Yu Tak-cham v. R.

CACC000421/1993

IN THE COURT OF APPEAL

1993, No 421
(Criminal)

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Coram: Hon. Yang, CJ, Nazareth and Litton, JJA

Date of hearing: 17 February 1994

Date of judgment: 17 February 1994

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J U D G M E N T

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Nazareth, J.A. (giving the judgment of the Court):

1. On 15 March 1992 one Lau Tak-chung had his identity card stolen. Subsequently on four different days between 24 June and 13 July 1992, the card was presented to nine different bank clerks on ten separate occasions as proof of identity in the course of banking transactions.

2. On 16 July 1992 when the applicant, Yu Tak-cham, surrendered himself to the police, he was arrested. A year later, he was convicted on ten charges of using the identity card of Lau Tak-chung, i.e. the use of an identity card relating to another without lawful authority or lawful excuse contrary to s.7A(1A) of the Registration of Persons Ordinance, Cap.177. In respect of each charge he was sentenced to two years imprisonment, all the sentences to run concurrently.

3. He originally sought leave to appeal against both conviction and sentence but, before us today, he has made it clear that he is not pursuing his application for leave to appeal against sentence. In respect of his application for leave to appeal against conviction, he has put in three perfected grounds of appeal. The first is stated in this way:

"There was no evidence to prove that the appellant 'used' an identity card within the true meaning and intent of Section 7A(1A) of the Registration of Persons Ordinance or other law of Hong Kong."

Section 7A(1A) is in the following terms:

"Any person who without lawful authority or reasonable excuse uses or has in his custody or possession an identity card or other document issued under this Ordinance which relates to another person commits an offence and is liable on conviction on indictment to a fine of $50,000 and to imprisonment for 10 years."

4. Mr Geoffrey Watson, who appears for the applicant before this Court but did not appear below, contends that the word "uses" in the foregoing provision does not have its ordinary meaning but rather a restricted meaning, i.e. use in the way contemplated by the Registration of Persons Ordinance specifically as manifested in s.7(2)(ia) and (ib), which empower the making of regulations to provide for:

"(ia) the making of an order by the Governor in Council requiring every person, or every person of such class or such description as may be specified in the order, to carry his identity card when in such area or place, on such occasion, for such purpose or in such circumstance as may be specified in the order;

(ib) the production, by a person required to carry his identity card, of such card to a police officer, or member of the Immigration Service and any other person authorised by or under the regulations;"

He submits, first, that the use of by the applicant or other person in the charge by production to the bank clerk concerned was not done in an area or occasion for which the regulations provided, nor was it used in response to a demand by a police officer or member of the Immigration Service or other person authorised and that, therefore, such use did not fall within s.7A(1A). We do not find any merit in this submission. Moreover, "custody or possession" which are also provided for in s.7A(1A) on a similar basis to "uses" do not lend themselves to the restricted meaning contended for. We think that the expression "uses" in s.7(1A) clearly has its ordinary meaning. We reject the first perfected ground and Mr Watson's submission.

5. The second perfected ground is that -

"the learned judge failed to adequately warn himself against the danger of convicting on the evidence of a single witness as to identity and further failed to fully evaluate the effect of that witness testimony".

Mr Watson pursued that ground in the following way. He pointed to the fact that the applicant is about 6 feet tall, perhaps a little over 6 feet, and that the only witness of the eight bank clerks who identified him, Miss Lam Wai-ying, referred him as being 5 feet 8 inches, she herself being 5 feet 4 inches in height. He also pointed to her evidence that his complexion was pale whereas it appeared that at the time of his trial he was of a dark complexion both on the evidence and in the photographs taken by a surveillance camera at the time. He also submits that she was not sure whether the applicant was wearing glasses or not. Finally, he points to the fact that the eight other bank clerks were not able to identify the applicant.

6. These submissions must be considered in the context of what actually took place in relation to Lam Wai-yung's identification of the applicant. What happened was that on 29 June the applicant went to the bank and opened a bank account. He was there before her for 15 minutes. We are concerned not so much with that occasion but the subsequent occasion when he went to the bank on 13 July and carried out two transactions; one was a transfer of $190,000 and the other was a withdrawal of cash amounting to $185,000, in the course of which he produced the identity card to her. The amounts of the transactions caused her to trigger the surveillance camera. The Deputy Judge dealt with the matter in the following passage in his reasons for verdict:

"Of the 9 bank clerks none were able to identify [the] defendant at a properly convened and conducted identification parade except [the witness, Lam Wai-ying, whom he in error referred to as PW1]. She did positively identify [the] defendant at such parade on 27 July 1992 as the customer involved in the transaction on 29 June 1992 and 13 July 1992 of which she gave evidence. It is not surprising to find the other 8 were unable to make identification bearing in mind that apparently they each had a single dealing with the customer in question and would see many customers in the course of day. It is remarkable therefore that PW1 was able to identify the customer as the defendant. I have closely examined her evidence as to such identification including her lengthy cross-examination on such matter. I conclude that she is a reliable witness whose evidence including her identification can be accepted by the Court as accurate. I noted that she says she would have spent some 15 minutes with [the] defendant on the occasion of the account opening on 29 June 1992. The second transaction on 13 July 1992 took about 5 minutes. I accept both of those estimates as reasonable and accurate. On the second occasion the sums involved in the transactions were large - a transfer of $190,000 and a withdrawal in cash of $185,000. Because of the size of the transactions PW1 tripped the security camera switches. That procedure was done from time to time but was not a frequent occurrence. That is another reason why she would have a particular recollection of the transaction and customer. She was able to later identify the photograph of the customer doing such transaction when the security camera film was developed. It is not a clear photograph of the customer concerned - I refer to exhibit P.6 - but it was sufficient for PW1 to recognise the customer. I note that she saw such film after she attended the identification parade."

In the context of those reasons it is not surprising that the Deputy Judge accepted her identification of the applicant notwithstanding the points to which Mr Watson has referred.

7. We find no reason in the points Mr Watson has made to question the judge's acceptance of the identification. Furthermore we have seen the surveillance photographs and it must be said, speaking for ourselves, that looking at those photographs, it seems plain that the person in them was the applicant. However that may be, we find no reason to interfere with the judge's finding. We do not think that Turnbull 63 Cr. App. R132, to which Mr Watson referred, assist him. The circumstances here are not of a fleeting glimpse or observation made in difficult circumstances. The judge did not display any lack of caution in addressing the question of identification. He referred to the amounts of the transactions that alerted Lam Wai-ying to the person who was before her and prompted her to trigger the surveillance camera, and that she had the particular individual before her for five minutes. And he gave other reasons too. Accordingly we find no merit in the second ground also.

8. The third ground was not pursued specifically by Mr Watson. Certainly not in the terms in which it is expressed, i.e. that viewed as a whole the conviction was unsafe and unsatisfactory. We do not accept that. Clearly there is no merit in the appeal and we refuse the application for leave.

Representation:

Mr Geoffrey Watson (M/s David Ravenscroft) for the Applicant

Mr J.A. Pethes for the Crown