R. v. Ip Chun Keung
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CACC000766/1995 IN THE COURT OF APPEAL 1995, No.766
------------------------------- Coram: Hon. Power, V.-P., Mortimer and Mayo, JJ.A. Date of Hearing: 10 May 1996 Date of Judgment: 10 May 1996 ---------------------- J U D G M E N T ---------------------- Power, V.-P.(giving the judgment of the Court): 1. This applicant was charged with a second defendant Pang Man-ching with one charge of possession of false instrument, namely a Hong Kong Bank Superease credit card, a Nanyang Commercial Bank Gold Visa card, a Royal Bank Gold Visa credit card and a Hong Kong Bank Gold Visa credit card. He also faced six charges along with Pang of using false instruments, being credit cards, and seven charges of attempting to use false instrument also being credit cards. All of the offences took place on the same day, i.e. 31st August 1994, and all occurred at the Many Well Company in Waterloo Road, Kowloon. The 2nd defendant pleaded guilty to the charges, the 1st defendant pleaded not guilty but was found guilty after trial before Judge Kilgour in the District Court. 2. The facts were that at about 1:15 p.m. on 31st August 1994, officers from the Commercial Crime Bureau went to the Many Well Company, they having been alerted by a message from the Citibank Credit Card Product Centre. Upon entry they found the applicant standing beside the payment counter which was then being attended by a Madam Siu Ying-yee who later gave evidence. Madam Siu was holding a Hongkong Bank Gold Visa Card in a hand which had been given to her by the applicant. The 2nd defendant was browsing in the showroom area. The applicant was then searched and four credit cards in a laisee packet which became Exhs. 10, 11, 12 and 13 at the trial were found upon his person. Also found was a piece of note paper with some credit card details and expiry dates written on it. 3. Madam Siu said that the two men had come to the shop at about 12:30 on that day and that the 2nd defendant had approached her to purchase two television sets. He used Exh.12 to effect that purchase in sum of $16,000. Using the same modus operandi he made four further purchases, again using Exh.12, and this time the total of them was more than $58,000. The applicant then approached Madam Siu and indicated that he wished to purchase three television sets. He presented Exh.12 but the card was refused by the card centre. He then requested Madam Siu to get an approval code for one television set. This purchase was successful. He then instructed Madam Siu to obtain an approval code for the purchase of another television set, again using Exh.12. This transaction was declined. He then took out Exh.11 for the purchase of two more television sets. This transaction was also declined by the Card Centre. He then requested Madam Siu to obtain approval code for the television sets one at a time but these were also declined. He then took out Exh.13, which was another of the cards later found in the laisee packet, and tried to obtain an approval code for two telephone sets but this was declined. He then presented Exh.1 to Madam Siu, that was the card that was seized from her when the police arrived, and endeavoured to obtain approval code for two further transactions. Both were declined. That meant that there were in all seven unsuccessful attempts to use the credit cards and these involved the total of $101,742. He was, as I have indicated, arrested upon the arrival of the police and upon caution he said that:
4. The principal evidence in the matter came, as I have already indicated, from Madam Siu. The trial judge found that she was consistent and that her evidence was capable of belief. The judge, understandably, however, had reservations about her evidence as she had been prepared to allow an extraordinary series of incidents to take place in the shop while endeavours were being made to purchase television sets. The trial judge, alerted by this, very properly gave himself an accomplice warning and dealt with her upon that basis. 5. At trial the applicant objected to admission of the cautioned statement but the trial judge, having considered the evidence was satisfied that it was freely and voluntarily made and admitted it. The judge went on carefully considered the defence saying:
He reviewed the evidence of the 2nd defendant, which was equally unimpressive, and found that he was satisfied upon the basis of all of the evidence that the applicant had been in possession of the cards and that he had used the cards as set out in the testimony of Madam Siu. He was satisfied further that the applicant was working in concert with the 2nd defendant when both were using and attempting to use the cards. He found the applicant guilty on all counts. 6. There was, as has been indicated, very strong evidence indeed against the applicant. He comes before us today raising matters of fact which were essentially matters for the trial judge. He suggests that he was somehow hampered in his defence because notes of an original complaint made by him to his then solicitor about the police were not available at the trial. He has not demonstrated how these notes would have assisted him nor that they were improperly withheld. He points to a time lag during the taking of the statement. This was, however, a matter of which the trial judge was well aware and it occasioned him no doubt as to the voluntary nature of the statement. He suggests that he has a speech defect which caused the word "Pang", which he used to the police officer, to sound like "Ah Ben" and that this explains how it appeared, incorrectly and prejudically, to him, that both he and the 2nd defendant referred to "Ah Ben". Again this was a matter of fact. It is not clear whether it was raised at the trial. If it was not, it should have been. If it was, it clearly occasioned the judge no doubt as to the admissibility of the statement. He suggests that the evidence of PW1 Madam Siu was suspect and that the trial judge should not have been prepared to act upon it. Certainly the evidence of Madam Siu, as we have indicated, was of an unusual nature but the judge was well aware of this and bore it in mind when he considered her evidence. Indeed, as I have said, he treated her as an accomplice and only accepted her evidence having warned himself in that regard. 7. Finally the applicant in his written grounds suggested that some doubt should have been raised because of the way in which the forged credit cards were found neatly placed in a laisee packet and not, as he argues, spread, as one would have expected if they had just been used, about his person. We find nothing in this. The finding of the cards was evidence of a most damaging nature as three of them were cards which had, shortly before, been used by one or other of the defendants. 8. Today the applicant has suggested that there was no evidence to establish knowledge upon his part. We reject that entirely. There was ample evidence. The conviction was neither unsafe nor unsatisfactory. 9. Nothing gives us any doubt as to the propriety of the findings of the judge and as to his eventual conclusion of guilt. The application is refused.
Representation: Mr. D.G. Saw, S.A.C.P. (Crown Prosecutor) for the respondent. Applicant in person. |