R. v. Wong Chong Wai

CACC000056/1997

IN THE COURT OF APPEAL

1997, No. 56
(Criminal)

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Coram : Power, Ag C.J., Mortimer and Mayo, JJ.A. in Court

Date of judgment : 20 May 1997

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J U D G M E N T

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

1. On 13 January 1997 the applicant was convicted after trial by His Honour Judge Gould in the District Court of an offence of having custody or control of counterfeit coins contrary to s.100(1) of the Crimes Ordinance, Cap. 200. He was sentenced on the same days to 21 months imprisonment. He applies for leave to appeal against conviction.

The facts

2. The facts leading to this conviction were that on 2 February 1996 a person called Ho Man-chik left the Royal Garden Flower Shop with a large bag in which the police were interested. It later turned out that that bag contained counterfeit coins. The police went into the shop and arrested three other people. In the shop they found counterfeit coins that led to a search. In the cockloft a huge quantity of counterfeit coins were found, including 12,000 ten-dollar coins. There were also a large quantity of five-dollar coins, two-dollar coins and one-dollar coins. They were openly on a table there, some wrapped in 50's and this charge relates to those coins found in that shop.

3. The applicant had a shop not very far away from that flower shop from which he sold mobile phones. He was returning to his shop shortly after the events we have described and was arrested. His hands were shortly afterwards covered in plastic bags to preserve any evidence that might be on them and to avoid contamination. Later the Forensic Evidence Officer took tapings from the palms of both hands and swabs. Those were examined by forensic scientists - it would appear much later - because the report was not available until the following August. That examination demonstrated certain things which were admitted in facts put before the judge.

4. The examination showed that the coins that had been seized in the flower shop were indeed counterfeits. Examination of the tapes taken from the applicant's hands showed that there were fragments of metal on his hands which matched each denomination of counterfeit coin, the 10-dollar, 5-dollar and 1-dollar coins.

5. The opinion expressed by the forensic scientist was also the subject of admission. Perhaps the two parts which are important are:

"(1) The contamination of the hands of the defendant could only have been caused by prolonged contact with all four types of counterfeit coins.

Later,

"(2) that it was highly likely to have been caused by prolonged contact on a large quantity of coins."

6. Finally, he says, he is unable to state how long the contact and precisely the number of coins. This refers to direct contact.

7. So far as secondary contact is concerned, that is, fragments which may have come from the coins onto a table or some other place and then onto the defendant's hands, the scientist's opinion was that.

"It was highly unlikely that the defendant would have got the metal contamination by secondary contact."

The final part of the evidence which was of obvious importance was that the applicant's fingerprints were found in the cockloft where the coins were being wrapped, on some of the newspapers.

The trial

8. The trial was unusual in this respect - no oral evidence was called by the Crown. The admitted facts were put before the judge and that was the whole prosecution case. It goes without saying that the applicant and those advising him had agreed to this course.

9. The applicant however gave evidence. His evidence suggested as a possibility that the fragments found on his hands had come from the coins concerned either through gambling (which was his wont) at his shop with a friend from the flower shop who was one of the others convicted of a similar offence. Or that there had been some "secondary transfer" of the fragments from the coins being brought to his shop by others. Or that he could have received the coins over the counter at his shop and handled them in that way.

10. Those were the possible explanations that he advanced for the contamination of his hands. On the fingerprints, he said that he kept newspapers and periodicals in his shop for people visiting his shop. That from time to time the newspapers would be taken away by his friends and it was possible that the man Cheung, his friend from the flower shop, had taken newspapers away and that they had found their way to the cockloft where some of them were used for wrapping the coins.

11. The judge accepted the forensic evidence. He had to. It was agreed. On that evidence, he rejected the applicant's account and particularly on this basis, he said:

"On the defendant's own account, all traces would have disappeared by the time of testing."

The judge was there making reference to the applicant's evidence that whatever might have been the position before the day on which he was arrested, he said that he had not gambled and therefore had not handled these coins through gambling on the day of his arrest. Nor indeed had there been any significant transactions in his shop which would have accounted for his hands being contaminated on that day. The judge must have concluded that the contamination of the applicant's hands in the way that they were contaminated must have taken place during that day and therefore he rejected the applicant's account.

The application

12. It is submitted by Mr Cheng Huan QC (who appears for the applicant on this application) that the finding based on the forensic evidence is flawed. To that we will now turn.

The forensic evidence

13. The agreed evidence contained no indication from the forensic scientist as to the length of time which the contamination from the counterfeit coins on the hands would last. It cannot be said from the admitted facts whether washing would remove the contamination; whether simply the effluxion of time would remove the contamination; nor, whether it would disappear for any other reason. The judge's finding that on the defendant's own account all traces would have disappeared by the time of testing is simply not supported by the forensic evidence. On that issue the forensic scientist was not cross-examined because he never gave evidence on it. This case was conducted without oral evidence.

14. The failure to call any oral evidence has been commented upon by this Court before. It is usually unwise for the Crown to simply present agreed written evidence. The reason is this and it happened in this case. The issue on the possible length of contamination was never joined in the trial below. If the forensic scientist had been called to give evidence - as he should - counsel for the applicant would have cross-examined him to put his case. The expert would have either accepted or rejected it, and expressed his views. What is more, his evidence and the basis for his opinion would have been open to test.

15. The consequence is, on that finding the judge was not supported by the agreed forensic evidence.

The fingerprint

16. We turn now to the second matter which is the fingerprint.

17. One would have expected that a fingerprint on newspaper which was being used to wrap the counterfeit coins would have been one of the most significant features of the Crown's evidence, but the applicant gave an explanation. The judge heard and saw him give it. His view was:

"That may be a feasible explanation,"

The judge regarded the presence of the fingerprint as demonstrating that the defendant knew Cheung - which is not in dispute - and that the fingerprint removed any doubt whether the counterfeit coins with which the defendant had been in prolonged contact were those found in the flower shop.

The proviso

18. We are invited to apply the proviso because of the fingerprint but this is not so significant, on the judge's findings, that if we were inclined to allow the appeal, we could possibly say that a conviction was inevitable had the judge correctly directed himself.

Conclusion

19. In the result, for the reasons we have endeavoured to set out, this conviction is unsafe and unsatisfactory. We therefore allow this application, treat the hearing as the appeal itself, allow the appeal and quash the conviction.

One final point

20. Before we leave the matter, there is one further suggestion of Mr Cheng Huan with which we will deal. It is this. The judge in his reasons did not specifically set out the ingredients of the offence and did not specifically find that the applicant had been in joint custody and control of the counterfeit coins, or that he knew that they were in fact counterfeit. Those are matters which normally a judge would address, but we would not have been inclined to allow the appeal on the basis that he did not specifically address them. If it had been shown satisfactorily that the applicant was concerned with those others in dealing with these coins than clearly he would have been in joint custody and control of them and clearly he must have known having regard to the circumstances that they were counterfeit.

21. We allow the appeal and quash the conviction.

Representation:

Mr Cheng Huan QC and Mr Peter Wan (M/s Liu, Choi & Chan) for Applicant

Mr R.G. Turnbull, SACP and Miss Louisa Lai, SCC (Crown Prosecutor) for Crown/Respondent