SECRETARY FOR JUSTICE v. YEUNG HON KEUNG, LARRY

CACC 359/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 359 OF 2006

(ON APPEAL FROM DCCC NO. 964 of  2005)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  Yeung Hon-keung, Larry (the respondent) stood trial in May 2006 before Deputy District Judge D I Thomas on five closely related charges.  The judge convicted the respondent on the 1^st charge of obtaining services by deception contrary to section 18A(1) of the Theft Ordinance, Cap. 210 and on the 4^th charge of fraud contrary to section 16A(1) of the same ordinance.  The respondent was, however, acquitted on charges 2, 3, and 5 after the judge ruled that there was no case to answer on them.  Two of the acquittals (on charges 2 and 3) are now the subject of these proceedings, an application having been made to the judge on behalf of the Secretary for Justice (the appellant) to state a case pursuant to section 84 of the District Court Ordinance, Cap. 336.

2.  Charges 2 and 3 read as follows:

2^nd Charge
Statement of Offence

Using a false instrument, contrary to section 73 of Crimes Ordinance, Cap. 200.

Particulars of Offence

Yeung Hon-keung, Larry, on or about the 2^nd day of May 2000, in Hong Kong, used an instrument which was and which he knew or believed to be false, namely a letter [Exhibit P7] purportedly issued by Tai Po Hotel and dated the 2^nd day of May 2000, with the intention of inducing members of the PCLL Admissions Committee of The University of Hong Kong to accept it as genuine, and by reason of so accepting it to do or not to do some act to their own or any other person’s prejudice.

3^rd Charge
Statement of Offence

Forgery, contrary to section 71 of the Crimes Ordinance, Cap. 200.

Particulars of Offence

Yeung Hon-keung, Larry (‘Yeung’), in or about February 2000, in Hong Kong, together with Cheung Shui-ting, made a false instrument, namely a letter [Exhibit P26] purportedly issued by Tai Po Hotel and dated the 25^th day of February 2000, with the intention that Yeung should use it to induce members of the PCLL Admissions Committee of The University of Hong Kong to accept it as genuine, and by reason of so accepting it to do or not to do some act to their own or any other person’s prejudice.

3.  It was accepted both by Mr William Tam for the appellant and Mr Plowman SC for the respondent that the issue to be determined in the appeal was whether the two letters identified in the charges, Exhibits P7 and P26 respectively, which purported to have been issued by an employer of the respondent, constituted false instruments under the provisions of the Crimes Ordinance, Cap. 200 (the Ordinance), when no employer-employee relationship existed between the purported employer and the respondent.

4.  The focus of the appeal, therefore, involved the interpretation of the meaning of ‘false’ in section 69(a)(vii) of the Ordinance when applied to the particular circumstances which arise in this case.  The conclusion we have reached, however, will have application to other cases of a similar kind which, by their very nature, may not be unusual.

The facts

5.  The factual background, as set out in the case stated, was essentially straightforward and, for present purposes, we can adopt in large measure Mr Tam’s helpful synopsis.

6.  At all material times, the School of Professional and Continuing Education (‘SPACE’) of the University of Hong Kong (‘the University’) was offering the course of Postgraduate Certificate in Laws (‘the PCLL course’) which could be undertaken by students working either full-time or part-time.  The full-time course lasted for one year whereas the part-time course would require two years to complete.  In order to be allowed to study on a part-time basis, a student had to meet certain requirements imposed by the Law Society.  Firstly, such a student had to be either a civil servant or in full-time employment in the private sector or a full-time care-giver.  Secondly, for those in the civil service or in private employment, the prospective student had to provide a support letter from, respectively, his civil service supervisor or from his employer in which the supervisor or employer acknowledged that he was aware that the prospective student would be required to attend tuition for a certain number of hours during the working week.  The supervisor or employer would also be required to confirm that the prospective student would be released for such tuition.  A sample employer’s support letter was given to prospective students for them to follow.

7.  In regard to charge 2, on or about 2 May 2000, for the purpose of applying for admission to the part-time PCLL course, the respondent falsely represented to the University in his application to join the course that he was then employed as “Legal Manager responsible for in-house legal matters” at the Tai Po Hotel and that his employer had agreed to release him to attend the day-time classes for the part-time course.  In fact, the respondent was employed as a full-time teacher by the Education Department and the Department had not been made aware of his intention to study for the course.  The respondent had, however, applied to the Education Department for the grant of twelve months’ unpaid leave in order to study for a postgraduate certificate in education (‘PCEd’).  This application was refused on the ground that he had given insufficient notice of his intention to study for that qualification.

