HKSAR v. Wong Chi Yin and Others

CACC 448/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 448OF 2005

(ON APPEAL FROM DCCC NOS. 163 AND 165 of 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Yuen JA and Suffiad J

Date of Hearing: 8 June 2007

Date of Judgment: 22 June 2007

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.The appellants D1, D2, D4, D5 and D6 respectively, were convicted on 30 September 2005 following a trial in the District Court before Deputy Judge Woodcock.  D1, D2, D5 and D6 now appeal against conviction, leave having been granted by the single judge.  In D4’s case, her application for leave to appeal against conviction was lodged over 10 months out of time when she became aware that leave had been given to the others.

2.The consolidated charge sheet contained three charges of conspiracy to use a false instrument, contrary to sections 73, 159A and 159C of the Crimes Ordinance, Cap. 200, which are of relevance to these proceedings.  D3, who is not the subject of these proceedings, pleaded guilty at trial.  D1 and D2 were allegedly involved in all three conspiracies and were convicted on each charge whereas D4, D5 and D6 were alleged to have been involved in only one of the conspiracies (charge 2).

3.The offences were, in common parlance, agreements to use fake credit cards to obtain goods from shops on three days in October 2002.  The appellants were arrested as the result of infiltration by an undercover police officer (PW1) into the ranks of the unsuspecting gang allegedly responsible for these offences.  PW1’s credibility was all-important to the success of the prosecution’s case which stood or fell entirely upon his evidence.

4.In the light of the grounds of appeal, it is unnecessary to rehearse the facts of the case.

5.None of the appellants gave evidence save D2 who also called two alibi witnesses.  Essentially, the defence case was presented for each appellant on the footing that if the alleged criminal acts giving rise to the conspiracy charges took place, then the appellant in question had not participated in any way.

Grounds of appeal

(1)     The application of the rule in Wong Sau-ming’s case

6.A number of grounds of appeal have been advanced but Mr Edwin Choy for D1, D2 and D4 and Mr H Y Wong on behalf of D5 and D6 effectively advanced one ground which was common to them all, although each expressed this in a slightly different way.  In essence, this was that the judge ought not to have accepted PW1’s evidence as credible after she had allowed a summary of evidence and a certified copy of the Reasons for Verdict from an earlier trial in a magistrates’ court involving PW1 to be exhibited. That trial, where PW1 was the crucial witness, had resulted in the defendant’s acquittal.  It was contended, as a matter of law, following the guidance in Wong Sau-ming v HKSAR [2003] 6 HKCFAR 135, that the judge must have considered that PW1 had lied in his evidence in earlier proceedings to have permitted these items to be exhibited by the defence.

7.More importantly, perhaps, it was submitted on behalf of the appellants that the judge had departed from the guidance in Wong Sau-ming’s case by making no explicit ruling as to whether the magistrate had found PW1 to have been lying in the earlier proceedings.  Whilst it may be that the magistrate had not explicitly stated that PW1 had lied, it was argued that the judge in the proceedings now before us should, realistically, have decided that this is what the magistrate must have found when he entered a verdict of acquittal.

8.This ground was made possible because, as Mr Turnbull for the respondent was right to concede, the judge had, with respect, failed to follow the approach set out by the Court of Final Appeal in Wong Sau-ming to deal with situations of exactly the kind which had arisen in the instant case.  This occurred at a stage when the judge had to determine whether PW1 could be cross-examined about the truthfulness of his evidence in the earlier trial in the magistracy, the purpose being to attack PW1’s credibility in the present trial by suggesting that he had lied to the magistrate.

9.In Wong Sau-ming’s case, Li CJ, giving the majority judgment of the Court of Final Appeal on 9 April 2003, said (at page 148):

“17.   The appeal raises the following situation for consideration.

(a)     The credibility of a witness in a criminal case is challenged on the ground of his veracity; and

(b)     In a previous criminal case:

(i)      That witness had given evidence;

(ii)     His evidence and hence his veracity had formed an essential part of the prosecution’s case; and

(iii)     The defendant had been acquitted.”

