HKSAR v. Ata Asaf

DCCC648/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 648 OF 2012

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Reasons for Verdict

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1.The defendant is charged with one count of possession of false instruments, contrary to section 75(1) of the Crimes Ordinance, Cap.200.

2.The defendant was found in possession of four forged credit cards after he was intercepted by the police.

3.The prosecution’s case is that that the defendant knew that these cards were false and that the cards were intended to be used by the defendant or another person to induce somebody to accept them as genuine.

4.The defence admitted that the defendant was in possession of these credit cards and that they were forged. 

5.However, the defence case is that the defendant had picked up the cards on the street in the afternoon before his arrest and that he had intended to return them to their rightful owners by depositing the same in a post-box or at a post office.

6.In other words, the only issues are whether the defendant knew that the credit cards were forged and what he intended to do with them.

Admitted facts

7.Most of the prosecution’s evidence was not in dispute.

8.Facts admitted by the parties under section 65C of the Criminal Procedure Ordinance, Cap.221, were produced as P1 and P1A.

The prosecution’s evidence

9.PC33223 (PW1) and PC33483 (PW2) are members of the District Special Duty Squad of the Yau Tsim area.

10.On 27 April 2012, their team were instructed to carry out an operation in the vicinity of Mirador Mansions and Chungking Mansions in Tsim Sha Tsui.

11.At about 1745 hours on the same day, PW1 and PW2 saw the defendant loitering between a video shop at 2-4 Cameron Road and the adjacent rear lane.  The defendant was talking on the telephone and appeared to be nervous.

12.PW1 and PW2 felt suspicious and decided to perform a stop-and-search.  At the same time, the defendant walked into the video shop at 2-4 Cameron Road.

13.PW1 and PW2 intercepted the defendant inside the video shop and took him to the rear lane for enquiry.

14.A brief search was conducted on the defendant. As a result, a black glasses case containing suspected drugs was found in the defendant’s right front trousers pocket.

15.The defendant was arrested and taken back to the Tsim Sha Tsui Police Station, where PW1 performed a thorough search on the defendant.

16.PW1 found a stack of banknotes, four credit cards and some paper inside the defendant’s right rear trousers pocket.

17.The particulars of these four credit cards are as follows:

(1) One Cathay Pacific American Express credit card number 3715-361043-84007 in the name of Chan
Wai-hing (“Card 1”);

(2) one Cathay Pacific American Express credit card number 3715-362884-11014 in the name of Ng Louis (“Card 2”);

(3) one Cathay Pacific American Express credit card number 3715-360366-53016 in the name of Wong Winky (“Card 3”); and

(4) one Verizon MasterCard number 5163-6100-0926-9091 in the name of Wong Winky (“Card 4”).

18.The four credit cards were produced as P5 to P8 respectively.

19.PW1 saw that there were obvious features that these four credit cards were forged.  For example, the white lines on the four sides of the Cathay Pacific American Express cards were not symmetrical.  The colour of the card appeared to be fading and some anti-forgery features were missing.

20.Suspecting that the four credit cards were forged, PW1 declared arrest and cautioned the defendant for the possession of false instruments.

21.The defendant remained silent under caution.

22.Between 1614 hours and 1807 hours on 28 April 2012, the defendant was interviewed under caution by PW2 and DPC1280, Chong Hing-yip, with the assistance of an English-Chinese interpreter, because the defendant claimed that he could speak Chinese and was fluent in English.  There was no dispute that the interview was voluntary. 

23.A written transcript of the relevant parts of the interview, together with a certified English translation, were produced as P3 and P3A (see P1, paragraph 3, and P1A).

24.The defendant admitted in the interview that the four credit cards were inside his pocket.  He explained that he had picked up the four credit cards on Minden Avenue at about 3 to 4 o’clock in the afternoon of the day of his arrest. The four credit cards were all found together. He did not know whether they were genuine or not. He never intended to give the credit cards to the police. He was drunk and he placed them in his pocket because he intended to take them to a post office at the right time (see P3 and P3A).