8.  As part of the application for admission to the University, the respondent submitted to the University, on or about 2 May 2000, a support letter (Exhibit P7), purportedly issued by the Tai Po Hotel, to the effect that the Tai Po Hotel, as the respondent’s purported employer, supported the respondent’s intention to study on this course and agreed to release him from his work duties to attend the day-time classes for the PCLL course (charge 2).

9.  In respect of charge 3, the prosecution alleged that the respondent had, on a prior occasion in or about February 2000, asked the manager of Tai Po Hotel, Philip Cheung Shui-ting (PW4), to sign a support letter (Exhibit P26) issued by the Tai Po Hotel as the respondent’s purported employer in the same terms as the support letter, Exhibit P7.

10.  Philip Cheung Shui-ting (PW4), the named accomplice in charge 3, gave evidence at the trial under immunity.  From 1991 until the end of August 2002, he was the manager of the Tai Po Hotel which was owned by a holding company, Well Fortune Investment Limited.  Amongst the shareholders were the respondent’s sister (Carey Yeung) and her husband.  PW4 gave evidence that the respondent had never been employed by the Tai Po Hotel.

11.  Sometime in 2000, the respondent met PW4 in the Tai Po Hotel saying that he wished to continue his studies and had prepared a typed letter for this purpose (Exhibit P26) and he asked PW4 to sign the letter.  PW4 said that his sight was not very good and that his command of English was poor but he took the letter into his office and used a magnifying glass to read it.  PW4 saw that the letter did not involve the hotel in any expenditure and appreciated that it was a letter purporting to release the respondent from work at the hotel in order to attend lessons and examinations.  PW4 signed and chopped the letter because he admired the respondent for continuing his studies.

12.  The letter, Exhibit P26 (in relation to the alleged forgery in charge 3), was dated 25 February 2000 and was written on Tai Po Hotel’s headed notepaper.  Its terms, which followed the format in the sample letter provided by the University, were as follows:

“PCLL Admissions Committee,
School of Professional
& Continuing Education,
Law Section, 10/F.
T. T. Tsui Building,
University of Hong Kong,
Pokfulam Road,
Hong Kong.

Attention: Ms. Amanda Whitfort

Dear Ms. Whitfort,

Re: Yeung Hon Keung Larry
Application to Part-Time PCLL Programme

I am aware that Yeung Hon Keung Larry has applied to the above programme and fully support his intention to study on this course.

I understand that he will be required to attend lectures and tutorials during normal working hours. I acknowledge that this may mean releasing him from his work duties on up to four half days each week and for all examinations and graded assignments scheduled on the course.

	Yours faithfully,
	Philip Cheung
	Manager
	For and on behalf of
	Tai Po Hotel”

13.  The letter dated 2 May 2000, Exhibit P7, which was the subject of the 2^nd charge of using a false document, was written in identical terms save that it was signed by the respondent’s sister, Carey Yeung, as ‘Managing Director’.

The case stated

14.  In the case stated by the judge on 18 August 2006, he wrote that:

“35.   The letter in charge 3 was written on the headed notepaper of The Tai Po Hotel. It was signed by the person who purported to sign it. The person who did sign it was correctly described and had authority so to sign. I was able to take the letter and the way in which it came into existence into account for charge 1. It was not, however, in my judgment, a forgery or false instrument.

36.     The letter in charge 2 was also written on the headed notepaper of The Tai Po Hotel. The person who purported to sign it was correctly described and had authority so to sign. There was no actual evidence that the letter was signed by the purported signatory. However, there was no evidence that the signatory did not sign or that she might have signed. In the circumstances, therefore, there was no evidence that it was other than the purported signatory who did sign. Again, I was able to take the letter and the way in which it came into existence into account for charge 1. It was not, however, in my judgment, a forgery or false instrument. (Appeal bundle pp. 14-15)

15.  In the result, the questions of law arising from the judge’s conclusions to be determined by the Court of Appeal were stated by him as being:

“Firstly: was I correct in finding that the two letters in question were not false documents within the meaning of Part IX of the Crimes Ordinance even though they described an employer/employee relationship that did not exist?

Secondly: was I correct in ruling that there was no case for the defendant to answer on charges 2 and 3 on the basis that there was no evidence that the documents in question were false instruments?”