This was precisely the situation which had arisen in the present case.

10.Li CJ’s judgment continued with a consideration of general principles (at pages 148-149):

“… First, where the veracity of the witness is challenged on cross-examination as to credit, subject to the judge’s discretion to disallow improper questions, cross-examination about discreditable acts is widely permitted.  See Cross and Tapper on Evidence (9^th ed., 1999) p.306.  Its purpose is of course to show that the witness ought not to be believed on oath.

24.  Secondly, the cardinal test of relevance in the law of evidence applies to such cross-examination.  The subject matter of the cross-examination must be relevant to the witness’s veracity.  Relevance is a matter of degree.

25.  Thirdly, in applying the test of relevance, the court should in its discretion usually permit questions in cross-examination as to credit if the truth of the imputation conveyed would materially affect the court’s opinion as to the witness’s veracity on the subject matter of his testimony. …

……

26.  Fourthly, as a general rule, answers to questions in cross-examination as to credit on any ground including veracity are final and evidence is not admissible to contradict them. …

27.  Fifthly, there are well established exceptions to the finality rule. …”

11.Li CJ continued (at pages 150-151) by saying:

“30. Where in the situation in question, it is sought to cross-examine a witness by reference to an acquittal in a previous case, two main difficulties arise.  The first difficulty is the meaning to be attributed to the verdict of acquittal.  Although in the situation in question, the prosecution’s case in the previous case depended essentially on the evidence of the witness in question, the court would have been bound to acquit unless it was satisfied beyond reasonable doubt on the whole of the evidence that the defendant was guilty of the offence charged.  In acquitting, the court may not have found that the witness had lied.  Unless in acquitting, the court had found that the witness had lied (or, which amounts to the same thing, the court had disbelieved the witness), the acquittal could not properly be regarded as relevant to the veracity of the witness in the instant case.  It would not have a sufficiently material impact on the court’s assessment of his veracity.

31.  Secondly, even where the acquittal in the previous case involved a finding that the witness in question had lied, that finding may have been in circumstances of such a different kind or may be so remote in time as to render it irrelevant in the instant case.  Again, such a previous finding would not have a sufficiently material impact on the court’s opinion on his veracity.

32.  In principle, in order to satisfy the test of relevance, cross-examination as to credit on the ground of veracity by reference to an acquittal in an earlier case should only be permitted where the following threshold requirements are met:  It must clearly be established that:

(1)     The verdict of acquittal in the previous case involved a finding by the court that the witness in question had lied (or which amounts to the same thing, that the court had disbelieved the witness); and

(2)     The circumstances of the previous case are of such a kind when compared to those in the instant case and the previous finding is not so remote in time that the finding of lying in the previous case would materially affect the court’s assessment of the witness’s veracity in the instant case.  Unless these requirements are satisfied, cross-examination by reference to the acquittal in the previous case should not be permitted.

33.  Whether the first threshold requirement is met depends on an examination of the verdict of acquittal in the context of the issues in the earlier case.  A jury verdict would ordinarily be a non-speaking verdict, so that the respective reasons of the several jurors leading to their unanimous or majority verdict cannot be ascertained.  The verdict is opaque.  That being so, it would only be in very exceptional circumstances that a jury verdict would be able to meet the first requirement; for example, where the jury expresses its view that the witness in question had lied in a rider to its verdict.  Similar considerations may apply to a verdict of acquittal given by a judge sitting alone where no reasons or virtually no reasons are given.  But where a judge sitting alone acquits and gives reasons, those reasons should be examined in the context of the issues to decide whether a finding was made that the witness in question had lied.

34.  As to the second threshold requirement, assuming a previous finding of lying could be established, the circumstances of the previous case must be of such a kind when compared to those in the instant case and the previous finding must not be so remote in time that the previous finding would materially affect the court’s assessment of the witness’s veracity.  Otherwise, the previous finding would not be relevant to the cross-examination as to credit.

