R. v. So Chung Kwong and Others

CACC000455/1993

IN THE COURT OF APPEAL

1993, No. 455
(Criminal)

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Coram : Hon. Macdougall, V.-P., Penlington, J.A. & Yam, J.

Date of hearing : 15 March 1995

Date of judgment : 15 March 1995

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J U D G M E N T

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

1. These are applications for leave to appeal against conviction by the 2nd appellant, Shum Lok-wing, who was the 3rd defendant at trial (D3), and by the 3rd appellant, Kwok Man-hung, who was the 11th defendant at trial (D11). There is also an application by the 1st applicant for leave to appeal against sentence. Mr. Andrew Macrae asked that that application be adjourned.

2. Each of these applicants was charged with taking part in what was clearly a massive conspiracy involving many other defendants to forge Hong Kong bank credit cards as a result of which they obtained money and goods, not only in Hong Kong but overseas, and in particular in Malaysia.

3. Unfortunately, when the appeals were lodged, the trial judge, Judge Caird, had left Hong Kong and the record of proceedings and his reasons for verdict are not as clear as perhaps there might have been. They are however sufficient to deal with these applications.

4. D3 told us today that there was insufficient evidence against him in relation to count 17, on which he was convicted. However, he abandons his application in respect of count 16. His ground in relation to count 17 is that there was no sufficient evidence from the witness relied on mainly by the Crown, who was known as PW8 at trial, that D3 took part in this conspiracy. However there was evidence from PW8 of conversations with D3 and that he was present at a meeting of all the conspirators which took place in Hong Kong relating to this attempt to defraud the Hong Kong Bank, via the use of these forged credit cards, at casinos in Malaysia.

5. D11 has filed extensive grounds of appeal to his conviction which was only in relation to one charge, possession of implements for forgery. He also attacks the credibility of the accomplice witness. He said that there was simply not enough evidence upon which to found a conviction that he was in possession of these articles. The trial judge considered this charge and said:

"If there is any credible evidence which warrants my considering that the guilt has been established to the high standard required this must come from PW8 and PW8 alone."

6. In a cautioned statement D11 had admitted knowing various other defendants but denied being involved in any conspiracy relating to the use of forged credit cards. Apart from that evidence, the Crown's case against D11 depended on PW8. While the judge had some reservations concerning PW8 at the end of the day he said he was satisfied that on the evidence of PW8, the Crown had made out its case that D11 was in possession of these forged cards.

7. The judge was under a duty to examine very closely the evidence of PW8 because he was clearly an accomplice who had been given immunity, and some of his evidence was difficult to accept. However, the judge analysed his evidence with great care and accepted it as establishing beyond reasonable doubt the guilt of both D3 and D11. We see no reason to interfere with that finding.

8. The applications of D3 and D11 to appeal against conviction are therefore refused.

9. The application of So Chung-kwong for leave to appeal against his sentence is adjourned to a date to be fixed (not part heard).

Representation:

Mr. Kevin Zervos, Senior Crown Counsel, for the Crown

Mr. Andrew Macrae instructed by David Ravenscroft & Co. for the 1st applicant (D1 SO Chung-kwong) (re: sentence)

2nd Applicant (D3 Shum Lok-wing) - In person (re: conviction)

3rd Applicant (D11 Kwok Man-hung) - In person (re: conviction)