Wong Hing Chin and Another v. R.

CACC000162/1992

CA No.162/92
(Criminal)

IN THE COURT OF APPEAL

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Coram: Hon. Macdougall, J.A., Bewley & Ryan, JJ. in Court

Date of hearing: 1 June 1993

Date of delivery of judgment: 8 July 1993

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J U D G M E N T

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Bewley, J.

1. On 14th April 1992 the appellants were jointly convicted of possession of forged banknotes (charge 11), possession of forged dies (charge 12) and possession of articles fit and intended for use in the forgery of a document (charge 13). On these charges they were each sentenced to a total of six years' imprisonment.

2. They were separately convicted of possession of small quantities of forged banknotes, for which they were sentenced to concurrent sentences of 18 months' imprisonment. The first appellant (D2) pleaded guilty to possession of a dangerous drug (cannabis) and was fined $500.

3. The appellants were among five defendants who faced a total of 17 charges before Judge Evans in the District Court. Charges 1-10 concerned the theft of portable telephones and the uttering of forged credit card sales slips by two other defendants (D1 and D5). They are irrelevant to this appeal.

4. The appellants (D2 and D3) together with a third man (D4) were arrested in a Hanoi Road restaurant on 8th March 1991 on suspicion of uttering forged credit cards. In D2's wallet the police found one counterfeit US$100 note and four counterfeit RMB100 notes. In D4's bag they found one counterfeit US$100 note and one counterfeit RMB100 note. Each defendant had a set of three keys in his possession, about which they were questioned in Regional Crime Squad Headquarters.

5. D2 said he did not know what the keys were for and that he had been given them by a man called Ah Keung for safe keeping. D4 said his keys had been given to him by a friend about six months earlier and he also did not know what they were for. In a later statement he said it was four months, not six. He had obtained the banknotes in Thailand and China.

6. On 11th March police enquiries led them to Room 1, Flat B, 86 - 88 Nathan Road, 8th Floor. The keys found on the defendants fitted the padlock, gate and door of this room. There was an interior door leading to the rest of the flat, which was bolted from inside the room. This room was thoroughly searched and the contents dusted for fingerprints.

7. On the floor of the room there were three shoeboxes containing a total of 5,200 counterfeit RMB notes. In the third drawer of the cupboard two envelopes were seized. One of these contained 62 counterfeit RMB100 notes, on one of which D4's fingerprint was found. The other envelope contained 17 counterfeit US$100 notes. There were two plastic bags in this drawer containing respectively 6.6g of cannabis and 19 cannabis cigarettes.

8. In the first drawer of the same cupboard ten forged credit cards were found in different lai see packets and an MTR ticket cover. D2's fingerprint was found on the latter. In the same drawer two white embossed plastic cards were found in another lai see packet. D2's passport, his home visit permit, Republic of China entry/exit permit and three photographs were also in this drawer. The Crown called expert evidence that the cards had been used to create impressions on three credit card sales slips (Ex P15-17) found in that drawer. On one of these slips (Ex P15) the fingerprints of both D2 and D4 were found. One of the white cards had also been used to create an impression on a similar slip (Ex P3), which had been found in D2's pocket on arrest.

9. In a red travel bag in the wardrobe two credit card sales slips were found, on one of which (Ex P13) D4's fingerprint was found. D2's re-entry permit, birth certificate and an album of photographs of D2 were also in this travel bag.

10. D2's cheque book was in the room and in the mail box, to which D2 had a key, was a letter addressed to D2 from his bank. D2's fingerprints were found on a flower vase and a wine glass on top of a cupboard.

11. Rent receipts in the name of Cheung Wong-chi were in this room and in the room of the principal tenant. Cheung testified that he had nothing to do with the premises; he had reported his identity card missing on 5th February 1990. The defendants attended an identification parade but were not identified by the principal tenant. The judge accepted Cheung's evidence.

12. D4 did not give evidence but adopted D2's evidence as to his handling of the exhibits. He also challenged the reliability of the fingerprint evidence.

13. D2 told the court that in January 1991 he was living in a hut with the family of a friend, which was not a happy arrangement. That month he met an acquaintance, Ah Keung, who offered to let him use Room 1 in the flat in question while he himself was working in China. He gave him three sets of keys.

