R. v. Michael Okri Njoku and Another

CACC000173/1996

IN THE COURT OF APPEAL

1996, No.173
(Criminal)

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Coram: Hon. Power, Ag. C.J., Mortimer & Mayo, JJ.A.

Date of Hearing: 20 November 1996

Date of Delivery of Judgment: 6 December 1996

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The first applicant, Michael Okri Njoku, pleaded guilty to one charge of failing to produce proof of identity. He was convicted after trial in the District Court before Judge Chung on one charge of an attempt to obtain property by deception and on two charges of possession of false instruments. He now seeks leave to appeal against those convictions.

2. The first charge particularized that he, on 12 May 1995, in Hong Kong, attempted dishonestly to obtain from Fux AG Company one Bang and Olufsen Sound Century hi fi equipment and one Bang and Olufsen Centre hi fi equipment, the property of the said Fux AG Company, with the intention of permanently depriving the aforesaid Fux AG Company thereof, by deception, namely by falsely representing that he was a person named Mr. Rolland Rossow, authorised to take possession of the said hi fi equipment. In the first of the possession of false instrument charges, it was particularized that he, on 12th May 1995, had in his custody an instrument, namely a Canadian passport, serial number MT 107543, in the name of Rolland Rossow, which was false and which he knew or believed to be false, with the intention that he or another would use it to induce somebody to accept it as genuine and by reason of so accepting it, to do, or not to do, some act to his own or some other person's prejudice. The other possession of false instrument charge, which was similarly particularized, related to a driving licence No.E7966573.

3. It was the prosecution case that on 3rd May 1995, Mr. Fux of Fux AG in Switzerland received a fax message placing an order for purchase of a quantity of Hi Fi equipment. The fax instructed the seller to obtain payment by way of two Visa credit cards, one in the name of Mr. Katz and the other in the name of a Mr. Boorman. Mr. Fux obtained an approval code from the credit card company for these cards and the goods were paid for by the credit card company. Mr. and Mrs. Boorman, the 2 holders of one of the said credit cards, had never placed any order for the said goods. There was, however, no evidence from Mr. Katz. Mr. Fux by fax sought instructions for delivery of the goods and on a fax dated 4th May 1995 which purported to have been signed by Katz, instructions were given that the goods be sent to Rolland Rossow of Block C, 16th floor, Flat C5, 36-44 Nathan Rod, Tsim Sha Tsui, Kowloon. This is the address of premises known as the Garden Guest House. Mr. Fux said that he received further faxes asking for shipment of more goods which were to be paid for by Visa Cards and Master cards. In the outcome, however, none of these goods were shipped by him. As regards these further faxes we need refer only to one which was attached to Mr. Fux's statement and marked "BF-4". Mr. Fux engaged the service of UPS to deliver the goods to Hong Kong.

4. In the meantime, however, the Hong Kong police came to know of this shipment and arranged with the staff of UPS for two police officers to pose as delivery workers to deliver the goods to the address given.

5. On 11th May 1995, an attempt was made to deliver the goods by two undercover police officers but this was not successful. On 12th May another attempt was made. The two officers arrived at the Garden Guest House at about 2:40 p.m. and asked for Mr. Rossow. The first applicant claimed to them that he was Rossow and the officers then asked for proof of his identity. He produced a Canadian passport in the name of Rolland Rossow. The officers then asked him to sign the delivery record which did signing the name "R. Rossow". Shortly thereafter a team of police officers returned to the guest house. Inside they found the 1st applicant and other occupants. The 1st applicant was arrested and a body search was conducted whereby the passport was found from the shirt pocket of the 1st applicant. Also found was a copy of the fax "BF-4" and a driving licence in the name of William F. Loacher bearing the photograph of the 1st applicant. This was the subject of the second possession charged.

6. The 1st applicant gave evidence saying that he was accepting the goods as a favour for a male friend named Sirrosco who had befriended him, offered him shelter and given him the passport to allow him to identify himself to the delivery man. He said that he had made his capacity as an innocent recipient of the goods clear to the delivery man. It was his evidence that nothing incriminating was found upon him and that the police had failed to apprehend Sirrosco although they had had the opportunity to do so when Sirrosco was present at the premises after the raid and was identified by the 1st applicant. He went on to say that Sirrosco had provided him with the fax and the driving licence which was to enable him to pass himself off as an American for social purposes but that he had never intended to use it. His evidence was, in short, that he was an innocent dupe betrayed by his friend and victimized by the police. The trial judge stated:

"I have carefully considered the submissions of the parties and the evidence adduced. In the end, I have come to the view that the police officers have given truthful evidence. Further, I am satisfied that they have not in any way been mistaken or confused about what D1 said or did at the time when the goods were delivered and when the police party entered Garden Guest House and thereafter, including the times when D1 was interviewed by the police."

He went on to say:

"I am of the view that D1 was not a credible witness and the account he gave, insofar as it tries to exculpate D1 or alleges misconduct on the part of the police, is untruthful. To this extent his testimony is rejected.

