HKSAR v. MAN CHI KEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.594
(Criminal)

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J U D G M E N T

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Stuart Moore, J.A. (giving the judgment of the Court):

1. On 10th September, 1997, following a trial before Deputy Judge Maggie Poon in the District Court, this Applicant was convicted of committing two offences and sent to prison for a total of twelve months. The Applicant seeks leave to appeal against conviction.

2. The charges were a little unusual and they were as follows. Firstly, using a false affidavit, contrary to section 40 of the Crimes Ordinance, Cap.200, the particulars of which were that the Applicant, between 7th March 1996 and 12th April 1996, wilfully used an affirmation affirmed by him on 7th March, 1996, which he knew to be false or did not believe to be true, for the purpose of applying to the Supreme Court of Hong Kong, High Court, Civil Jurisdiction, for a discharge of an interlocutory injunction order made against him.

3. The second charge was for causing wasteful employment of the police, contrary to section 91(2) of the Criminal Procedure Ordinance, Cap.221. The Particulars of that offence were that on 14th March, 1996, inside Room 205 at the Tsuen Wan Police Station, he knowingly made to Detective Police Constable Mak Kam-ming a false report, in that someone had forged his signature on two sets of employment agreement, intending to show an offence had been committed, and by doing so, caused wasteful employment of the police.

4. The facts were very straightforward. The Applicant was employed by Artchief Limited for just under 18 months. After he left that company, Artchief obtained an interlocutory injunction in the High Court to prevent him working in the same field for another company on the basis that the Applicant was in breach of a restrictive covenant set out in an original contract of employment, Exhibit 3, as amended in Exhibit 4, preventing him from so doing.

5. The prosecution's case was that the Applicant had been witnessed to sign those prosecution exhibits, Exhibits 3 and 4. They alleged that so far as charge 1 was concerned, when he filed an affidavit to defend the High Court proceedings by stating that he had never signed the two contracts, he did so falsely. Based also upon expert handwriting evidence that there was no significant difference between the Applicant's usual signature of which he provided control samples, and the signatures which were to be seen on Exhibits 3 and 4, the prosecution was further able to allege that he was wasting the time of the police by making a false report that his signature had been forged on those documents.

6. The Applicant himself gave evidence at the trial. His defence was that he had signed a letter of employment and that an attempt was made to get him to sign a contract of employment. He stated that he never did sign the contract because he disagreed with some of the terms in the contract and, in particular, with what he considered to be an unreasonable restrictive covenant clause.

7. The case for the prosecution depended very heavily upon PW1 and PW2, both of whom said that they were present at the time when the Applicant had signed. When added to the evidence of PW3, the handwriting expert, the case on the prosecution's version was overwhelming.

8. In this context the Applicant has written a number of grounds of appeal and, reading from these, he says a lot of contradictions were found in the evidence of the 1st and 2nd prosecution witnesses and plenty of discrepancies existed in their statements. This is a point which he has expanded upon at great length this morning by giving to us examples. He says, secondly, that there were a lot of ambiguities in the evidence of the second prosecution witness who was also unable to recall most part of the case. In his third ground, he refers to the second prosecution witness, but it is clear that he means the third, because he goes on to say that that witness believed that there were "a lot of acceptable differences" between his signature and "those signatures against the questions", as he puts it. "However, he failed to define the acceptable differences." I think what is meant by that is that there were differences between the signature of the Applicant and the questioned signatures on the contract. Finally, he says that the prosecution failed to arrange a fingerprint test or chemist analysis for the contract in order to prove that the signatures in question came from the same pen.

9. He has added during the course of today's hearing that he believes that these convictions were unsafe and unsatisfactory because, in assessing PW1 and PW2, the trial judge failed to take into account the fact that they had many reasons to lie to the police. He demonstrates this in particular because he says that the complaint he made to the police made them the suspects. In other words, they were making up a story in order to protect themselves, and the judge should have exercised extreme care to prevent the making up of a story.

10. Other points which he put before us are referable to his original written grounds and there were some points which were purely evidential.

11. The Applicant will appreciate that this Court is not here to re-try issues that were decided by the court below. Our purpose today is to review the findings which were made by the trial judge and, if there were errors made of fact or of law, to define what they were and, if necessary, take appropriate action.

12. One of the main points that is made by the Applicant is concerned with the discrepancies between PW1 and PW2. The trial judge was alert to those and she expressed herself in this way regarding the discrepancies:

"In relation to the signing of Exhibit P4, PW1 says that the Defendant did not sign in his presence. This was supported by PW2 who said that she took it into PW1's room for him to sign and then to the Defendant's room for the Defendant to sign. I note that PW2 was confused in cross-examination as to the circumstances of the signing of Exhibit 4, but I also note later that she acknowledged that she might have confused the circumstances of the signing of Exhibit 4 with that of Exhibit 3. In fact when shown her statement made to the police in 1996, she explained that the discrepancy between her evidence in court and what is recorded in the statement is due to the fact that the actual event happened closer to the time she gave her police statement than when she gives her evidence in court. I accept her explanation that such confusion is nothing more than memory lapse due to the length of time elapsed and in no way affect her credibility. The fact that she was upset and seen crying in cross-examination when she thought that she was being accused of lying is not uncommon of witnesses who are not professional witnesses. Despite the discrepancies, I find both PW1 and PW2 honest and credible witnesses of the truth and the mistakes are nothing more than honest and genuine ones."

13. I take next the handwriting evidence of the expert, who was PW3, because, once again, this was an important plank in the case for the prosecution which the Applicant complains has been wrongly approached by the trial judge. We can see from the Reasons for Verdict that the trial judge has written three closely-typed, very full paragraphs of her assessment of this witness. She demonstrates in the relevant passages that she has not only listened to and understood the evidence of the expert, but she has also borne in mind the defence case. She concludes with these words:

"... experts do not decide cases, and I am entitled to either adopt or reject the expert's evidence before me. However, having heard the evidence and looked at the documents and the signatures before me, I see no reason why the evidence of PW3 should not be adopted in full."

14. We can see no reason whatsoever to interfere with the findings of this trial judge. We are particularly able to say that in view of her assessment of the Applicant's evidence, which was important in making a decision on where the truth in this case was to be found, which was that he was:

"an unimpressive witness and his evidence is self-contradictory and illogical. He is a person who is readily prepared to tailor his evidence at different times to suit his own purpose. I reject his evidence in total."

15. With those matters in mind, we find that this is an application which is without any substance.

16. We shall refuse leave and dismiss the application.