HKSAR v. Dashpal Singh

DCCC 798/2019

[2021] HKDC 827

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 798 OF 2019

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REASONS FOR VERDICT

1.At the commencement of the trial D1 pleaded not guilty to four charges of theft, contrary to section 9 of the Theft Ordinance[1] (charges 1, 2, 3 & 7) and one charge of attempted theft, contrary to section 9 of the Theft Ordinance and section 159G of the Crimes Ordinance[2] (charge 4).

2.The prosecution offered no evidence against D1 on charge 2 and the charge was dismissed[3].

3.D1 pleaded guilty to one charge of possession of five identity cards relating to other persons, contrary to section 7A (1A) of the Registration of Persons Ordinance[4] and agreed a summary of facts in respect of this charge (charge 8).

4.I now give my reasons for verdict on charges 1, 3, 4 and 7[5]. 

Introduction

5.In the early hours of 3 February 2019 (charge 1), 9 April 2019 (charges 3 & 4) and 14 April 2019 (charge 7) credit cards were fraudulently used in Circle K Convenience Store at No. 7 Davis Street in Kennedy Town. 

6.The owners of the cards had each been out drinking the night before.  After drinking too much the owners collapsed in the street.  When they regained consciousness they discovered their wallets containing their credit cards and their mobile phones were missing.   

7.The prosecution charges the fraudulent use of the cards as theft and not fraud or obtaining property by deception.  D1 is not charged with theft of the credit cards.

8.The prosecution case is that D1 used the stolen credit cards on 3 February, 9 April and 14 April 2019.  The prosecution relies upon CCTV evidence and asks the court to say that the South Asian male in the CCTV seen conducting the transactions, on each of the three days is D1.  The prosecution relies on the clothing found in D1’s home on arrest, which clothing the prosecution say is the same clothing seen in the CCTV footage. 

Evidence

9.The prosecution called four witnesses on the list of prosecution witnesses attached to the prosecution opening: Ms Li Ying (PW2), the staff of Circle K on 3 February 2019[6]; Ms Lau Tak Hing (PW3), the staff of Circle K on 9 April & 14 April 2019[7]; DPC 11971 (PW4), the arresting officer of D1[8] and DSPC 10578 (PW6), the exhibit officer who searched D1’s home[9].

10.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance, including the loss of the credit cards and their subsequent fraudulent use[10]; the arrest of D1[11]; CCTV footage (exhibit P6)[12]; screen captures from the CCTV footage (exhibit P10) [13] and photographs (exhibit P8)[14]. A certificate containing a table of the transactions produced from the computer of Circle K has also been admitted pursuant to section 22 of the Evidence Ordinance [15]. I will refer to the admitted evidence as I review the evidence.

11.Also admitted in evidence is a video recorded interview given by D1 (exhibit P5)[16].  In reaching my verdict I have considered the content of the video interview in accordance with the decision in R v Sharp[17].

12.D1 elected not to give evidence or call witnesses.  No adverse inference is drawn against D1 for remaining silent.  That is his right.  This proves nothing one way or the other.  This does not establish his guilt. 

13.Save reliance is placed on the denials in the video recorded interview, no positive case has been put forward on behalf of D1.  Mr McNamara submits that the prosecution has failed to prove that the CCTV footage shows the transactions subject of the charges and that the person seen on the CCTV footage is D1.

14.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  D1 has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant on each charge before I can convict, each charge to be considered separately.  On the other hand, if the court thinks that any defence evidence pointing to innocence is true or may be true, it would follow that the defendant has raised sufficient doubt in the prosecution case and is entitled to be acquitted.   

15.I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.  

Issues

16.Two main issues arise: first does the CCTV footage capture the fraudulent use of the credit cards.  Second, if the CCTV footage shows the fraudulent use of the credit cards is D1 the South Asian male seen on the CCTV footage carrying out the transactions.  The issues are the same for all four charges.

17.I have carefully considered all the evidence and the submissions of Mr Hotten and Mr McNamara. 

18.I have viewed all the CCTV footage many times.  The CCTV footage comprises of footage from two cameras, Cam 01 and Cam 02. Specific parts of the CCTV footage are best seen by playing in slow motion, frame by frame or using the step forward function.  The CCTV footage for charge 7 was recorded onto a mobile phone.  The camera numbers cannot be seen on the footage.  I am however satisfied that the footage is from Cam 01 and Cam 02. 

19.Exhibit P6 comprises three discs, one for charge 1, one for charges 3 and 4 and one for charge 7.  The working copy supplied to court consisted of one disc containing the footage played in court[18] whereas exhibit P6 contained additional footage, including Cam 01 for charges 1 and 3. 

20.When I played the footage on the working copy for charges 3 and 4, the footage would only play in fast forward mode. I therefore checked the CCTV footage, exhibit P6, to see whether the footage also played in fast forward mode only, at which time I discovered the additional footage on exhibit P6.  At no time during the trial did Mr Hotten mention there was other footage which had not been played in court and had not been copied onto the working copy supplied to court. 

21.The footage again only played in fast forward mode.  I therefore asked the parties to attend court on 2 July 2021 to mention the matter[19].  The prosecution and defence confirmed their copies of the CCTV footage played in normal time.  The working copy supplied to court was then played in court.  The footage played in normal time.  I was therefore satisfied that the problem lay with the computer I used and not the working copy.

22.I then addressed the parties on the additional footage.  Mr McNamara confirmed that the defence had been served with all the CCTV footage, including Cam 01 for both charges 1 and 3 and that he had viewed all the footage.  Mr McNamara submitted that the court should only rely on the footage played in court but if the court was against him then he had no further submissions to make, the additional footage making no difference. 

23.All the CCTV footage having been served on the defence and viewed by the defence and admitted into evidence, I was satisfied that I could view the footage which was not played in court.  I have viewed Cam 01 for charges 1 and 3.   The other footage from different cameras is either blank or does not show what happened.

24.After the hearing the prosecution supplied a further working copy to the court which contained all the footage on one disc.   

Does the CCTV footage show the fraudulent use of the credit cards?

Admitted evidence

25.The times and amounts of the fraudulent transactions are admitted[20].  