35.  In coming to a judgment, all the circumstances have to be considered.  In considering whether the circumstances are of the kind referred to, all the circumstances of the two cases have to be considered.  The circumstances to be examined cannot be exhaustively defined.  They may include matters such as the nature and types of offences, the nature of prosecution’s case, the modus operandi of the witness, and the allegations made against the witness by the defence.  The question of remoteness or proximity in time has to be taken into account.

36.  This is an area where it would be unwise to lay down any hard and fast rules.  As with many questions regarding relevance, it may sometimes be difficult to draw the line.” (Emphasis added)

Finally, so far as it is relevant in these proceedings, the Court of Final Appeal went into the procedure to be adopted in jury trials which was to be followed by judges sitting alone “with the appropriate modifications”.  Li CJ said (at pages 152-153):

“… In a jury trial, where counsel for the defendant wishes to cross-examine a witness by reference to an acquittal in a previous case, he should usually seek a ruling from the judge as to whether such cross-examination should be permitted.  Obviously, arguments on this matter should take place in the absence of the jury.  The materials in the previous case that should be placed before the judge should be as economical as circumstances permit and in any event, should be kept within manageable proportions.  In the very exceptional circumstances, where it is suggested that a previous jury verdict amounts to a finding that the witness had lied, the materials would usually consist of the jury’s verdict and the judge’s summing up or where possible, a statement, agreed for the purposes of the instant case, of the prosecution and defence cases in the previous case.  Where the previous case was before a judge sitting alone, the materials would usually consist of the judge’s statement of reasons.  If they are not self-explanatory, it may need to be supplemented by other materials such as an agreed statement of the kind referred to above.

42.  The judge should then consider whether the threshold requirements are met and exercise his discretion accordingly.  Where they are met, the judge should usually exercise his discretion in favour of permitting cross-examination.

43.  The cross-examination would then be pursued.  If the witness agrees that he was found to have lied in the previous case, no question of the admission of evidence to contradict his answer would arise and the jury should then be appropriately directed on the previous finding.  But if the witness denies this, then the relevant materials to prove the previous finding could be put in evidence to contradict the answer.  The observations made earlier in relation to the materials to be placed before the judge to enable him to consider whether to permit cross-examination would similarly apply to such evidence.

44.  Where the witness denies that he was found to have lied in a previous case and evidence is put in to contradict the answer, in directing the jury, the judge should inform them that the evidence has been admitted because the judge is satisfied as a matter of law that the witness was found to have lied in the previous case and that they should proceed on the basis that there was such a previous finding, notwithstanding the witness’s denial.  This approach is justified since the judge’s view that there was such a previous finding is on a matter of law.  The jury should not be asked to consider for themselves whether such a previous finding had been made.  But the judge should make clear that evaluation of the credit of the witness is a matter for the jury.  The judge should direct that they should give the previous finding such weight, if any, as they think fit in assessing the veracity of the witness in the instant case.”

12.As Mr Turnbull conceded, the Reasons for Verdict and the summary of the evidence from the earlier proceedings before the magistrate should not have been admitted into evidence without a determination by the judge that PW1 had lied, followed by PW1’s denial that this was so.  Here, the judge made no determination that PW1 had lied in the earlier proceedings and, when PW1 was asked the reason why the magistrate had acquitted in the earlier proceedings, he replied that he would need to see the judgment as he had left the court after giving his evidence.  It seems that after counsel for the defence had been provided with an English translation of the magistrate’s findings, this line of cross-examination was pursued no further.

