HKSAR v. HO WING YUE

HCMA 979/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 979 OF 2008

(ON APPEAL FROM ESCC 5633/2007)

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J U D G M E N T

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1.  On the 29th September 2008, after a three-day trial in the Magistracy, the appellant, an immigration officer, was convicted of four charges of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200.  He was fined $2000 on each charge.  He appeals against conviction.

2.  The instruments in question were letters to the Immigration Department purporting to be from or on behalf of a person who had been refused entry to Hong Kong, complaining about her treatment at the hands of an immigration assistant.  In fact, the person in question had no complaints at all about her treatment.  The prosecution case was that the letters were prepared and sent by the appellant, for motives unknown, and that the persons who purported to sign the letters did not in fact do so.  Thus they were false instruments and were used by the appellant with the requisite double intention required by section 73 of the Crimes Ordinance.

3.  The appellant’s case at trial was that he had nothing whatsoever to do with the letters.  He was not the author and so did not use them.

4.  The grounds of appeal against the magistrate’s conviction of the appellant arise from points not taken at trial: namely, that there was no sufficient evidence for the magistrate to find that the letters purportedly signed on behalf the complaint, were false instruments within the terms of section 69 of the Crimes Ordinance; and secondly that the evidence was equally consistent with the appellant being a principal or an accessory, and (a) as the prosecution could not show which, the appellant could not be convicted on either basis; and (b) the prosecution had never put its case on the footing that the appellant was accessory and therefore he could not be convicted on that basis, even if the evidence justified it.

5.  As to these grounds, the respondent says, in essence, that there is overwhelming evidence to establish that the appellant wrote the letters and thus that they were not signed by the person who purportedly made them.  They were therefore false instruments within section 69(a)(i).  And, the respondent maintains its position that the appellant was not an accessory but was a principal; if anyone else had been involved, it would have been as part of a joint enterprise; but there was no evidence of others’ involvement in the writing or sending of the letters.

6.  The essential facts of the case are these.  The appellant was stationed at the Macau Ferry Terminal.  On 28th July, after he had gone off duty in the evening, a lady called Pou Pui-in (PW1) arrived from Macau without the correct documents to allow entry to Hong Kong.  She was duly refused entry and had to dash back to Macau to obtain the correct documents.  She was granted permission to enter later the same evening.  A record of such a refusal of entry is made in a log (Exhibit 9) which is kept in the duty officer’s room, along with a special report, to which the appellant would have had access the next day upon his return to duty.  At no time did Pou Pui-in have any complaints about her treatment: quite the contrary, on her evidence, she was satisfied with the way she had been dealt with.  Neither did she make or authorise any formal complaints to the Immigration Department.

7.  On 3rd August, two letters (Exhibits 2 and 4) were received by the Immigration Department.  They were handled by the customer service unit.  They were in identical terms and were signed in the name Ng Hin-fung, who purported to be acting on behalf of Pou Pui-in.  I need not recite the detail of the entirely groundless complaints made against the immigration assistant, Mo (PW3), who was junior to the appellant at the Macau Ferry Terminal.  Mo’s evidence was that he had no grudges with this appellant and he knew of no reason why the appellant would want to institute complaints against him.

8.  An address was given for reply in these letters at a flat in Fu Loy Garden, in Yuen Long, which is significant - more of that in a moment.

9.  On 28th July, another letter of complaint (Exhibit 6), purportedly signed by Pou Pui-in herself was received at the Immigration Department.  Pou Pui-in testified that she had not signed the letter.

10.  Finally, on 13th September, a fourth complaint letter arrived, again purportedly signed by Ng Hin-fung.  This was Exhibit 8.  Like the others, it was printed onto a plain piece of paper.  Most significantly, the appellant’s fingerprint was found on this piece of paper

11.  The return address on the letters, in Fu Loy Garden, was owned by PW2, Ng Ka Po.  Ng Ka-po knew the appellant: they had studied together and (according to PW2) they occasionally socialised together thereafter; and he (as an insurance broker) had sold certain policies to the appellant.

12.  PW2’s testimony was that in the early to mid-2006, the appellant had asked if he could use PW2’s address for correspondence.  PW2 agreed.  Mail was received, addressed to a person with the surname “Ng”, not PW2, which PW2 sent onto the appellant.  The appellant was not himself surnamed Ng, but PW2 knew he was to send it to the appellant, although he could not recall if he had telephoned the appellant or how he knew this.  At one stage he said that he thought that another character of the name on the mail was “Fung”; but he stepped back from this in cross examination.  At any rate, he insisted in the face of challenge, that the appellant had asked to use the address and that he had done so in respect of mail addressed to “Ng-something”.  PW2 was believed by the magistrate and no specific complaint is made as to that.  The magistrate gave cogent reasons for believing him and rejecting the challenge to his evidence.