26.A record of the transactions produced from the computer of Circle K, showing the times, amounts and items purchased, has also been admitted (exhibit P14)[21].  The record is annexed in the form of a table.  This is prima facie evidence of any fact therein stated.  Unless otherwise stated I accept the facts stated in the table.

27.CCTV footage covering the relevant times and dates in relation to charges 1, 3, 4 & 7 has been admitted (exhibit P6)[22]. Screen captures from the CCTV footage have also been admitted (exhibit P10)[23].

Charge 1

28.Admitted in evidence is that at around 7 a.m. on 3 February 2019 Mr Cheung regained consciousness having collapsed the night before while drinking in Tsim Sha Tsui; Mr Cheung discovered that his wallet containing his Hang Seng Bank Mastercard No. 5520-3720-0882-0121 was missing and that without his authorisation the Mastercard had been used to make four fraudulent transactions in the small hours of 3 February 2019 at the Circle K Convenience Store on the Ground Floor of No. 7 Davis Street, Kennedy Town[24]. 

29.The admitted times of the four transactions are 05:29, 05:30, 05:31 and 05:32[25].     

30.The CCTV footage for 3 February covers the time period 05:15 to 05:52.  The prosecution say that the transactions are shown from 05:35:14 to 05:40:21 a difference of about six minutes with the admitted times of the transactions. 

Charges 3 & 4

31.Admitted in evidence is that at around 5 a.m. on 9 April 2019 Mr Li regained consciousness having lost consciousness at around 4 a.m. after becoming very drunk in Tsim Sha Tsui; Mr Li discovered that his wallet containing his Standard Chartered Bank credit card No. 4509-3606-4056-7265 was missing and that without his authorisation the credit card had been used to make seven fraudulent transactions in the small hours of 9 April 2019 at the Circle K Convenience Store on the Ground Floor of No. 7 Davis Street, Kennedy Town[26]. 

32.Four transactions were successful (charge 3) and three unsuccessful (charge 4).  The admitted times of the four successful transactions are 05:41, 05:42, 05:43 and 05:44 and the three unsuccessful transactions are 06:03 and 06:04[27].     

33.The CCTV footage for 9 April covers the time period 05:46 to 06:00 (for charge 3) and 06:00 to 06:45 (for charge 4)[28]. The prosecution say that the transactions are shown from 05:55:35 to 05:59:45 (charge 3) and 06:17:57 to 06:19:25 (charge 4), a difference each time of about fourteen minutes with the admitted times of the transactions. 

Charge 7

34.Admitted in evidence is that at around 4:15 a.m. on 14 April 2019 Mr Chan regained consciousness after collapsing in Tsim Sha Tsui while drunk; Mr Chan discovered that his wallet containing his Standard Chartered Bank credit card No. 5523-4384-1280-1945 was missing and that without his authorisation the credit card had been used to make five fraudulent transactions in the small hours of 14 April 2019 at the Circle K Convenience Store on the Ground Floor of No. 7 Davis Street, Kennedy Town[29].

35.The admitted times of the five transactions are 03:27, 03:28; 03:30; 05:03 and 05:07[30].

36.No CCTV footage has been adduced covering the first three transactions.  The only CCTV footage adduced for 14 April, which the prosecution say shows the last two transactions, covers the period 05:14:28 to 05:18:51, a difference of about eleven minutes with the admitted times of the last two transactions[31]. 

Discussion

37.Mr McNamara submits that there is no relation between the times and therefore no evidence that the CCTV images show the fraudulent transactions[32]. 

38.I have no hesitation in rejecting this submission.  As noted already admitted in evidence is that the CCTV footage covers the relevant times and dates in relation to charges 1, 3, 4 & 7 (exhibit P6)[33]. 

39.What has not been admitted is that there is a time difference between the admitted times of the fraudulent transactions and the times the prosecution say the fraudulent transactions are shown in the CCTV footage. 

40.On day 4 of the trial (15 April 2021) during the evidence of  PW3, Ms Lau Tak Hing, Mr Hotten stated this had been agreed a long time ago that the times are out slightly[34]. Notwithstanding the court pointed out that there was no admitted evidence as to the different times no evidence has been called explaining the differences. 

41.This was not the first time Mr Hotten had stated that this evidence was agreed. Prior to the first witness being called the issue of the difference in times was raised during a discussion with regard to charge 7[35]. 

42.On the court pointing out to Mr Hotten that this had not been agreed and was not in evidence so far, Mr McNamara stated the following:

“No, it’s not but your honour what’s going to happen, as I understand it, is my learned friend is going to call these shopkeepers and they will produce receipts showing the various transactions and those receipts have the time on them but the times on the videos are all over the place. The times that are referred to in the admitted facts are the times that are in fact on the receipts issued by shops.”

Court: So the times in the shop don’t match the times on the CCTV?

Mr McNamara: “The times in the shop bears no relation to what’s on the film and the times that are set out in the admitted facts are the times on the receipts and we are happy that they are the times because the evidence, it doesn’t matter because probably you won’t hear the evidence but the evidence is that sometimes the electricity goes off.”

43.If this indeed was the explanation for the time difference, in the absence of any admission made by the defence, evidence of this explanation should have been called[36].

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

45.In his final submission Mr Hotten asks the court to first determine whether the South Asian male seen in the CCTV footage and who the prosecution say is conducting the fraudulent transactions is D1 and only then consider the evidence of the transactions and times[37].

46.In my view the better course is to first determine which parts of the CCTV footage actually show the fraudulent transactions and then consider the evidence of identification.

47.Mr Hotten submits that in some instances it appears that many of the items purchased and subject to the charges, can actually be identified by looking closely at the CCTV footage[38].

48.No particulars of this submission were provided.  Mr Hotten stated that he would submit a table showing the times where he says the items purchased can actually be identified by looking closely at the CCTV footage.  The table was sent to court on 22 June 2021[39]. By letter dated 25 June 2021 the defence refer to two discrepancies[40].  Apart from these discrepancies the defence had no further submissions[41]. 

The evidence of the shopkeepers

49.The prosecution called two shopkeepers of Circle K, Ms Li Ying (PW2) in relation to the 3 February 2019 (charge 1) and Ms Lau Tak Hing (PW3) in relation to the 9 April and 14 April 2019 (charges 3, 4 & 7).   