25.The four credit cards were subsequently delivered to the government laboratory, where they were examined by Dr Hui Wing-sze Janesse (PW4).

26.After examination and comparison with control samples, PW4 was of the opinion that each of the four credit cards was forged. PW4’s witness statement dated 25 May 2012, setting out details of her examination and conclusions, was produced as P2 (see P1, paragraphs 1 to 2).

27.There was no dispute that the suspected dangerous drugs found on the defendant was subsequently proved not to be dangerous drugs.

28.On 16 August 2012, a police photographer took a total of eight photographs of the four forged credit cards.  Those photographs were produced as P4 (see P1, paragraph 4).

29.Mr Chan Wai-hung Brian (PW3) is employed as senior special agent of the security department in American Express and responsible for the investigation of fraud cases involving the use of American Express cards.  He confirmed that the police had shown him P5 to P7.

30.He has examined those credit cards and confirmed that they are forged.  He explained that the Cathay Pacific American Express cards were co-bank cards which were only issued in Hong Kong.  The account numbers of all such cards should start with the number 3371.

31.There are genuine American Express card accounts starting with the numbers 3715, but they were not Cathay Pacific American Express cards and they were only issued in the United States of America. 

32.The account numbers on P5 to P7 were genuine account numbers but they were not Cathay Pacific American Express cards and the account holders are foreigners with foreign surnames.

33.P6 has never been used.  P5 and P7 have been used to conduct fraudulent transactions in Hong Kong.  P5 was last used on 24 October 2011, whilst P7 was last used on 26 October 2011.

The defence evidence

34.The defendant is 31 years old.  He was born in Pakistan but emigrated to Hong Kong in 1994.  He has attained Form 5 education in the United Kingdom.

35.Prior to his arrest, he was a part-time salesman in two clothing stores in Tsim Sha Tsui.  The shops were called M S Custom Tailors and Wormland(?) Fashion. He had resigned on

36.In the morning of 27 April 2012, the defendant went to see his two former employers to collect his reference letters. However, one of his former employers was busy and he was asked to return in the afternoon.

37.The defendant met up with his girlfriend, Miss Hung Yim-yu, and they had lunch in a restaurant in Chungking Mansions.  They finished lunch at about 3 to 3.30 pm and they left Chungking Mansions via the rear exit.

38.The defendant saw the four credit cards, P5 to P8, on the pavement of Minden Avenue.  The defendant examined one of the cards and saw that there was some writing on the back of the card.  It said that if the card were found, it should be placed inside a post-box.  He paid no attention to the other three cards.

39.The defendant then placed the four credit cards in the pocket of his waist bag, intending to return them to their rightful owners by depositing them inside the post-box later.

40.He then saw his girlfriend off at the MTR station.  He then went to see his two former employers to collect his reference letters (produced as D1).

41.On his way home, the defendant decided to go to purchase a video for entertainment.  He went to the DVD shop on Cameron Road.

42.He had been browsing for three to four minutes when PW1 and PW2 suddenly came into the shop and handcuffed him.

43.The defendant was taken to the rear lane, where PW2 produced a resealable plastic bag.  The two police officers then took all of the defendant’s belongings, including his waist bag, and placed them inside the plastic bag.  The defendant asked the police officers for the reason of his arrest, but the police officers told him to be quiet.

44.At the police station, PW1 conducted a further search on the defendant.  PW1 then took all the defendant’s personal belongings out of the plastic bag, opened the defendant’s waist bag and examined the content.

45.PW1 found the four credit cards inside the defendant’s waist bag and asked if they belonged to the defendant.

46.The defendant explained that they were not his credit cards and that he had found them on a footpath that very afternoon.  The defendant told PW1 that he intended to put the credit cards in a post-box.

