HKSAR v. STEPHEN GRAHAM OLDING

HCMA242/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.242 OF 2003

(ON APPEAL FROM WSCC 1682 OF 2002)

---------------------

----------------------

-----------------------

J U D G M E N T

-----------------------

1. This is an appeal against conviction only.

2. The appellant was convicted after trial of an offence of using a copy of a false instrument contrary to section 74 of the Crimes Ordinance, Cap.200.

3. The facts of the case as found by the magistrate were that the appellant had claimed upon his arrival in Hong Kong on board a Singapore Airlines flight from Bangkok via Singapore on 26 September 2000, that during the flight he had found broken glass in the bottom of a fruit drink served by the airline and drunk by him. He said he had ingested some of that glass. When he arrived in Hong Kong, he sought medical treatment and was examined at Tang Siu Kin Hospital ("the hospital"). During that examination, the appellant was X-rayed and various medical notes were made concerning the appellant's complaints, the results of his examinations and the X-ray results, in the standard form of the Hospital Authority kept by the hospital for that purpose ("the hospital notes").

4. In early May of 2002, the appellant filed a statement of claim in the District Court of Hong Kong seeking damages from the airline on the grounds of negligence and breach of statutory duty. At the pre-trial review of the case before His Honour Judge Carlson, the appellant was unrepresented and remained so throughout the subsequent civil hearing. The airline was represented by a Mr Watkins who also appeared for the airline throughout the civil hearing and who became PW1 in the later trial before the magistrate.

5. At the pre-trial review, Judge Carlson asked PW1 to prepare the trial bundle for both parties as the appellant was unrepresented. At this early stage both parties had already agreed that no medical witness would be called and the medical evidence would be that contained in the trial bundle.

6. The magistrate found that the appellant had on two occasions provided PW1 with copies of the same hospital notes of the hospital. The first occasion was by fax on 6 May 2002, that document became Exhibit P7, and the second occasion was in person on 27 May 2002, and that document became Exhibit P8. The latter date was the instance of the charged offence and took place some three days before the commencement of the civil trial on 30 May 2002.

7. In respect of both of the copies of the hospital notes sent by the appellant to PW1 prior to the commencement of the civil trial, the copies falsely represented an entry in those notes as reading :

"17:05 4/10/2000

Film reviewed

likely to

be glass particle."

Whereas the original of those hospital notes as produced in a copy (Exhibit P4) before the magistrate recorded the words in that same entry as reading :

"17:05 4/10/2000

Film reviewed,

unlikely to

be glass particle."

(emphasis added)

8. The magistrate concluded that the appellant himself had altered, in the copies of the hospital notes sent to PW1, the word "unlikely" by deleting the letters "un" so as to leave the word "likely" thereby wholly altering the meaning of the original entry.

9. Judge Carlson found after a two-day trial in favour of the appellant, and in the magistrate's words :

"Its obvious from the judgment that significant weight had been attached to the findings in the patient notes. That finding was : Film reviewed, likely to be glass particle."

10. Following that judgment in favour of the appellant, PW1 reported the result to his client in Singapore. He provided the airline with a copy of the judgment. One of the airlines in-house lawyers, or a lawyer acting for the airline in any event, shortly after that noticed on a copy of the hospital notes produced during the hearing that the word "likely" looked suspiciously as if it had been altered and said so to PW1. And indeed with the wisdom of hindsight the word "likely" in its altered state does appear somewhat oddly indented in the vertical line of words in the entry. There additionally appears to be a blurred area in front of the word "likely" consisting of a number of dots.

11. PW1, upon this being brought to his attention, then contacted the doctor at the hospital who had made the note (PW3) and PW3 confirmed that the original hospital notes contained the word "unlikely". PW1 then took steps to set aside Judge Carlson's judgment and the matter was eventually reported to the police.

12. At the end of the trial, the appellant was convicted. His evidence that he had not altered the copy of the hospital notes he provided to PW1 was rejected by the magistrate. The magistrate said he found the appellant to be "far from truthful and honest". The magistrate inferred that the appellant had altered the copy of the hospital notes he had provided to PW1 on 6 May 2002 and again provided to PW1 in person on the charged occasion of 27 May 2002.

