HKSAR v. Sun Chun Lei

CACC000476/2002

CACC 476/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 476 OF 2002

(ON APPEAL FROM DCCC 614 OF 2002)

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Coram: Hon Stock, Yeung JJA & Jackson J in Court

Date of Hearing: 2 April 2003

Date of Judgment: 2 April 2003

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1.The applicant, Sun Chun-lei appeared with two others (D2 and D3) before Deputy Judge Jenkins in the District Court on an indictment consisting of 4 charges of possession of false instruments and 2 charges of possession of forged travel documents.

2.D2 pleaded guilty to the 3rd charge of possession of false instruments and the 4th charge of possession of forged travel documents. D3 also pleaded guilty to the 5th charge of possession of false instruments and the 6th charge of possession of forged travel documents.

3.The applicant was convicted after trial of the 1st and 2nd charges of possession of false instruments and sentenced to concurrent terms of 51/2 years imprisonment. The applicant now seeks leave to appeal against both conviction and sentence.

The Prosecution Case

4.The applicant is a visitor from Taiwan. On 28 March 2002, he was stopped and searched by police in Tsimshatsui. The police found from his handbag a cigarette packet containing 14 forged credit cards, 7 in the name of Lee Te-chiang and 7 in the name of Huang Li-wen. There was another genuine credit card in the applicant's name. The applicant claimed that he kept the forged credit cards for D2 and D3.

5.The police also found a notebook with numbers, which appeared to relate to the forged credits cards. The applicant was arrested and taken back to Tsimshatsui police station. He was then taken to his hotel room for a search but nothing of interest was found.

6.The police also arrested D2 and D3 on the same date and each was found to be in possession of 3 forged credit cards and a forged travel document in the respective names of Lee Te-chiang and Huang Li-wen.

7.The police interviewed the applicant the next day and the forged credit cards were sent for examination by a government chemist. Under caution, the applicant admitted the following:

"1. The 14 credit cards found inside the cigarette box in his handbag were all false;

2. He received two cigarette boxes containing forged credit cards from a Taiwanese man at the airport in Taiwan in the morning when he departed Taiwan for Hong Kong. He passed the two cigarette boxes to D 2 and D3 whom he met at the airport;

3. When they arrived at Hong Kong, he collected the credit cards from D2 and D3. He then made records of the credit cards on two pieces of paper. After making the records, he then distributed the credit cards to D2 and D3;

4. He gave D2 and D3 each 3 credit cards to make purchases. After the purchases made by D2 and D3 with the credits cards, he would make a record. He would get payment from the realization of goods purchased with the false credit cards."

8.According to the government chemist, the 14 credit cards found from the applicant and the 6 credit cards found from D2 and D3 were all forged credit cards.

9.The 14 forged credit cards were the subject matter of the 1st charge and the 6 forged credit cards were the subject matter of the 2nd charge.

Defence Case

10.The applicant claimed to have no knowledge about the presence of the forged credit cards in his handbag. He said he came to Hong Kong from Taiwan in order to purchase mobile telephones. He had agreed to come to Hong Kong with two others, as he was unfamiliar with Hong Kong. He then met D2 and D3 for the first time at the airport in Taiwan before boarding the plane.

11.On arrival in Hong Kong, they were met by Jerry whom D2 and D3 knew. Jerry took them shopping in Jordan Road and then to the Peninsula Hotel. When the applicant indicated that he wanted to buy mobile telephones, Jerry told him to go to the Fortress shop at the junction of Hankow Road and Peking Road. Jerry also suggested that they would meet up again 15 minutes later outside a nearby Starbucks.

12.However when he saw Jerry again 15 minutes later, he was grabbed by 4 police officers.

13.The applicant claimed to have no knowledge of the existence of the forged credit cards and the notebook with the numbers in his handbag. He suspected that they were put there by D2 and D3 when he left his handbag unattended in the hotel room. He said he did not understand why D2 and D3 had to do that.

14.The applicant said he had been ill-treated by the police officer at the interviews and was not allowed to make phone calls to contact a lawyer. He said he could not understand the content of the records of interview as they were recorded in colloquial Cantonese style and simplified Chinese characters.

15.The applicant said there was no interpreter assisting him at the time of the interviews and in any event, the written records of the interview were never properly explained to him. He objected to the admissibility of the records of interview as evidence.