Statutory Provisions

16.  The offence of forgery, in section 71 of the Ordinance, is described as follows:

“A person who makes a false instrument, with the intention that he or another shall use it to induce somebody 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, commits the offence of forgery …”

17.  Similarly, with regard to using a false instrument, section 73 of the Ordinance provides:

“A person who uses an instrument which is, and which he knows or believes to be, false, with the intention of inducing somebody 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, commits an offence …”

18.  Section 69 of the Ordinance explains the meaning of “false” and “making” in these sections and provides that:

“For the purpose of this Part-

(a)   an instrument is false if it purports to have been-

(i)        made in the form in which it is made by a person who did not in fact make it in that form;

(ii)       made in the form in which it is made on the authority of a person who did not in fact authorize its making in that form;

(iii)      made in the terms in which it is made by a person who did not in fact make it in those terms;

(iv)      made in the terms in which it is made on the authority of a person who did not in fact authorize its making on those terms;

(v)       altered in any respect by a person who did not in fact alter it in that respect;

(vi)      altered in any respect on the authority of any person who did not in fact authorize its alteration in that respect;

(vii)     made or altered on a date on which or place at which or otherwise in circumstances in which it was not in fact made or altered; or

(viii)    made or altered by an existing person but he did not in fact exist;

(b)   a person is to be treated as making a false instrument if he alters an instrument so as to make it false in any respect, whether or not it is false in some other respect apart from that alteration.” (Emphasis added.)

19.  The prosecution at trial, which Mr Tam also conducted, alleged that both support letters were false instruments within the terms of section 69(a)(vii) of the Ordinance.  There was no employer-employee relationship between the respondent and the Tai Po Hotel but the letters were used (charge 2) and made (charge 3) to induce the University to admit him to the PCLL course.  They gave support to the respondent’s application to the University for admission, dated 2 May 2000, wherein the respondent had claimed to have been employed at the Tai Po Hotel as its Legal Manager from January 1992 until May 2000.

Discussion

20.  Mr Tam in these proceedings argued that under the terms of section 69(a)(vii) of the Ordinance, the letters in question were false in the sense that they purported to have been made in circumstances in which they were not in fact made.  He relied, in this regard, upon the English Court of Appeal’s judgment in Attorney-General’s Reference (No. 1 of 2000) [2001] 1 Cr App R 218 at 225 which dealt with the interpretation to be given to a mirror-image provision to section 69(a) (vii) of the Ordinance contained in section 9(1)(g) of the Forgery and Counterfeiting Act 1981 (the 1981 Act).

21.  A contrary argument was advanced by Mr Plowman who submitted (1) that the two letters in question were not false documents under the principles stated in Attorney-General’s Reference (No. 1 of 2000); (2) that there were in any event other decisions which conflicted with that authority; and (3) by way of alternative, Attorney-General’s Reference (No. 1 of 2000) was wrongly decided and should not, therefore, be followed.

22.  The provisions of the 1981 Act, relevant to this appeal, were based upon the Report on Forgery and Counterfeit Currency (the Law Commission No. 55, 1973).  We need only refer to parts of paragraphs 14 and 41 to 43 of the Report for present purposes which are in these terms:

“14. … In the many and varied activities of modern society it is necessary to rely to a large extent on the authenticity of documents as authority for the truth of the statements which they contain. Indeed, in the vast majority of forgery cases the purpose of the forger is to lull the person to whom the document is presented into a false position in which he will be unlikely, because of the apparent authenticity of the document, to make further enquiry into the correctness of the facts related. The same is not true of false statements contained in a document which carries no spurious authenticity. A letter by an applicant for an appointment setting out falsely his qualifications is in quite a different category from a letter of recommendation purporting to come from a previous employer.” (Emphasis added.)

……

41.    … It was in R. v. Windsor [(1865) 10 Cox CC 118 at 123] that Blackburn, J. said -

‘Forgery is the false making of an instrument purporting to be that which it is not, it is not the making of an instrument which purports to be what it really is, but which contains false statements. Telling a lie does not become a forgery because it is reduced into writing.’

This test was recently applied in the Court of Appeal in R. v. Dodge and Harris [(1972) 1 QB 416], which makes it clear that any dicta to the contrary in R. v. Hopkins and Collins [(1957) 41 Cr App R 231] do not correctly state the law. Section 1(2) of the Forgery Act 1913 puts into statutory form a series of decisions as to what at common law could amount to a false document, but is not intended to be an exhaustive definition. It provides that a document is false if the whole or any material part of it purports to be made by any person who did not make it or authorise its making; or if the time or place of making, where either is material, or in the case of a document identified by number or mark, the number or any distinguishing mark identifying the document, is falsely stated in it.

42.     As we have said in Part III, the primary reason for retaining a law of forgery is to penalise the making of documents which, because of the spurious air of authenticity given to them, are likely to lead to their acceptance as true statements of the facts related in them. We do not think that there is any need for the extension of forgery to cover falsehoods that are reduced to writing, and we do not propose any change in the law in this regard. 

43.     The essential feature of a false instrument in relation to forgery is that it is an instrument which ‘tells a lie about itself’ in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was not made or altered.” (Emphasis added.)