50.Not surprisingly after over two years the witnesses could remember very little.  Mr McNamara submits their evidence is of no assistance and that at best they simply parrot what can be seen on the CCTV clips[42].   

51.I do not agree that their evidence is of no assistance. 

Ms Li Ying (PW2)

Charge 1

52.Having been shown the CCTV footage (Cam 02) between 05:35:00 to 05:40:25 Ms Li said that she recognised herself at the till.  Asked if she remembered or recognised serving the South Asian male in blue jacket, blue jeans and white slippers, Ms Li replied, “It was so long ago, probably I have forgotten.”   Asked whether having seen the CCTV footage did she now remember, Ms Li replied “I have some recollection.”  Ms Li confirmed the CCTV footage showed her serving the South Asian male.

53.Ms Li’s evidence was adjourned for the prosecution to consider how to produce the record of the transactions produced from the computer of Circle K.   The next morning before Ms Li resumed her testimony the prosecution, pursuant to section 22A of the Evidence Ordinance, produced the certificate annexing the record in the form of a table (exhibit P14). 

54.On resuming her testimony and before being shown the table Ms Li was asked having seen the CCTV footage whether she had any recollection of the items she sold to the South Asian male.  Ms Li replied, “Having seen the footage I have the recollection of selling drinks, chocolate and iTunes valued at $2,000.”  

55.Ms Li was then referred to transactions 1-4 on the table (exhibit P14) and asked, “Are those all the items that you sold at that time which you saw yourself doing in the CCTV?”  Ms Lau replied “Yes”.   

56.On this evidence I am satisfied so I am sure the only inference to draw is that the CCTV footage between 05:35:00 to 05:40:25 shows the South Asian male making the four fraudulent transactions with Mr Cheung’s Hang Seng Bank Mastercard No. 5520-3720-0882-0121.

57.In reaching this finding I have considered that the table shows transactions 3 and 4 were paid by a different credit card.  Ms Li was unable to say whether payment was with one card or two cards because payment was made by using a mobile phone. 

58.Notwithstanding there was an adjournment of almost three weeks before the close of the prosecution case, no evidence was called to explain this discrepancy.  I am nevertheless satisfied this discrepancy is cured by the admitted facts that the payment was made at these times by the same credit card. 

59.In addition, having viewed the CCTV footage, I am satisfied the footage between 05:35:15 and 05:40:21 shows the transactions.  In summary the CCTV footage, Cam 02, between 05:35:15 and 05:40:21 shows:

(a) after entering the store at 05:35:15 the South Asian male between 05:35:20-05:35:50 picks up two bars of chocolate and an iTunes card from the display racks and takes them to the cashier counter;

(b) at 05:36:35 the South Asian male places the two bars of chocolate and the iTunes card on the cashier counter;

(c) between 05:36:36-05:36:39 Ms Li picked up the two bars of chocolate and after scanning the barcodes placed the two bars of chocolate back on the counter;

(d) between 05:36:39-05:36:47 Ms Li takes from behind the cashier counter two packets of cigarettes, scans the barcode and places them on the counter together with the two bars of chocolate;

This is best seen on the CCTV footage from Cam 01;

(e) between 05:36:47-05:37:08 the South Asian male is seen making payment with his mobile phone;

(f) between 05:37:08-05:37:14 the South Asian male picks up the chocolate and cigarettes and puts them in his pocket;

(g) between 05:37:08-05:37:35 Ms Li picks up the iTunes card and goes to the display rack where the South Asian male had earlier picked up the card and changes the card. Ms Li then returns to the cashier counter, scans the new card which she then puts on the counter;

(h) between 05:37:35-05:38:00 the South Asian male is seen making payment with his mobile phone after which he picks up the iTunes card and puts the card in his pocket;

(i) between 05:38:25-05:38:35 Ms Li gives the South Asian male a receipt;

(j) between 05:38:40-05:38:58 Ms Li scans three bottles of drink after which the South Asian male is seen paying with his mobile phone;

The three bottles had been placed on the cashier counter by a male wearing a black cap and who had entered the store at 05:36:55 (see CCTV footage between 05:36:55 and 05:37:24);

(k) between 05:38:58 and 05:39:31 the South Asian male goes to the same display rack where he had earlier picked up an iTunes card and picks up another iTunes card; returns to the cashier counter and gives the card to Ms Li but changes his mind and chooses a different iTunes card which was displayed on the cashier counter;

(l) between 05:39:31 and 05:39:49 Ms Li scans this iTunes card after which the South Asian male is seen paying with his mobile phone and putting the iTunes card in his pocket; and

(m) between 05:39:49 and 05:40:21 Ms Li puts the three bottles of drink in a plastic bag together with the receipt after which the South Asian males picks up the bag and leaves together with the other male wearing a black cap.

The CCTV footage from Cam 01 also captures most of what happened between 05:35:15 and 05:40:21 save that the rack for iTunes cannot be seen in the footage.

60.I have also considered the cross-examination by Mr McNamara that Ms Li described a different occasion to the police.  Mr McNamara showed Ms Li her witness statement dated 27 June 2019 in which she described a South Asian male wearing a black hooded jacket with the hood covering his head purchasing two iTunes valued at $5,000, cigarettes and drinks with a credit card.   Ms Li also told the police that it was in the small hours and it was rare to have South Asians shopping in the store so she remembered him clearly. 

61.In answer to the court Ms Li, after having had the opportunity of viewing the CCTV footage again, confirmed the South Asia male seen in the footage was not wearing a hooded jacket.    Asked by the court if she was able to say why she told the police he had a hooded jacket on, Ms Li replied “Because it happened so long ago and I didn’t quite remember and at that time it was not the first time that he came and sometimes he would have a hood on.”[43] 

62.The witness statement was given over four and half months after the transaction on 3 February 2019.  I accept the explanation given by Ms Li for telling the police the person was wearing a black hooded jacket.  This discrepancy does not cause me to doubt the findings I have made.

Ms Lau Tak Hing (PW3)

Charges 3 & 4

63.Ms Lau confirmed that she was on duty at 05:40 on 9 April 2019 and that among other things she served a South Asian male and that between 06:03 and 06:04 she again served a South Asian male.  I note that Ms Lau was not asked whether she served the same South Asian male.