Findings by the Judge

16.The judge rejected the evidence of the applicant including his allegation of misconduct of the police officer. The judge endorsed the decision of not allowing the applicant to make telephone call as it might delay or hinder the police investigation.

17.The judge found after a voir dire that an interpreter had been present throughout the interview and had properly interpreted what the applicant and the police officer had said. The Judge found that the records of interview were made voluntary and admissible. The judge accepted the contents as true and correct.

18.The judge also accepted the evidence of the government chemist that the credit cards, the subject matter of the 1st and 2nd charges were all forged.

19.On the evidence, the judge concluded that the applicant was in physical possession of the 14 forged credit cards found in his handbag and that the 6 forged credit cards found from D2 and D3 were also in his control and custody. He was therefore in possession of all the 20 forged credit cards.

20.The judge also concluded that the applicant knew that those credit cards were forgeries and that it was his intention to use them to buy goods in Hong Kong.

21.The judge therefore convicted the applicant on both charges.

Grounds of Appeal

22.In this application, the applicant basically repeats his defence that he had advanced at the trial. He says the records of interview were fabrication by the police officer. He says he did not make the confession and he did not understand its contents as it was written in the Hong Kong colloquial style and simplified Chinese characters. He was in any event not allowed to read the records of interview and they were not read back to him. Instead he was just forced or induced into putting down his signatures.

23.The applicant repeats his complaints that the interpreter was not present and there was no indication that a record was made of the interviews by the interpreter.

24.The applicant also says he had no idea when those forged credit cards were put into his handbag. He suspects that Jerry and the police officers had conspired to wrong him. He questions why the police did not arrest Jerry. He also emphasizes the lack of finger print evidence against him.

25.The issues raised by the applicant are all issues of facts.

26.The judge had dealt with those issues comprehensively and fairly. The judge was entitled to accept the records of interview as evidence on the basis that they were given by the applicant freely and voluntarily.

27.The interpreter was present to interpret what went on between the applicant and the police officer. The police officer made the records. The complaint that the interpreter did not make any record of the interview is not a valid one.

28.There was clear evidence that the credit cards found in the possession of the applicant or under his control and custody were forged. The judge was entitled to rely on the contents of the records of interview to conclude that the applicant was aware of the existence of the forged credit cards and that he knew they were forged.

29.The absence of finger print evidence does not mean a charge against an accused can never be established as long as there is other evidence sufficient to establish his guilt to the required standard. The suggestion of lack of finger print evidence has no merit whatsoever.

30.The police evidence and the admissions of the applicant clearly are sufficient to establish the guilt of the applicant on the two charges he faced.

31.On the facts found by the judge, the conviction on both charges against the applicant is inescapable.

32.There is nothing unsafe or unsatisfactory about such conviction. The applicant was rightly convicted. His application for leave to appeal against conviction is refused.

Sentence

33.Credit card offences are serious offences and must be deterred. The court of appeal had in the past made comments on credit card offences.

34.In R v Wong Fu Keung Crim App 5 of 1991 and R v Kwai Ying-ho Crim App 527 of 1992, the following respective comments were made:

"It is a matter of notorious fact that the illegal use of credit cards has become widespread. Those who are engaged in this type of activity can expect to be dealt with severely by the court."

"Credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong's standing in the international community."

35.Despite the lapse of over 10 years, those comments are still as valid as they were.

36.In R v Chan Sui To & Another Crim App 115 of 1996, this court made the following comments on sentence in false credit card cases:

"Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards of downwards according to circumstances."

37.The applicant was part of a well-organized syndicate with an international dimension.

38.He, together with two accomplices came to Hong Kong from Taiwan. They carried with them 20 forged credit cards and 2 forged travel documents. The forged credits cards and forged travel documents had similar names and were clearly intended to be used together to defraud local retailers.

39.They would have used the forged credit cards to make purchases from expensive shops in Hong Kong but for the intervention by the police. They no doubt would have caused significant financial loss to the relevant credit card companies.

40.The applicant says his family suffers grave hardship to which we would simply say, "he only has himself to blame".

41.Despite his clear record in Hong Kong and the absence of actual loss to the retailers or the credit companies, the total sentence of 51/2 years imprisonment imposed on the applicant after trial is not a day too long.

42.There is no valid basis for us to interfere with such sentence.

Conclusion

43.The applications for leave to appeal against conviction and sentence are both dismissed.

Representation:

Mr Jackson Poon, SGC of Department of Justice for Respondent

Applicant: In person, present