant's arrest.

16. On the next day, nine DVDs were purchased in Mongkok at about 3 pm. These, like the DVD player, ended up in the boot of the car, HF 2212. These had also been purchased on a credit card without the cardholder's authorisation. Again, the card number, in code, was to be found in the notebook. However, surveillance evidence established the Appellant's whereabouts at that time to have been in a restaurant in Kowloon City Plaza and the judge found, perhaps somewhat generously when acquitting the Appellant of handling these particular items, that he could not rule out the possibility that the Appellant was acting in concert with someone who, without the Appellant's knowledge, had bought the VCDs and placed them in the boot of his car. However, with regard to the VCD player, the purchase note for which had been found in his bedroom, the judge said:

"In all the circumstances, taking into account that the defendant had close connections with the car HF 2212, even though there is insufficient evidence to prove that he had exclusive use of the car and that he had recent access to the car, and the existence of the receipt in the defendant's home, in all the circumstances, I am satisfied beyond reasonable doubt that the defendant had received the DVD player." (Appeal bundle p. 56)

17. The judge went on to find guilty knowledge proved by the existence of the credit card number, in coded form, inside the notebook being carried by the Appellant.

18. In regard to charge 4, the judge again set out his reasons in full for convicting. He found this charge proved bearing in mind the evidence of the Appellant's possession of the two counterfeit credit cards and the numbers for them which, in coded form, were set out in the Appellant's notebook.

19. The judge who gave leave did so because of concern whether knowledge by the Appellant of the existence of the notebook and its contents had adequately been considered by the judge at first instance and whether that knowledge had been adequately established. That concern was, we respectfully agree, a matter for careful consideration and we now have had the advantage of a very detailed scrutiny of the chain of evidence. That chain led inexorably to this Appellant.

20. There was an abundance of evidence against the Appellant on both charges. He has put forward no specific grounds of appeal and we have not been able to discover anything of substance which could justify our interference with these convictions.

21. Accordingly, the appeal against conviction must be dismissed.

22. The appeal against sentence is also without merit. No grounds were advanced by the Appellant and we have not been able to find anything which suggested that the sentence imposed by the judge was a day too long.

23. This appeal is also dismissed.

(M. Stuart-Moore)	(Frank Stock)	(W. Yeung)
Ag Chief Judge	Justice of Appeal	Justice of Appeal
High Court

Representation:

Mr Vincent Wong, SGC, of the Department of Justice, for the Respondent.

Appellant in person.

CACC000367/2003

CACC 367/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO CACC 367 OF 2003

(ON APPEAL FROM DCCC 247 OF 2003)

(APPLICATION FOR LEAVE)

--------------------------------------------

BETWEEN:
	HKSAR	Respondent

	AND

	CHENG HOK MAN	Applicant

Coram: Hon Yuen JA in Court

Date of hearing and Decision: 24 December 2003

Date of Reasons for Decision: 2 January 2004

-----------------------------------

REASONS FOR DECISION

-----------------------------------

1. The Applicant Cheng Hok-man was charged with 7 charges before Deputy Judge A Wong in the District Court, with the following results:

(1) on the 1st charge, he pleaded guilty to driving whilst disqualified, and was sentenced to imprisonment for 5 weeks, of which 1 month was to run consecutively to the sentence for the 4th charge;
(2) on the 2nd charge, he pleaded guilty to using a vehicle without third party insurance, and was fined $3,000 and disqualified for 12 months;
(3) on the 3rd charge, he was convicted after trial of driving an unlicensed vehicle, and was fined $3,000;
(4) on the 4th charge, he was convicted after trial of possession of false instruments, being 2 counterfeit credit cards, and was sentenced to imprisonment for 39 months;
(5) on the 5th charge, he was acquitted of possession of equipment for making false instruments;
(6) on the 6th charge, he was convicted after trial of handling stolen goods, being a DVD player, and was sentenced to imprisonment for 16 months, of which 8 months were to run consecutively to the aggregate of the sentences for the 1st and 4th charges;

(7) on the 7th charge, he was acquitted of handling stolen goods.

