R. v. CHUNG CHI WAN

M.A. No.1095 of 1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.1095 OF 1996

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J U D G M E N T

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1. The Appellant was convicted by a magistrate after a trial, of using a false instrument, contrary to Section 73 of the Crimes Ordinance Cap.200. He appeals against that conviction.

2. It is common ground that although he was employed as a constable in the Royal Hong Kong Police Force, the Appellant was registered as a grade A electrical worker under the Electricity (Registration) Regulations Cap.406. On 26th July 1995, the Appellant sought to renew his registration by tendering at the office of the Hong Kong Electrical Engineering Workers Association (HKEEWA), a number of documents including a letter dated the 28th July 1995 which was typed on the note paper of the Yook Tong Electric Co. Ltd., addressed to the Director of Electrical and Mechanical Services Department, certifying that Chung Chi-wan, Peter, had been employed by that company since 1st June 1992. The letter went on to describe the type of work the Appellant had been employed on and it appeared to be signed by Mr. Peter Wong, the managing director of the company. In fact, the contents of the letter were untrue and it was not signed by Mr. Peter Wong. The magistrate had no difficulty in finding that the letter was a false instrument.

3. It was common ground that the Appellant had delivered the letter to the secretary of HKEEWA with his application for renewal of registration and that the secretary had forwarded it to the Electrical and Mechanical Services Department. The falsity was discovered when an electrical inspector rang Mr. Wong to find out the contractor's licence number which had not been included in the application documents.

4. It turned out that Mr. Mak Kwok-fai (PW4), an employee of the company, had printed out the letter at the request of the Appellant. PW4 testified on oath, and the magistrate believed him, that he had not put the letter in an envelope before handing it over. The significance of that evidence will be seen later in this judgment.

5. When the story came out, PW4 was charged with forgery, pleaded guilty and was fined. Finding that no action was being taken against the Appellant who, as I have said, was a serving police officer, he complained to the Complaints Against Police Office (CAPO).

6. On 2nd January 1996, the Appellant was interviewed by police officers and gave an explanation of his conduct.

7. Page 2 of the application form for registration contains wholly false details of the applicant's fictional employment with Yook Tong Electric Co. Ltd. The Appellant told the police that he completed only the first and last pages of the form and left page 2 blank on the basis that he was not clear about it. He gave the partially completed form, together with a copy of his identity card and his registration document to PW4. In due course, PW4 gave him an envelope telling him it contained all the necessary documents and he took the envelope to HKEEWA. As the office was about to close and he was in a hurry he did not look at the documents in the envelope.

8. As I have said, PW4 said on oath and he was believed, that he did not hand over an envelope. Moreover, Mok Suk-ping, the secretary of HKEEWA (PW1) said that she went through with the Appellant the application form which was exhibited as Exhibit P1. She was not cross-examined about that or anything else although she had not said that she received the documents in an envelope. If she had gone through the form with the Appellant, and that was her unchallenged evidence, then the Appellant must have seen the particulars on the 2nd page and must have known that they were false. The magistrate did not make that point but he did say that in his opinion she must also have gone through the other documents with the Appellant. Whilst she did say that she checked the documents the witness did not say that she went through them with the Appellant and the magistrate was there drawing an inference from her evidence as a whole. Complaint is made that this was a matter of speculation rather than inference.

9. The Appellant chose not to give evidence at his trial and not to call any witness in his defence. He relied upon his good character, the statement he had made at his interview and an attack made by his counsel upon the credibility of PW4.

10. The basis of the appeal is, in essence, that the magistrate failed to give proper weight to the good character of the Appellant, wrongly believed the evidence of PW4 and failed to give due weight to the Appellant's statements made to the police at his interview.

11. I am satisfied that the magistrate properly directed himself as to the significance of the good character of the Appellant.

12. There were, as a matter of fact, two interviews. The magistrate described what the Appellant said as exculpatory. What the Appellant said at the second interview was wholly exculpatory but in the first interview, he told a story which contained admissions of facts as well as his explanations. As Mr. Buchanan has pointed out on behalf of the Appellant, statements of that kind are often described as "mixed". I have no doubt, however on reading the Statement of Findings, that the magistrate was aware of the fact that everything said in the first interview by the Appellant fell to be treated as evidence of the truth of the facts stated. Nevertheless, that evidence had not been given on oath or tested by cross-examination and could hardly be expected to carry the same weight as something said on oath in court. The magistrate was fully entitled, as the judge of fact, to accept the evidence of the prosecution witnesses and to reject the exculpatory statements made by the Appellant at his interview.

13. With regard to the evidence of PW4, the magistrate accepted it as the truth except for PW4's denial that he had signed the letter in question. It was not necessary for him to decide who had in fact signed the letter once he was satisfied that Mr. Peter Wong had not signed. Nor was there anything inconsistent between PW4's plea of guilty to forgery of the letter and his evidence that he did not write the signature on it.

14. Complaint is made that the magistrate formed the view that the statements made by the Appellant to the police were not spontaneous and that he had plenty of time to prepare himself for the interview. It is suggested that that was mere speculation but at his interview, the Appellant said that when he heard nothing about the renewal of his registration, he telephoned PW4 who said that the registration had not been successful, that he was leaving his post and that the Appellant should not contact him anymore. That was in August 1995. The record of the January interview contains an explanation which is well constructed and the magistrate was entitled to infer that it had been thought out in advance.

15. The magistrate mistakenly referred to the police officers who interviewed the Appellant as being CAPO officers. It is apparent from the record of interview that they were not CAPO officers. Evidently the magistrate had in mind the fact that PW4 had complained to CAPO that nothing was being done about the Appellant. That error is not material.

16. Looking at the evidence as a whole, the magistrate found the Appellant's suggestion of a lack of mens rea to be unbelievable and he was satisfied beyond reasonable doubt that the Appellant knew that he was tendering to PW1 a false letter in support of his application. The Appellant has fallen well short of establishing that the conviction was unsafe and unsatisfactory, or indeed any ground for setting it aside.

17. The appeal against conviction is dismissed.