13.The approach the judge actually took to PW1’s evidence in the earlier trial is clear from her Reasons for Verdict.  This was expressed as follows:

“43.   PW1 gave evidence in the magistrates’ trial against the defendant Mak Hon-man, not a defendant in this case. The charge was inviting PW1 to be a member of a triad society. He was acquitted. I do not intend to repeat the magistrate’s reasons for the acquittal but I do not agree that he rejected PW1’s evidence. The details of the charge and the verdict have been exhibited as Exhibits Dl and D2. At most, the magistrate felt it was not sufficient to convict the defendant, meaning PW1’s evidence. He was not sure of the circumstances leading to the invitation to be a member. As he felt this was very relevant to the charge, he acquitted the defendant. I do not agree this acquittal weakens PW1’s evidence in this present trial.” (Appeal bundle pp. 45-46)

14.We are satisfied that this assessment was wholly reasonable as the magistrate, in setting out his reasons for acquitting, had said:

“The prosecution has called a total of one witness in this case. He is PC 33216. He testified that he was tasked to act as an undercover police constable in July 2002 ... He said that the defendant was nicknamed Tai Kau (transliteration). And at that time Tai Kau told him that since he was a friend of Pauline’s, he could ‘hang’ his name for that time being, and could say that he was a follower of Shing Wo ...

In considering whether the evidence of PW1 was credible and reliable, I have to take other evidence into consideration as well .... I am still unable to understand why the defendant would ask him to ‘hang’ his name for that time being ... From his explanation, I am still unable to find any reasonable explanation as to whether there was any need or reason making it necessary for the defendant to say those words ... I must find myself fully satisfied under reasonable circumstances that the defendant did in fact say those words in the circumstances that the defendant did in fact say those words in the circumstances described before I can convict him.

However, the reply given by PW1 in cross-examination could not make me satisfied that because of what he had done, it caused or made the defendant in the then circumstances say those words to him and ask him to be a follower of his and to ‘hang’ his name. In the result, I find that there is still a doubt and query in this case and the benefit of this doubt and query must go to the defendant. I find that the charge against the defendant is not proved.”

There is nothing in this passage to indicate that the magistrate had found PW1 to be a liar or that the evidence given by PW1 was unreliable or not credible.  What plainly does emerge is that the magistrate entertained a doubt about the defendant’s guilt which could only be resolved by an acquittal.

15.It is apparent to us that the first of the ‘threshold’ tests in Wong Sau-ming had not been met.  The evidence contained in the defence exhibits, namely, the summary of PW1’s evidence and the certified copy of the magistrate’s Reasons for Verdict, had to be put before the judge de bene esse for the purposes of deciding whether the cross-examination of PW1 should be permitted on this aspect of his credibility.  A ruling ought then to have been made and once the issue had been resolved in the way indicated in her Reasons for Verdict, the judge should not have allowed these items to be formally exhibited although they could have been made provisional exhibits for the purposes of making a ruling.

16.Mr Choy is, therefore, strictly correct in saying that the judge failed to follow the procedure laid down for precisely the situation which had arisen in this case and he is equally correct in saying that the judge made no ruling on her approach to PW1’s credibility until she made her decision known in the Reasons for Verdict.  Indeed, it is apparent also that trial counsel (none of whom appear in these proceedings) did not call for a ruling with the result that the matter was left unresolved until the end of the trial.

17.Mr Choy’s submission, supported by Mr Wong, that the threshold test had been achieved because it is implicit from the magistrate’s findings that he had found PW1 to be a liar is not, as we have indicated, a submission we feel able to accept.  The judge obviously regarded the verdict of acquittal as having been based upon a doubt which existed in the magistrate’s mind and, as to this, we are in full agreement.  Equally, we cannot accept Mr Choy’s argument, again supported by Mr Wong, that because the defence exhibits were formally exhibited, the judge ought to have “directed herself that she must proceed on the basis that PW1 had been found lying on a previous occasion” and found as a result that this had weakened PW1’s evidence.  In practice, whether formally exhibited or merely provisionally exhibited, this made little difference in the circumstances.

18.We are satisfied that whilst a procedural irregularity occurred in the way we have described, there was, in the event, nothing which materially affected the fairness of the trial.  It seems to us that no prejudice was caused to any of the appellants and no specific prejudice arising from this irregularity has been suggested.