2. In total, he was sentenced to imprisonment for 48 months and fined $6,000.

3. The Applicant applied for leave against conviction and sentence in respect of the 4th and 6th charges only. The Applicant was not legally represented and there were no formulated grounds of appeal.

Grounds of appeal

4. However, at the hearing of his application for leave, he orally indicated that his grounds of appeal were that the conviction was unsafe and unsatisfactory in that:

(1) the judge accepted the evidence of the 5 prosecution witnesses even though there were discrepancies in their evidence and even though they had not made any contemporaneous record of what they had found on the Applicant when he was searched;

(2) the judge had convicted him of the 4th and 6th charges on the basis of a single piece of evidence, being a notebook that the prosecution witnesses said was either on his person or in a Gucci bag that he was carrying when he was searched, and failed to take into account other pieces of evidence which implicated his elder brother Cheng Hung-man, who had been arrested in relation to credit card offences a few months before, and which indicated his (the Applicant's) innocence.

Counterfeit credit cards inside KT 170 (4th charge)

5. In brief, the prosecution case was that on 23 October 2002, the Applicant had driven a car (KT 170) from the Kai Tak Bazaar car park to a Wong Tai Sin refuse collection point. After the Applicant got out of the car, police searched him and searched the car. Two counterfeit credit cards were found concealed in a compartment beneath the audio system of the car.

6. When questioned, the Applicant said that KT 170 was not his. Subsequent investigations revealed that it was in fact registered in the name of the elder brother.

DVD player inside HF 2212 (6th charge)

7. The key chain that held the ignition key for KT 170 also held ignition keys for two other cars, HF 2212 and DS 561.

8. HF 2212 was parked inside the Kowloon City Plaza car park. The Applicant had earlier had lunch in that development but there was no evidence that he had used that car to get there. When police searched HF 2212, they found in the boot various items including a box containing a DVD player.

9. When questioned, the Applicant said that HF 2212 was not his. Subsequent investigations revealed that this car was also registered in the name of the elder brother.

10. The DVD player had been bought with a credit card (not the ones found in KT 170) in a transaction which had not been authorised by the cardholder. The number of the credit card used was written in a coded format in a notebook. The prosecution evidence as to whether the notebook had been found on the person of the Applicant, or in the Gucci bag, appears to have been unsatisfactory. I will refer to this later in these Reasons for Decision.

11. The police also searched DS 561 and found various items. Again, the Applicant said that the car was not his. Subsequent investigations revealed that it had originally been registered in the name of the elder brother, but it had been transferred into the name of a younger brother Cheng Chak-man.

Items found at Applicant's home

12. When the police searched the Applicant's home, which was a 2 bed-roomed flat which he shared with his wife, their baby and a domestic helper, they found (in a drawer of a dressing table in the couple's bedroom) a purchase order for the DVD player.

13. However they also found in a drawer of a wardrobe in the same room, various documents showing that the elder brother was the registered owner of KT 170 and DF 2212 and that the registered owner of DS 561 was the Applicant's younger brother.

14. The Applicant did not give evidence at trial. However the judge was aware that apart from a minor gambling offence some 14 years ago, he had no previous convictions and worked as a hairdresser.

Wife's evidence

15. The Applicant's wife gave evidence to the effect that the elder brother was a "parallel trader" in electrical appliances and that he stayed at the flat when he was in Hong Kong. He contributed to household expenses and kept his personal belongings in the wardrobe of their room. He parked one of his cars (KT 170) in the car park of the development and paid the rental.

16. Her unchallenged evidence was that the Applicant, the elder brother, the elder brother's friend Ben (who was also a "parallel trader") and she herself had keys to KT 170, HF 2212 and DS 561. She also said that the elder brother had borrowed the Gucci bag (which belonged to the Applicant) a few months ago.

