THE QUEEN v. LAM FONG, JAMES

Headnote

    Forgery. A false document intended to he used for the purposes of producing false photocopies is a forgery within section 68(1) of the Crimes Ordinance

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J U D G M E N T

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Hunter, J.A. :

1. The applicant, Lam Fong, seeks leave to appeal against his conviction by H H Judge Souyave on 25th November 1988 on a charge of being in possession of a forged document. The charge reads as follows :

"Statement of Offence

Possession of a formed document contrary to section 76(3) of the Crimes Ordinance, Cap. 200, Law of Hong Kong".

The particulars are that on 30th December the applicant at Flat A, Unique Villa, 2/F., No 10-12 Holly Road, Happy Valley, without lawful authority or reasonable excuse possessed a forged document which purported to be a photocopy of a Hong Kong and Shanghai Banking Corporation Deposit Confirmation Form, customer number 567607692 and deposit number 001 in the amount of US$30,000 knowing the same to he forged.

2. The background facts as found by judge were not, as I understand it, seriously disputed and were these. In October 1987 a joint venture agreement was made between 3 parties, the applicant, a Mr Jay and a Mr Haworth, who became PH 1 in the case. The purpose of the joint venture was to discount credit card vouchers in Hong Kong. Part of the money for this was coming from pw l. He was to put up an initial deposit of US$5,000 and he was further obligated to put up US$25,000. The two together were then to be used to make a deposit in a Hong Kong Bank which was intended to rank as a good faith deposit. PW l dnly performed these financial obligations. The deposit appears to have been paid initially. The balance of US$25,000 was remitted to the applicant in Hong Kong who paid it Into a US$ savings account in the name of Super Glow Limited with the Hong Kong and Shanghai Banking Corporation. Super Glow Limited was a company incorporated by the applicant in Hong Kong with the intention of being used in performance of the joint venture.

3. Things started to go wrong almost at once. Very early in December, PW1 received information apparently from Mr Jay, which caused him disquiet. This resulted in his making a demand on the applicant on 7th December for the return of the US$30,000. That sum was not in fact returned by the applicant then or since. On 30th December, consequent upon the issue of a search warrant, the applicant's, flat at the premises named in the charge were searched, and In the flat was found, amongst his personal papers, the document in the case which is said to constitute a forgery.

4. Now at the time the trial judge convicted the applicant, he handed down full and carefully reasoned Reasons for Decision. He said that he had to be satisfied of three elements before he could properly convict: First that the document alleged to be a forgery, which was exhibit 68, was in fact in the applicant's possession on the material day. Secondly, that it was a forged document. Thirdly, that the applicant knew it to be forged. He answered all those questions adversely to the applicant. No issue is raised on this appeal as to his answers to the first and third questions. What is challenged is his conclusion that exhibit 68 was a forged document.

5. Before dealing with that it is necessary to explain how this exhibit came into existence. One has to go back to the 1st December. On that day, the applicant, as it must have been, caused there to he transferred by Super Glow Limited from its US$ account with Hong Kong Bank to a new deposit account the sum of US$20,000. As a result of that transfer Super Glow was given by Hong Kong Bank a certificate of deposit. That giver their customer's name and a deposit no 001. The principal amount is US$20,000. The interest percentage is 6.1875. The start date is the date of the document itself, 1st December. The maturity date is 15th December for a period of "2 weeks fixed". Contract interest is inserted, it being a fixed deposit for 2 weeks at a given rate, at US$48.13,

6. The sum in fact remained on deposit for just over this 14 day period. It was not re-transferred from this account back to the US current account until 23rd December. On 23 December the original of this deposit receipt would have no doubt been required to be returned by the Bank. Until then the deposit receipt was still in the possession of Super Glow. Persons unknown caused a photostat copy of the receipt to be taken. It was out of that photostat copy that exhibit 68, the subject matter of the charge, was created.