Charge 3

64.Ms Lau was shown the CCTV footage (Cam 02) between 05:55:35 and 05:59:45.  Asked if she had any recollection of the sales she made at that specific time Ms Lau replied that she remembered.  Asked if she had any recollection of the South Asian male in the hood, Ms Lau replied that “Now I do not quite have the recollection because it happened so long ago.”  Ms Lau said at that time she did not have any conversation with the South Asian male.

65.Ms Lau was then referred to transactions 9-12 on the table (exhibit P14) and confirmed that she sold these items.  When Mr Hotten pointed out payment was made by credit card ending 7265, Ms Lau replied “Here I cannot remember because he used a mobile phone.”  Mr Hotten did not however ask Ms Lau (as he had asked Ms Li) to confirm that the CCTV footage shows her selling all the items in transactions 9-12. 

66.Although Ms Lau did not confirm the four successful transactions were shown on the CCTV footage, having viewed the CCTV footage, I am satisfied the footage between 05:55:35 and 05:59:21 shows the four transactions.  In summary the CCTV footage, Cam 02, between 05:55:35 and 05:59:21 shows:

(a) after entering the store at 05:55:36 the South Asian male between 05:55:36-05:55:49 walks to the display rack for iTunes and takes one card to the cashier counter and hands to Ms Lau;

(The display rack is the same display rack the South Asian male selected an iTunes card in the CCTV footage for charge 1.)

(b) between 05:55:49-05:55:57 Ms Lau scans the card (‘the first card”) which she then places on the cashier counter;

(c) between 05:55:57-05:56:10 the South Asian male is seen making payment with his mobile phone;

(d) between 05:56:20-05:56:31 the South Asian male goes to the display rack for iTunes;

(e) between 05:56:31-05:56:57 Ms Lau is seen putting a receipt on the first iTunes card which is still on the cashier counter after which the South Asian male is seen picking up the card and the receipt with his right hand and with his left hand putting two more iTunes cards (“the second and third iTunes cards) on the counter;

(f) between 05:57:20-05:57:53 Ms Lau is seen scanning the second iTunes card followed by the South Asian male making payment with his mobile phone and Ms Lau giving him the receipt which he picks up;

(g) between 05:57:50-05:58:14 Ms Lau is seen scanning the third iTunes card and the South Asian male making payment with his mobile phone;

(h) at 05:58:22 Ms Lau places the receipt on top of the third iTunes card;

(i) between 05:58:14-05:59:06 the South Asian male picks up the second iTunes card which he puts together with the receipt in his wallet and then picks up the third iTunes card and receipt and also puts them in his wallet; and

(j) between 05:59:18-05:59:41 Ms Lau is seen scanning a carton of cigarettes, which had been taken to the counter by another sales lady between 05:58:57 and 05:59:04, followed by the South Asian male making payment with his mobile phone, picking up the carton of cigarettes and leaving the store.

The CCTV footage from Cam 01 also captures most of what happened between 05:55:35 and 05:59:21 save that the rack for iTunes cannot be seen in the footage.

Charge 4

67.Ms Lau was first shown the CCTV footage, Cam 02, between 06:17:00 and 06:19:31.  Asked if she recalled the incident with the South Asian male wearing a white T-shirt, Ms Lau replied she could not remember.  Ms Lau said she was the person seen on the CCTV serving the South Asian male.  Asked to describe what was happening on the CCTV footage Ms Lau replied that “Looking at the CCTV the transaction was unsuccessful on two occasions.”

68.Later Ms Lau was shown the CCTV footage, Cam 01, between 06:17:39 and 06:19:31.  Ms Lau confirmed the footage showed her at till No. 2 and that the man in the white T-shirt bought the $2,000 iTunes card but the transaction was unsuccessful. Ms Lau therefore asked him to try till No. 1 but again the transaction was unsuccessful. 

69.The CCTV footage, Cam 02, between 06:17:56 and 06:19:25 shows:

(a) after entering the store at 06:17:56 the South Asian male between 06:17:56-06:18:13 walks to the display rack for iTunes and takes one card to the cashier counter, places the card on the counter which Ms Lau then scans;

(The display rack is the same display rack the South Asian male in the CCTV footage for charges 1 & 3 selected an iTunes card.)

(b) between 06:18:13-06:19:16 the South Asian male is seen trying to make payment with his mobile phone twice at till 2 and then once at till 1; and

(c) between 06:19:16-06:19:25 the South Asian male is seen putting the iTunes card back on the rack and leaving the store.

70.This is also captured on the CCTV footage from Cam 01 save that the display rack for iTunes cards cannot be seen.

71.Admitted in evidence is that the unsuccessful transactions were at 06:03 and 06:04 in the sum of $2,000[44]. Ms Lau having identified two unsuccessful transactions for a $2,000 iTunes card, I am satisfied so I am sure the only inference to draw is that the CCTV footage between 06:17:56 and 06:19:25 shows the South Asian male making the unsuccessful transactions with Mr Li’s Standard Chartered Bank credit card No. 4509-3606-4056-7265 after which he puts the iTunes card back on the rack. 

72.The admitted facts refer to three unsuccessful transactions whereas the table (exhibit P14) refers to two unsuccessful transactions (13 & 14).  This does not cause me to doubt the only inference to draw is that the CCTV footage between 06:17:56 and 06:19:25 shows the South Asian male making the unsuccessful transactions with Mr Li’s Standard Chartered Bank credit card. 

73.Both the admitted facts and the table refer to the same credit card.  Further, I accept Ms Lau’s evidence that the transaction failed at both till No. 1 and till No. 2.  The CCTV footage, both Cam 01 and Cam 02 between 06:18:13-06:19:16 also shows the South Asian male trying to make payment with his mobile phone, twice at till 2 and then once at till 1 after which the South Asian male puts the iTunes card back on the rack and leaves the store.

Charge 7

74.Charge 7 covers the fraudulent use of Mr Chan’s Standard Chartered Bank credit card No. 5523-4384-1280-1945 between 03:27 and 03:30 and 05:03 and 05:07 on 14 April 2019.  As noted earlier the prosecution have only adduced in evidence CCTV footage for the time period 05:14:28 and 05:18:51. 

