THE QUEEN v. LEUNG MAY CHUN

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JUDGMENT

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Mortimer JA (giving the judgment of the Court): On the 18 November 1994 the applicant was convicted by Judge Lugar-Mawson in the District Court of an offence of using a false instrument contrary to s.73 of the Crimes Ordinance Cap. 200. She was convicted of using a forged will knowing or believing it to be false with the intent of inducing others to accept it as genuine. She was sentenced to 2 1/2 years' imprisonment with a recommendation that she should receive treatment.

The facts

2. We are content to take the salient facts from the reasons for verdict. The applicant, who was about 49 years of age at the time, was unmarried and lived with her mother. She managed some of her mother's affairs and the case concerns a Chinese will which purported to be made by the applicant's mother who died on the 12 May 1992. The effect of that will was that the defendant would have inherited her mother's estate worth approximately $33 million.

3. There was an earlier will of 25 April 1961 which divided the estate between the deceased's three children, the applicant, her sister and her brother who was then alive. The purported will was not witnessed but was valid if genuine under s5(2) of the Wills Ordinance.

4. Much of the evidence before the judge was not in dispute. The deceased died on 12 May 1992, then leaving the accused, her sister and by this time issue of her son who had died which were three grand-children. After the deceased died the defendant said that there was no will. No will was produced and she instructed solicitors to deal with the estate. There were two firms involved. Initially because no will was produced the matter was proceeding as if it was going to be an intestacy.

5. On 26 October 1992 the family opened a safe-deposit. Present were the applicant, her sister and sister-in-law and the applicant suggested that the assets of the mother to be dealt with by transfer into a Bermudan company. The consequence of that was a dispute and ill-feeling which had not arisen between the parties for the first time.

6. On 2 December 1992 the defendant produced the questioned will to her then solicitors. She was only prepared to leave a photocopy. She kept the original herself and claimed that it was indeed her mother's will. The family in due course examined the document and they questioned it. The result was that it was examined by the Government Documents Examiner, first the photocopy but later the original was taken to him by the applicant herself. The result of his examination was that the signatures on the will were forged. In other words they were not genuine signatures of the deceased. There was a strange feature of those signatures because on p1 of the will it appeared that the signature had been traced on to the document whereas on p2 the signature was said to be an attempt to copy the genuine signature.

The Applicant's evidence

7. The defendant's account of what has happened was as follows - with the background that she is undoubtedly extremely eccentric both in her thinking and her behaviour. She said that on 15 March 1992 she had written the text of the questioned will. She did so without discussing it with her mother but her mother agreed to it when she was shown it. She left the text with her mother. Later from outside her mother's room she thought she saw her mother writing on the will but she did not see the result. She later collected some papers from her mother which may have contained the will but she never asked her mother about it, nor what she thought, nor whether she had signed. She assumed she had. After her mother's death she said she could not find the will but maintained that she had told her solicitor that her mother had left a note, not knowing whether the document which she had prepared was a valid will or not.

8. Later in the circumstances which we have outlined she found the document but was unable to say exactly where. She said that she looked for it with a new effort after the disagreement on the occasion when the deposit box was opened. She maintained that she had always told her sister that although her mother left no will she had left a note.

9. The defendant had - according to her evidence - two handwriting experts to look at the questioned document on her instructions. Both said the signatures were not her mother's but she could not understand why.

The issues

10. There were two real issues at trial. The first was: Was the Chinese will a false document? The evidence on that was all one way.

11. The main issue was: Did the defendant know or believe at the time she produced it that it was false? On this the judge made a number of significant findings. He found that the defendant had claimed that there was no will to her sister and her sister-in-law first on the day after her mother's death. This she admitted. Secondly, on the day of the funeral the judge found - and there was little dispute - that there had been a quarrel between the family about the suggested Bermudian transfer of assets. This was also admitted by the defendant but she said that the reason why she brought up the matter was by way of a test.

12. Two solicitors firms were involved. Clerks from each gave evidence. The judge found their evidence was unimpressive but he found the questioned will had been produced on 2 December 1992 which was not in dispute and that before the solicitors had been proceeding on the basis of an intestacy. The solicitors' clerks were both called Wong. The Mr Wong from the first firm was not believed by the judge when he said that he told the other Mr Wong that there was a will. The second Mr Wong was believed when he said that he was not told about any will. However the first Mr Wong was accepted by the judge when he said that he told the defendant to search for a will and that from being first consulted to the time that the will was produced was about six months. The judge did not accept that the defendant had given truthful evidence. We do not go into that further because the judge rightly found that was not determinative of the case. It simply left the prosecution evidence unassailed.