23.  Mr Tam relied upon the italicised passage in paragraph 14 of the Report in which the distinction is drawn between a letter written by an applicant for an appointment falsely setting out his qualifications and a letter of recommendation purporting to come from a previous employer which was described as being “in quite a different category”.  He submitted that, within the terms of paragraph 43, such a letter would be “an instrument which ‘tells a lie about itself’ in the sense that it purports to be made ... in circumstances in which it was not made …”.  The purported employer, the Tai Po Hotel, had never employed the respondent.  Mr Plowman, on the other hand, submitted that the letter merely contained lies and he relied on the italicised passage in paragraph 42 of the Report which suggested that there was no need for the “extension of forgery to cover falsehoods that are reduced to writing” and stated that no change in the law in this regard was proposed.

24.  This topic was given close consideration in an article which traced the historical development of the law relating to forgery entitled ‘Falsity in Forgery’ [1989] Crim LR 687 by Mr Roger Leng of the Faculty of Law at the University of Birmingham.  Lord Woolf CJ, in Attorney-General’s Reference (No. 1 of 2000) at 221 (above), said that the court had been “considerably assisted” by this article.  In the opening paragraph, relied upon by Mr Tam, the article stated:

“The offence of forgery serves a special function complementary to, but distinct from that of the various deception offences. Those offences are concerned with particular incidents of gaining an advantage by deceiving another. The essence of forgery is the creation of a false document of a type which could normally be relied upon, intending to induce another to accept it as genuine and act upon it to his disadvantage. Thus, forgery penalises overt preparation for deception. The justification for departing from the principle that there should be no liability for mere preparation for crime, is suggested by the Law Commission: ‘In the many and varied activities of modern society it is necessary to rely to a large extent upon the authenticity of documents as authority for the truth of the statements which they contain’ [Law Commission Report No. 55, Forgery and Counterfeit Currency (1973) para. 14]. Thus the rationale of forgery is the need to underpin confidence in various types of social and commercial transactions, by guaranteeing key documents on which those transactions turn.” (Emphasis added.)

25.  Before turning to Attorney–General’s Reference (No. 1 of 2000), it is convenient to deal with four other decisions of the English Court of Appeal which were considered in that case.  In R v Donnelly [1984] 1 WLR 1017, the appellant was the manager of a jeweller’s shop.  He had prepared an insurance valuation which he gave to another person for the purpose of defrauding an insurance company.  The valuation was purported to have been made after certain items of jewellery had been examined whereas, in fact, no such jewellery existed.  The respondent’s counsel conceded that both at common law and under the old law (the Forgery Act 1913), this valuation would not have been a forgery but he submitted that under the new law (the 1981 Act) the instrument was, pursuant to section 9(1)(g), a false one.  It was argued that the title of the 1981 Act in itself demonstrated that new law was intended.  This reads: “An Act to make fresh provision … with respect to forgery and kindred offences”.  Lawton LJ, dismissing the appeal against conviction, held (at page 1019):

“Following the wording of paragraph (g) the judge directed the jury as follows: ‘An instrument can be false if it purports to be made in circumstances in which it was not in fact made.’

In our judgment the words coming at the end of paragraph (g) ‘otherwise in circumstances ...’ expand its ambit beyond dates and places to any case in which an instrument purports to be made when it was not in fact made. This valuation purported to be made after the appellant had examined the items of jewellery set out in the schedule. He did not make it after examining these items because they did not exist. That which purported to be a valuation after examination of items was nothing of the kind: it was a worthless piece of paper. In our judgment the trial judge’s direction was correct. This purported valuation was a forgery.” (Emphasis added.)

26.  R v Donnelly was also reported in the Criminal Law Review [1984] 490 where criticism was made of that decision in the commentary by Professor Sir John Smith where he suggested that if the Court of Appeal’s judgment was to be followed “the law of forgery is extended far beyond its proper bounds”.  We shall turn in due course to this article in the context of the judgment in Attorney-General’s Reference (No. 1 of 2000) where Lord Woolf CJ specifically remarked upon it.

27.  The second relevant authority to which we have turned our attention was R v Jeraj [1994] Crim LR 595.   In that case, a bank officer wrote on bank notepaper verifying that he had received and endorsed a letter of credit when neither of these assertions was true.  There was no letter of credit, but the note he had written was given to third parties who advanced money having placed reliance on the note.  The short report of the case (although we have also been provided with a transcript of Lord Taylor CJ’s judgment) indicates (at page 596) that the Court of Appeal held, dismissing the appeal, that the trial judge had rightly considered he was bound by the decision in Donnelly (above) and that:

“The form of the letter was such as to represent that the letter itself, together with the letter of credit, amounted to a kind of articulated document, the letter of credit being subject to an addendum, or endorsement, by reason of this letter which was to be attached or read with it. To that extent the letter did tell a lie about itself because it was clearly not an endorsement of the letter of credit which at that stage did not exist.”