75.The CCTV footage which is from both Cam 01 and Cam 02 is recorded by a mobile phone.  Only the footage from Cam 02 was played to Ms Lau.  When asked if she could confirm the footage shows the two transactions 18 & 19 on the table (exhibit P14), Ms Lau replied she could not remember but did remember the male saying he would treat her to a meal at McDonalds. 

76.In answer to the court Ms Lau said that from viewing the CCTV footage she could see the South Asian male was buying an iTunes card[45].   Transactions 18 & 19 are for iTunes.

77.Unlike the CCTV footage for charges 1, 3 and 4, the footage is brief.  In particular, the footage from Cam 01 is only forty-five seconds.  The CCTV footage shows three males making transactions at the same time.  This is best seen on Cam 01.  Apart from the South Asian male who Ms Lau identified as purchasing iTunes, I am satisfied that the two other males were not purchasing iTunes. One male purchased water and tissues and the other purchased only tissues.

78.I am satisfied that the only person buying iTunes was the South Asian male.  The parties having admitted that the CCTV footage covers the relevant times and dates in relation to charges 1, 3, 4 & 7 and that transactions 18 & 19 were for iTunes, I am satisfied so I am sure the only inference to draw is that the CCTV footage shows the South Asian male making transactions 18 & 19 with Mr Chan’s Standard Chartered Bank credit card No. 5523-4384-1280-1945.

79.The times of transactions 18 & 19 on the table (exhibit P14) are 05:02 and 04:59 whereas the admitted facts are that the times of these two transactions are 05:03 and 05:07.  This discrepancy does not cause me to doubt the only inference to draw is that the CCTV footage shows the South Asian male making transactions 18 & 19 with Mr Chan’s Standard Chartered Bank credit card No. 5523-4384-1280-1945. Both the admitted facts and the table refer to the same credit card and the same amount of the transactions, namely $1,000 and $5,000.

Identification

80.The prosecution case depending on identification evidence I direct myself in accordance with the principles established in R v Turnbull[46].  I remind myself of the special need for caution before convicting the defendant in reliance on evidence of identification. 

81.I remind myself to look at the quality of the identification and all the circumstances in which the identification was made and in so doing look for any specific weaknesses, which have appeared in the identification evidence.  I remind myself of the possibility that a mistaken witness can be a convincing witness and that a number of witnesses can all be mistaken.  I remind myself that mistakes in recognition of close relatives and friends are sometimes made[47]. 

82.When the quality of the identifying evidence is poor unless there is evidence which goes to support the correctness of the identification the accused shall be acquitted.  Odd coincidences can, if unexplained, be supporting evidence[48].  D1 having elected to remain silent I note that said in Turnbull[49]:

“An accused’s absence from the witness box cannot provide evidence of anything and the judge should tell the jury so. But he would be entitled to tell them that when assessing the quality of the identification evidence they could take into consideration the fact that it was uncontradicted by any evidence coming from the accused himself.”

83.The guidelines given in Turnbull equally apply to identification made from film and photographs, whether that identification is made by a witness or by the court[50].

84.In Attorney General’s Reference (No 2 of 2002) the court said on the authorities there was at least four circumstances in which, subject to appropriate directions, a jury can be invited to conclude that the defendant committed the offence on the basis of a photographic image from the scene of the crime, including where the photographic image is sufficiently clear, the jury can compare it with the defendant sitting in the dock[51].

85.The court acting as judge and jury, the prosecution invites the court to compare the CCTV footage with the defendant sitting in the dock. 

Arrest

86.The prosecution submits that the clothing worn by the South Asian male in the CCTV footage is the same clothing found in D1’s home on arrest, which clothing D1 admitted in the video recorded interview was his[52].

87.Admitted in evidence is that at 0845 hours on 10 May 2019 DPC 11971 arrested D1 inside his residence at Flat C, 3/F, 39-45 Hau Wo Street in Kennedy Town[53].   

88.DSPC 10578 (PW6), the exhibits officer, testified that he conducted a search of D1’s residence during which he seized a large number of items and took photographs (exhibit P8) and drew a sketch (exhibit P11)[54].

89.DSPC 10578 produced four items of clothing: a black jacket (exhibit P16) which is marked E30 on the sketch and shown in photographs 11 & 23; a white T-shirt (exhibit P17) which is marked E31 on the sketch and shown in photograph 22; a pair of blue jeans (exhibit P18) which is marked E32 on the sketch and shown in photographs 14 & 24; and a pair of white Adidas slippers (exhibit P19) which is marked E33 on the sketch and shown in photographs 13 & 25.  

Video recorded interview (exhibit P5).

90.DPC 11971 (PW4) testified that he arrested D1 for deception and cautioned him in simple English.  D1 replied “I just helping my friend to buy a iTunes card in OK”[55]. Later the same day DPC 11971 conducted a video recorded interview (exhibit P5) in which DPC 11971 recited D1’s reply (counters 106-111)[56]. 

91.DPC 11971 then conducted enquiries.  In summary D1 was asked about his personal background (counters 124-138); where he lived (counters 139-228); his source of income and whether he had a bank account (counters 229-257 & 500-535); about his girlfriend (counters 258-275); his mobile phones and whether he uses electronic payment (counters 276-349); about the reply made under caution (counters 350-388 & 536-661) and his relationship with a male called Ali (counters 389-499).

92.The interview continued with DPC 11971 asking specifically about four cases which occurred on 3 February 2019 ( charge 1 - counters 662-837); 27 March 2019 ( counters 838-911); 9 April 2019 ( charges 3 & 4 - counters 912-974) and 14 April 2019 ( charge 7 - counters 912-1034).

93.DPC 11971 then showed D1 six screen captures taken from the CCTV footage (counters 1035-1176)[57].

94.D1 is next asked about the clothes seized during the house search (counters 1176-1216); the keys (counters 1217-1226) mobile phones and tablets (counters 1227-1536 & 1742-1773) and two credit cards (counters 1537- 1583).

95.The interview concluded with DPC 11971 asking D1 about the identity cards found in his residence which are the subject of charge 8 to which D1 has pleaded guilty (counters 1584-1741).

Discussion

96.In considering the identification evidence I have not only looked at the appearance of D1 in the dock.  As indicated in court during final submissions I have compared the appearance of the South Asian male seen in the CCTV footage with the appearance of D1 in the video recorded interview. 