13. The appellant was unrepresented before me during the course of his appeal but the essence of his complaints concerning his conviction can be reduced to three fundamental grounds that :

(1) the magistrate wrongly accepted PW1 as a witness of truth;

(2) there was insufficient evidence upon which to properly convict the appellant; and

(3) the magistrate wrongly accepted the evidence of PW2, a solicitor who had given some advice to the appellant during the preparation of the District Court trial, but who never represented him.

14. So far as the first ground of appeal is concerned, the appellant says that it was wrong for the magistrate to accept PW1 as a witness of truth for two reasons :

(1) that there were a number of inconsistencies in PW1's evidence, particularly relating to the claimed receipt by him of copies of the hospital notes from the appellant on 6 and 27 May 2002, and those inconsistencies were such as to disqualify him from acceptance as a credible witness; and

(2) that the magistrate failed to take properly into account that PW1 had a considerable motive to either falsify the document himself or, having realized it was falsified continue to use it, for the purpose of having an "ace up his sleeve" in the event the appellant was successful in the District Court action against PW1's client, the airline.

15. I will deal with the first complaint concerning the inconsistencies in PW1's evidence.

16. A large part of the appellant's arguments in this regard relate to what he asserts is the confusion in the exhibited copies of the hospital notes. In this regard, by way of his original written submission he says "The document which I have been convicted of altering or having knowledge of is surrounded in a shell of intrigue, from its evolution to the trial bundle" (i.e. the District Court trial bundle).

17. He asserts that the copy of the hospital notes that was placed in that trial bundle was definitely not the copy given to PW1 on 27 May 2002. As will be seen in due course, PW1 agrees that may be so. The appellant says the copy on the bundle is of higher quality, i.e. clearer than his recollection of the copy he provided to PW1 on 27 May. He suggests therefore that the copy he provided to PW1 on 27 May was not the source of the copies which appeared on the trial bundle, and that accordingly there must have been another copy of the hospital notes which came into the possession of PW1 from someone other than the appellant and which may have been the altered copy.

18. To make sense of the appellant's argument, in this regard, I have read the transcript of PW1's evidence before the magistrate.

19. PW1's evidence dealt with in some detail his receipt of the copies of the hospital notes from the appellant on 6 and 27 May 2002 and what was done with those copies. In summary, he said this :

(1) That on 6 May 2002, his office received a four-page fax from the appellant which included a copy of the hospital notes. That copy was altered inasmuch as it referred to it being "likely" that there was glass revealed in the X-ray's reviewed. That faxed copy was eventually produced in evidence as Exhibit P7.

On the basis of PW1's evidence, there can have been no mistake that Exhibit P7 indeed was a fax sent to his (PW1's) firm by the appellant on 6 May. The fax codes on the documents say as much.

(2) PW1 says that on 27 May 2002, the appellant personally went to the office of PW1's firm in Central, met PW1 and provided PW1 with more documents including a photocopy of the same hospital notes. The precise copy provided by PW1 in court was, after some earlier confusion, given the exhibit number of Exhibit P8. Prior to this another copy of the hospital notes Exhibit P2 had been produced as the document provided on 27 May, but subsequently it appears to have been accepted at trial that Exhibit P2 was another copy of the hospital notes.

(3) Further PW1 said initially that the copy of the hospital notes he had given to him by the appellant on that day 27 May was photocopied and one copy placed on each of the four bundles prepared for the District Court trial.

(4) He later said because the trial bundles were apparently served on the court on 27 May that he thought it likely, or at least possible, that copies of the 6 May fax i.e. Exhibit P7 would have been placed on the trial bundles. He was never sure in his evidence which copy formed the basis of the trial bundles.

(5) But in any event, the copy provided by the appellant to PW1 on 27 May was subsequently used as a working copy by PW1 and his assistant and had penciled comments and highlights etc. placed upon it.