28.  A critical analysis of this decision was again provided by Professor Sir John Smith in the commentary which followed in which reference is made to two other English decisions (R v More [1988] 86 Cr App R 234 in the House of Lords and R v Warneford and Gibbs [1994] Crim LR 753 in the Court of Appeal).  The commentary reads:

“Donnelly is criticised in the commentary in [1984] Crim.L.R. 491 where it is pointed out that the decision is inconsistent with the intention revealed in the Law Commission Report on which the [1981] Act is based and with its consideration by Parliament. As stated in the commentary, ‘There is something wrong ... when a court can use as a step in its argument that a provision was intended to make new law when, in fact, that was not the intention of anyone concerned with its enactment.’ The report might have been, but was not, cited to the court in Donnelly. The court could not then have heard evidence of the Parliamentary debate, but now it could do so: Pepper v. Hart [1991] 2 All E.R. 824, H.L, - though the report alone should be quite adequate to carry the point.

The present court’s interpretation of More is, with respect, hard to follow. Lord Ackner asserted quite positively that ‘the consistent use of the word “purports” in each of paragraphs (a) to (h) inclusive of s.9(1) of the Act imports a requirement that for an instrument to be false it must tell a lie about itself. …’

Donnelly, which was concerned with section 9(1)(g), held that the document need not tell a lie about itself. See also Smith & Hogan, Criminal Law (7th ed.), p.664.

In the meantime, another division of the Court of Appeal, apparently unaware of the present decision, has held that Donnelly was wrongly decided: Warneford and Gibbs, The Times, May 18, 1994, discussed in Archbold News for May 27, 1994, p.6. Clearly the matter demands an appeal to the House of Lords. Pending a ruling by their Lordships, it is submitted that the courts must choose between two inconsistent rulings by the Court of Appeal and that Warneford and Gibbs is the correct decision.”

29.  In R v More [1987] 1 WLR 1578, the appellant was charged with a number of offences including forgery of a bank withdrawal slip.  He had stolen a cheque made payable to ‘M.R. Jessell’ and had then taken the cheque to a building society where he opened an account in the name of ‘Mark Richard Jessell’.  The stolen cheque was then paid into the account by him.  Some days thereafter, he signed the withdrawal slip and withdrew money from his newly opened account.  It was held, on appeal to the House of Lords, that the withdrawal form signed by the appellant had purported to be signed by the person who had opened the account and in this respect was accurate.  In these circumstances, it had not told a lie about itself and the appellant could not be guilty of forgery under section 9(1)(h) of the 1981 Act.  It is to be noted, however, that this section is different to the one with which we are concerned under the Hong Kong Ordinance.  Section 9(1)(h) corresponds with section 69(a)(viii) of the Ordinance which is concerned with the identity of the purported maker of the document rather than an instrument which purports to have been made in circumstances in which it was not in fact made.  This point was made by Mr Leng in the article ‘Falsity in Forgery’ to which we have referred already (at paragraph 24), where he stated that:

“Donnelly was not mentioned in the judgments of either the Court of Appeal or the House of Lords in More.  This is not surprising since More was concerned with falsity in relation to identity whereas Donnelly dealt with falsity as to circumstances.”

30.  Whilst conceding that there was a difference in the factual circumstances between the instant appeal and R v More, Mr Plowman submitted that More’s case nevertheless gave support to the argument that the documents with which we are now concerned were not “false” within the meaning of the Ordinance, relying on Lord Ackner’s statement that:

“It is common ground that the consistent use of the word ‘purports’ in each of the paragraphs (a) to (h) inclusive of section 9(1) of the [1981] Act imports a requirement that for an instrument to be false it must tell a lie about itself, in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was not made or altered.” (Emphasis added.)

31.  We turn next to R v Warneford and Gibbs [1994] Crim LR 753 where there is some factual similarity to the case presently before us.  There, the appellants were alleged to have engaged in mortgage fraud.  The false instrument was what purported to be an employment reference on behalf of Warneford when he had no employment of the kind described in the letter.  The prosecution’s case was that this document fell within section 9(1)(g) of the 1981 Act, the argument being that this was a “circumstance” in which the document, on its face, purported to have been made.  Although the appeal was decided a few weeks after Jeraj (above), that decision was unfortunately not brought to the Court of Appeal’s notice and, in a passage relied on by Mr Plowman, Laws J, (giving the judgment which we have been given in the form of a transcript) stated (at page 6) when allowing the appeal against conviction on this count:

“[Prosecuting counsel’s] whole argument must depend on the force of the distinction he drew between a false reference given by someone who was not the subject’s employer at all but who represented himself as such, and on the other hand one given by the true employer which nevertheless tells lies about the nature or duration of the employment. He says there is a forgery in the first case, but not in the second. He says that in the first case the document is not a reference at all; in the second it is merely a dishonest reference. In our judgment the distinction has no force whatsoever. It is merely a distinction of degree. In both cases, the lie told is not about the document but about something else, namely the facts of the relationship between the putative employer and the subject of the putative reference. The argument would require the court to accept the proposition that in the one case the document is what it says it is, but in the other it is something else. The criminal law cannot be made to depend upon disreputable metaphysics of this kind.”