Trial judge's findings

17. The judge directed herself that as the elder brother had been arrested in connection with forged credit cards and was the owner of KT 170 and HF 2212 (where the counterfeit credit cards and the DVD player were respectively found), she must consider the possibility that the items found in the cars were possessed by, or at least connected with, him.

18. At paragraph 45 of the Reasons for Verdict, the judge rejected the prosecution submission that possession of, or access to, the car proved that the Applicant had possession of the counterfeit credit cards which had been concealed in it. She held that it was only a factor to be taken into account. At paragraph 48 of the Reasons for Verdict, she held that she could not exclude the possibility that people other than the Applicant had the use of the car or had access to it.

19. However, one significant piece of evidence which the judge found linked the Applicant to the counterfeit credit cards was that their numbers (albeit in coded form) were written in the notebook which was found either on the person of the Applicant or in the Gucci bag which the prosecution witnesses said he was carrying when he was searched. From this, the judge drew "the only irresistible inference that the [Applicant] was knowingly in possession of the two credit cards" (paragraph 51, Reasons for Verdict).

20. The judge also found that the only irresistible inference that could be drawn from the circumstances was that the Applicant knew or believed that the credit cards were false instruments and that he possessed them with the intention that he or another would use them to induce someone to accept them as genuine and thereby act to his or any other person's prejudice.

Brother's access to Gucci bag

21. In respect of the notebook, it is at least arguable on appeal that the judge seems to have failed to take into account the wife's evidence that the elder brother had also had access to the Gucci bag, so that the notebook might have been his. In paragraph 41 of the Reasons for Verdict, the judge recorded the wife's evidence that the Gucci bag and a wallet had been lent to the elder brother in mid-June but considered the question whether they "were still not returned" to the Applicant (paragraph 42, Reasons for Verdict).

22. The judge concluded that as the elder brother had been arrested on 28 August, about 2 months before the Applicant was arrested, she was "sure that the [Gucci bag and the wallet] were not in the physical possession of the elder brother at the material time, otherwise it would not end up with the [Applicant] on 23 October".

23. With respect to the judge, she did not seem to have considered in respect of the Gucci bag the same point that she had considered in respect of the cars, that since the elder brother had had access to the Gucci bag, the notebook might have been left there by him.

24. Of course this point might not arise if the notebook had been found on the person of the Applicant, instead of in the Gucci bag, but the officer who searched the Applicant and the officer who witnessed the search did not make a record of what was found and from where each item was found (paragraph 36, Reasons for Verdict). The judge could only be satisfied that all the exhibits (including the notebook) which the officers had put into a plastic bag were "either found on the person of or inside the Gucci bag being carried by the [Applicant] at the material time". There was no other evidence that linked the notebook to the Applicant e.g. there was no evidence that the numbers were in his handwriting.

25. Since the notebook was essential to the trial judge's finding of guilt but there appears to have been a failure to consider the possibility that the notebook was the elder brother's and not the Applicant's, I consider that the Applicant should have leave to appeal in respect of the 4th charge.

26. As for the 6th charge, the trial judge found the Applicant guilty of handling stolen goods because the Applicant had "close connections" with DF 2212 (where the DVD player was found) and because there was a purchase order for the DVD player in the drawer of the dressing table in his room. However as was recognised by the judge, there was no evidence that the Applicant had had any recent access to DF 2212. Further, the judge seems to have relied on the fact that the number of the credit card used to purchase the DVD player had been written in the notebook (paragraph 69) when she drew the inference that the Applicant knew or believed the DVD player was stolen property. The judge appears not to have taken into consideration the possibility that the notebook might have been the elder brother's.

27. In the circumstances, I consider that the Applicant should have leave to appeal in respect of the 6th charge as well.

	(MARIA YUEN)
	Justice of Appeal

Representation:

Rosaline SY Leung, SGC for HKSAR

Cheng Hok Man, Applicant, in person, present.