20. That means on the basis of PW1's evidence, the copy of the hospital notes provided to him on 27 May became part of the documents used for the purpose of the trial. As I say that original copy, as marked, eventually became Exhibit P8 in the magistracy trial.

21. So no certain evidence was given concerning which of the copies of Exhibit P7 or Exhibit P8, Exhibit P2 was, but it is obvious from the evidence of PW1 and upon a reading of the somewhat lengthy transcript of the magistracy proceedings produced for the purposes of this appeal that the effect of PW1's evidence was that Exhibit P2 was a copy of Exhibit P7 or Exhibit P8 and if of Exhibit P8 was made before Exhibit P8 was marked and was produced for the purposes of the District Court trial.

22. The appellant's assertion that there was some confusion at the magistrates trial as to which copy of the hospital notes was what is borne out by a reading of the transcript. But I do not think that matters. Confusion of this sort, when multiple copies of documents are made for trial is not unusual. It is true that there was both vagueness and inconsistency in PW1's evidence as to which of the 6 or 27 May 2002 copies of the hospital notes he received from the appellant had been used as the original for the making of the copies placed on the District Court trial bundle (one of which apparently became Exhibit P2). But all of this was known to the magistrate and a fundamental point made by PW1 in his evidence went entirely unchallenged. That point was that he, or his firm, received from the appellant on 6 and 27 May 2002 altered copies of the hospital notes.

23. Any subsequent confusion as to which of those two copies were used as the template for the copies placed on the District Court trial bundle, one of which was Exhibit P2, is, with respect to the appellant, a red herring, and it must be remembered also this is an argument advanced by the appellant entirely on the basis of his recollection that the document he gave to PW1 on 27 May was not as good a copy as those that appeared on the trial bundles.

24. It may be that confusion also occurred in the proceedings in the magistrates court as to which copy exhibit had been made from which other copy and occasionally some mis-reference in the evidence to an exhibited copy other than that intended do occur. But I do not think that affected the magistrate's comprehension of the fundamental issue.

25. That fundamental issue was whether on 27 May the appellant had provided PW1 with another altered copy of the hospital notes so as, perhaps acting in conjunction with the document he had provided PW1 with on 6 May, PW1 accepted it as a true record of the hospital notes when it was not and acted upon that basis in his conduct of the trial. I do not think the confusion as to what exhibit came from what copy in anyway undermined the credit of PW1. All copies were false copies. Any confusion that occurred during the magistracy trial was an understandable confusion which occurred at court. PW1 was quite clear in his evidence at the end of the day that Exhibit P7 was the fax of 6 May and Exhibit P8 was the copy of the hospital notes given personally to him by the appellant on 27 May.

26. The appellant's further case in this regard, as expressed on appeal, is that PW1 was or may have been aware of the alteration to the hospital notes all along but deliberately did not reveal it to the District Court judge, and kept it as a matter which could be called into aid in the event that the appellant won his case.

27. The appellant in this regard points out certain aspects of PW1's evidence which would suggest PW1 knew about this alteration. He says the evidence given by PW1 that the alteration was only discovered some weeks after the delivery of the copies of Exhibit P7 and Exhibit P2 on 6 and 27 May 2002 does not ring true. But with respect to the appellant, I do not think that period of time is in any way remarkable. According to PW1's evidence, it was not he who discovered the oddity in the copy of the hospital notes produced in the District Court trial but a Singaporean based lawyer advising the airline in Singapore after PW1 had forwarded them copies of the District Court judgment and a copy of Exhibit P2. Their suspicious were then conveyed to PW1 in Hong Kong who contacted the hospital and confirmed the word "unlikely" appeared in the original hospital notes entry.

28. The District Court judgment was apparently handed down on 17 June 2002 and by 21 June 2002 PW1 had taken steps to contact, by letter, PW3 the doctor at the hospital responsible for the original entry in the hospital notes.

29. In my view, there is nothing odd about this at all. It was only after the trial and judgment that particular attention would have been paid to the relevant entry appearing in Exhibits P2, P7 and P8. The importance of that entry being relied upon by the District Court judge in finding in favour of the appellant would have become particularly obvious only after the handing down of his judgment. There is nothing in this particular complaint of the appellant.