97.In my view this provides a much better comparison than just with the appearance of the defendant in the dock.  The offences were committed over two years ago during which time appearances can change, for example hairstyle.  Further, throughout the trial D1 has worn a mask as all persons attending court are required to do so.

98.The video recorded interview was conducted on 10 May 2019 which was just over three months after 3 February 2019 (charge 1); one month after 9 April 2019 (charge 3 & 4) and just less than one month after 14 April 2019 (charge 7). 

99.I have viewed the whole of the video recorded interview.  Annexed to the verdict are a sample of screen captures taken from the video recorded interview showing the facial features of D1[58].

Charge 1

100.The face of the South Asian male can be best seen in the CCTV footage, Cam 02, between 05:35:17 to 05:35:22; 05:37:21 to 05:37:27 and 05:38:57 to 05:39:06.  I am satisfied that the images of the face are sufficiently clear to make a comparison with the appearance of D1 in the video recorded interview[59]. 

101.Annexed to the verdict are three screen captures taken from the CCTV footage showing the face of the South Asian male[60]. The screen captures are to be looked at together with the CCTV footage which is best seen both in normal time and by using the step forward function.

102.By comparison to D1’s appearance in the video recorded interview, I am satisfied so I am sure that the hairstyle, the eyebrows and the shape of the nose are the same.  In particular, the hairstyle, both the shape of the fringe and the length of the hair which is combed back behind the ears are the same.  

103.The face of the South Asian male can also be seen in the CCTV footage from Cam 01 but this is not as clear as the footage from Cam 02, save that the distinctive hairstyle can be seen. 

104.I am satisfied so I am sure that D1 is the South Asian male seen in the CCTV footage.  I have nevertheless looked to see whether there is any supporting evidence for the identification. 

105.In the CCTV footage and the screen captures 1-10 (exhibit P10), the South Asian male is seen wearing a dark jacket, a white shirt, blue jeans and white slippers. The jacket, the white shirt and the blue jeans are not the same as the jacket (exhibit P16), the white T-shirt (exhibit P17) and the blue jeans (exhibit P18) seized in D1’s residence.  The jacket does not have a hood; the white shirt does not have three buttons on the front and the blue jeans have no holes.  

106.I am satisfied so I am sure that the white slippers are the same as the white slippers (exhibit P19) seized in D1’s residence.  The three black Adidas stripes can be seen on the CCTV footage, Cam 02, between 05:35:20 to 05:35:26. This is best seen when watching the CCTV footage by using the frame step forward function. 

107.In the video recorded interview D1 admitted that the clothing seized by the police, including the white Adidas slippers, were his; that he had worn them many times and that he went to many places wearing these clothes[61].

108.Further, in the video recorded interview D1 admitted that he had lived in Hau Wo Street since September 2018; he was the only one living in the flat and that he went to the Circle K which was in the next street to his home[62].  I note that the Hong Kong Guide prepared by the Survey & Mapping Office of the Lands Department shows that Hau Wo Street (D1’s residence) and Davis Street (Circle K location) are adjacent streets.

109.I am satisfied this evidence does support the evidence of identification.  Having carefully considered all the evidence and the circumstances of the identification, I find I am satisfied so I am sure that the prosecution have proved beyond reasonable doubt that D1 was the South Asian male seen on the CCTV footage conducting the fraudulent transactions in the Circle K Convenience Store.

110.I am satisfied so I am sure that by using the credit card of Mr Cheung without authorisation D1 dishonestly appropriated the property of the Circle K Convenience Store with the intention of permanently depriving the Circle K Convenience Store of the property.

Charges 3 & 4

Charge 3

111.In the CCTV footage (05:55:35 to 05:59:21) and the screen captures 11-14, the South Asian male is seen wearing a dark hooded top, blue jeans and white slippers. 

Charge 4

112.In the CCTV footage (06:17:56 to 06:19:25) and the screen captures 15-18, the South Asian male is seen wearing a white T-shirt, blue jeans and white slippers. 

113.I am satisfied so I am sure that the blue jeans and the white slippers are the same as the South Asian male was seen wearing in the CCTV footage eighteen minutes earlier.  The blue jeans have the four distinct holes and are best seen on the CCTV footage as the South Asian male enters the store at 05:55:35 to 05:55:38 (Cam 02) (charge 3) and as the South Asian male enters the store at 06:17:59 to 06:18:00 (Cam 02) (charge 4).

114.The three black Adidas stripes of the white slippers can be best seen on the CCTV footage just after the South Asian male entered the store between 05:55:39 to 05:55:45 (Cam 02) (charge 3) and between 06:18:01 to 06:18:03 and 06:18:57 to 06:18:58 (Cam 02) (charge 4).

115.I am satisfied so I am sure by reason of the combination of the blue jeans and the white Adidas slippers that the only inference to draw is that the same South Asian male is making the transactions between 05:55:35 and 05:59:45 and just less than eighteen minutes later between 06:17:00 and 06:19:31 with Mr Li’s Standard Chartered Bank credit card No. 4509-3606-4056-7265.  I find inherently improbable that within a space of less than eighteen minutes two different South Asian males wearing the same jeans and slippers would enter the same Circle K Convenience Store and use the same credit card. 

Identification

116.The face of the South Asian male cannot be seen sufficiently clear in the CCTV footage for charge 3 to make a comparison because the South Asia male is wearing a hooded top.   The prosecution relies on the clothing the South Asian male was wearing, namely a similar hooded top, the cut jeans and the Adidas slippers[63].

117.The face of the South Asian male can however be seen in the CCTV footage for charge 4.  This is best seen in the CCTV footage: Cam 01 - between 06:18:28 to 06:18:31 and 06:19:23 to 06:19:24 when the South Asian male smiles on the way out of the store and Cam 02 – between 06:17:59 to 06:18:01 and 06:19:18 to 06:19:21.  I am satisfied that the images of the face are sufficiently clear to make a comparison with the appearance of D1 in the video recorded interview[64]. 

118.Annexed to the verdict are screen captures taken from the CCTV footage showing the face of the South Asian male[65]. Again the screen captures are to be looked at together with the CCTV footage which is best seen both in normal time and by using the step forward function.