19.We shall grant leave to appeal out of time to D4 on this ground which, in all probability, is the reason the single judge gave leave to the other appellants but we are satisfied that this ground was not of sufficient weight to overturn D4’s conviction or the convictions of any of the other appellants.

20.The remaining grounds of appeal can be dealt with relatively shortly.

(2)     The ‘good character’ direction in D2’s case

21.Mr Choy submitted in his 2^nd ground that the judge had misdirected herself when dealing with D2’s hitherto clear record by omitting to say that D2’s good character should be taken into account when considering his credibility as a witness.

22.The context in which this complaint is set has its foundation in what the judge actually said about character.  This was in the following terms:

“33.   The 2^nd defendant has a clear record.  The court must therefore consider the propensity and likelihood of this man committing these offences.”  (Appeal bundle p. 43)

The judge had, therefore, omitted to refer to the relationship between good character and credibility and, in this regard, Mr Choy placed reliance upon a passage from the judgment in Tang Siu-man v HKSAR (No. 2) [1997-1998] 1 HKCFAR 107 where Litton PJ said (at page 133):

“… Sometimes one limb of the direction is enough: for example, where in essence the central issue is credibility and an inclination on the part of the jury to believe the defendant means in effect he is entitled to an acquittal: to fail to give the ‘credibility’ direction in such circumstances may well render the summing-up unbalanced and unfair: to give the ‘propensity’ limb may be a surplusage.”

Mr Choy argued that if the judge had thought that D2’s evidence was “possibly true”, D2 would obviously have been entitled to an acquittal and, following from this, he submitted that the omission to refer to credibility when dealing with D2’s good character rendered D2’s conviction “unfair, unsafe and unsatisfactory”.

23.This was not, of course, a case which was before a jury and Mr Turnbull made the point that different considerations apply for a judge sitting alone.  He referred to the judgment in R v Fok Tin-yan [1995] 1 HKCLR 351 at 356 where Power VP said:

“… As Penlington, J.A. made it clear in R. v. WONG Chi-wei [1994] 1 HKCLR 94, Chan Wu-nam’s case [CACC 274/1992] is not authority for the proposition that in all cases where credibility is in issue, the judge must set out the manner in which he has considered the accused’s good character in deciding that issue. Where a judge is sitting alone and evidence of good character has been given, this court will, even if he makes no mention of it, unless there be some express or implied indication otherwise, act upon the basis that he was aware of the character evidence and that he gave it the weight which he thought it deserved. In the present case there was no such indication. We have no doubt that the judge had in mind the character and background of the applicant when coming to his conclusion. We find nothing either unsafe or unsatisfactory in the fact that the trial judge did not make reference to character in his reasons.”

24.In the present case, aside from the reference to D2’s clear record to which we have already referred, the judge later went on to repeat in her Reasons for Verdict, when concluding that she was sure that the allegations had been made out, that amongst the matters she had taken into account was D2’s clear record without further amplification.  Plainly, the judge was aware that there were two limbs involved in a character direction, this being a fundamental direction applicable to many criminal trials although it has to be accepted, as Mr Turnbull has done, that the judge’s earlier reference to one of these limbs under two labels “propensity and likelihood of this man committing these offences” was a mistake.  This being said, we have looked at the Reasons for Verdict as a whole and we are satisfied that D2’s previous good character had been taken into account.  Significantly, it is apparent that the reasoning provided by the judge for the verdicts she reached was fairly and properly balanced.  In our opinion, this error, which may have been no more than an unfortunate slip of the tongue, did not materially affect the fairness of the proceedings.

(3)     Judge’s comment about D2’s witnesses

25.In his 3^rd and last ground, Mr Choy contended that the judge erred by making a comment adverse to the defence when stating that “alibi help was not sought until two weeks before the trial and three years after the arrest”.