32.  Plainly, the decisions in R v Warneford and Gibbs on the one hand and in Donnelly and Jeraj on the other were in direct conflict and, although Warneford and Gibbs does not appear to have been mentioned in the proceedings before the judge in the instant appeal, the view taken by the judge was to similar effect (see: paragraph 14 above).

33.  The decision in Warneford and Gibbs is dealt with in the context of the judgment given in Attorney-General’s Reference (No. 1 of 1990) [2001] 1 Cr App R 218 to which we can now turn.  The factual background giving rise to that case was simple.  This concerned a professional coach driver whose vehicle was fitted with a device which recorded, amongst other things, the rest periods taken in the course of a journey as required by law.  The driver produced a tachograph record which indicated that he had taken a break from driving while a co-driver had taken over the driving.  In fact, there was no second driver and the record was false.  The driver was charged with forgery of a tachograph record sheet, contrary to sections 1 and 9 of the 1981 Act.  The judge ruled that these facts did not amount to forgery and the driver was formally acquitted.  The Attorney-General sought the opinion of the Court of Appeal on a question which, in essence, asked what was required to be proved for an instrument to purport to have been made in circumstances in which it was not in fact made so as to establish falsity for the purposes of the 1981 Act.

34.  Lord Woolf CJ examined the cases to which we have referred.  This was necessary, in any event, for the purposes of understanding the ruling which the trial judge had made that the driver’s conduct, when producing the false tachograph record, did not amount to the offence charged.  In carrying out this exercise, Lord Woolf CJ (at page 221) summarised the development of the law of forgery by reference to Mr R Leng’s article (at paragraph 24 above), pointing out that Mr Leng explained that:

“… although a forgery at common law was traditionally concerned with authorship only, the offence was extended to cover cases in which the instrument was authentic in point of authorship but purported to be made on a false date or at a false time when that date or time was of significance to the instrument. The Forgery Act 1913 extended the definition of the offence to include falsity as to the place where the instrument was made. The final step in the history which is relevant, is the inclusion of the critical words ‘other circumstances’ in section 9(1)(g) of the 1981 Act. It is the failure of the Law Commission to explain what these words were intended to achieve which has given rise to the difficulties.”

35.  Then (at page 222), Lord Woolf CJ dealt with the decision in R v Donnelly (the false jewellery valuation).  The judgment given by Lawton LJ was described as “characteristically forthright and succinct”, and part of the passage we have set out at paragraph 25 above is cited.  So, also, is part of Professor Sir John Smith’s commentary on that case where Lord Woolf CJ said:

“The report of this case in the Criminal Law Review was followed by a penetrating comment by Professor Sir John Smith. He stated:

‘If the present case is followed, the law of forgery is extended far beyond its proper bounds. Whenever an instrument tells a lie about some alleged past fact it purports to be made after the fact occurred. There was nothing peculiar about the alleged fact of having examined and valued the items of jewellery. Thus, virtually all documents telling lies would be capable of amounting to forgery. …The sort of circumstances which the provision is intended to cover is the case where an instrument purports to be made in the presence of a witness who was not in fact present.’” (Emphasis added.)

Lord Woolf CJ then continued:

“15    We understand and sympathise with the desire not to give an excessively broad interpretation to section 9(1)(g). The material words in 9(1)(g) are the only non-specific category of falsifying which features in section 9(1). In addition we are mindful of the fact that forgery is unique among fraud offences in that the offence consists in creating the forged instrument even though the instrument has not yet been, and may never be, used to deceive anyone. In that sense it makes a preparatory act punishable under the criminal law. However, the approach in Donnelly can be adopted without going so far as to make any instrument which tells a lie about some alleged past fact a forgery. It is of the essence of a valuation that the articles, the subject of the valuation, have been examined. This is because a bona fide valuation requires some examination of what is the subject of the valuation. The lie in Donnelly therefore related to an event which must have occurred before a genuine valuation could be made.” (Emphasis added.)

36.  The Court of Appeal had also been referred to R v Lack [1987] 84 Cr App R 342.  However, as Lord Woolf CJ pointed out, that was a case which involved a consideration of section 9(1)(a) and not section 9(1)(g) of the 1981 Act so that it provided no direct authority on the interpretation of section 9(1)(g).  For the same reason, we have not thought it necessary to consider the decision in R v Lack.