30. The appellant argued other matters as causing suspicion about the provenance of the Exhibits P2, P7 and especially P8 produced in the course of the trial or as matters casting suspicion upon PW1's evidence. All those arguments were either based on the appellant's misconception or misstatement of the evidence; were based on insubstantial evidence, or were purely speculative, as, for example the appellant's concern that lines which appeared on Exhibit P8 at trial which to his recollection did not appear on the photocopy he provided to PW1 on 27 May and do not appear on the present appeal bundle copy meant it came from a source other than him. Lines are barely discernible on Exhibit P8, but they are there to some extent and in my view, they are normal photocopying lines. The appellant before me at one stage suggested someone within the court staff may have deliberately removed the original Exhibit P8 and substituted another copy, without any obvious lines, for it. With respect this is completely unfounded fancy. There is nothing in the transcript of the proceedings to suggest that the lines on the document Exhibit P8 produced in the magistrate's court were thick or obvious as asserted by the appellant.

31. Further the appellant's assertion that there was a difference between the copy of Exhibit P8 which appears in the appeal bundle and the Exhibit P8 produced at his trial seemed to fade somewhat once the original of Exhibit P8 was shown to him this morning. All these alleged differences whether real or imagined in the same basic document can be attributed to the various photocopying processes for the District Court trial, the magistracy trial and this appeal. The asserted differences are all based on the appellant's recollection, in any event, of the documents looking different. The whole argument with respect is another red herring.

32. In short, the appellant's reliance on what he describes as disturbing anomalies in the Exhibits P2, P7 and P8 are either insubstantial photocopying marks which are meaningless given the number of copies of the 6 and 27 May documents which have been made (the latter themselves being copies) and the appellant's arguments on these matters miss or avoid the fundamental reality of the findings of the magistrate that PW1 received Exhibit P7 on 6 May by fax from the appellant and Exhibit P8 on 27 May from the appellant personally and that both documents had been altered to suggest a review of the X-rays of the appellant had found it "likely" that glass particles were discernable in those X-rays. That evidence of PW1 was accepted by the magistrate.

33. Other criticisms of PW1's credibility are even more insubstantial, e.g. the asserted omissions in his statements to the police. All these criticisms can be resolved by way of a small application of common sense.

34. There was nothing advanced before me to suggest the magistrate was wrong to regard PW1 as a witness of truth. There is no merit in the first ground of appeal.

35. That then leads on to the second ground of appeal of the appellant.

36. The magistrate had concluded that the deletion of the letters "un" from the copy of the hospital notes originally provided by the hospital could not have been a mechanical photocopying error. He gives cogent reasons for this in his Statement of Findings :

" I found it virtually impossible for the missing of the two letters 'un' be the result of mechanical defect of a photocopying machine. A photocopying machine couldn't selectively delete just these two letters from the document. It's clear to me that it was done by someone deliberately, i.e. by erasing the two letters before producing a copy of the altered copy."

37. I might add to that, that as was part of the prosecution's submission at the magistracy trial, the line underneath the original word "unlikely" remains intact and it appears even more unlikely that a mechanical defect would selectively delete the two letters "un" but leave the line beneath them, comprising a series of dots, intact. The real question then was if the alteration was deliberate, then who did it?

38. The appellant argues that the magistrate wrongly concluded that the only reasonable inference on the evidence accepted by him was that the appellant was the person who altered the copy of the hospital notes. The appellant argues that, apart from him others came into possession of the copy of those notes. They were in chronological order : staff at the hospital; PW2 a solicitor who at some stage advised the appellant but who did not represent him at the District Court trial, and PW1.

39. Those were the only persons, apart from the appellant, who did or who possibly could have had sufficient access to the original copy of the hospital notes so as to alter them. The magistrate considered each possibility in turn.