In particular, I reject D1's evidence about how this male, Sirocco (or Olurroso), allegedly gave him the passport or instructed D1 to take delivery of the goods for him. I do not rule out the existence of this male. He may well have something to do with the driving licence, exhibit 'P7'. This will be a matter which I shall deal with later. However, I do not accept that he had anything to do with the passport or the delivery of the goods by UPS."

7. As to the deception charge the judge was satisfied that the first applicant had dishonestly held himself out as Rossow to obtain possession of the goods and thus to complete the "scam". As to the charges of possession of a false passport and possession of a false driving licence, the judge was satisfied that the appellant had custody of both of those documents knowing them to be false and, in the case of the passport, had used it to obtain delivery of the goods and, in the case of the driving licence, intended to use it to deceive persons as to his nationality.

8. The 1st applicant has argued two grounds. The first, as set out in writing by him, was incomprehensible but he has explained it as follows. He did not, he says, receive a fair trial as the judge wrongly refused to grant a stay which was sought on the ground that a necessary defence witness, a man named Narty, was not available to be called. It is true that an application for stay was made by Mr. de Boinville, who then appeared for the 1st applicant, upon the basis that an abuse of process arose out of the prosecution's failure to provide to the defence information relating to a potentially material witness who, on September 7th 1995, had left the jurisdiction. It was argued that his leaving unfairly prevented the defence from contacting him and further that there had been an unfair failure by the prosecution to inform the defence when the witness was about to leave. It was finally argued that for the trial to continue would be a contravention of the Bill of Rights Ordinance. The judge having canvassed the law and the facts was satisfied that the application should, so far as it was based on Common Law, be rejected. He also rejected the argument based upon the Bill of Rights. Nothing has been suggested which would warrant our interfering with the decision of the judge in this regard.

9. The second ground argued by the 1st applicant was that he had been the victim of entrapment. It is not clear exactly what he means in this ground. What he really seems to be saying is that the police secured his conviction by telling lies. Clearly that is not a proper ground as matters of credit were essentially for the trial judge who clearly resolved them against the applicant. There is no merit in anything argued by the 1st applicant. His appeal against conviction is dismissed.

10. The 2nd applicant, who is represented before this court, as he was below, by Mr. Hoosen, pleaded guilty to one charge of possession of a false Nigerian passport and to one charge of breach of conditions allowing him to stay in Hong Kong. He faced a further 21 charges. The trial judge found no case to answer on five charges of obtaining services by deception but found him guilty on 16 similar charges. He now seeks leave to appeal against the convictions on those charges.

11. The facts in all charges were similar. Shop- keepers were induced to hand over goods by the use of an American Express Optima Card in the name of M.P. Pooler, a person who did not exist. It is sufficient to obtain the flavour of the matter to read the particulars of the first of these charges which state that the applicant "together with other person or persons, on 7th May 1995, in Hong Kong, dishonestly obtained from Fortress Ltd., six Sharp FO435 facsimile machines, four Sharp UX104 facsimile machines and six Sharp PA3030 electronic typewriters, with the intention of permanently depriving Fortress Ltd. thereof, by deception, namely, by falsely representing that he was the authorized user of American Express Optima Card No.3737 253919 21005."

12. It was the Crown evidence that while the police party was inside the Garden Guest House on 12th May 1995, the 2nd applicant arrived at the guest house. Upon being challenged by the Detective Chief Inspector in charge of the operation, he produced a Nigerian passport which was the subject matter of the charge to which he has pleaded guilty. A body search of the 2nd applicant revealed an American Express Optima Card in the name of Michael Pooler. The circumstances of the issue of this card are bizarre in the extreme. It seems that on 31st March 1995, the applicant made a telephone application from Hong Kong to the office of the processing agent of American Express in the United States asking that an Optima Credit Card be issued. The 2nd applicant admitted that he had applied for the card but said that he was unable to give an answer when asked why it was not in his name. He said that he had sent an application form to the United States but this was not borne out by evidence coming from the American Express Processing Section which stated that the application was made by telephone.

13. The applicant in a statement admitted that he had used the name Michael Pooler because he had "bad credit in the name of Brian Kevin Riley in the United States". He said that the name "Michael Pooler" was a concocted one. He said that the company had not required any proof of identity but that he had to provide the social security number, which he did, and an address. The address he gave was "13969 Foothill, Suite 26, Sylmor, 91342 California". He said that the card was sent to that address and that a friend then sent the card on to him in Hong Kong. The evidence indicated that the "friend" at first used the card in the United States before sending it on to Hong Kong. The "signature" on the card consists of letters MPOOLER printed in a childish manner. It might be suggested that this alone should have given rise to suspicion as to the validity of the card. We find it almost unbelievable that a credit card could be issued as a result of a telephone application giving the name of an entirely fictitious person. How could any reputable company sanction such a procedure? Inquiries have now revealed not only that the name was false but also that there was no such person residing at the address given, that there was no such person working for the employer given, and that the employer did not have the business address given. The whole application was a sham which could have been uncovered by the simplest of inquiries.