26.This ground was misconceived.  The two defence witnesses (DW2 and DW3) had testified that they had only been approached shortly before the trial.  This was a highly relevant factor in the judge’s determination about their veracity and her ultimate rejection of their evidence which depended to some extent on their memory of events no less than three years earlier.  The judgment in R v Lam Chun-chuen [1992] 1 HKC 37 where reference is made to part of Lord Roskill’s judgment in R v Lewis [1973] 57 Cr App R 860, relied on by Mr Choy, was concerned with a breach of the right of silence and had no application to the situation which had arisen in the present case.

Grounds of appeal for D5 and D6

(4) and (5)  Identification of D5

27.The remaining grounds of appeal concerned D5 and D6.  Firstly, it was submitted by Mr Wong that the judge had failed to deal with an inconsistency in the evidence given by PW1 about D5’s description as recorded in PW1’s notes when compared not only with the evidence of another police witness (PW3) but also with D5’s actual appearance “when considering identification evidence according to the Turnbull guidelines”.  In a closely linked ground, Mr Wong also suggested that D5’s “extensive tattoos” did not fit the description recorded by PW1 in his notes where no special characteristics had been mentioned.  He submitted, therefore, that D5 had been mistakenly identified as the man who had, as alleged by PW1, given him a false credit card.

28.The first point which counsel for the respondent made was that this was not a case where the guidelines  taken from R v Turnbull and Ors [1977] QB 224 and [1976] 63 Cr App R 132 applied.  However, in our opinion the judge was right not to have adopted this stance.  The judge, in her Reasons for Verdict, said:

“46. I did consider the Turnbull authority and the guidelines set out. Of course, quality of identification evidence is of paramount importance.

47.     PW1 did describe how often he had met and interacted with each defendant in the course of the operation. He only went into great detail of these meetings in relation to the three charges here.

48. These meetings alone would convince me that as a trained police officer he had more than sufficient contact with these defendants to make an accurate identification. This is not a case where fleeting glances may cause concern. This was a case where he had become very familiar with each and every defendant because of his covert position. He would clearly be able to recognise them.” (Appeal bundle pp. 46-47)

29.The judge had appreciated that the case against D5 depended on the correctness of PW1’s identification of him as a participant in one of the conspiracies and had taken care in examining the surrounding circumstances.  The precise point of criticism contained in this ground was certainly a matter to which the judge had directed her attention because she went on to say, having considered the Turnbull guidelines, that:

“49.   [Defence counsel] is sure D5 has been wrongly identified by PW1.  In cross-examination PW1 confirmed he had described D5 in his occurrence book. PW1 agreed he had not noted any special characteristics. He agreed he had described D5 as wearing a white short-sleeved T-shirt.

50.     PW3 was called to give evidence and tendered for cross-examination at the request of [defence counsel]. It became clear why [defence counsel] required him. This police officer took an antecedent statement from the 5th defendant. In it he describes D5 as having extensive tattoos on his chest, back, thighs, lower legs and both arms. [Defence counsel] relies on the fact he obviously has tattoos on both arms yet PW1 said he had no special characteristics. [Defence counsel] did not put to PW1 that he had wrongly identified D5 as he had tattoos. He did not put to him that tattoos could be special characteristics. PW1 has had no chance nor opportunity to answer this allegation of the wrong identification because it was not put to him.

51.     D5 was involved in this conspiracy on 15 October. According to PW1’s evidence he was not on the periphery of this conspiracy but very involved. He gave PW1 his fake credit card, he was the only other one ‘shopping’ alongside PW1. PW1 and the 5th defendant were together for many hours. At one stage they went shopping to Whampoa alone. I do not see any doubt in PW1’s identification of D5, nor do I believe he has deliberately framed D5.

52.     I carefully considered all the evidence and submissions of the defence. I rejected the submission that identification evidence was flawed and unfair. I rejected the submission that PW1’s evidence was not reliable or credible. I found him to be honest and credible.  I accepted his evidence in its entirety.” (Appeal bundle pp. 47-48)

30.The issue was plainly understood by the judge and the criticism which was made of defence counsel’s tactics at court was, with respect, well-founded.