47.The defendant was then arrested and cautioned for possession of false instruments.

48.Miss Hung Yim-yu (DW2) is 21 years old.  She has attended Form 5 education and is a saleslady.  She has known the defendant for 1½ to 2 years and is his girlfriend.

49.On 27 April 2012, DW2 met the defendant for lunch.  They met up at the MTR station before going to have lunch in Chungking Mansions.  When they came out of the rear exit of Chungking Mansions after lunch, the defendant found four credit cards on the pavement.  He placed them inside his pocket and told DW2 that he would deposit them in a post-box or at a post office.  The defendant then saw DW2 off at the MTR station.

Submissions

50.The prosecution urge the court to accept the prosecution’s evidence and, on the basis of the prosecution’s evidence, draw an inference that the defendant knew that the four credit cards were forged and that he intended to use them himself or through other persons.

51.Even if the court were unable to find that the defendant had any intention of using the cards, the alternative verdict under section 75(2) is still available, pursuant to section 51 of the Criminal Procedure Ordinance.

52.The defence admitted that there were inconsistencies amongst the defendant’s evidence, DW2’s evidence and the defendant’s video recorded interview.

53.Counsel submitted that there may be reasons for the defendant or DW2 to be inconsistent. 

54.However, even if the court were to reject the defence evidence, the onus was still on the prosecution to prove the charge beyond all reasonable doubt.

55.He pointed out that, originally, PW1 and PW2 had not mentioned that the defendant was intercepted inside the DVD shop.  They never mentioned that the defendant looked nervous in their witness statements.

56.Counsel submitted that the two police officers were not telling the whole truth. 

57.Even if the court were to accept the whole of the prosecution’s evidence, there was insufficient evidence for the court to draw an irresistible inference that the defendant knew that the credit cards were forged or that he intended to use them in any way.

58.Counsel submitted that, according to the prosecution’s evidence, one of the cards had not been used.  The two other cards were last used six months ago, and that is consistent with the defendant’s evidence that they were found on the day of the defendant’s arrest.

59.In any event, the purported cardholders all have Chinese surnames; it was impossible for the defendant to use them.

Verdict

60.I have considered all the evidence and submissions very carefully.

61.PW1 and PW2’s evidence was clear and direct. They were unshaken under cross-examination.  Their evidence was also wholly consistent with the answers given by the defendant voluntarily in the video recorded interview.  I found them to be honest and credible witnesses.  I accept their evidence.

62.PW3’s evidence was not in dispute.  I found him to be honest and credible.  I also accept his evidence.

63.I did not believe the defendant or DW2.  Their evidence was self-contradictory and inconsistent with each other.

64.The defendant’s evidence was also inconsistent with his video recorded interview.  There are too many examples to enumerate.

65.The most salient examples are as follows.

(1) In examination-in-chief, the defendant stated that he was having lunch with DW2 at noon on 27 April 2012. In cross-examination, he stated that he met her at the MTR station at about 1.30;

(2) in examination-in-chief, DW2 stated that she was having lunch with the defendant at noon on 27 April 2012. In cross-examination, she stated that she only met up with the defendant at about 3 to 4 pm and had a very late lunch together;

(3) the defendant stated that he found the four credit cards between 3 to 4 pm on 27 April 2012. According to D2’s evidence under cross-examination, they should be having lunch at that time;

(4) the defendant stated that he had examined the Verizon MasterCard after picking up the four credit cards. He then placed all the cards inside his waist bag. However, according to DW2, the defendant immediately placed them inside his pocket after picking them up. In his video recorded interview, the defendant admitted that the credit cards were found inside his pocket;

(5) DW2 stated that she did not have a credit card and she, therefore, knew very little about them. However, she later admitted that she was a saleslady and she dealt with credit cards on a daily basis;