13.  The appellant, who of course had a clear record, was arrested.  He testified in the trial and agreed that he knew PW2 though he suggested not as well as PW2 had claimed.  He denied using the Yuen Long address or receiving mail redirected from that address in the name of Ng.  He suggested his fingerprint could be on Exhibit 8 because the piece of paper on which the letter was written was similar to paper in the office at the Macau Ferry Terminal and he might have touched the paper at the office; and someone else at the office may have taken the paper to create the letter, Exhibit 8, and therefore it just so happened that his fingerprint was on it.

14.  It is accepted, as is obviously the case, that the four letters were prepared as part of one enterprise.  The presence of the appellant’s fingerprint on one letters is therefore relevant to the other letters as well.

15.  Mr Ross, on behalf of the appellant, has submitted that the evidence is insufficient to establish the appellant as the author.  He pointed out that the appellant was off duty at the time of the refusal of entry to Ms Pou Pui-in, that other fingerprints, which did not belong to the appellant, were found on the letters and that the victim of the false complaint had said he held no grudges with the appellant, so there was no evidence of motive.

16.  The magistrate found that the evidence establishing the appellant as the author of the letters was “overwhelming”.  I agree.

17.  Taken in combination, the fact that the appellant had access to information about the refusal of entry, from the records available when he reported for duty at 7.30 the next morning; the fact that the letters purported to come from an address to which he was linked, simply by his association with PW2; the fact that PW2 had been asked by the appellant to use the address for correspondence; the fact that mail addressed to Ng had been sent on to the appellant (by inevitable inference upon his request that mail in such a name should be so forwarded); and the fact that his fingerprint was on one of the complaint letters, together lead to the only reasonable inference, that it was the defendant who prepared and sent the letters: indeed it was an overwhelming inference.  The other possibility, that someone else prepared the letters, that such a person happened to use a piece of paper with the appellant’s fingerprint on it and that such a person had happened to use a return address with which the appellant was associated, as well as using a surname in 3 of the letters which the appellant had used for mail at that address, is merely fanciful and has absolutely no substance on the evidence.  I am in no doubt that it can be entirely excluded.

18.  It was never the prosecution’s case that the appellant was merely an accessory to the preparation of these letters.  It is suggested that the presence of other fingerprints leads to a possibility that the appellant was involved only as an aider and abettor.  There is simply no foundation for such a suggestion.  There is no evidence of anyone else being a principal in the preparation of the letters - the other, unidentified, fingerprints simply do not lead to that conclusion.  This is just a speculative line taken on behalf of the appellant to found an argument that if the prosecution cannot prove whether an accused is either a principal or an aider and abettor, he cannot be convicted.  I need not address that argument in the circumstances.

19.  The magistrate’s finding that the appellant prepared the letters and, by inevitable inference, sent them out to the Immigration Department, is unimpeachable on the evidence.

20.  Turning to the question of the falsity of the instruments, which is specifically addressed in the grounds of appeal, that falsity must relate to the document itself: it must, to use the well-worn phrase, “tell a lie about itself”.  Thus the fact that the document contains a false complaint against Mo does not convert it into a false instrument.  What however is proved to be false about the instruments themselves is, firstly, the signature of Ms Pou on one of the letters, which she testified she had not made; and secondly, given that the other letters were prepared by the appellant, who is not Ng Hin-fung, and therefore that person who signed them did not have that name, the signatures of Ng Hin-fung.

21.  Part of the complaint by Mr Ross, who appears today with Mr Khosa who was trial counsel, is that the magistrate has not specified which of the section 69(a) criteria for falsity has been relied upon.  That is correct; but this point was never taken before the magistrate.  Contrary to the submission made, the magistrate did not use the falsity of the complaints as the basis of finding these to be a false instruments: he expressly found that the signature of Ms Pou and Ng Hin-fung were forged, i.e., were not made by persons of that name.

22.  Section 69(a)(i) specifies that an instrument is false if it purports to have been made in the form in which it is made by a person who did not in fact make it in that form.  That exactly encompasses what happened here.  Indeed, the appellant concedes that is the case regarding Ms Pou’s purported signature, because of her evidence about it; but in fact, it applies equally to the signatures of Ng Hin-fung, which were generated by the appellant.

23.  The magistrate found the existence of the double intention behind the false instruments, that by reason of the false signatures, the appellant intended to induce the Immigration Department to accept the document as genuine; and intended that it should thereby act to its prejudice, as a result of having accepted the false instrument is genuine.  This clearly relates to the performance of its duty to investigate whether a complaint by a member of the public in relation to one of its staff was substantiated.  Such an investigation would doubtless have been affected if the Department had known the signatures on the letters were forged.

24.  These convictions were well supported by the evidence.  The magistrate was correct in his approach to that evidence and in the application of the law.  There is no merit in this appeal which is dismissed.