31.These grounds of appeal fail.

(6)     The object of the conspiracy

32.Mr Wong next raised a ground which was common to D5 and D6.  This alleged that the judge had failed to give sufficient consideration to the possibility that D5 and D6 “might have been party to a different conspiracy to use a genuine credit card, albeit belonging to another, in the absence of any evidence that the HSBC MasterCard in the name of Chan Chi-man allegedly used by D5 was in fact false or forged”.  (Emphasis added).

33.This is not a ground of any substance whatsoever.  The 2^nd conspiracy charge to which this ground is directed had been re-amended to include reference to the MasterCard in Chan Chi-man’s name.  This became the second credit card identified in the particulars of the charge which changed the wording of the conspiracy to the extent that it now referred to two false instruments instead of one.  The judge recognised the point now being raised in these proceedings.  She said:

“61.   The prosecution must prove as an essential element of conspiracy that there was an agreement between the defendants to use fake cards.  The evidence of PW1 more than supports the prosecution’s contention that the defendants knew the cards were false and agreed to be part of a plan to shop with these cards. The roles of the defendants include providing these cards, instigating the plan, being a lookout, receiving goods and actually shopping with the cards.

62.     I have considered the amended particulars of Charge 2. During the course of PW1’s evidence I allowed the prosecution to amend by adding the particulars of a silver HSBC credit card in the name of Chan Chi-man.

63.     On reflection, the evidence of PW1 is insufficient to prove it was false even though it is highly suspicious and likely to have been false. However, this card is not an essential element of the conspiracy offence. I do not regard it as material. It has been proved there was a conspiracy to use fake credit cards. That is what is required to be proved.”  (Appeal bundle p.50)

34.The judge was plainly correct.  This was a conspiracy to use false instruments which is precisely the allegation she found proved.  Earlier in her Reasons for Verdict, when summarising what had occurred when PW1 received a credit card from D5, the judge said:

“10.   On 15 October, the date of Charge 2, D1 called PW1 to tell him he had some fake cards, there was work to do, and he was to meet him in the amusement games centre. There PW1 saw not only Dl but D4, D5 and D6. D1 told PW1 to go with D5 to the toilet. There D5 gave PW1 a fake UPOINT credit card. PW1, as instructed then signed the back of this card. D5 also showed PW1 a silver HSBC credit card. D5 kept that himself in his own pocket.” (Appeal bundle p. 38)

35.As Mr Turnbull pointed out, it had never been suggested by defence counsel in the course of the trial that the second credit card referred to in the charge was actually a genuine card and, whether counsel had done so or not, there was, aside from the fact that the other credit card was shown to have been a false instrument, ample evidence of a conspiracy to use false credit cards within the terms of section 159A of the Crimes Ordinance which states:

“159A - (1) Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either-

(a)     will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or

(b)     would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question.”

36.We should say, lastly, in relation to this ground of appeal that Mr Wong sought to place some reliance on the judgment in R v Roberts [1998] 1 Cr App R 441.  This was concerned with duplicity and has no application to the present case.

Conclusion

37.We are satisfied that the convictions were neither unsafe nor unsatisfactory.  Accordingly, the appeals of D1, D2, D5 and D6 are dismissed.  Similarly, treating the hearing in D4’s case as her appeal, D4’s appeal is dismissed.

Mr R G Turnbull, SADPP, of the Department of Justice, for the Respondent.

Mr Edwin Choy Wai Bond, instructed by Messrs C Y Chan & Co., assigned by Director of Legal Aid, for the 1^st, 2^nd and 3^rd Appellants (D1, D2 and D4).

Mr Wong Hay Yiu, instructed by Messrs Wong Kwan & Co., assigned by Director of Legal Aid, for the 4^th and 5^th Appellants (D5 and D6).