The Queen v. Cheung Fan

HCMA001344/1990

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 1344/90

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BETWEEN

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Coram: Hon. Yang, C.J.

Date of Hearing: 13 December 1990

Date of Judgment: 28 December 1990

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JUDGMENT

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Hon. Yang, C.J.:

1. The appellant and his co-accused were charged with possession of implements for forgery, contrary to Sec. 76A(1) of Crimes Ordinance, Cap. 200. The charge reads:

"HO Sau-wai and CHEUNG Fan, you are charged that on the 23rd day of September, 1988, at Flat 1302, 13th floor, Hang Shan Court, No. 9, Ko Shan Road, Tokwawan, in Hong Kong, you had in your custody or possession any document, equipment or article, namely, one counterfeit 'Diners Club International' credit card, one forged 'American Express' credit card, bearing number 3769 881795 02002 and in the name of PIERE TANN FASHION COORDINATORS LTD. and one piece of adhesive label, fit and intended for. use in the forgery of documents, namely credit card sales advice slips."

2. The Crown case consisted of agreed facts and the evidence of an expert witness. The appellant gave evidence in defence. Having considered the evidence, the learned trial magistrate convicted the appellant in respect of the American Express Credit Card and adhesive label, and acquitted his co-accused. He was sentenced to imprisonment for six months.

3. This is the appellant's appeal against conviction and sentence.

4. Several grounds of appeal have been advanced. I do not propose to deal with each and every issue raised in the Perfected Grounds of Appeal, suffice it to say that I have not overlooked them. Leading counsel confined his arguments before me to four main issues, "without in any way cutting down my appeal as found in the Perfect (sic) Grounds of Appeal against Conviction."

5. The first issue is that the magistrate erred in treating the expert witness as an expert. The witness gave evidence of forgery of American Express Credit Cards. He was the manager of the Investigation Section of the Security Department of American Express. He had given evidence in court on twenty to thirty occasions on the use of forged American Express Credit Cards. He had attended a series of courses on credit cards, and for seven years he had been handling investigation of forged American Express Credit Cards. He had learned the basic operations of such cards, and also the structure of those cards and the correct way of using them. I have no doubt the magistrate was entitled, on the evidence, to accept the witness as an expert witness.

6. The second issue is that the evidence did not amount to showing that the American Express Credit Card in question (Ex. P3) was "fit for use" in the forgery of credit card sales advice slips within the meaning of Sec 76A(1) of the Crimes Ordinance. The magistrate both in his original judgment and in his Statement of Findings found that Ex. P3 was fit for use. He came to this finding (i) on the admitted fact that Ex. P3, with embossed particulars, had been used on nine occasions in March 1988 to obtain property or services in Hong Kong, and (ii) on the expert's evidence as follows:

"There are three main ways in which a person can use a forged AE card. Firstly to produce a completely forged AE card. Secondly to use a genuine AE card by altering original code number of the card. As for the third method I need to refer to a card. A blank card is used with no printing on it. AE card is then printed. Blank card is then used at shops which person has a special connection.

Exhibit P3 has all the embossed particulars flattened. A valid code would be re-embossed i.e. "valid re-embossing". After flattening then the information on the magnetic strip would be destroyed. There is a re-encoding machine available in Hong Kong, the machine is like the size of a typewriter. All one needs to do is to put it in the machine. A switch on the machine can void the date and account number would be re-encoded. After these two steps credit card could be used in the shops."

7. The magistrate regarded the previous use of Ex. P3 on nine occasions, albeit not by the appellant or his co-accused, as the "clearest evidence" that Ex. P3 was fit for use. However, on the previous occasions Ex. P3 was still embossed, not so in September. The magistrate could not therefore properly seek support of his finding on this evidence. He was on much surer grounds to rely on the expert's evidence that the card was fit for use with the co-operation or agreement of a person who had a special connection with the appellant, and this could only mean a dishonest co-conspirator. The active help of the co-conspirator must have consisted of the two steps described by the expert witness. I do not think the learned magistrate could be criticised for his conclusion that Ex. P3 was fit for use.

8. The third issue is that Ex. P3 in March was in a different state than that on 23rd September. In March it was embossed; in September the embossed figures and letters had been flattened. I have already dealt with this argument when discussing the second issue.

9. The fourth issue relates to the adhesive label. Leading counsel's submission is as follows:

"The agreed evidence was quite clear, it could only have been available for use in American Express Credit Cards. If the Crown have not proved that the only American Express Credit Card found on the premises (Ex. P3) was fit for use, it follows that an unsigned label that could only be used on American Express Credit Cards is equally not fit for use. In other words, consideration of these two matters stand or fall together."

10. The Crown concedes the validity of this argument. The logic of it cannot be assailed.

11. In my judgment the magistrate was entitled on the evidence of the expert witness to convict the appellant of the offence charged.

12. I have also heard leading counsel's argument on the appeal against sentence and cannot find anything said that causes me concern.

13. The appeals against conviction and sentence are dismissed.

Representation:

Mr. A. Schapel for Crown/Respondent

Mr Brook Bernacchi, QC, and Mr. Dixon Tang (Tang, Wong & Cheung) for Appellant