R. v. Chau Chung

CACC000130/1996

IN THE COURT OF APPEAL

1996, No. 130
(Criminal)

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Coram : Power, Atg CJ, Mortimer and Mayo, JJ.A. in Court

Date of judgment : 13 June 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 19 January 1994 the applicant was convicted of an offence of possessing equipment for the making of false credit cards contrary to s.76(1) of the Crimes Ordinance, Cap. 200 by His Honour Judge Bailey in the District Court. He was sentenced on the same day to 4 years imprisonment. He seeks leave to appeal against conviction and also against sentence out of time.

The facts

2. On 9 September 1993 the applicant was in Hung Hom with another man, Leung yu-wa. The applicant had in his back trousers pocket five unembossed forged Gold Mastercards and attached to each was a piece of paper with names and numbers including expiry dates. That information was consistent with that which was encoded on the magnetic strip of each card. None of the cards was actually completed on its face.

3. The man Leung had 43 more similar counterfeit Mastercards and Visa cards on him, with attached information. But the judge, favourably for this applicant, ruled that those cards were not relevant to his case.

4. The applicant was stopped by two officers in the street. He attempted to run away but slipped, fell and was caught. He had no identity card upon him and it was when he was searched that the cards were found in his pocket. He was asked for an explanation but he made no reply. He was arrested and was taken to the Hung Hom Police Station. Later, he was asked to sign the officer's record of his arrest but he refused to do so.

At trial

5. There were agreed statements from a witness from Mastercard and a forensic scientist to the effect that five cards were forged and counterfeit but the information contained real names of actual account holders.

6. At trial the applicant was defended by counsel and solicitors. He gave evidence on his own behalf. The defence he put forward was that the police had stopped him. He had no counterfeit cards on him but he had also no identity card and so he was searched. It was suggested that he was assaulted and asked to confess to being involved with the cards in the possession of the other man. He was taken for this purpose to a lane off the main street. Further assaults were alleged and in due course he was taken to the police station. The arresting officer, he said, came and slapped his rear trousers pocket and said to him, "I now find five forged credit cards on you". He wanted him to sign a statement to that effect but he refused.

7. Counsel who defended the applicant at trial cross-examined the police officers on the basis of the defence. Additionally, he cross-examined about the absence of fingerprints on the five cards and the way in which the officers had dealt with the cards. The officers were cross-examined about inconsistencies between them, in particular as to the exact offences for which the applicant was arrested. There were further inconsistencies as to what was said at his arrest.

8. The judge in his reasons for verdict considered and evaluated these matters. He considered the applicant's evidence and his defence. Having done so, he had no doubt that the officer's evidence was true and he rejected the evidence of the applicant and found that the necessary ingredients of the offence had been proved and convicted him.

The Application

9. The applicant applied for leave to appeal against that conviction. When he did so, he made a number of complaints in his notice of appeal which he had drafted himself. It suffices to say that none of those matters could possibly be the subject of serious submissions. He complained, for example, that there had been a 20-minute delay before an officer made his notes of the arrest and that this should have led the judge to doubt that officer's credibility. He complained about a policewoman who had recorded in her notebook only the failure to produce an identity card; that there was no fingerprint examination of the credit cards; there was a failure to prove any motive; and finally, that the judge was prejudiced without giving any details. Those matters could not possibly be the subject of a successful application for leave to appeal.

10. However, some eight months later, the applicant put in further grounds. Those further grounds have fallen for our consideration today. He makes serious allegations. He says until he spoke to someone, he did not know that complaints against lawyers could result in a successful appeal.

11. He now makes these complaints:

(1) That no copies of the statements relating to his case were provided to him by his solicitors.

That is denied by the solicitors and we have had evidence today from them to say that he was provided with such documents.

(2) He contends that he had no interview with counsel before the trial.

That was correct. But then counsel had been instructed by solicitors and had detailed instructions from them about the applicant's defence.

(3) The applicant says that he then had no interview with counsel at the trial.

(4) There was no cross-examination of the five police witnesses about their statements in relation to their notebooks recorded on the date of the arrest.

12. It is convenient to deal with those broad allegations first before considering some detailed allegations that the applicant makes about the failure of counsel to raise particular matters in cross-examination.

13. Counsel has given evidence. The first matter to which we turn is the applicants' contention that he had no interview with counsel to give instructions to him and consider the case and his defence at the trial. Counsel tells us that on the first day of the trial, because he had not been able to arrange a consultation with the applicant previously, he saw the applicant for a few minutes before the judge came into court. As it was necessary to take further instructions, he applied to the judge for a short adjournment so that he could see the applicant. The court record shows that an application was made; that the court adjourned at 9.40 a.m. and resumed at 10.46 a.m. The applicant concedes that that application was made but says that - having made the application for an adjournment for the purpose - counsel failed to see him. It is inconceivable that counsel would make an application in the presence of the applicant to the court for an adjournment for the purposes of taking instructions and then should not do so.

14. The matter does not rest there because on the following day, a further application was made by counsel for the same purpose. That is also shown in the court record. The times are given exactly. The court record shows that an application was made at 9.40 a.m. it reads:

15. Mr Ross said:-

"Just received instructions from the defendant as a result of which I need to speak to him further. It may affect the course of the trial. I apply for an adjournment. I estimate about one hour - to speak to him."

The records shows that the court sat again at 10.52 a.m.

16. We are satisfied beyond doubt that counsel took instructions on those two occasions from the applicant.

17. That finding is of importance. It demonstrates the credibility of the applicant before this Court. Bearing in mind his credibility, we equally are in no doubt that when the solicitor tells us that documents were provided to the applicant, they were so provided. We turn to the other matters.

18. The records shows that police witnesses were extensively cross-examined by counsel on the basis of the applicant's defence. That cross-examination must have included questions related to information that counsel had acquired from their statements. Counsel asked for and was provided with two of the officers' notebooks. He did not ask for others because - as he tells us - he did not think it would be in the applicant's interest. As for those notebooks which he did receive, he cross-examined as he saw fit upon them.

19. There is nothing in the point that cross-examination is in any way to be criticised.

20. There are two other matters the applicant raises. The first is, he suggests that counsel ought to have cross-examined about four keys that were found on him either when he was arrested or at the police station. PW1's statement, which he has produced to us, shows that those keys were handed over with the forged credit cards by that officer but he does not give the time when the keys were found. The applicant says that counsel ought to have cross-examined about those keys. It is absolutely clear, however, that the applicant had given counsel no instructions about those keys. This is something that the applicant had worked out from the statement of the officer and thinks now that some point could be made. There is no criticism whatsoever that can be advanced of counsel in this respect.

21. Finally, there was some cross-examination by Crown counsel as to whether the applicant was carrying a black bag. It was suggested by counsel that he was not. The officer's statement demonstrates that he was. The applicant criticises counsel for not cross-examining the officers on the basis that he was carrying this bag. At the time when the officers gave evidence, there was no issue for counsel to investigate about the bag. The only error is that when Crown counsel cross-examined, suggesting that he had no bag there were statements in Crown counsel's possession which showed that he had a bag. These allegations against counsel are wholly without foundation. This was a fact which was overlooked by everyone at the time. It therefore does not fall to us to consider the law relating to this matter. The application is one which has no substance whatsoever.

22. In those circumstances, the application is refused and we order loss of time of 3 months.

23. The application for leave to appeal against sentence out of time is dismissed upon abandonment.

Representation:

Applicant in person

Mr Arthur Luk (SACP) (Crown Prosecutor) for Crown/Respondent