THE QUEEN v. LAM TAT KWONG

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J U D G M E N T

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Power, J. A.:

1. The applicant was convicted of five offences which occurred between November 1986 and February 1987. He now appeals against those convictions. He was convicted of three charges of obtaining cheques by virtue of a forged instrument and two charges of attempting so to do. He pleaded not guilty to each charge.

2. The applicant was at the relevant time operating a business styled "The Hong Kong Trade and Industry Promotion Centre" (the Promotion Centre) which was said to publish a trade directory known as the "Directory of Hong Kong Trade and Industry".

3. The evidence was that in each case the Hong Thai Citizens Travel Service (Hong Thai) was sent an invoice claiming payment for an advertisement said to have been placed by the Promotion Centre on the order of Hong Thai in a travel publication. The proprietor of Hong Thai gave evidence that he had never placed any orders with the Promotion Centre. Nonetheless the staff of Hong Thai, unaware that no orders had been placed and relying upon the validity of the invoice and the accompanying documents which bore Hong Thai's chop and the proprietor's signature, paid the first three invoices. No payment was made on the last two invoices as by that time the matter had come to the attention of the proprietor.

4. In the first offence a photocopy of an advertisement promoting Hong Thai services was attached to the invoice which was dated 24th November 1986. This photocopy bore the chop of Hong Thai and the proprietor's signature. The invoice in the second offence had attached to it a photocopy of a similar advertisement and a photocopy of an advertising contract between Hong Thai and the Promotion Centre which also bore Hong Thai's chop and the proprietor's signature. In the third and fourth offences the invoice was accompanied by exactly similarly endorsed advertising contracts. In the fifth offence the invoice had attached thereto, in addition to a similarly endorsed advertising contract, a photocopy of an advertisement.

5. It was the Crown case that the forged instruments were the photocopies of the advertisements and contracts which bore the Hong Thai chop and the proprietor's signature.

6. The police officer who led the investigating team gave evidence that these photocopies could be made by the use of what was described as a "cut and paste" method.

7. The judge set out this evidence in his Reasons for Verdic as follows:

"P. W. l then said he would demonstrate how the exhibits attached to the five invoices could be produced. After a company chop and signature on a piece of paper had been acquired that piece of paper (with the chop and the signature on it) could be pasted or otherwise attached to a larger sheet of white paper. If required anything else could be attached to the large piece of paper which could then be photocopied. P. W. 1 said there was a photocopier in the defendant's office and also copying paper, scissors and glue. P. W. 1 was not cross-examined."

This evidence is of particular relevance as there was evidence from the proprietor that early in 1986 he had returned a questionnaire to the Promotion Centre which bore his signature and his company's chop. This evidence was set out by the trial judge as follows:

"P. W. 9 said he had received a form similar to Exhibit P.27 - a questionnaire - from the Promotion Centre at the beginning of 1986. Then there was a follow-up telephone call from a Mr. Lam of the Promotion Centre one or two weeks later. Mr. Lam persuaded P. W. 9 to sign it and in particular asked P. W. 9 to put his company's chop on the form. P. W. 9 did as he was requested and returned the form the next day. That, he said would be prior to the middle of 1986"

8. The trial judge after reviewing the evidence said:

                        "After careful consideration I found:

(a)    that there was never an advertising contract between Hong Thai  and the Promotion Centre and never any money due and owing by Hong Thai to the Promotion Centre for advertising charges (or anything else).

(b)    that the defendant, and only the defendant, prepared and forwarded the invoices (which were shams) and copies of the advertising contracts and advertisements produced in Court to Hong Thai.

    I now come to the documents attached to the various invoices sent to Hong Thai by the defendant. Mr. Lok referred to P. W. 1's evidence in which he explained now such a document could be produced with the use of a photocopier and a method known as 'cut and paste'. Mr. Lok submitted that no weight should be placed on that evidence because it had not been established that P. W. 1 was an expert in the field of photocopying. I did not agree with that submission, All P. W. 1 gave was an explanation of a simple method of producing one document by combining parts of different documents and photocopying the combination. In my opinion this cut and paste method was a well known one and in common use, and almost anyone using a photocopier for the first time would be able to learn how to use that method in less than a minute or thereabouts.

    I found that the defendant made or produced all the documents attached to the invoices ("the attached documents") by using a photocopier and the cut and paste method; and that Hong Thai's chop and P. W. 9's signature were derived from the chop and signature on a questionnaire or information form completed by Hong Thai, and which the defendant had in his possession. That chop and the signature were re-produced on the attached documents by the defendant by using the cut and paste method.

    Referring to the invoices and the attached documents, Mr, Lok submitted firstly, that the invoices were not false documents. in my opinion that submission was correct because the invoices didn't purport to be made by anyone other than the Promotion Centre; secondly that the attached documents could not be false documents because they were photocopies.

    I was referred to Reg. v. CHAN Yam-yick Criminal Appeal No. 103 of 1985, Reg.v. CHEUNG Yiu-cho Criminal Appeal NO. 1 of 1984, and Reg, v. Tait (1968) N. Z. L. R. 126. It and Reg. from those decisions that (in general) photocopies (or photostats) of a false document cannot themselves be false documents.