37.  Next, Lord Woolf CJ dealt with the Jeraj case (concerning the note written by a bank officer stating that a letter of credit had been received and had been endorsed by him) where Lord Taylor CJ had applied Donnelly.  On the basis of the reasoning given in the judgment (see: paragraph 27 above), Lord Woolf CJ continued (at page 224) by saying:

“... relying on the fact that Donnelly had not been disapproved of in More, this Court concluded that the judge was right to hold himself bound by Donnelly. Lord Taylor also indicated that unless he considered that Donnelly was ‘plainly wrong’, this Court would be bound to follow it. He did, however, add that he thought ‘it was right’.”

38.  When dealing with the case of Warneford and Gibbs, concerning the letter used in a mortgage fraud giving a false employment reference, Lord Woolf CJ observed that if the court in that case “had been aware of the decision in Jeraj, we doubt whether they would have taken this view as to the correctness of Donnelly.  Certainly, having regard to Lord Taylor’s judgment, it is difficult to say that Donnelly was ‘plainly wrong’”.  Lord Woolf CJ concluded the judgment in relation to this aspect of the case by stating:

“24    In view of the decision of this Court in Jeraj, we have come to the conclusion that the decision of Donnelly is still binding upon us. Both Donnelly and Jeraj should however be restricted in their application so that they apply only where circumstances need to exist before the document can be properly made or altered. If those circumstances do not exist there will then be a false instrument for the purposes of section 9(1)(g). If the circumstances do not exist the document is telling a lie about itself because it is saying it was made in circumstances which do not exist. It follows that Warneford and Gibbs must be regarded as coming to the wrong conclusion on the facts, though we are in agreement with certain of Laws J.’s remarks, to which we referred earlier. In each case where we would hold the instrument to be false it could not have been made honestly if the circumstances which we have identified did not exist. Thus in Donnelly you could not make a valuation without having seen the jewellery which you purport to have valued. In Jeraj there had to be a letter of credit which could be endorsed. In Warneford and Gibbs there had to have been the relationship of master and servant before you could make a reference as an employer relating to an employee. The need for the existence of these circumstances prior to the making of the instrument explains why if the circumstances do not exist the document is telling a lie about itself.” (Emphasis added.)

39.  The last observation made by Lord Woolf CJ, that there “had to have been a relationship of master and servant” in Warneford and Gibbs before a reference could be made “as an employer relating to an employee”, has particular relevance in the instant case. The need for the existence of these circumstances prior to the making of the instrument provides the explanation, as Lord Woolf CJ stated, “why, if the circumstances do not exist, the document is telling a lie about itself”.  Mr Tam submitted, in the instant appeal, that this statement applied equally to the circumstances of the present case where the respondent had, respectively, used and made false instruments where no employer and employee relationship existed.

40.  Finally, in regard to the tachograph record itself, Lord Woolf CJ stated (at page 226):

“… The tachograph record is produced continuously over the period indicated by the record. It is being made throughout this time. In so far as the record was being produced in this case while the first driver was shown as driving there was no falsity in relation to its making. It was, however, capable of being a false instrument during the period when it showed that the first driver was not driving and that a second driver must therefore have been driving. To make that part of the instrument, it was essential for there to be a second driver during the period the tachograph was operated in the second driver position. There was no second driver and therefore the instrument was false. The circumstance which was false was that the record was being made during a period when there wrongly purported to be a second driver who was driving.”

41.  The judgment concluded by recognising the very real difficulties posed by the question on which the court’s opinion was sought.  Lord Woolf CJ stated:

“26    The question posed by the Attorney-General in this reference is in very wide terms. We are unable to indicate all the circumstances where falsity for the purposes of the 1981 Act could be established. We do, however, give our opinion on the second part of the question. We conclude that in the instant case, the tachograph record sheet was capable of being a false instrument. We come to that conclusion because an instrument will be false for the purposes of section 9(1)(g) if it is a document which requires, before it can be made or altered that there should exist or should have existed a set of circumstances and those circumstances do not or did not exist.” (Emphasis added.)