14. In a later statement the applicant told Chief Inspector Barnes that he had used the credit card from 7th May 1995 to 12th May 1995 to purchase various merchandise from retail shops. The judge noted that the applicant "was called by the defence in District Court cases No.698 and 1064 of 1995 to give evidence and that when he was cross-examined in those cases he admitted that "he applied for the credit card and used it to purchase merchandise in Hong Kong". The transcript was, it appears, tendered as Exh.P195 in the present case. The judge was satisfied that the statements of the applicant Exhs.P11 and P27 which are set out above were voluntary and admissible. He found the prosecution evidence against the 2nd applicant "to have been truthful and reliable evidence and find them to be the facts". He was satisfied that the credit card was issued after a telephone application and not a written application as indicated by the 2nd applicant.

15. The judge referred to the evidence of a handwriting expert Mr. Cheng who said that in his opinion the signatures on the 16 sale slips fell into two groups and that it was unlikely that the two groups came from the same author. His evidence indicates that at least two persons were involved and that one person had signed one group and that the other person had signed the other group. Further there was evidence from PW19, one of the shop assistants, that the 2nd applicant was not the person who had presented the card to her.

16. The trial judge, when dealing with the weight to be given to the 2nd applicant's admissions, said:

"In view of the evidence given by the hand-writing expert, Mr. Cheng, had it been the case that there was only the evidence of the possession of the credit card without more, I would have agreed with Mr. Hoosen's submission that there is a doubt as to whether or not it has been proven reasonable doubt that D2 had used the card, and if so, in which of the transactions had he used it.

However, the fact of the possession does not stand alone. There are also the admissions made by D2 relating to the use of the credit card. Mr. Hoosen submits that the admissions made by D2 therein should not be given any weight, because the purported admissions do not stand with the conclusion reached by Mr. Cheng that it is likely that the signatures on the relevant sales slips came from 2 authors instead of one. Further, there was the evidence from a shop-keeper that she identified another black man to have been the one who signed on the sales slip. This man was agreed to have been someone other than D2. Further, Mr. Hoosen submitted that the admissions that D2 used the card by himself do not stand with the testimony of the shop-keepers that groups of black men entered the shops.

I do not accept that no or little weight ought to be given to D2's admissions. I am of the view that full weight ought to be given to them because not only were they made voluntarily by D2, the particulars and details given by D2 in relation to quite a number of the transactions tie in with what in fact happened in the shops. I have looked at the record shown to D2 at the time of the interview (exhibit 'P29') and noticed that these particulars and details could not be seen from the record and could therefore only have come from a person having full knowledge of these purchases."

The judge, when dealing with the identity of the user of the credit card, finally said:

"I am satisfied that the prosecution has proven beyond reasonable doubt that D2 was part of a joint enterprise in using the Optima credit card to make the various purchases referred to in Charges 13-28.

I came to this conclusion taking into consideration that :-

(a) D2 was the person who applied for and obtained the credit card;

(b) when he was arrested on 12 May, 1995, the card was found in his possession;

(c) he unreservedly adopted each of these transactions as having been transacted by him in 'P11', 'P27' and 'P195';

(d) the testimony of the shop-keepers that at the time of these transactions, there was a pattern of a group of either 2-3 or 3-4 black males entering the shop and selecting goods together."

17. Each of the charges clearly states that the deception was one whereby the applicant falsely represented "that he was the authorized user of American Express Optima Card No.3737 253919 21005". It is submitted by Mr. Veltro, who appears for the Crown, that any defect in the charge was corrected by the amendment which was made in the course of the trial by adding words which stated that the applicant had acted "together with other person or persons". Mr. Hoosen concedes that this made the offence one of joint enterprise but he argues that the joint enterprise alleged was one with the purpose of allowing the applicant falsely to represent "that he was the authorized user" of the card. He submits that the charge, as framed, did not allege an enterprise falsely to represent that the person presenting the card was the authorized user thereof and that, even if such facts were established by the evidence, it would not be open to convict of that offence on the charge as presently framed.

18. It was suggested that the judge would have been entitled when convicting simply to act upon the basis of the admissions made by the applicant. We have some doubt whether he could properly have done so. However that is beside the point as the judge clearly was not acting upon the basis of the admissions but was proceeding, as he himself said, upon the basis that what had been proved was that the applicant had taken part in a joint enterprise.

19. With considerable reluctance we come to the conclusion that the evidence did not establish the charge as framed. It is clear that what the judge found, and rightly upon the evidence as it stood, was that the applicant and others had acted together falsely to represent that the person in their group who presented the card was the authorized user thereof. There was, moreover, ample evidence to support such a finding. We are, in the premises, required to quash the convictions on charges 13 to 28, but we will hear counsel as to whether the applicant should be retried on a correctly framed charge.

Representation:

Mr. Veltro, S.C.C. (Crown Prosecutor) for the Respondent.

1st Applicant in person.

Mr. A.A. Hoosen assigned by D.L.A. for the 2nd Applicant.