The judge's decision

13. The basis of the judge's decision was this. The will mentions the formulation of a company to hold the assets, and it was produced only after the dispute on 26 October about that very issue between the applicant and her sister and sister-in-law. Also before that quarrel the defendant had maintained there was no will to the rest of the family on the two occasions we have mentioned. She had made the same claim to the solicitors and during that time she acquiesced in the estate being administered as if on intestacy. Why should she behave like this? Asked the judge if in fact she had written the will and thought that it had been signed as long ago as two months before the death so that she knew well that there was a will in existence. Then the judge relied upon the fact that it took the defendant six months to produce the will and having produced it insisted upon retaining physical possession of it. She didn't write the will at her mother's request but at her own instigation. She lived with her mother, managed some of her mother's affairs and had access to all her mother's papers after her death at the residence but was unable to give a very consistent account as to her dealing with it and where she found the will. Perhaps most importantly she stood to gain in the sense that by the production of the will she would keep the estate together and under her own control.

14. Having looked at all that circumstantial evidence and applying very clearly the proper burden and standard of proof the judge convicted on those grounds.

The application for leave

15. On this application for leave to appeal against that conviction there are two points made by Mr Martin Lee Q.C. on her behalf which merit consideration by the court. The first is that the evidence permits of a possibility which the judge did not take into account in his reasons for verdict. A possibility which was not raised at trial. It is now said that this elderly lady was so over-born by her daughter, the applicant, that in the circumstances when the draft will was produced to her she chose to avoid confrontation and to try to please all the family by signing the will drafted by the applicant and disguising the signatures in the two ways suggested by the experts, with the intent that later it would be observed and discovered and that it would then be known that the will had been signed unwillingly and that thereafter all would be well and the estate would be divided between the family. Of this suggestion there was no evidence. It arises from one question and answer of the expert which is to be found on p115 of the transcript. This is the expert's answer relied upon:

"In each and every exercise of signature comparison, one has to consider lots of features or a lot of parameters, one of which is disguise which is defined as a deliberate departure from one's own writing habit. But here we don't have to consider that because the signatures are present on the will and I don't see any reason why any disguise in this and actually there is no - - I - - even if I don't consider that, there is no evidence of disguise and only evidence of forgery."

This argument is constructed upon that passage but it was not pursued at the trial. Not having been raised at trial the judge did not have to consider such a possibility in his examination of the circumstantial evidence and to exclude it. This suggestion is so unlikely as to be a fantastic possibility. There is nothing in the point.

16. Secondly, it is suggested and that for each part of the circumstantial evidence upon which the judge relied there could possibly be an innocent explanation and that in those circumstances the judge should be held to have made the wrong decision in convicting. Of course innocent explanations of circumstantial evidence are always relevant but that is not the way in which circumstantial evidence is approached when applying the standard of proof. What the judge must do - as indeed this judge did - is to look at the whole of the evidence and to decide on that evidence, having taken into account all that was put before him, whether he is sure of guilt. In this case that was the approach of the judge. It is not an approach which leaves him open to this criticism. In the result the question which we must consider is: On the evidence that was before the judge was it open to him, properly applying the burden and standard of proof, to find that the applicant knew that the will was false? The answer to that is yes. In deciding the case the judge considered the evidence with great care. In the result therefore this application for leave to appeal is dismissed.

Sentence

17. The applicant also applies for leave to appeal against the sentence passed upon her. The judge passed the sentence of 2 1/2 years but also made a recommendation that while she is in prison she should receive psychiatric and psychological counselling. The reason for that was that there was before the judge a number of medical reports dealing with her mental condition. It suffices to say that although those reports do not suggest that the applicant is suffering from any identifiable mental illness she does suffer from serious mental eccentricity. In his reasons for sentence the judge said that she did not suffer from any form of mental illness which required compulsory treatment but continued "you are just a person who has chosen to lead an eccentric life". That is not a statement which we completely understand. We think that this is not a case of a person who has chosen to lead an eccentric life. She leads an eccentric life because of her mental state which is not within her control.

18. That said: Did the judge in passing the sentence take into account that somewhat important matter? He certainly took into account the other matters in this lady's favour - she is 49 - that she is previously of excellent character and that the offence was not committed with the purpose of dissipating the estate in an extravagant life style or anything of that kind. The offence was committed - it would appear - in order to keep the assets in the estate together and under her control. By that, of course, she would deprive others of their just deserts. But the judge was wrong not to take into account the particular circumstances of this applicant's mental condition and therefore we must do so.

19. The justice of the case will be met if we give leave to appeal against sentence. We treat this hearing as the appeal, we allow the appeal and substitute for the sentence of 2 1/2 years a sentence of 18 months' imprisonment. That is the order of the court.