14. A few days later D2 met D3 and D4 for tea. He had found it inconvenient to keep three sets of keys and he asked D3 and D4 to look after them for him, to which they agreed. D2 did not explain why he did not simply leave the other two sets in the room.

15. D4 had been keeping D2's important documents at his home. He was short of space so, after tea that day, D2 retrieved his travel bag containing the documents from D4's home and put it in the wardrobe in Room 1.

16. D2 next went to Room 1 in early February. He took his recently acquired Republic of China travel document and some photographs and left them in the cupboard drawer. When he returned from his visit to China over Chinese New Year, he placed his home visit permit in this drawer. The RMB notes found in his possession at arrest had been bought from a man in the street during this visit; D2 had no idea they were forged.

17. In early March D2 bought some cannabis which he put in the third drawer of the cupboard. He noticed banknotes in an open envelope. He picked it up and saw that they were RMB. He thought that Ah Keung must have returned and had left them there. He also opened the first drawer of the cupboard to check his documents. Out of curiosity he picked up the lai see packets and MTR holder and saw the credit cards, which he assumed belonged to Ah Keung.

18. On 8th March D2 met someone called Wah Chai in Granville Road. They had arranged to have tea together. Wah Chai said he was too busy for tea but asked D2 to keep something for him until the following day. D2 agreed to do so because they were "only pieces of paper". In fact they were the sales slips Ex P3 and Ex P15-17. When Wah Chai was taking the sales slips from his brief-case D2 noticed a US$100 note, which he bought from Wah Chai for $760. This was the note found in his wallet later that day.

19. D2 returned to Room 1 to put away the sales slips, but he forgot to do so after D4 telephoned and asked him to meet him for tea. D2 decided to take along the RMB notes in the envelope because he was suspicious and wanted D4's opinion. He put the envelope in the same pocket as the sales slips. When D2 met D4 for tea he drew out both envelope and sales slips in a bundle and handed them to D4. This is how D4 touched the slips, resulting in his fingerprints appearing on Ex P15. D4 was not sure if the notes were counterfeit and returned the notes and the slips to D2. D2 went back to Room 1, putting the envelope in the third drawer and the slips in the first drawer. After his arrest he realised he had left one slip (Ex P3) in his pocket.

20. D2 said he had visited the room seven or eight times altogether and had spent one or two nights there in January. He knew nothing about the shoeboxes or the credit cards. The sales slips in the travel bag (Ex P13-14) had been given to him a long time ago by a friend. D4 had discovered them while helping him to sort his papers. D2 had forgotten who had given them to him so he put them in the bag.

21. D2 admitted lying to the police. He told them he had lost his travel documents and did not know what the keys were for because he did not want the police to find either the cannabis or the suspicous notes and credit cards.

22. The judge accepted expert evidence that the bank notes (charges 11, 16 and 17) had been forged, that the US$ notes came from the same source and that the RMB notes had similar characteristics. He also accepted expert evidence that the credit cards (charge 12) and the white plastic cards (charge 13) had been forged. He also accepted the fingerprint evidence.

23. The judge rightly attached weight to the fact that each appellant was in possession of three sets of keys to the one external entrance. The explanation given by D2 in evidence - that he was looking after keys for his friend and that the other two defendants were doing likewise - was absurd. There was no reason why the friend, during his absence in China, or D2 himself, should not have left the spares in the room. The door connecting this room to the rest of the flat could be bolted from the inside.

24. This evidence was reinforced by the finding of the appellants' fingerprints on the notes and documents in the room and on their persons. Such cogent evidence from the Crown witnesses was met only with evidence from D2 that he and D4 had accidentally touched the articles in the course of innocent handling. In his lengthy and careful Reasons for Verdict, the judge has stated why he found D2's explanation lacking in credibility. We accept the judge's findings. It was a highly improbable tale. D4's explanation to the police was also rightly rejected by the judge. The forensic evidence links D4's notes to those found in the room and on D2.

25. We have been concerned about only one aspect of the judge's decision. He said at p.52 :

" The case against A4 must of course be separately considered in relation to each charge against him. I have already found that his fingerprints appear on P13, P15 and the note from P52 and in that event his defence then moves, as his counsel submits, to reliance upon the evidence of A2 i.e. as to how his fingerprints did come to be on those items in Room 1 and his possession of the 3 necessary keys to it. A4 did not give evidence but that that is his defence is reinforced by the fact that A2 was not cross examined about his story.

