Lau Kwok Hung, Jacky and Another v. R.

CACC000099/1993

IN THE COURT OF APPEAL

1993, No 99
(Criminal)

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Coram: Hon. Silke V-P, Macdougall, V-P and Mortimer, J.A.

Date of hearing: 25 February 1994

Date of judgment: 25 February 1994

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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): The applicant seeks leave to appeal against his conviction before Woo J. and the jury on 26th February 1993 of two counts of conspiracy. The trial lasted 19 days at the end of which he was sentenced to 5 1/2 years imprisonment on count 1 and 1 year imprisonment on count 2.

2. On count 1, the brief facts are that the applicant and those named in the indictment, some living in Malaysia and some in Hong Kong, were involved in a conspiracy as charged to obtain money and property from the production, supply and use of counterfeit credit cards. Those cards were initially manufactured in Malaysia and brought to Hong Kong by two of the conspirators who gave evidence for the Crown, Bobby Koh and Philip Ng. The credit cards were then used in Hong Kong to obtain property and money. During the conspiracy, it was joined by the applicant, who first of all purchased cards but later became much more involved and the evidence would indicate that he was producing cards and selling them to others.

3. The principal witness against him on that count was Bobby Koh, undoubtedly an accomplice.

4. The second count was a further conspiracy. It was alleged in that count that the conspirators bribed the staff of hotels and businesses to provide details of credit card holders to be used in the manufacture of counterfeit cards. There were three witnesses who were undoubtedly accomplices and conspirators - the most important in this case was also Bobby Koh. There was a further possible conspirator who gave evidence against this applicant on the second count, a hotel employee who supplied to him with details of credit card holders.

5. The grounds upon which the applicant seeks leave to appeal are in substance two. One has been abandoned. Grounds (2) and (3) in the Notice were argued together as one supports the other. It was submitted that the judge misdirected the jury on how they were to approach the accomplices. First, it is submitted, that the judge should not have left the question whether or not the witnesses were accomplices to the jury. Secondly, that he misdirected them as to how the jury should approach their evidence.

6. The judge put the matter like this:

"... from the evidence you will have noticed that Bobby Koh, Joe Fu, Anthony Fong, LI Shing-tak were by their own admissions under affirmation or oath conspirators. But you still have to consider their admissions and all the evidence as a whole to see whether you are satisfied beyond reasonable doubt that they were in fact conspirators and were conspirators in the conspiracies in counts 1 and 2."

Later he said about them:

"If you are satisfied that their evidence is true and you are satisfied of their involvement, then they are in law accomplices."

7. It is said that the judge was quite wrong to leave that issue to the jury. He should have directed them at the outset that they were accomplices - the reason being that there was no issue in the case on the point. The witnesses themselves said that they were accomplices; the Crown said that they were accomplices and the Defence said that they were accomplices.

8. Mr Ramanathan submits that this could have misled the jury because they were invited to consider whether their evidence was true, first, as to their involvement; and then having come to the conclusion that the evidence was true to approach them as accomplices with the warnings which were given.

9. Standing on its own, that ground of appeal must fail. It is true that the directions given by the judge were unusual. It was unnecessary in the particular circumstances of the case for the judge to leave the issue so broadly. No doubt he was seeking not to trespass upon the jury's province of deciding the facts. But even with that in mind, it would be normal in a case such as this for the judge to direct the jury that these witnesses were accomplices and to invite the jury to consider their evidence in that light. The fact that the judge did this was not in any way disadvantageous to the applicant for, in the end, the jury must have accepted the evidence that was given by them. In the circumstances they must have taken into account the proper and necessary warnings the judge gave.

10. The second ground is associated with the first and relates to a direction given at p.110F. The direction was:

"an accomplice in the circumstances of this case is a person who as the defendant participated in the crime against the defendant."

The challenge is mounted upon the words "as the defendant" saying that this is prejudicial and wrong and suggests that the defendant participated in the crime. There was some question whether those words were used by the judge. This was checked and the words were used.

11. Again, there is nothing in this point standing on its own for the jury cannot have thought for one moment that the judge was depriving them of their task of deciding the facts of the case. It is an isolated remark in a long summing-up in which the judge left the issues for the jury plainly and properly. It is not suggested for a moment that the directions which were given by the judge on the danger of relying upon an accomplice's evidence unless corroborated were other than proper.

12. When these two grounds are put together does that increase their value or weight? The answer is clear. There was nothing in the words used by the judge; or the directions which he gave on accomplice evidence which could have misled the jury or which were disadvantageous or prejudicial to the applicant. Those grounds fail.

13. The final ground (ground (1)) in the Notice of Appeal alleges that the trial judge when dealing with the evidence of a defence witness, Lo Kai-fai, misdirected the jury:

"(a) in failing to point out to the jury that Lo's evidence supported what was implicit in the 1st applicant's evidence that it was the Koh brothers who had placed the Hot Printer. Ex P10A in the flat at Sun Lai Garden.

(b) in erroneously telling the jury that when Lo said he could not be sure whether the machine shown in Ex D9D was the same as the machine he saw in the flat, this contradicted the 1st applicant's evidence that McClure was lying about the machine being found in the open shelf (page 101F)."

14. The brief background is this. A senior ICAC investigator when to the applicant's flat on 20th May 1991 and effected a search. He found there two items - a hot printer, Ex P10A; and a piece of silver foil attached. He found them on an open shelf of a display unit in the lounge area of the flat. These were significant exhibits because the hot printer was capable of being used in the production of counterfeit credit cards; and the silver foil was found to have details of card holders on it which witnesses from card companies said had either been lost or stolen.

