THE QUEEN v. FONG KAM-YEE

                Uttering forged cheques - particulars of offence fail to allege "intent to defraud" - Change not rendered invalid due to such failure - Section 70(2) Crimes Ordinance - Rule 4 of Indictment Rules - Omission did not mislead or embarrass the accused.

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J U D G M E N T

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Li, J.A.:

1. On 14th November last year, the respondent was charged before a District Judge with 15 charges - 12 under the Theft Ordinance and 3 under the Crimes Ordinance. The trial proceeded on that basis until 29th November when the prosecution invited the trial judge to acquit the respondent of the 12th, 13th and 14th charges. At that stage, learned counsel for the respondent submitted to the trial judge that there was no case to answer in respect of all the remaining 12 charges. The judge ruled that the respondent had a case to answer in respect of all of them. The respondent elected to remain silent. The judge then adjourned the proceedings until 8th December when he acquitted the respondent of all 12 charges including the three offences under the Crimes Ordinance, viz.: the 4th, 6th and 7th charges.

2. The Attorney General not being satisfied with the acquittals on those three charges applied for a case stated on a point of law. In the case stated the judge gave reasons that in relation to the 4th, 6th and 7th charges:

"I took the view that, when drafting a charge of uttering a forged document, the Crown is obliged to plead the intent with which the defendant is alleged to have uttered the document, and that is to say that either an intent to defraud or an intent to deceive. I was of the opinion that this was entailed by s.74(2) of the Crimes Ordinance, Cap. 200. Since none of those said charges contained any allegation of intent, I decided that they were defective."

3. The questions asked of this court by the trial judge are as follows:

4. For the purpose of the present proceedings it is only necessary to refer to one of the charges. The 4th charge is one of uttering a forged document, contrary to s.74(1) of the Crimes Ordinance, Cap. 200. The particulars of offence are that:

"FONG Kam-yee, on or about the 24th day of September 1982, in this Colony, uttered a forged document, namely cheque No. 662330 drawn on the Hongkong and Shanghai Banking Corporation for the amount of $200,000 Hong Kong currency and bearing the signature of WONG Siu-yu, knowing the same to be forged."

 

5. The offence creating section in the Ordinance s.74(1) provides as follows:

"Any person who utters any forged document, seal or die, shall be guilty of an offence and on conviction thereof shall be liable to the same punishment as if he himself had forged the document seal or die."

 

It is taken from s.6 of the Forgery Act of 1913. On the face of it there is no requirement to allege intent. However, the precedent indictment form as contained in the 39th edition of Archbold does include, in the particulars of offence, an allegation of intent to defraud. Apparently the trial judge founded his decision upon the precedent in Archbold.

6. In our view s.74(1), which is the offence creating section, merely mentions the word "utter". S.74(2) which is only a definition section, however, provides that:

"A person utters a forged document, seal or die, who, knowing the same to be forged, and with either of the intents necessary to constitute the offence of forging the said document, seal or die, uses, offers, publishes, delivers, disposes of, tenders in payment or in exchange, exposes for sale or exchange, exchanges, tenders in evidence or puts off the said forged document, seal or die."

 

So that the uttering of a forged document is complete when a person uses a document knowing it to be forged and with either of the intents that is necessary for and required to constitute the offence of forging that particular document. The particular document relied upon in the 4th, 6th and 7th charges was a cheque. Section 70(2) of the Crimes Ordinance provides:

"Forgery of the following documents, if committed with intent to defraud, shall be an offence and punishable upon indictment with imprisonment for 14 years-

 

A cheque is a valuable security and in fact a bill of exchange. The necessary intent which the prosecution is required to prove is the intent to defraud. Forging a cheque with intent to deceive is not an offence. Counsel for the Attorney General argues with force that the charges were not defective because  the particulars given contained all the necessary ingredients and particulars to constitute the offence of uttering a forged cheque. As far as the provisions in section 74(2) are concerned the requirement had been satisfied because there could be only one intent and one intent alone once the document was a cheque. That intent was the intent to defraud. Rule 4 in the Indictment Rules provides as follows:

"Where the specific offence with which an accused person is charged in an indictment is one created by or under an Ordinance or imperial enactment, then, without prejudice to the generality of rule 3-

 

7. In this particular instance, we are of the opinion that the respondent was told in the particulars of offence that what she was accused of having uttered was a forged cheque. In law this uttering is an offence only if it is done with an intent to defraud. The respondent had not been misled nor embarrassed in any way by lack of particulars - albeit that the better practice is to include in the particulars an allegation of "intent to defraud".

8. If an example is needed one is readily available in a charge of robbery. The particulars given for a charge of robbery do not require a direct allegation of stealing or the use of force in that stealing or intent to deprive. We do not find that failure to allege "an intent to defraud" is fatal to the charges under consideration in the present case.

9. This point was not taken by either the defence or the prosecution at the trial. It appears that the judge himself raised it after he had ruled that the accused had a case to answer at the close of the case for the Crown and after he had heard final submissions and reserved  his decision. It is unfortunate that despite those circumstances he did not invite counsel for either party to address him on the point before he announced his decision to acquit the respondent of the three charges. Had he done so this appeal might well have been unnecessary. In the event, however, we are of the opinion that, for the reasons aforesaid, the charges in question were not defective. Accordingly we are of the opinion that a new trial should follow. Nevertheless, we understand that the Attorney General asked for a case stated as a matter of principle and we were told that it was unlikely that he will pursue the matter further.