HKSAR v. TSAI HUNG MIU

HCMA 420/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 420 OF 2003

(ON APPEAL FROM ESCC 723 OF 2003)

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J U D G M E N T

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1. This is an appeal by the Appellant, Tsai Hung-miu against his conviction on 28 April 2003 after trial by Ms J M Livesey of one count of Using a False Instrument, contrary to section 73 of Crimes Ordinance, Cap. 200 and the sentence of 4 months' imprisonment that the Magistrate passed thereon.

2. The charge of which the Appellant was convicted alleged that on 21 November 2001, at the office of United Asia Finance Limited in Chaiwan, he had used, firstly, a staff card of Wah Kee Decoration Engineering Construction Co. in the name of Tsai Hung-miu (Exhibit P2), secondly, two salary receipts of Wah Kee Decoration Engineering Construction Co. signed by Tsai Hung-miu dated 20 October 2001 and 20 September 2001 (Exhibit P5), thirdly, a letter issued by Wah Kee Decoration Engineering Construction Co. to confirm the employment of Tsai Hung-miu (Exhibit P6) and fourthly, a Mandatory Provident Fund record of CMG relating to Tsai Hung-miu (Exhibit P7) which documents were, or which he knew or believed to be, false with the intention of inducing Kam Kwok-fai to accept them as genuine, and by reason of so accepting them to do or not to do some act to the prejudice of United Asia Finance Limited.

3. Kam Kwok-fai, whom the Magistrate found to be a truthful and honest witness, gave evidence that he was able to identify Exhibit P1 as being a loan application form which he was in the course of preparing pursuant to an application by the Appellant for a loan. That form had not yet been signed by the Appellant. He identified Exhibit P2 (which was a purported staff card in the name of Tsai Hung-miu issued by Wah Kee Decoration Engineering Construction Co.), Exhibit P5 (which were two purported wage receipts of Tsai Hung-miu issued by Wah Kee Decoration Engineering Construction Co.), Exhibit P6 (a letter purportedly issued by Wah Kee Decoration Engineering Construction Co. to confirm the employment of Tsai Hung-miu); and Exhibit P7 (a purported Mandatory Provident Fund record of CMG in relation to Tsai Hung-miu), as all being documents submitted by the Appellant in support of the application for a loan from United Asia Finance Ltd.

4. Amongst the facts admitted by the Appellant under section 65C of Criminal Procedure Ordinance, Cap. 221 were that Exhibit P7, the Mandatory Provident Fund record, was a forged document and that the purported address of the Appellant's alleged employer, Wah Kee Decoration Engineering Construction Co. stated on the application form and indeed on Exhibit P5 and P6 had all along been occupied by the Liu Chong Hing Bank.

5. Not surprisingly in view of those admitted facts and there being no evidence on the general issue from the Appellant, the Magistrate came to the conclusion that the only inference that could be drawn was that the documents referred to in the Charge, (i.e. Exhibits P2, P5, P6 and P7) were false instruments, and that the Appellant must have known they were false and the Appellant used them with the intention of inducing Mr Kam to accept them as genuine to obtain a loan which would have been prejudicial to United Asia Finance Ltd.

6. In addition to this evidence, the Magistrate admitted into evidence after a voire dire in which the Appellant gave evidence, a record of interview given by the Appellant to DSPC 12877, Cheung Sing Wai. In that record of interview, the Appellant admitted to have unsuccessfully applied to borrow money from United Asia Finance Ltd on 21 November 2001. He claimed to have been taken to borrow the money by a friend whose name he did not know and whom he could no long contact. He said that it was a friend who had given him the documents to give to the finance company and had told him to tell the staff of the finance company that he worked for the company named in the documents. He said that the photograph on the alleged staff card was put on in his presence. He admitted that he did not know anything about Wah Kee Decoration Engineering Construction Co. and that he knew the documents he submitted were false.

7. In the Grounds of Appeal against Conviction, the Appellant stated his grounds being that certain evidence was not given sufficient weight by the Magistrate, for instance, PW2's threats against him. He must have been referring to the evidence of PW2 on the voire dire, but it is clear from the Statement of Findings that the Magistrate was able to draw an inference of guilt against the Appellant without reliance upon any admission in the record of interview.

8. In any event it is apparent from the Reasons for Verdict that the Magistrate applied the correct burden of standard of proof in considering the admissibility of the record of interview. She believed PW2 and disbelieved the Appellant. In the record of interview, the Appellant had admitted the ingredients of the offence. I dismiss the Appellant's appeal against conviction.

9. The Appellant alleges that the sentence of 4 months' imprisonment imposed on him was too severe. There is nothing in that ground of appeal whatsoever. A starting point of 6 months' imprisonment for an offence of this kind was perfectly proper. The Appellant was fortunate that the Magistrate felt able to reduce the sentence by 2 months from that starting point to reflect the fact that no loan amount had yet been obtained or mentioned, the application form had not yet been signed and that she treated him as a person of previous good character despite a previous gambling conviction.

10. I dismiss the appeal against sentence.