The Queen v. Lee Yuk-ching

CACC000429/1995

IN THE COURT OF APPEAL

1995, No.429
(Criminal)

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Coram: Hon. Power, V.-P., Mortimer & Mayo, JJ.A.

Date of Hearing: 19 January 1996

Date of Judgment: 19 January 1996

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This applicant seeks leave to appeal against her convictions and her sentences on five charges of using a false instrument. She pleaded not guilty and was found guilty after trial in the District Court before Judge Hawkes.

2. The charges involved the use of credit cards. In the first, it was alleged that on 6th April 1994, together with a Nigerian male named Johnson and person or persons unknown, she used a Diners Club card to obtain an amount of HK$15,500, the card being false and she knowing it to be false. The second offence was on the same day and it involved the same card and the same type of use. The amount involved was $7,080. In the third charge which occurred on 11th April, it was alleged that she, together with a Nigerian male named Sanan Adewale Dinesh, and other person or persons unknown, used a Visa card which was false and which she knew to be false, to obtain an amount of $18,500. On the same day, it was alleged that the same persons used that same card, knowing it to be false, to obtain a further $15,000. Four days later it was alleged that she and the same persons had used that same card knowing it to be false to obtain $23,500.

3. The facts were that the applicant was the employee of a travel agency. In the first two charges she used a false Diners Club card to issue air tickets and in the other three charges she used a false Visa card for the same purpose. The evidence indicated gravely suspicious circumstances surrounding the use of the cards on each occasion. It was her defence that she had acted innocently at the behest of a Mr. Johnson, a friend of her cohabitee, and at the behest of her cohabitee, Mr. Sanan Adewale Dinesh. She said that she had no knowledge that either card was false.

4. The trial judge when considering the evidence clearly addressed the real question at issue which he said was whether the accused knew or believed the cards to be false and used them with the intention of inducing others to accept them as genuine. As to the first two charges, he said:

"I am satisfied that the only reasonable inference is that the accused must have either known or believed the card to be false. By using it in the circumstances that she did, I am satisfied that she must have used it with the intention of inducing others to accept it as genuine."

As to the third and fourth charges, the judge said:

"I have no doubt that the accused knew or believed the card in question to be false and that she used it with the intention of inducing others to accept it as genuine."

He was equally satisfied that all the ingredients of the offence had been proved in relation to the fifth charge.

5. The applicant in her grounds suggests that an ordinary person cannot distinguish whether a credit card is real or false and that she did no more than her ordinary job when she processed the credit card. That defence was clearly rejected by the trial judge. Indeed having found the existence of circumstances which were redolent of criminality and having rejected the applicant as a witness of truth the finding of guilt was inevitable. Upon the evidence the judge was entitled to make the finding he did. There is nothing in any way either unsafe or unsatisfactory about the convictions and the application is refused.

6. The applicant also appeals against the overall sentence of three years that was imposed in relation to all five counts. In her grounds she said:

"My daughter is only seventeen months old. No one takes care of her. My family has emigrated to foreign countries and my co-inhabiting husband has disappeared."

The trial judge was well aware of the sad plight of the infant daughter. He made particular reference to it when sentencing. He said finally:

"It seems to me that a sentence of 2 years imprisonment or more could be fully justified for each offence."

While he was satisfied there was no real warrant for the imposition of concurrent sentences on the 1st, 2nd and 3rd charges he acknowledged that the imposition of consecutive sentence would offend against the totality principle. He considered that a sentence of three or four years would have been justified but bearing in mind the possibility that the accused was under the influence of others and taking into account the probation report, he, in the outcome, was satisfied that the appropriate sentence was one of three years. The trial judge cannot be faulted in either his approach or in his conclusion. The sentence was, indeed, at the lower end of the proper range. The application for leave to appeal against sentence is also refused.

Representation:

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

Applicant in person.