7. The top of the document was left unchanged. The principal amount was increased from US$20,000 to US$30,000 The interest percentage remained unchanged. The start date was altered back to 16th November 1987. The maturity date was extended well into the future to 15th November 1988. The period was altered to one year. The contract interest, to account for that much increased period went up to US$l, 856.25. Corresponding alterations to the amount, raising it from 20,000 to 30,000 were made in the body of the document, and the date was altered to 14 November 1987. This was done, as is apparent from an examination of the document and as was found by the trial judge, by someone starting with a photostat of the genuine deposit and altering the figures by a process of painting out parts with Tippex and sticking or typing other figures on top so as to produce the appearance of a genuine Hong Kong Bank certificate : a document, which benevolently read from a distance might he thought to evidence a genuine certificate in this sum. That, as the judge pointed out, would evidence an apparent performance by the applicant of his obligations under the joint venture agreement which performance had never in fact occurred.

8. The judge found that this was a forged document within the meaning of section 69(1) of the Crimes Ordinance (Cap 200). This reeds:

"For the purposes of this part, forgery is the making of a false document in order that it may be used as genuine

On anneal it is not disputed that this exhibit was false insofar as it purported to evidence an non-existent deposit. Also no argument or challenge was directed to the judge's finding that this document was intended to be used. The point taken on behalf of the applicant by Mr Cosgrove is a very narrow one indeed. It said that the document, the exhibit 68 itself, was not intended to be used as genuine. It was intended Mr Cosgrove submits, to be used to produce photocopies by fax or by a photostatic process and for nothing else. He says in effect look at the original no one could have been deceived by that. There was never any intent to use that original, as such, as genuine. It was never going to be produced to anyone as genuine. He submits that where you have a situation that a document is not going to be used itself, but is simply going to be used to provide photostat copies; it follows that the photstat copies are to he used as genuine and are forgeries and that the document is simply being used to produce forgeries. But he argues, the document itself is not being "used as genuine" within the meaning of section 69(1). There is no user of the original document, only user of a photocopy.

9. It seems to us this is putting a very unreal construction and limitation on the meaning of this phrase "may be used as genuine" in his subsection. We think that the matter can be tested by taking the case of the genuine bank deposit, in relation to which the bank issues its normal genuine certificate. That original is a very important document to the depositor. It may be, in itself, a document of title. It evidences the making of the deposit. It may well be that the money cannot be withdrawn until that original is produced. Postulate then the circumstance that the depositor is anxious to prove to some third party, as best as he can, that he has made such a deposit. But that third Party is at some distance from him, and it is not safe for him to send the original to that third party. What does he do? A common method is to make a photostat of the original and to send that photostat to the third party.

10. What is he then doing? It seems to us that he is then using the original as a genuine document, in order to make a Photostat copy with a view to showing that a genuine deposit has in fact been made. It seems to us that if a genuine document can he used in this way, and that one of the methods of user of a genuine document is to make photostat copies showing a genuine situation, then precisely the same considerations apply to a false document. They apply a fortiori to a false document such as we have herein exhibit 68, which is plainly concocted to give a false picture.

11. The conclusion that user by copying is the user for the purposes of the law in connection with forged documents was one readily reached by the English Court of Appeal in Regina v Harris [1965] 3 WLR 1040. This was a case of uttering a forced document, and one of questions which arose was whether or not the document had been "used".  In that case the forgery was an original receipt. What happened was that the original had been photostated, and a photostat copy had been submitted to the person claming to be a creditor. It was argued that this was no user of the original, and that user of the photostat was not sufficient. The English Court of Appeal had no difficulty in rejecting that contention. Sachs J giving the judgment of the Court, at p 1047 says this :

"It appears to this court that one can hardly make a more potent use of a forgery than to have such a copy prepared and send that copy away with a view to deceiving or defrauding the recipient".

12. In that case of course the photostat had in fact been sent. What the Crown here says is that there is no evidence that a photostat had been sent, but that was the intended user, the intent behind the concoction of this document. Words to the same effect were used in the New Zealand Court of Anneal in The Queen v Tait [1968] NZLR 126, again particularly in the context of uttering at p 129. If the photostat itself is the sole document intended to he used, then as this Court has already held in The Queen v Lam Tat Kwong [1968] 1 HKLR 421, at P 425, the Photocopy is a also a forgery. But it does not follow from that, that the document from which the photocopy is taken is not itself a forgery.

13. It seems to us there is ample evidence of user sufficient to satisfy section 69(1) in this case; that this narrow point taken by the applicant fails; and that the application must therefore he dismissed.