40. As to the possibility of a staff member of the hospital altering the copy made of the hospital notes and providing it in its altered form to the appellant, the magistrate said :

" The copy of the patient notes was given to the Appellant by the Tang Siu Kin Hospital upon the Appellant's request. I failed to see why the staff of the hospital would make any alteration before giving a copy to the Appellant. It didn't make any sense at all. Therefore, the only inference was: when the Appellant received the copy of patient notes from the hospital, there was no alteration whatsoever."

41. As to the next person who received a copy of the hospital notes, PW2 the solicitor, who while not appearing for the appellant at the District Court trial had done some work for the appellant in respect of his claim beforehand, the magistrate said :

" The next person who came into contact with this copy of patient notes was PW2 and/or his secretary. PW2 didn't involve himself in the civil action save and except that he gave some preliminary advice and drafted a letter of complain for the Appellant. In the letter of complain, PW2 made no reference to the patient notes, therefore, it's obvious that PW2 paid no attention to the patient notes at all. It's never suggested to PW2 by the defence that it was him or his staff who did the alteration. In any event, it didn't make any sense too because PW2 had very little interest and involvement in this civil case."

I will necessarily return to consider PW2's role in this in some detail in due course.

42. The final person who came into contact with copies of the hospital notes was PW1. The magistrate's findings concerning PW1 were as follows :

" Then, the next person who came into contact with this copy of patient notes was PW1. PW1 represented the Airlines which was facing an allegation by the Appellant that the Appellant had consumed glass fragment. It would be beyond any stretch of imagination that PW1 would alter the medical findings so that they changed from neutral to favourable to the Appellant's case. Without this altered finding, all medical evidence were either neutral or didn't support the Appellant's case. PW1 must be out of his mind if he altered the findings in the Appellant's favour. Equally, it would be hard to accept that PW1 would not point out the fact that the finding in question had been altered during trial had PW1 known it beforehand."

43. The magistrate concluded that the irresistible inference was (and I have no doubt he properly applied the test of only reasonable inference in expressing himself in that way) that the appellant himself had altered the copy of the hospital notes provided to him by the hospital.

44. As that stands there can be no criticism of the magistrate's drawing of the inference against the appellant that he did draw.

45. As I say, the appellant's assertion that PW1 knew of the alteration to Exhibit P8 prior to the commencement of the District Court trial is unsupported by any evidence which was accepted by the magistrate. And indeed that assertion is, as presented to me, based primarily on flimsy and insubstantial speculation or on a misunderstanding or misrepresentations of the actual evidence in the magistracy trial. Indeed, the fundamental concept of the appellant's argument that PW1 could have set out to allow his client to lose its case on the basis that at some later point down the road he could resuscitate matters by demonstrating that the Exhibits P7, P8 (and therefore Exhibit P2) were forgeries is one which simply does not hold water. Why would PW1 not reveal the forgery during the trial? No pre-trial review agreement would survive such an application made on the basis that the court had been duped by a forgery. Or why not reveal the forgery before trial? The same result follows. There is no sense in the appellant's argument in this regard.

46. The appellant also argued that it was unreasonable to think he would have altered the word "unlikely" to "likely" in the copy of the hospital notes he provided to PW1 for the simple reason that there were other entries in those notes (Exhibit P8) which suggested no glass was found and that there was little purpose in presenting only a partially altered document to PW1. But that argument overlooks a fundamental fact that the section of the notes altered was dated 4 October 2000 and described as a review of the X-ray films. Previous comments about no glass being seen in the X-rays were dated 3 October 2000.

47. The various other complaints of the appellant have little foundation in reason and none in fact except for one single matter which I will now deal with. It is the appellant's third ground of appeal.

48. PW2 gave evidence. He was a solicitor originally approached by the appellant for the purposes of the District Court civil trial. The transcript of his evidence was not provided for the purposes of this appeal. Perhaps somewhat surprisingly, as increasingly during the course of the appeal, the appellant's allegations against PW1 were supplanted by allegations directed also at PW2.

49. PW2's evidence can, however, be gleaned from the magistrates Statement of Findings. Apparently in his evidence, as in his witness statement to the police which was produced before me for the purposes of the appeal, PW2 said that he had very little to do with the appellant or the appellant's case apart from the preparation of a letter of demand sent to the airline.

