HKSAR v. PANG BYRON

HCMA 425/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 425 OF 2012

(ON APPEAL FROM ESCC 2751 of 2011)

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J U D G M E N T

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1.  The appellant was convicted after trial of one charge of Using a False Instrument, contrary to s 73 of the Crimes Ordinance, Cap 200 before Deputy Magistrate J Glass sitting in Eastern Magistracy. He was sentenced to a fine of $15,000 and a term of imprisonment of one month suspended for 3 years. The appellant appealed against conviction only.

2.  The particulars of the offence alleged that on or about 10 March 2011, in Hong Kong, the appellant used an instrument, namely an Eye‑sight Examination Report dated 3 March 2011 purportedly issued by Dr Tsang Chi‑ming, which he knew or believed to be false, with the intention of inducing a member of staff of the Marine Department to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

Brief facts of the case

3.  Colour blindness is a congenital condition.  Except in very unusual circumstances, which, it was agreed, did not apply, colour blindness is present from birth and does not develop during a person’s lifetime.  The appellant was made aware of this during one of his earlier tests.  The court was not concerned with deciding whether the appellant was colour blind. 

4.  The appellant is now aged 32 years old and was 29 years old at the time of the alleged offence. He has worked as an actor since 2004.  He has a clear record.  Between 2001 and 2003 he worked as a lifeguard, which obliged him to take, annually, a distance vision test and a Colour Vision test. 

5.  The appellant passed the Colour Vision test in 2001 and 2002.  The test in 2003 necessitated some further enquiries because the Colour Vision test was ticked initially as having been failed.  As a result the appellant was referred to the Hong Kong Eye Hospital but ultimately passed the Colour Vision test.

6.  Since January 2001 the appellant has held a Certificate which allowed him to operate pleasure vessels up to 15 metres in length.  The applicant had to take a Colour Vision test to apply for a Certificate.  Had he failed the test his licence would have been endorsed to allow him daytime operation only.  Eventually the appellant had obtained three licences.  The first licence was a Master Grade II.  The second licence, issued in 2002, added an Engineering Grade II (3) to the licence.  Licence 3, issued in 2003, added to the Engineering Grade (1, 2 and 3). 

7.  In November 2010 the appellant applied for a Grade I licence which would permit him to operate a pleasure vessel of unlimited length.  To do that he needed to take another Colour Vision test.

8.  On 25 November 2010 the Marine Department received from the appellant an application for a Pleasure Vessel Operator Certificate of Competency for Master Grade I, (“Certificate”) dated 11 November 2010, together with supporting documents, including an Eye‑sight Examination Report (EER) dated 26 August 2010, issued by Dr Tsang Chi‑ming (“Dr Tsang”) PW2, which certified that the appellant had passed the required Distance Vision test but had not passed the Colour Vision test.  The appellant applied to sit for a pleasure vehicle operator examination set for 21 March 2011.

9.  On 11 November 2010 the appellant submitted to Sea Dynamics, an agency which conducted motor vessel operation classes, an application to sit the Master Grade I examination.  Sea Dynamics sent the application to the Marine Department with other documents including:

(1) a copy of a Deed Poll indicating the appellant’s change of name;

(2) a copy of the Eye‑sight Report (Exh P1(b));

(3) a Pleasure Vessel Driving Experience Proof;

(4) a copy of Master Grade II Certificate;

(5) a copy of his Hong Kong Identity card; and

(6) a copy of his application for the HKID card in his new name.

The application form for the Master Grade I examination bore the appellant’s photograph (Exh P1(g)).  On 25 November 2010 the agency sent those documents to the Marine Department.

10.  In March 2011 the appellant submitted further documents to Sea Dynamics to be sent to the Marine Department.  They were:

(1) a copy of Pleasure Vessel Driving Experience Proof dated 11 November 2010;

(2) the Eye‑sight Report dated 3 March 2011 (Exh P3(b));

(3) a copy of a Hong Kong Identity card in the name PANG Byron;

(4) a copy of his Master Grade II Certificate; and

(5) an application to sit the Master Grade I examination, dated 3 March 2011, bearing the appellant’s photograph.

Sea Dynamics sent the documents to the Marine Department on or about 11 March 2011.

11.  Both applications made by the appellant had been delivered to the Marine Department by Sea Dynamics.  Staff of Sea Dynamics confirmed that the appellant had submitted the allegedly forged EER to their office on 10 March 2011.

