The High Court has allowed a Filipino former night club waiter to appeal his conviction on a charge of conspiracy to use fake credit cards, but not on the first charge of conspiracy to make the false instruments.Justice Ian McWalters of the Court of Appeal handed down the judgment of the court on May 24, nearly two months after hearing the application for leave to appeal filed by Saudee A. Tagao, a former senior supervisor of waiters at Play Club in Central. “We allow the appeal only to the extent of quashing the conviction for the second charge of conspiracy to use false instruments, and dismiss the appeal in respect to the conviction for the first charge of conspiracy to make false instruments,” the justices said.
Tagao, along with two other defendants, was convicted of the two charges after trial in District Court on Sep 22, 2015 for his part in a conspiracy to buy electronic goods in Causeway Bay using false credit cards. He was sentenced to three years in jail for each offense, to be served concurrently.
He applied for leave to appeal against the convictions a month later and on Sep 14, 2016, Justice Michael Lunn of the Court of Appeals granted his application, while Justices McWalters and Derek Pang reserved their judgment until May 24.
Tagao was implicated in the conspiracy following police investigation of a fraudulent credit card transaction on July 15, 2014 at an Apple Store in Causeway Bay.
The prosecution alleged the card data encoded on the magnetic strip of a card that was used in the fraudulent transaction had been sent by Tagao from his mobile phone to D2’s phone using Whatsapp, a messaging application.
The justices of the Court of Appeals decided on whether the District Court judge who convicted Tagao could rely on CCTV recording as proof the appellant was in an Apple Store during a fraudulent card transaction in July 2014. Further, it should be determined if the conviction could stand should this evidence be disregarded.
The justices also said the key issue in the case was Tagao’s role in the Whatsapp communications. They said the prosecution believed “there was an abundance of evidence, apart from (Tagao’s) possible presence in the Apple Store, to prove that he was the “Saudee” mentioned in the Whatsapp messages.
The appellant and two other defendants, identified only as D1 and D2, were accused of conspiring to obtain genuine credit card details which they would then encode on stolen credit cards that they use for high-value purchases.
CCTV footage at the time of the fraudulent transaction at Apple Store was seized as an exhibit. On it, “a rather dark-skinned person in a distinctive red T-shirt” was seen wandering aimlessly around the store, and the District Court judge concluded that the person on the video was Tagao.
Two other transactions using a fraudulent credit card were reported on Aug 12, 2014. The first was at Chung Yuen Electrical Co at Times Square, in which D1 bought a notebook computer for $18,888 with an American Express card issued in Hong Kong to one Oliver Arthey. Data encoded on the magnetic strip related to another cardholder.
The second transaction was at a Fortress shop, also in Causeway Bay, where D1 tried to use the same card to buy another notebook PC valued at $15,288. When a shop sales adviser became suspicious of the card, D1 left without getting the card.
D1 was arrested when he returned to Chung Yuen for the notebook PC and a forensic expert who examined the card body was genuine. It was used at the Play Club around March 2013 and was subsequently reported lost.
D2 was also arrested shortly after D1’s arrest as he was in the vicinity of Chung Yuen and identified after police interrogated D1.
A police search on D2’s house the next day yielded two magnetic card readers and two notebook PCs. The first card reader can read data from magnetic cards to PCs while the second can read and store data from magnetic cards. Also seized were seven blank cards and two Visa cards, one belonging to Tagao.
When police examined D2’s phone, they found Tagao’s phone number stored in it, as well as some credit card data sent from it to D2’s phone. Whatsapp messages mentioning the appellant’s name were extracted by a computer expert and used as evidence of the conspiracies.
