HKSAR v. Tang Chung Fai

CACC000542/1996

IN THE COURT OF APPEAL OF THE HIGH COURT

1996, No.542
(Criminal)

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Coram: Hon Power Ag. CJHC, Mayo JA and Leong J in Court

Date of hearing: 12 September 1997

Date of judgment: 12 September 1997

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J U D G M E N T

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Leong, J. (giving the judgment of the Court) :

1. The applicant was convicted after trial in the District Court of one charge of possessing equipment for making a false instrument, contrary to s.76(1) of the Crimes Ordinance,Cap.200 ("the first charge"), and four charges of possessing false instruments, contrary to s.75(1) of the Crimes Ordinance (the second to the fifth charges). He now applies for leave to appeal against conviction.

2. The first charge involved 22 unembossed counterfeit credit cards of the Citibank and the Chase Manhattan Bank and the second to the fifth charges involved a total of 23 embossed counterfeit credit cards of the Citibank and the Chase Manhattan Bank.

3. At the trial, the prosecution called no witnesses and the whole case was based on the admitted facts under s.65C of the Criminal Procedure Ordinance, Cap.221, together with the exhibits referred to therein.

4. According to the admitted facts, on 25^th November 1992, United States Customs Officers at a mailing centre in Oakland, California, intercepted a packet sent to the States from Hong Kong. They found inside this packet an address book inside which were 30 unembossed credit cards. A key to a mail box was also found. Subsequently on 10^th December 1992, Customs Officers executed a search warrant on that mail box and found two letters and nine packets, eight of which were wrapped in paper of the same floral pattern. The packets were sent to the United States from Hong Kong sometime in December 1992 according to the post marks on them. Each packet was found to have an address book and inside it there was a number of credit cards. A total of 53 embossed credit cards purporting to have been issued either by the Citibank or the Chase Manhattan Bank were found. All credit cards, embossed and unembossed, were counterfeits.

5. All the items found in the ten packets were examined for fingerprints. The prints lifted were taken to Hong Kong for comparison. The applicant was arrested and on comparison of his fingerprints with those lifted and taken to Hong Kong from the States, it was found that his fingerprints were on the address book and one of the unembossed counterfeit credit cards in the first packet, and on the wrappings of four of the nine packets found in the mail box. It was admitted that the unembossed counterfeit credit cards were fit for conversion into apparently genuine credit cards while the embossed counterfeit credit cards were ready to be passed or used as genuine.

6. Thus, the only evidence of the prosecution that connect the applicant to these offences is his fingerprints. There is no evidence as to who sent these packets or whose writing it was on the cover of these packets.

7. The applicant's evidence before the judge was that he met up with a person Ah Chuen who had worked with him at a construction site and whom he had not seen for two years. He was shown some telephone books and wrapping papers when they were in a café and he had touched some of the wrapping papers and one of the telephone books. Subsequently in the toilet, he was shown by Ah Chuen a blank card in which he became interested and he picked it up for a look. It was taken back by Ah Chuen when someone came into the toilet. What the applicant was saying before the judge was that the fingerprints on the wrapping paper, the address book and one of the unembossed credit cards might have come about during the casual meeting with Ah Chuen in the manner he described and he had no knowledge of the packets sent to the United States.

8. The judge rejected his evidence on how the fingerprints came to be on the address book and wrapping paper.

9. The judge's conclusion in respect of the first charge is this :

" Without going into detail, when I consider all the evidence relevant to this charge, including the accused's own evidence, I am satisfied that the only reasonable inference is that some time prior to 25 November 1992 the accused must have had exhibits P4 to P33 in his custody or under his control. That being the case, and bearing in mind the nature of the cards and their quality, I am satisfied the accused must have known what would be done to the cards and how they would be used. Suffice to say, I am satisfied that each and every ingredient of the first charge has been proved and the charge itself has been proved beyond reasonable doubt."