12.  On 11 March 2011 the Marine Department received the appellant’s application to withdraw from sitting the examination on 21 March 2011 and also received from him a fresh application, dated 3 March 2011, to sit the examination on another date. 

13.  An EER dated 3 March, 2011 purportedly issued by Dr Tsang, was submitted to support this application; it indicated that the appellant had passed the Colour Vision test. Suspecting the EER was a forgery, Yuen Wai Chi Heydee of the Marine Department (PW1) made enquiries of Dr Tsang, who later confirmed that the signature and handwritten date on the EER were not his writing and that the office chop placed on the form was the wrong size.  His office computer records showed that the appellant had failed the Colour Vision test on 21 March 2011.

14.  Dr Tsang had conducted two eyesight examinations on the appellant at Christocare Health Centre.  On 26 August 2010 Dr Tsang conducted a vision distance test and an Ishihara Color Blindness test.  The appellant passed the distance test but failed the Colour Vision test.  Dr Tsang crossed out the relevant parts of the form to show that the appellant had not passed the Colour Vision test.  He signed it and placed his office chop on it.  This EER was given to the appellant by Dr Tsang’s nurse after he left Dr Tsang’s office.  It was not in an envelope.

15.  On 3 March 2011 the appellant went again to Dr Tsang’s surgery where Dr Tsang carried out a Distance test and an Ishihara Colour Vision test.  He completed the form the same way showing the appellant had passed the Distance test but failed the Colour Vision test.  Again, the EER, which was not in an envelope, was given to the appellant by the nurse after he left Dr Tsang’s office.

16.  The appellant claimed in evidence that he was given each of the EERs by the nurse after his examination by Dr Tsang.  He said he had not looked at it as he had no reason to believe there was any problem with it.

17.  In mid‑March 2011 Dr Tsang received from the Marine Department a fax of a test report pertaining to the appellant and was asked to confirm the contents.  On examination he found the EER was inconsistent with his own computer records, because it stated that the appellant had passed the Colour Vision test, whereas his own records showed that the appellant had failed it.  Dr Tsang found that the signature on the EER was not his, the signature was incomplete and the chop was the wrong size.  He was very certain that he had not issued the form to the appellant.  He reported this finding in writing to the Marine Department.

18.  Dr Tsang gave evidence that he did not keep any hand written records of the actual number of cards read, or not read, by patients taking the Ishihara test, but he kept the final result, which he regarded as the important information, as a computer record.

19.  It was Dr Tsang’s usual practice to tell a patient the results of an eye test immediately after the test.  If there was any problem he would give an explanation to the patient.  He believed that he had done this with the appellant, although he accepted there was no written record, nor anything in his witness statement to confirm he had done so.

20.  Dr Tsang agreed it was possible that he could have made a mistake when counting cards during the Ishihara test, or when deleting inapplicable items on the EER, but he did not believe he had erred in either respect.  Dr Tsang recalled conducting both the appellant’s eye tests, but said he definitely had a better recollection of the test on 3 March 2011.  He was sure that after the failed tests he had told the appellant the results. 

21.  His better memory of the second test was linked to his recalling that the appellant appeared to be a bit upset when told the result and told Dr Tsang of employment problems he had had as a result of failing similar tests.  The appellant asked if he could make a complaint to the Equal Opportunities Commission about the matter.  Dr Tsang consoled the appellant and suggested that he try doing that.  The appellant then left his consulting room.  Dr Tsang was clear that although he had not recorded it anywhere, this conversation had occurred.

Perfected Grounds of Appeal

22.  The perfected grounds of appeal were as follows:

(1) The magistrate failed to deal with the defence contention that it defied common sense for the appellant to have submitted the first eye test report for his November 2010 application, knowing the test contained a negative result.

(2) The magistrate failed to address the defence contention that it defied common sense for the appellant to have returned to Dr Tsang for an eye test in March 2011, knowing that Dr Tsang had failed him in that test in August 2010.

(3) The magistrate’s finding that on 3 March 2011 Dr Tsang had a conversation with the appellant regarding difficulties with his obtaining employment was contrary to the unchallenged evidence of the appellant.

(4) The magistrate failed to deal with the contention that had the appellant known the results of the previous eye tests, including the one conducted in July 2003, the appellant was unlikely to have raised the question with Dr Tsang when told by Dr Tsang he had failed the test.