15. The passage in the evidence of which complaint is made is this:

"Ex D9D shows also a machine which looked like Ex P10A inside one of the open shelves but Lo said he could not say for sure whether the machine shown in D9D was the same he saw in the flat. Now, of course, this contradicts D1's evidence that McClure was lying about the machine being found in the open shelf."

16. It is suggested that the judge, in saying this contradicts D1's evidence, was referring to the evidence of Lo. If he were referring to the evidence of Lo, the matter can be shortened because the evidence which Lo gave was not contradictory although it may not have been consistent. Lo's evidence was to the effect that he had stayed in the flat months earlier between a day in December 1990 and January 1991. He said that in one of the cupboards of the display cabinet, not on the open shelf therefore, he saw and found a bag in which there was a machine. Having looked at Ex P10A, he was not sure whether it was the same but believed it was of a similar kind. When shown the photograph - D9D - he could not be sure whether that was the same machine as he had seen in the flat. The issue was that the applicant said that the machine could not have been found on the open shelf because it was too big and the shelf too small.

17. An issue has arisen in the course of argument before this Court as to whether the judge, in making those remarks, was in fact referring to Lo's evidence or whether he was referring to the photograph 9D9 which would appear to be inconsistent with what the applicant was saying.

18. D9D came into evidence in the court below in the course of the defence case - hence its exhibit number - although it was a photograph which had been taken at the time of the search of the defendant's flat. It had been disclosed to the defence, but apparently was unknown to prosecuting counsel. It would appear that this photograph was what the judge was referring to when he said this contradicts D1's evidence. But it is not entirely certain when one looks at the transcript and only those present at the trial would be able to say. The judge did refer to this photograph earlier in a passage on p.95. He dealt with the matter with some care because of the circumstances in which the photograph D9D had come into evidence and because it had not been identified by the witness McClure. The judge said this:

"Now, when he was asked about this machine being in the open shelf, D1 said McClure was lying when he said that he found the machine on the open shelf in the display unit. D1 said that the open shelves of the unit were very small and the machine was too large and that it must have been in one of the shelves with doors. Now, but it later came out in evidence that a machine which looked similar to P10A is shown on the photograph D9D. Do you remember that, D9D?"

19. There is a further reason why it would appear that the judge was dealing with D9D and not the evidence of Lo. If it had been clear at trial that he was speaking of Lo's evidence, that would be obvious to defence counsel. Defence counsel does not have any duty to correct the judge, that is, any duty to the court. But, of course, he does have a duty to his client. If the judge makes an error of fact in his summing-up, it is open to counsel to seek to correct that at the end of the summing-up if he considers the matter of any importance to his client's case. Defence counsel never sought to correct the judge or to ask the judge to correct what he had said. That is not an overwhelming matter but it is one indication that this passage refers to D9D rather than Lo's evidence and that is the way this Court construes this passage.

20. In the end, however, it would not make any difference to the result of this application for even if the judge did make an error, that error was very soon rectified in his examination of D9D and the evidence of Lo which he dealt with immediately after this passage.

21. The result is that there is no arguable ground which the applicant can put forward against his conviction on these two counts. The application for leave is refused.

Sentence

22. As regards to his appeal against his sentences of 5 1/2 years on the first count of conspiracy and one year on the second count, we have described the nature of those conspiracies already. The judge in sentencing said that credit card fraud is a very serious offence. He said:

"Even from the evidence itself, it shows that the syndicate in which the two defendants were involved had cheated a lot of money by the use of forged credit cards. The use of forged credit cards also affects Hong Kong's reputation and image as a financial centre and a shopping heaven.

On the evidence it appears to me that the 1st defendant was both a user and a supplier, if not manufacturer, of forged credit cards."

23. It is clear that the applicant was involved in the manufacture of counterfeit cards. There was evidence, for example, that on one occasion he had a packet of between 40 and 50 of the cards. On another occasion he was asking about the price of a machine for printing. A printing machine was found at his flat. From those matters it is clear that his involvement was very substantial. As a matter of background, evidence was given in the case that credit card fraud of this kind involves sums of the order of US$200m world-wide of which $10m was the value of card fraud against Hong Kong residents. We emphasise Hong Kong residents because it is clear that those who commit this type of offence target wealthy visitors to Hong Kong not necessarily Hong Kong residents for obvious reason.

24. The applicant submits that his sentence of 5 1/2 years on count 1 ought to be judged in the light of the sentence passed upon Philip Ng who pleaded guilty and was sentenced on 1st March. He was sentenced to 3 years imprisonment. It is submitted that his involvement was greater than the applicant and that if 3 years imprisonment was the correct sentence for Ng, he must have been given a discount for his plea. Therefore it is submitted that the sentence passed upon this applicant was out of proportion with Ng's sentence. It is not part of this Court's task to pass any comment upon the sentence passed upon Ng, by the same judge. We must look at the circumstances of this applicant. The offences themselves are of great seriousness. The credit cards are in wide use throughout the world. They are now a fact of commercial life throughout the world and particularly in the more developed countries. Offences of this nature strike at the root of this valuable commercial system and must be treated with seriousness. Those who are caught must expect heavy sentences.

25. Turning to these sentences. Even taking into account the matters which counsel has urged upon us concerning the applicant's family, and the particular circumstances of one of his children - for which we have considerable sympathy on a human level - the fact remains that having regard to his involvement, the sentence of 5 1/2 years was completely justified by the facts of the case. It was certainly not wrong in principle and nor was it manifestly excessive. In those circumstances his application for leave to appeal against sentence is refused.

Representation:

Mr Kumar Ramanathan (M/s Au, Wong & Kong) for the Applicant

Mr I.C. McWalters, Crown Counsel for the Crown