10. In respect of the other charges, the judge's conclusion is this :

"... I am satisfied that the only reasonable inference is that, at some stage prior to 10 December 1992, the accused must have had the counterfeit credit cards contained in these packets in his custody or under his control. I am satisfied that each and every ingredient of each of these charges has been proved and that the charges themselves have been proved beyond reasonable doubt."

11. The first and second grounds of appeal are in essence that there was no evidence to prove the necessary intent in both offences and the third ground is that it was an irregularity in the conduct of the trial that the prosecution case was advanced by way of admitted facts only.

12. Mr Mattews for the applicant complains that the evidence of fingerprints only shows contact by the applicant with various exhibits. There was no consideration of intent by the judge.

13. Both s.75(1) and s.76 are lengthy sections and it is not proposed here to set them out in full. Suffice to say both offences require proof by the prosecution, apart from custody or control by the applicant of the counterfeit credit cards in question, of a double intention that :

a. the applicant intended that he or other shall use it to induce somebody to accept it as genuine; and

b. the person accepting it as genuine, shall by reason of so accepting it, do or not to do some act to his own or someone else's prejudice.

As in all offences involving proof of specific intent, such intent may be inferred from all the circumstances of the case and not necessarily proved by way of specific evidence.

14. In the present case, a large number of unembossed counterfeit Citibank and Chase Manhattan Bank credit cards were found together with a key to a mail box in the first packet. When this mail box was opened, nine packets were found and they contained a large number of embossed counterfeit credit cards purporting to have been issued from the same two banks as the unembossed credit cards. These packets were separately mailed from Hong Kong to arrive at the same destination in the States. The judge was entitled to infer from the presence of the applicant's fingerprints on these exhibits that the applicant had these counterfeit credit cards in his custody or under his control sometime prior to the dates on which they were found in the United States. He rejected the explanation of the applicant as he was entitled to. Once it was accepted that the applicant had had in his custody or under control these counterfeit instruments and once the applicant's explanation as to how his fingerprints came to be on the address book, unembossed cards and the packings of the other packets was rejected, the only logical and reasonable inference must be that the applicant in these circumstances intended that the unembossed counterfeit credit cards would be used by him or others to make false credit cards and to use counterfeit cards to induce others to accept them as genuine and to act to their prejudice on the basis that these cards were genuine. It would be na?ve to think that the applicant intended otherwise. The judge was entitled to conclude as he did that the charges had been proved beyond reasonable doubt.

15. On the third ground of appeal, reference had been made to R v. Siu Kai Ming CA236/85 where Silke JA deprecated the practice of paper trials. He had this say :

"Paper trials, except in the most simple circumstances, are never desirable. They cause complications both at the hearing and subsequently and this is a classic example. This Court has condemned the practice before and would wish to reiterate its condemnation yet again. Counsel should be very careful of the circumstances in which they ask a judge to try issues on admitted facts and judges should be wary in the extreme of acceding to such an application."

In that case, only one prosecution witness was called who gave formal evidence and the rest of the prosecution evidence was by way of agreed facts and cautioned statements. The defendant gave oral evidence.

16. The Court of Appeal found the trial judge had misconstrued the agreed facts on a point of crucial importance and made an unjustified addition to the evidence and considered this highlighted the danger of paper trials. Nevertheless, the appeal was allowed not because the trial was conducted on paper but on some other evidential grounds.

17. It may be that the present trial could have been conducted in a manner other than that which it had been conducted before the judge, but this is a case where all the evidence available in support of the prosecution case was not in dispute, even the crucial evidence of the finding of the applicant's fingerprints on the exhibits and that these credit cards were counterfeits. There was no misconstruction of the evidence by the judge in the present case. The only point that was to be tried was what inference the judge could draw from these facts and whether the inference drawn was one which the judge was entitled to draw. The applicant had suffered no prejudice in the trial. There was no irregularity or impropriety in conducting the trial in the manner the judge did.

18. The application for leave to appeal against conviction must be dismissed.

Representation:

Mr A.A. Bruce & Mr Daryanami, Senior Government Counsel, for Respondent

Mr J. Mattews, inst'd by M/s Wong & Partners, for Applicant