R. v. Tsang Chi Fai

HCMA000108/1997

1997, No. MA 108

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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Coram: Hon Gall, J. in Court

Date of judgment: 18 March 1997

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J U D G M E N T

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1. This is Magistracy Appeal Number 108 of 1997. The appellant was charged with one charge of Possession of equipment for making a false instrument. He was convicted on 6 January 1997 and sentenced to eight months' imprisonment. He appeals his conviction.

2. The facts alleged by the prosecution at trial were that at about 2135 hours on 29 February 1996 the appellant was stopped at a road block in Tai Mong Tsai Road in Sai Kung. He was driving a car. This was a routine check and the vehicle was searched. During the course of the search, a cigarette packet was found in the driver's side door pocket next to the appellant and in that cigarette packet were 20 blank plastic credit cards which were later examined by a document examiner of the forensic laboratory and were, in his opinion, all counterfeit.

3. The appellant stated that the passenger had no knowledge of the exhibits and said in an interview with the police that he had picked them up in the street in Mong Kok earlier the same day.

4. The learned magistrate accepted, as he was entitled and in all the circumstances must have done, that the appellant was in possession of credit card blanks which were, in the opinion of an uncontested expert, counterfeit.

5. Two issues arose: whether or not he knew the blanks were material specially designed for making a false instrument, and if he did, whether he had a reasonable explanation for that possession.

6. Mr Pedruco argues in his first ground of appeal that the magistrate wrongly and/or improperly inferred and/or failed to disclose in his statement of findings how he reached his decision that the appellant knew the cards had been designed for the making of false instruments.

7. The magistrate, in his consideration of the matter, deals with it in part at paragraph 8 of his findings. There he was dealing with the fact that the counterfeiting was badly done and there were misspellings and telephone numbers lacking the modern Hong Kong prefix of 2. He said, "I bore this in mind but it raised no doubt as to the capacity of the evidence to establish each ingredient of the offence. On the other hand, it would further demonstrate to the possessor of the cards their criminal provenance." What he was saying was that to look at these cards and to perceive the mistakes that had been made on them would indicate to any person seeing them that they must not be genuine and the inevitable inference that should be drawn from that was that they were to be used to make false instruments.

8. Further, when he looked at the explanation given by the appellant and found it not to be credible, he goes on to consider what inference would be available if the doubt raised by an explanation had no effect upon the evidence put forward by the prosecution. He said, "An inference inevitably follows that the holder appreciated their criminal intention and so must have known they were specially designed for the making of a false instrument."

9. It is quite clear that the magistrate directed his mind to whether or not the appellant knew the criminal potential of these blank poorly forged credit card blanks. The learned magistrate was brief in his reasons, but there is sufficient in them to disclose that his finding as to knowledge in the appellant was an inference which he drew from the nature and the details of the credit card blanks. He looked to the explanation given by the appellant to see whether that threw doubt on that inference or whether it was an explanation which justified the possession, and he looked to that evidence to see whether it assisted him in determining on all the facts whether the appellant had knowledge. Having rejected the explanation, he was entitled to look at what evidence was left and draw the inference he did.

10. The second ground of appeal is that the magistrate wrongly failed to direct his mind to the question of whether the explanation given by the appellant might reasonably be true.

11. He deals with that explanation at paragraph 5. He said, "I found the explanation to be unworthy of belief. I rejected the idea that some mischievous person had lost the items in the street whilst they were contained in a grubby cigarette packet, and that this internationally travelled young man found himself in need of a smoke there and chose to scrounge from the pavement. I rejected the idea that he kept the items for fun or to see if they had a use when he knew they consisted of 20 strange, to use his words, credit cards."

12. Quite clearly, the magistrate directed his mind to the explanation given by the appellant. He sets it out in that paragraph in detail. He rejected it and quite clearly, therefore, must have considered the truth or otherwise of that explanation. There is nothing in this draft.

13. The third ground of appeal is the learned magistrate wrongly and/or improperly inferred that once he had concluded that the appellant's explanation was not credible, the appellant was inevitably guilty of the offence and/or in all the circumstances the conviction was wrong.

14. For this ground Mr Pedruco relies upon R v Lucas [1981] 1 QB at page 720. That case sets out the circumstances in which a jury is entitled to use what are found to be lies of an accused as evidence corroborating his guilt. In this case, the magistrate rejected the explanation given by the appellant. He did not, it appears from his reasons, use lies as corroboration of guilt. What he said at paragraph 6 was, "Once I rejected the explanation given in the police interview, the inference that the defendant possessed the items knowing that they had been specially designed for making of a false instrument was overwhelming."

15. What he has done, quite clearly, is to reject the explanation and then to look at the remaining evidence and see what inference ought properly to be drawn from it. Had he determined that what the appellant said in the police interview were lies and used them as corroboration of the guilt of the appellant, then he would have said so.

16. There is nothing in this ground of appeal and the appeal against conviction is dismissed.

Representation:

Miss Bianca Wing-yu CHENG, Crown Counsel, for the Crown

Mr Luiz da Silva Pedruco (Richard Tai & Co) for the Appellant

I/we certify that to the best of my/our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

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Date: 24 March, 1997