(6) the defendant stated that upon examination of the MasterCard, he found that the card should be returned to a PO Box address. That was why he intended to deposit the cards in a post-box. The PO Box address on the MasterCard was an address in the United States. There was no reason for the defendant to believe that the card could be returned to its rightful owner by depositing it in a Hong Kong post-box. The defendant admitted that he knew the difference between a post office and a post-box address. There was even less of a reason for him to deposit the cards into a post-box;

(7) in his video recorded interview, the defendant alleged that he intended to deposit the cards at a post office. However, in court, he stated that he was going to drop them into a post-box;

(8) the defendant explained that he only examined the MasterCard but paid no attention to the three American Express cards. He admitted that he knew that the three American Express cards were issued by a different bank. There was no reason to assume that they could be returned in the same way;

(9) the defendant and DW2 both stated that they had lunch together on 27 April 2012. The defendant alleged that he then went to see his former employers after seeing off DW2. These were never mentioned in the defendant’s video recorded interview. Instead, the defendant alleged in the video recorded interview that he had been drinking all night and having fun with girls until that morning. He was drunk and was wandering around Tsim Sha Tsui between 2 to 4 pm;

(10) in the video recorded interview, the defendant initially stated that he knew Tsim Sha Tsui quite well. He then immediately corrected himself and stated that he did not know the area or Chungking Mansions very well because his father would not allow him to go to Tsim Sha Tsui. This was directly contrary to his evidence that he worked in Tsim Sha Tsui;

(11) counsel suggested to PW1 and PW2 that the four credit cards were discovered upon search at the rear lane. However, the defendant admitted in his video recorded interview that the credit cards were found inside the report room of the police station. He also admitted in examination-in-chief that his waist bag where the credit cards were allegedly kept was not opened until he was searched at the police station;

(12) in examination-in-chief, the defendant admitted that he was arrested and cautioned for possession of false instruments after the four credit cards were found. However, in cross-examination, he denied he was cautioned until the video recorded interview.

66.I found the defendant and DW2 wholly dishonest and incredible.  I reject their evidence.  I also place no weight on the exculpatory explanation given by the defendant in his video recorded interview.

67.I find that the credit cards were found wrapped inside some banknotes and papers inside the defendant’s right rear pocket.  The whole explanation that they were picked up from the street was sheer fabrication. The allegation that the defendant found the four credit cards in the names of three different people lying together on a street in Tsim Sha Tsui was beyond fanciful.  The four credit cards were very poor forgeries.  I find that the credit cards were not found by the defendant on the street. 

68.The only and irresistible inference is that the credit cards were and have been in the defendant’s possession all along and that the defendant knew that they were forged.

69.Credit cards are not toys or collectibles. There was no reason for the defendant to keep forged credit cards purportedly belonging to three different persons in his possession. 

70.The purported cardholders are persons with Chinese surnames.  The defendant may not be able to use them in person, but it does not prevent him from giving them to other persons for fraudulent use.

71.Further, many transactions are conducted over the Internet.  The defendant’s nationality would not prevent him from using the credit cards to conduct those transactions. 

72.At least two of the credit cards have been used to conduct fraudulent transactions.  However, they have not been used for about six months prior to the defendant’s arrest. 

73.The defendant was looking nervous when he was noticed by the police.

74.However, there was no dispute that the defendant was also found in possession of some powder and a set of digital scales.  The police suspected that the powder was drugs.  There may be other reasons for the defendant to look nervous.

75.In the circumstances, I am of the view that there was insufficient evidence to prove beyond all reasonable doubt or draw an irresistible inference that the defendant had intended to use those credit cards.

76.However, I find that the prosecution has proved that the defendant was in possession of the credit cards and he knew that they were forged beyond all reasonable doubt.

77.Accordingly, pursuant to section 51 of the Criminal Procedure Ordinance, Cap.221, I convict the defendant of simple possession under section 75(2) of the Crimes Ordinance.

Please refer to CACC445/2012 for the relevant appeal(s) to the Court of Appeal.