119.Again by comparison to D1’s appearance in the video recorded interview, I am satisfied so I am sure that the hairstyle, the eyebrows and the shape of the nose are the same.  In particular, the hairstyle both the shape of the fringe and the length of the hair which is combed back behind the ears are the same.

120.I am satisfied so I am sure that D1 is the South Asian male seen in the CCTV footage for charges 3 & 4.  I have again looked to see whether there is any supporting evidence for the identification. 

121.Whilst the dark hooded top is similar to the jacket (exhibit P16) found in D1’s residence, I find it is not possible to say they are the same, for example it is not possible to say whether the hooded top seen in the CCTV footage is a zipper jacket like the one found in D1’s residence.

122.I am satisfied that the white T-shirt is not the same white T-shirt seized by the police from D1’s residence, the white T-shirt again not having the three buttons on the front.

123.I am however satisfied so I am sure that the blue jeans and the white slippers are the same as the blue jeans (exhibit P18) and the white slippers (exhibit P19) seized in D1’s residence.  As noted already the blue jeans with the four distinct holes and three black Adidas stripes of the white slippers can be seen in the CCTV footage for both charges.  The blue jeans are best seen on the CCTV footage at 06:18:58 (Cam 01) and 06:17:59 (Cam 02). The three black Adidas stripes of the white slippers can be best seen on the CCTV footage between 05:55:39 to 05:55:42 and at 06:17:59 (Cam 01) and between 06:18:01 to 06:18:03 and 06:18:58 (Cam 02)[66].

124.I am satisfied so I am sure that the finding of the same blue jeans and the white Adidas slippers in D1’s residence which D1 admitted in the video recorded interview were his[67] and that in the video recorded interview D1 admitted that he had lived in Hau Wo Street since September 2018; he was the only one living in the flat and that he went to the Circle K which was in the next street to his home[68], supports the evidence of identification. 

The tattoo

125.Admitted in evidence is that D1 has a tattoo on his right forearm as illustrated in the screen capture extracted from the video recorded interview (exhibit P21)[69].

126.Mr Hotten submits that looking very closely, “possible ‘tattoo’ right arm” in screen capture 12, exhibit P10[70].

127.Mr McNamara submits that the man shown in screen capture 12, does not appear to have such a tattoo and produces to court an enlarged shot of screen capture 12 to highlight this[71].

128.I note whilst the same time is shown as screen capture 12, the enlarged copy produced by the defence shows the defendant standing at a slightly different angle with his right arm down the side of his right leg and not behind his right leg as shown in screen capture 12. The difference is due to the time the CCTV footage is stopped and the screen capture taken.  To see the difference requires watching the CCTV footage using the step forward function or frame by frame.  Using the step forward function there are 12 frames per second.  Screen capture 12 is from frame 8 and the enlargement is from frame 11. 

129.Similarly, Mr McNamara submits that screen capture 16 (exhibit P10) shows that the alleged culprit does not have a tattoo on his right arm and again produces to court an enlarged shot of a screen capture to highlight this[72].

130.The tattoo is not on the top of the arm or the bottom of the arm but on the right side of the forearm (the outer side of the forearm).  As noted earlier I have viewed the whole of the video recorded interview not only to look at D1’s facial features but also the position of the tattoo on his right forearm.  The tattoo can for example be seen at 15:13:07 and 15:18:07 when D1’s right arm is stretched out on the table and at 16:01:38 and 16:30:22 when D1’s arms are folded.  As D1 is sat down the arm cannot be seen in the same position as in screen capture 12.     

131.As indicated in court, during final submissions, by using a magnifying glass one is able to see what is referred to by Mr Hotten as “possible ‘tattoo’ right arm” and that by enlarging the soft copy of the screen capture this can also be seen.  Annexed to the verdict are three enlargements of screen capture 12[73]. 

132.I am satisfied what is shown is consistent with both the length and position of the tattoo seen in the video recorded interview.  I am further satisfied that the fact this cannot be seen on the enlargement submitted by Mr McNamara is because this is not as obvious in frame 11 as in frame 8 and the enlargement is darker than screen capture 12.

133.I have carefully viewed all the CCTV footage for charges 3 & 4.   The tattoo cannot be seen on any other part of the CCTV footage.  I am satisfied this is because the right side of the right forearm where the tattoo is positioned is not shown on the other parts of the CCTV footage.     

134.Having carefully considered all the evidence and the circumstances of the identification, I find I am satisfied so I am sure that the prosecution have proved beyond reasonable doubt that D1 was the South Asian male seen on the CCTV footage conducting the fraudulent transactions in the Circle K Convenience Store for both charges 3 and 4. 

135.I am satisfied so I am sure that by using the credit card of Mr Li without authorisation D1 dishonestly appropriated the property the subject of charge 3 with the intention of permanently depriving the Circle K Convenience Store of the property. 

136.I am satisfied so I am sure by attempting to use the credit card of Mr Li without authorisation the actions of D1 were more than merely preparatory and amount to an attempt to steal the property the subject of charge 4 from the Circle K Convenience Store. 

Charge 7

137.The face of the South Asian male cannot be seen sufficiently clear in the CCTV footage to make a comparison.  The prosecution relies on the clothing the South Asian male was wearing, namely the Adidas slippers and a similar hooded top[74].

138.In the CCTV footage and the screen captures 27-30 (exhibit P10), the South Asian male is seen wearing a dark hooded top, blue jeans and white slippers.  Again whilst the dark hooded top is similar to the jacket (exhibit P16) found in D1’s residence, I find it is not possible to say they are the same, for example it is not possible to say whether the hooded top seen in the CCTV footage is a zipper jacket like the one found in D1’s residence.

139.I am satisfied so I am sure that the blue jeans and the white slippers are the same as the blue jeans (exhibit P18) and the white slippers (exhibit P19) seized in D1’s residence. 

140.The camera numbers are not shown on the CCTV footage.  I am however satisfied that the two clips are from Cam 01 and Cam 02.  Also the time cannot always be seen on the footage and therefore it is necessary to also refer to the running time of the footage.  Cam 01 footage lasts 45 seconds and Cam 02 footage lasts 4 minutes and 23 seconds.

141.The CCTV footage must be looked at to see the holes in the blue jeans as these are not shown in the screen captures 27-30.  Although all four holes cannot be seen at the same time, on a careful look at the CCTV footage the four distinct holes can be seen.    