As I have said I do not believe A2 and I find his story to be untruthful both as regards himself and as regards A4 and, insofar as A4 is concerned, an attempt by A2 to distance A4 from Room 1 and offer a story attempting to explain A4's fingerprints on exhibits found there by having them innocently put on the exhibits elsewhere. The fact that A2 has lied in that regard is a factor which I can and do take into account in determining verdicts against A4." (Emphasis supplied)

26. The judge had earlier correctly directed himself as to the significance of D2's lies when he said:

"I find he has lied in evidence and that those lies relate not to the drugs, regarding which he has pleaded guilty, but to the true situation in relation to his possession of items the subject of the various charges and it is for that reason principally he lied to the police in the first place and for that reason also he has lied in evidence. The lies are deliberate and material and are motivated by a realization of guilt and fear of the truth. That untruthfulness is a factor which I can and do take into account as strengthening the inference of guilt which follows from the established evidence against the accused."

27. We note that D2 was not cross-examined by counsel for D4, who identified himself with D2's explanation as to the presence of the fingerprints on the exhibits.

28. We are satisfied that, in the same way that D2's evidence, if believed, could be used to distance D4 from the room, D2's lies in the witness box concerning D4 could properly be used by the judge as evidence of D4's adoption and reliance on them to exculpate himself.

29. The judge was therefore entitled to take that evidence into account, together with the fingerprint evidence and D4's evasive answers to the police, in reaching the conclusion that, apart from the cannabis, D4 was in joint possession with D2 of the contents of the room. We are further satisfied that the judge was referring to the lies told by D2 in court and not the lies he told the police.

30. For these reasons the applications for leave to appeal against conviction are refused.

31. The applicants also appeal against sentence. D2 has one previous conviction for shoplifting when he was 16, which the judge disregarded for sentencing purposes. D4 has five previous convictions, four of which include obtaining property on a forged document. His last conviction was in 1983. The judge was unable to distinguish their roles in these offences and, conscious that he may have been showing some leniency to D4 because of his record, he treated them on the same basis for sentence.

32. Sentences of six years were passed on charge 11, which concerned the banknotes in the room, three years on charges 12 and 13, which concerned the credit cards, and 18 months on charge 16, which concerned the notes found on D2 at his arrest.

33. The judge found that the room was being used as a store for both the notes and credit cards etc. He took into account that the cards were intended for fraudulent use and that there would be profit for the defendants from their dealings with both cards and notes.

34. It was urged upon us by Mr Allan, for the applicants, that six years is too severe a sentence in the absence of evidence of profit.

35. In R. v. Ngan Chun Yee and others CA No.137 of 1984 sentences of six years were reduced to four years for possession of 100 forged $1,000 banknotes. However, noting that there had been an increasing number of appeals against sentence for this offence in recent months, Roberts, C.J. concluded :-

"We should like to say that although we felt it proper to reduce these sentences because of the previously prevailing tariff for them, we consider that judges should consider increasing the tariff to the sort of level which was applied by the trial judge in this case, so that in future we would not be inclined to interfere with a sentence of 6 years' imprisonment in a case of this nature, following a plea of not guilty and a conviction."

36. In R. v. Wong Fu Keung CA No.5 of 1991 four years' imprisonment was upheld on appeal for possession of 13 forged credit cards.

37. Finally in R. v. James Botelho CA No.411 of 1992 three years' imprisonment was upheld for possession of forged credit cards. The offence involved a breach of trust carried out over a long period and a loss of some $8m. The court approved a starting point of five years.

38. The present appeal is in our opinion more serious than those cited, involving as it does both forged credit cards and also a large quantity of forged banknotes. The judge in this case has also noted that offences relating to the forgery of banknotes appear to be becoming more prevalent.

39. In the circumstances we do not consider the sentences excessive and we therefore refuse the applications for leave to appeal against sentence.

Representation:

Mr J.A. Pethes, DPCC, for Crown

Mr William Allan, instructed by M/s Raymond Tang & Co., for both appellants