42.  This is not the first time in Hong Kong that Attorney-General’s Reference (No. 1 of 2000) has been given detailed consideration.  Mr Tam submitted that this court had applied it in reaching its decision in HKSAR v Huynh Bat-muoi [2001] 4 HKC 643.  Mr Plowman, on the other hand, argued that there was no express acceptance of that case in the Hong Kong judgment because it was held that the factual situation was very different from those covered by the English authorities.  Strictly speaking, Mr Plowman was correct.  In Huynh Bat-muoi’s case, the applicant was charged with aiding, abetting, counselling or procuring D1 to use a forged travel document, namely, a Belgian passport, contrary to section 42(2)(b) of the Immigration Ordinance, Cap. 115.  The applicant admitted in interview that a person who provided false passports (Ng) had promised to pay her for taking Chinese holders of forged passports to a foreign country.  The applicant then approached D1 and persuaded him to fly overseas using a forged passport.  When D1 agreed, the applicant took him to have passport photographs taken of himself and she, in turn, passed the photographs to Ng.  In due course, the applicant was provided with a Belgian passport bearing D1’s photograph.  The particulars on the passport otherwise bore no relation to D1.  Fresh evidence from the Consulate General of Belgium, introduced on appeal, was admitted to establish that the passport had been issued by the Belgian authorities in Brussels.  Again, the provisions in section 69(a)(vii) of the Ordinance were applicable in that case by virtue of section 68(2) which provides that “in any Ordinance, unless the context otherwise requires, ‘forgery’ shall be construed in accordance with this part”.  Woo JA (as he then was), stated:

“… The part of s 69(a)(vii) relevant for our consideration is that ‘an instrument is false if it purports to have been made in circumstances in which it was not in fact made’. The significant words are ‘the circumstances in which’ the instrument was ‘in fact made’. What is it that the passport purports to say about itself and about the circumstances in which it was made? Only that it has been issued by an official on such and such a date, and at such and such a place, pursuant to the authority which that officer had to issue it. The passport was in fact made in the form and upon the terms in which the maker made it. It has not since been altered, and was made on the date and place and in the circumstances in which it purports to have been made. If it also purports to represent that it was made after an application for a passport, then that too is an accurate representation about itself. The subject passport contains no lie about itself, although it contains a lie. It also contains no lie about the circumstances in which it was made, whether as to time, or place, or authority. Although it is an instrument containing a falsehood in the photograph in it not being that of the true holder and is a false travel document (containing a falsity in a material particular under s 42(5) of the Immigration Ordinance) or an unlawfully obtained one under s 42(2)(b) of the same Ordinance, we are not persuaded that it qualifies as a forgery under s 69(a)(vii) of the Crimes Ordinance or any of the categories of false instrument within the ambit of any other category under s 69. The factual situation here is very different from those in the English authorities cited above.”

43.  This court, in Huynh Bat-muoi, had earlier referred to Attorney-General’s Reference (No. 1 of 2000) without adversely commenting upon it.  The reference was, seemingly, made to distinguish the ultimate conclusion on the facts in that case from the circumstances which had arisen in Huynh Bat-muoi.

44.  Whilst not binding on this court, we consider that the reasoning given in Attorney-General’s Reference (No. 1 of 2000) to be powerfully persuasive.  There can be no doubt that the law relating to forgery has been widened in its scope since the time of earlier legislation which confined its application to much narrower issues.  The deliberate addition of the words “in circumstances in which it (the instrument) was not in fact made” to section 69(a)(vii) of the Ordinance, mirroring the same addition made to the 1981 Act in England and Wales, can only have been for this purpose.  The legislative intent seems to us to have been plain enough.

45.  Having considered the considerable body of case law on the subject of this appeal, we find ourselves unable to agree with the conclusion ultimately reached by the trial judge.  This implies no criticism of him.  Not only were there conflicting authorities on this issue, well summarised in Archbold 2007 at paragraphs 22-17 to 22-21, there was a further obvious factor which may well have influenced this highly experienced deputy judge to decide as he did.  Perhaps out of consideration to the prosecution, he refrained from direct criticism of the prosecution for proceeding on these charges at all.  It is quite clear that, having regard to the strength of the prosecution’s case on charges 1 and 4 of obtaining services by deception and fraud respectively, charges 2 and 3, as the judge recognized, added nothing of any substance to the case. The false instruments were admissible in evidence as the tools of deceit used by the respondent in the perpetration of the other two offences of dishonesty.  In this regard, including sentencing considerations, charges 2 and 3 were nothing but an unnecessary burden on the charge sheet.

Conclusion

46.  It follows from the reasons for our conclusion that, in our opinion, the two questions (at paragraph 15 above) posed for our consideration must be answered in the negative.  To this extent the appeal is allowed.

47.  It also follows that we have rejected Mr Plowman’s arguments.  Having said this, we would like to commend the exceptionally high standard of the written and oral submissions made by Mr Plowman leading Mr Derek Chan for the respondent and by Mr William Tam for the appellant.  We were greatly assisted by the submissions on a point of law which has given rise to so much difficulty in recent years.

48.  In the result, whilst we consider that the judge ought to have ruled that there was a case to answer on charges 2 and 3, we do not propose, nor indeed were we invited to make, any consequential orders.