50. The magistrate's comments concerning his evidence, in addition to those set out already above, were as follows :

" PW2 was the sole proprietor of a solicitor's firm. He testified that the Appellant first approached him in November 2000 in relation to complain against the Airlines. PW2 drafted a complain letter on behalf of the Appellant and rendered certain legal advice to the Appellant. Otherwise, PW2 didn't involve in the civil case at all. PW2 did have a copy of the patient notes in his possession but he couldn't recall whether he got it from the Appellant or from PW1's firm."

51. In his witness statement to the police, PW2 said he charged the appellant $1,000 for this service. The appellant produced before me a statement of fees apparently sent to him by PW2's firm on that firm's letterhead detailing a considerable amount of work done by that firm over a period from 3 November 2000 up to 24 July 2002, which was only some five days before the date appearing on PW2's witness statement to the police of 29 July 2002. The total of the fees as set out therein was $68,400. There seems therefore a significant discrepancy on that material between the witness statement and evidence of PW2 and the content of his firm's fee-note.

52. The appellant had this fee note at the time of the trial before the magistrate. The appellant during that trial was represented by a counsel whose presentation of his case, from the transcripts before me, seemed more than competent.

53. The appellant has raised nothing before me in the way of suggesting his counsel was incompetent. Nor is there anything upon my reading of the transcript which would suggest so. The appellant's criticism is that his counsel did not use the material in the way the appellant now says it should have been used.

54. It is true PW2 was not cross-examined either on the contents of his witness statement or on the contents of the fee note. It's true he could have been. The appellant told me that he had brought this aspect of the case to the attention of his counsel. Further, apparently in the cross-examination of PW2 it was never suggested to him that either he or his staff made the alteration to the hospital notes. That must have been a considered decision. In my view, it is too late now for the appellant to come forward with additional material which was in his possession and in the possession of his counsel at the time of trial but deliberately not used and produce it now claiming it assists his case. He was represented at trial, and properly represented. For whatever reason, tactical or otherwise, PW2 was not cross-examined on these materials it is in my view a decision which the appellant must abide by. This alone is a sufficient reason to find against the appellant's argument concerning the discrepancy between PW2's fee note and his witness statement as evidence causing his trial to be not fair. He did have a fair trial. He ran it in toto the way he and his counsel chose.

55. But I will go on in any event. The appellant's present approach to this appeal so far as PW2 is concerned seems to differ considerably from the approach taken at trial. The only suggestion made at trial concerning PW2 or his firm was, as put before the magistrate during final submissions, that a mistake could have been made during the firms photocopying process.

56. The suggestion here must have been that after that photocopying process, a defective photocopy which had mistakenly had altered the word "unlikely" to "likely", a possibility completely dismissed by magistrate, was returned to the appellant who later innocently provided that to PW1. That brief mention of the matter at trial became transformed into a direct allegation by the appellant during this appeal that PW2 had a motive to intentionally alter the hospital notes, so as to allow the appellant to win the case and obtain his costs from the winnings.

57. With respect to the appellant, I think this is also a fanciful suggestion. Whatever the reason behind the discrepancy in PW2's firm's fee note and PW2's description in evidence of the small amount of work done by his firm for the appellant, I do not know. But in my view, the suggestion that a solicitor, the proprietor of a firm, would, without the appellant's knowledge, provide him with a forged hospital record, without informing the appellant of that fact, in the hope that the forged document would be innocently provided by the appellant in due course to the other side, and that eventually it would be provided, still undetected as false to the court, accepted by the court as genuine as a result of no contradictory medical evidence being called during the course of the trial and form a basis for the court to eventually decide in favour of the appellant and all so that solicitor could get his costs is too fanciful in my view and ascribes motives without reality to the person or persons involved. I am not surprised that this did not form part of the appellant's case at trial.

58. I am satisfied that even had this evidence been provided to the magistrate, his decision would have been no different. In my judgment then this final argument of the appellant must also fail.

59. For these reasons, the appeal is dismissed.