142.When Cam 01 is played in slow motion (click on the play button to select slow playback) and frame by frame, between 35-41 seconds of the running time of the footage, three holes on the blue jeans can be seen, the two holes on the right leg and the lower hole on the left leg[75].

143.The blue jeans are best seen on the CCTV footage from Cam 02 when played in slow motion and frame by frame, between 05:14:32-05:14:35 (running time 4-8 seconds) when three holes on the blue jeans can be seen, the two holes on the left leg and the upper hole on the right leg and between 05:16:23-05:16:28 (running time 01:55-02:00) when again three holes on the blue jeans can be seen, the two holes on the left leg and the lower hole on the right leg.

144.The three black Adidas stripes on the left slipper can be best seen on the CCTV footage, Cam 02, between 05:14:37-05:14:58 (running time of the footage 9-30 seconds); between 05:16:11-05:16:13 (running time 01:43-01:45) and running time 02:29-03:01 (time of the footage not shown).   

145.I am satisfied so I am sure that the finding of the same blue jeans and the white Adidas slippers in D1’s residence which D1 admitted in the video recorded interview were his[76] and that in the video recorded interview D1 admitted that he had lived in Hau Wo Street since September 2018; he was the only one living in the flat and that he went to the Circle K which was in the next street to his home, the only inference to draw is that the South Asian male seen in the CCTV footage is D1.

146.Having carefully considered all the evidence and the circumstances of the identification, I find I am satisfied so I am sure that the prosecution have proved beyond reasonable doubt that D1 is seen on the CCTV footage conducting the fraudulent transactions 18 and 19 (exhibit P14) in the Circle K Convenience Store with Mr Chan’s Standard Chartered Bank credit card No. 5523-4384-1280-1945.

147.I am satisfied so I am sure that by using the credit card of Mr Chan without authorisation D1 dishonestly appropriated the property the subject of charge 7, transactions 18 & 19, with the intention of permanently depriving the Circle K Convenience Store of the property. 

148.No CCTV footage having been adduced for transactions 15, 16 & 17 (exhibit P14) and no other evidence having been adduced as to these three transactions, I am not satisfied that by reason of the fact D1 was using the same credit card one and a half hours later, the only inference to draw is that D1 must have also been using the credit card for transactions 15, 16 & 17. 

149.In reaching my verdict I have carefully considered the submission of Mr McNamara that the evidence of arrest is unsatisfactory and weakens the prosecution case[77]. 

150.This submission is based on the evidence of DPC 11971 who was tendered for cross-examination.   In summary DPC 11971 testified that he was briefed to go to the residence where D1 was arrested to search for a Pakistani male Azam Adeel alias Ali, who was a Form 8 recognizance holder.  This was also confirmed by DSPC 10578, the exhibit officer.

151.DPC 11971 had with him a copy of Ali’s Form 8 but could not recall if there was a photograph of Ali on the Form 8.  After being shown D1’s Form 8 which bears D1’s photograph (marked exhibit PD4) DPC 11971 said Ali’s Form 8 was the same but he had no recollection of what the photograph looked like. 

152.DPC 11971 was then shown a bundle of seven photographs (marked exhibit PD5) and asked whether this person resembled the photograph of Ali on the Form 8.  DPC 11971replied that he had already forgotten what he looked like on the photograph.  When asked where was the copy of Ali’s Form 8, DPC replied that he had forgotten and that only a record would be made if the Form 8 was an original.  DSPC 10578 also explained he did not seize the copy of Ali’s Form 8 as an exhibit because Ali was not the person arrested by the police. 

153.DPC 11971 agreed that when he knocked on the door D1 answered the door.  Asked if he thought the person who answered the door was his target Ali, DPC 11971 replied, “The first impression, yes”.   DPC 11971 disagreed he showed D1 the Form 8 and said “There you are, that’s you”.  DPC 11971 said he asked for D1’s identity document and that D1 showed him his Form 8 with the name Dashpal Singh.

154.DPC 11971 explained that he arrested D1 because he appeared at the location referred to in the briefing; D1 was South Asian and that D1 had a similar appearance to the person seen on the CCTV footage from the Circle K Convenience Store.

155.Mr McNamara submits the fact that DPC 11971 thought D1 was his target Ali means their appearance must be similar and that alone must be the end of the prosecution case and that the failure by the prosecution to produce the copy of the Form 8 of Ali leaves open the inference that the Form 8 has not been produced because it confirms that Ali and D1 are very similar in appearance which would drive a fatal nail in the coffin of the prosecution case[78].

156.The fact that the police went to the residence of D1 looking for Ali and that when D1 opened the door DPC 11971 thought he was Ali, does not cause me to doubt that D1 is the South Asian male seen in all the CCTV footage.  The court has had the opportunity of carefully and repeatedly looking at the CCTV footage and the video recorded interview in determining that D1 is the South Asian male seen in all the CCTV footage.  

157.Although it would have been better a copy of Ali’s Form 8 had been produced the fact this was not does not cause me to doubt that D1 is the South Asian male seen in all the CCTV footage.  In this regard I note that in the seven photographs shown to DPC 11971 (exhibit PD5) the male has short hair and that none of the photographs show the male with similar hairstyle to D1.  

158.Mr McNamara also asks the court to take into account that in the video recorded interviews D1 denied the commission of any offence of theft[79].  I have carefully considered the content of the video recorded interviews, including the part where D1 was shown six screen captures (exhibit P10) [80].

159.I am satisfied no weight is to be attached to D1’s explanations and denials in the video recorded interview, which explanations and denials were not made on oath, have not been repeated on oath and have not been tested by cross-examination. 

160.I have carefully considered everything said on behalf of D1 by Mr McNamara, both individually and collectively.  Nothing said causes me to doubt the findings I have made.

161.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made. 

162.I am satisfied so I am sure the prosecution has proved all the elements of each charge beyond reasonable doubt, each charge being considered separately.   D1 is convicted of charges 1, 3, 4 and 7, save that in respect of charge 7 D1 is convicted only of transactions 18 & 19 and acquitted of transactions 15, 16 & 17.

Annex 1

Annex 2

Annex 3

Annex 4