(5) The magistrate failed to give weight to the possibilities that a mistake could have been made by Dr Tsang either in his diagnosis, or in the subsequent recording of his findings.

(6) The magistrate failed to take into account that Dr Tsang was not an independent witness and he did not give due weight to the issue raised by the defence that the prosecution had not produced any forensic evidence to support their allegations.

(7) The magistrate’s findings suggested that he had considered that a sticker on the 2^nd eye test report (Exhibit P3(B)) was a forgery – a proposition which had never been suggested by the prosecution.

23.  Mr Peter Duncan, SC, of counsel, who appeared for the appellant at trial and on the appeal, relied on what he contended was the magistrate’s failure to assess adequately the defence case, in particular the inherent improbabilities as set out in the perfected grounds of appeal.  He submitted too that there was inadequate, or non‑existent, forensic evidence to establish that the alleged false instrument was not in Dr Tsang’s handwriting.

24.  As for the submission (in PGA 6) that Dr Tsang was not an independent witness, Mr Duncan said it was advanced not as an attack on Dr Tsang’s integrity, but rather was recognition that if he had to defend the efficacy of his own systems and procedures in court he was precluded from being truly independent. When giving evidence Dr Tsang had agreed that some of his recording procedures could have been more rigorous, and he had made some changes, as a result of this incident.

25.  Complaints about the procedures were that the pro forma report was filled in by Dr Tsang only after a patient had left the doctor’s room.  The patient did not countersign to show that he had received the test information, or the document.  No record was kept of the basis for the Ishihara test results.  Those matters were improved at a later date.  Dr Tsang agreed that there may have been errors in his procedures and there was the possibility that he had erred in identifying the patient.  There was no professional comparison of the handwriting.  There were two chops, said to be of different sizes; neither was produced in evidence, nor was any explanation given why that was not done.

26.  Counsel for the appellant submitted that there was no explanation how the adhesive identifying label placed on the document could have been obtained.  The magistrate commented in his Statement of Findings that any computer could print such labels, but no evidence was adduced to establish that was correct, nor was it a matter of which judicial notice could be taken. 

27.  Further, Dr Tsang’s finding that the appellant had failed 2 Colour Vision tests was not consistent with the report of Dr Chan Ding Nai, Dylan (DW1) which showed that on 27 April 2011 the appellant had passed both the Ishihara Colour Vision test [Exh D11-B104] and also the Farnsworth D-15 dichotomous test on 7 June 2011 [Exh D12-B106 B107] administered by Ms May Ho (DW3).

28.  In relation to PGA 1 the respondent argued that the magistrate noted that it was a matter of speculation as to why the appellant would have caused Exh P1(b) to be delivered to the Marine Department if he knew that it contained an adverse finding, a speculative venture he was not prepared, or permitted, to undertake.  This conclusion did not cause him to change his finding that the appellant knew the contents of each medical EER when each was submitted to the Marine Department. 

29.  Counsel for the respondent, Mr Isaac Tam SADPP, pointed out that the prosecution was not required to provide a motive for the offence and that inherent improbabilities were not defences, but simply yardsticks with which to measure the strength or weakness of a case.

30.  He submitted that there was no bar to a candidate taking the examination for Grade I Master simply because he had failed the Colour Vision test.  Even if he failed that test, a candidate who passed the examination could still obtain a licence, subject to the condition that only daytime operation was permitted.

31.  As for PGA 3 Mr Tam referred to the unusual conversation Dr Tsang recalled with the appellant, about his making a complaint to the Equal Opportunities Commission.  The appellant in evidence had mentioned what employment he had taken up, but not what employment he had failed to obtain and therefore there was no inherent inconsistency on that topic between what the appellant had told Dr Tsang and his oral evidence.

32.  There was also a link between what the appellant told Dr Tsang and his eye test results conducted in 2003.  Even if the appellant was not classified as colour‑blind in 2003, it must have been the case, according to Exhibit D5, that he was alerted to his weakness in distinguishing between light green and light red colour.

33.  The appellant having been alerted to his weakness in July 2003, was unlikely to have been surprised that he failed the test in 2010.  When he failed the test again in 2011 he raised the matter with Dr Tsang in the context of his enquiry about the Equal Opportunities Commission.