    However, it was my view that the situation in the present could be distinguished from the cases I have just mentioned. In my opinion what the defendant did was to compose, put together or create new, original documents by using a photocopier and the cut and paste method. Those newly created documents are the attached documents. They are false documents within the meaning of section 69(2) of the Crimes Ordinance Cap. 200. I found also that the defendant made those false documents in order that they might be used as genuine - in other words the defendant forged them. I further found that the defendant, with intent to' defraud, under, upon or by virtue of those forged documents (or instruments), on three occasions obtained, and on two other occasions attempted to obtain, money from Hong Thai.

    In my opinion ail the ingredients of the 5 charges had been proved beyond reasonable doubt."

9. Mr. Sedgwick Q.C., who appeared with Mr. Kan, for the applicant took only two points. He submitted firstly that the applicant could not be convicted of obtaining property by use of a forgery as, if the judge was right in holding that the "cut and paste" method was used, the forgery was the composite document upon which the photostat was based and the applicant had never made use of that composite to obtain any profit.

10. He submitted, in the alternative, that if a photocopy could properly be held to be a forgery then it is only the original photocopy that is the forgery and not photocopies made therefrom and that, as there was no evdience that the original photocopy was used, it had not been established that the applicant was guilty as charged.

11. Mr. Sedgwick relied when making both submissions upon the authority of The Queen v. CHAN Yam-yich⁽¹⁾ which followed The Queen v. CHEUNG Yiu-cho⁽²⁾ which followed The Queen v. Tait⁽³⁾. These authorities establish that a photostat of a forged document is not itself a forgery and that a person who uses a photostat is not using a forgery. The Forgery and Counterfeiting Act 1981 amended the law in England by providing that it is an offence for a person to use a copy of an instrument which he knows or believes to be a false instrument with the intention of inducing someone to accept it as a copy of a genuine instrument and by reason of so accepting. it to do or not to do some act to his own or any other person's prejudice. The law in Hong Kong has not yet been so amended but we were informed by Mr. Bruce, who appears for the Crown, that an amendment is imminent.

12. The cases cited are, however, of little assistance as the issue before us was not canvassed therein. It seems to have been accepted in each case that the court was dealing with a photocopy of a false document, i.e. a photocopy of a forgery. That is not so in the present case. Here what Mr. Sedgwick referred to as "the composite document". i.e. the document made by the "cut and paste" method, was rightly in our view found by the learned judge to have been produced as a step in the production of the photocopy and it was this photocopy which was intended to be used in the commission of the offence.

The judge said:

"In my opinion what the defendant did was to compose, put together or create new, original documents by using a photocopier and the cut and paste method."

It seems to us unarguable that the forgery was the photocopy.

13. Before leaving this contention we refer to the case of R. v. Chow Sik-wah & Quon Hong⁽⁴⁾. Mr. Sedgwick relied heavily upon this authority which  dealt with a forged letter produced by the "cut and paste" method and was then photographed. The Court was faced with the problem that it had not been proved whether the defendant intended that the photograph be used with the acknowledgement that it was a photograph or that it be used with the representation that it was the original of the letter. Kelly J.A. said at 317:

"If the intention was to produce a photograph which, while appearing to be a photograph, would induce some official to act on the belief that an original letter was in existence some place else, the photograph would not, under those circumstances, be a false document so long as the photograph was not used or intended to be used itself to deceive someone into thinking that the photograph was a genuine letter. It was no more than a means of perpetrating a fraud, but the photograph was not under those circumstances a false document.

    To be a false document this document must tell an untruth about itself, not an untruth about some other document of which it purports to be no more than a copy."

The court was, it is true, concerned with a problem different from that which faced us, however it does seem in this paragraph to be holding that the photograph of a composite is not a forgery unless there is at the time when it is used, a representation that it is the composite. If this be so we find ourselves in respectful disagreement with that conclusion. As we have indicated above we are satisfied that where a "cut and paste" document is assembled as a step in the creation of the photocopy and it is the intention that the photocopy and only the photocopy be used for the purpose of deception, the photocopy is a forgery.

14. We turn now to Mr. Sedgwick's alternative argument. This relies squarely upon the authority of the cases set out above which hold that a photocopy of a forgery is not itself a forgery. The authorities, except for R. v. Chow Sik-wah & Quon Hong⁽⁴⁾ were dealing, as we have indicated, with photocopies of an original forged document and not with photocopies of a document which is both itself a photocopy and the original forgery. We are satisfied that there is no ground for distinguishing between such photocopies and the original photocopy. They are, in our view, all the same forgery. The distinction between such a case and one in which there is a photocopy of a forged document seems to us clear although, it is true, it is not one that can easily be put into words. In one case an original document exists and the photocopy of it is, on its face, a declaration that it is not the original document but a copy thereof. In the other case the photocopies are in every respect identical with the forgery and declare themselves to be, as does the forgery, photocopies of an original. There is nothing in our view which would justify our holding that in law a distinction should be drawn between such photocopies.

15. The application for leave to appeal against conviction is dismissed.

(1) Crim.App. No.103 of 1985

(2) Crim.App. No.1 of 1984

(3) (1968) N.Z.L.R. 126

(4) (1964) Canadian Criminal Case Vol.I 313