34.  Counsel for the respondent submitted (see PGA 5) that the magistrate in his Statement of Findings had dealt with the possibility of Dr Tsang being in error either as to the appellant’s identity or a possible misdiagnosis.  He found Dr Tsang a helpful and fair witness because he admitted he was able to make mistakes, but in this case he was very certain that he had not done so. The magistrate accepted Dr Tsang’s evidence.

35.  PGA 6 alluded to Dr Tsang not being an independent witness, but as Mr Tam pointed out, it had not been suggested or imputed that Dr Tsang was less than truthful in order to protect his professional image; it referred to his having to “defend” his administrative procedures.  That Dr Tsang made certain changes to his administrative procedures did not mean, necessarily, there was anything wrong with those procedures, nor that they were insufficient for their purpose at the time of this incident.  Mr Tam argued that there was no need for forensic evidence about the signature because a person can naturally recognize when he or she encounters a signature that is not his or hers.  The magistrate had accepted Dr Tsang’s evidence about the identity of and his dealings with the appellant. 

36.  Mr Tam noted (PGA 7) that the magistrate referred to the identification labels in his Statement of Findings but only to state that they were typical computer‑generated script, printed on commonly used adhesive paper.  The similarities of the two stickers did not help answer the question whether Exhibit P3(b) was a false instrument.  The magistrate placed no reliance on the labels as cogent evidence.

37.  Overall Mr Tam submitted that the magistrate had not erred in law or in fact and the conviction was not unsafe.

38.  I considered the submissions of the parties against the evidence of the witnesses, the Admitted Facts and the exhibits.  The magistrate’s detailed Statement of Findings showed his awareness that before he could convict the appellant he had to be sure that the document Exh P3(b) was a false instrument, that the appellant had made use of it and that at the time he made use of it he not only knew it was a false instrument, but that he intended to induce staff of the Marine Department into accepting it as genuine, and by reason of accepting it to do or not to do an act to his own or any other person’s prejudice.

39.  He gave himself the appropriate directions.

40.  Grounds 1, 2 and 4 of the PGA largely overlapped and were variations of the appellant’s complaint that the magistrate had failed to consider adequately:

(a) that the appellant would be unlikely to submit the first EER for his test in November 2010 if he knew it contained a negative test result;

(b) would have been unlikely to return to Dr Tsang to be tested in March 2011knowing he had failed him on the test in August 2010 and,

(c) that if the appellant had known the results of previous eye tests, including that in July 2003, it is probable that he would have raised the matter with Dr Tsang when told he had failed the test.

41.  Here the matters referred to amounted in large measure to considerations of motive. The prosecution is not required to prove a motive and although in some criminal cases a motive may manifest itself the absence of obvious motive is not a matter about which the court should speculate. The magistrate recognized the dangers of being drawn into speculation about the basis of the appellant’s behaviour and declined to do so.

42.  He examined the prosecution evidence, particularly where there was a direct challenge by the defence, or where the appellant’s own evidence revealed direct conflict, anomalies, or discrepancies.

43.  He recognized that the appellant’s behaviour was to a certain extent inexplicable, but made findings based on his assessment of the evidence given by the prosecution witnesses.

44.  PGA 3 refers to the conflicting evidence about the unusual conversation alleged by Dr Tsang after he told the appellant about his failing the Colour Vision test.  The magistrate accepted Dr Tsang’s evidence about this matter and, not unnaturally, considered it to be unusual – so unusual in fact that it pinpointed for Dr Tsang the identity of the patient, the failed test and his memory of having advised the patient about the test result.  The suggested complaint to the Equal Opportunities Commission was sufficiently bizarre to have made it highly likely the appellant would be a memorable patient for Dr Tsang.

45.  PGA 5 alleged that the magistrate failed to give due weight to the possibility of a mistaken diagnosis or recording by Dr Tsang.  The magistrate did examine this matter which as a part of the appellant’s defence was canvassed at trial.  Dr Tsang agreed that there was potential for errors of diagnosis or recording, but was adamant that neither error had occurred.  The magistrate found there had been no error which was a finding he was entitled to make based on his assessment of Dr Tsang as a reliable and honest witness.

46.  PGA 6 alleged that Dr Tsang was not an independent witness and that the magistrate was wrong to accept his evidence absent forensic evidence in support.  Although it was accepted that Dr Tsang to the extent that his administrative and recording procedures were under scrutiny, was not entirely independent, it was for the magistrate to decide whether the administrative procedures pertaining at that time were adequate. 

47.  The absence, for example, of handwriting comparison and analysis was said to render Dr Tsang’s evidence unreliable.  The prosecution was under no obligation to bolster Dr Tsang’s evidence in this respect.  He was the scribe who on the face of Exh P3(b) purportedly completed the document, and was the best witness for giving cogent evidence about his own signature and his handwriting etc.  lt was not a matter of the prosecution having to prove whose the disputed signature was; whether that of the appellant or some other person.  The magistrate had to decide whether he accepted the evidence of Dr Tsang, that he had not completed or signed the form.  This point was aired in cross-examination and it was not ignored by the magistrate.

48.  As for PGA 7, the existence of apparently identical patient identity labels, was evidence which did not assist either the prosecution or the defence.  The magistrate did not find that the labels were forgeries, nor did he speculate about, or make any finding as to their provenance or how they came to be on the document.  This was not a lacuna which had to be filled before the magistrate could find the instrument to be false.  There is no substance to this ground.

49.  The magistrate did consider improbabilities when assessing the evidence. They related in particular to the appellant’s evidence about:

(a) his alleged lack of knowledge that he had failed the eye test and his allegation that Dr Tsang had not told him of his failure;

(b) his lack of knowledge about the results of the Colour Vision tests done during his life-guard career. It would be highly unlikely for a candidate whohad initially failed a test which necessitated follow-up investigation at the Eye Hospital, not to have asked any questions about the differing results.  This was so particularly because the test affected his employment.

(c) ln relation to the 2 failed Colour Vision tests, it was highly improbable that Dr Tsang would not have told the appellant the results, knowing, as he did, the reason for which they were required.

50.  Nor was it likely that the appellant would have failed to look at the test forms which were given to him to return to the Marine Department.

51.  Dr Chan Ding-nai (DWl), an ophthalmologist, was accepted by the magistrate as an expert.  He had used the Ishihara test on the appellant on 27-4-2011.  He explained that in general that test was directed at screening results and results were not completely accurate.  Because of that he had ordered the Farnsworth D-15, Test which was carried out by Ms Ho (DW2).

52.  DWl detected no colour blindness in the appellant, but it was accepted at the trial that prior to the test he was not made aware of the appellant’s earlier difficulties in distinguishing between very light red and very light green.

53.  Overall the magistrate found that DW1’s evidence resolved various differences in the test findings.  The Ishihara test was updated at intervals – the various editions of the test book differed as to the number of plates, the order in which the plates came in the book and different colour values.  If the patient had problems with distinguishing very light red from very light green that could also account for inconsistent test results.

54.  Overall I am satisfied that the magistrate recognized and considered the issues relevant to the case. He satisfied himself about the witnesses and in particular found that Dr Tsang was a witness on whom he could and did rely.  He examined the evidential inadequacies alleged and made decisions about them.  He rejected the evidence of the appellant.

55.  I do not consider the PGA have been substantiated and accordingly this application for leave to appeal is dismissed.

Comment

56.  The magistrate delivered his Statement of Findings orally on 25 May 2012.  However the Statement of Findings in the appeal bundle comprised a confirmation of those findings and certain additional comments.

57.  The additional material:

(1) Amplified his reasons for accepting Dr Tsang’s computer records as complying with the Evidence Ordinance;

(2) Clarified that he had not found the identical address labels on Exhs P1(b) and P3(b) to be forged and pointed out that Dr Tsang had not been asked about the labels by either counsel;

(3) Confirmed his rejection of the appellant’s evidence, the defence assertion that Exh P3(b) was correct and that Dr Tsang was mistaken in denying it was;

(4) Confirmed that he could not speculate about the appellant’s possible motives for delivering Exh Pl(b), containing the adverse finding, to the Marine Dept.

58.  I noted the inclusion of the additional material, but ignored it for the purposes of the appeal.  Whilst in rare instances it may be necessary or justifiable for a magistrate to deliver full oral findings and later to supplement or correct them in a Statement of Findings e.g. to avoid possible confusion on appeal, the practice is neither recommended or desirable.

59.  It can give the impression justified or not that the magistrate is endeavouring to re-visit the trial evidence and/or defend or support his original findings with a view to answering possible appeal submissions advanced on behalf of the appellant.