THE QUEEN v. CHAN YEE CHUNG

CACC000189/1987

IN THE COURT OF APPEAL

No. 189 of 1987
(Criminal)

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J U D G M E N T

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Hunter, J .A.:

1. On 31st March of this year the applicant was convicted by a jury after trial be rare Deputy Judge Ryan on an indictment containing one count of theft, four counts of forgery and four counts of uttering forged documents.  The jury found the applicant guilty on all those counts with the result that he was sentenced to 2 ^1/2 years imprisonment on each count, concurrent.

2. The events which lay behind this trial were somewhat complicated, and I need only sketch in the principal facts quite briefly.

3. In 1980 a gentleman by the name of Lau, who normally resides in the Philippines, made two deposits of money in Hong Kong. At that time the applicant was employed by Hua Chiao Bank as indeed was his wife. He was given by the depositor Lau a certain authority over these deposits: first to deal with renewal when the periods of time for which the deposits were fixed expired, and secondly to amalgamate those deposits into a single United States dollar account. The result was that by November 1983 the total sums were deposited in Lau's name in the Hua Chiao Bank, and they then amounted to nearly one million ns dollars. By that time also the applicant and his wife had left the employment of the bank. The applicant had left in September 1982 and his wife a year later. They were both engaged in business and were in need of funds to support that business. On the jury's findings they then looked dishonestly at the deposit in the name of Mr. Lau.

4. The first count in the indictment was a charge of theft, namely that the applicant stole a chose in action, the benefit of a debt of over a million US dollars owed by the bank to Mr. Lau. What he did was to secure the transfer of that sum of money from  that bank to the Nanyang Bank:  first on the jury’s findings by forging a specimen card, that was count 2, and by uttering that forged documents, i.e. by producing that specimen card to the bank, which count 3.

5. Later, some of this money was transferred first to the Liu Chong Hing Bank and then later still to the Bank of China. To bring about the transfer to the Bank of China it was alleged that he forged a letter of authorisation, that was count 4, and uttered that forged document to the Bank of China, that was count 5. The money by this means having been transferred to the Bank of China was still in the name of Lau. If he wished to make use of these monies other things had to happen to get them transferred to an account where the monies were accessible to creditors of the business that was being conducted by him in the name of E-Chung Hong.  This was brought about by two further documents : first a letter of instruction which was addressed to the intended recipient, of the money, the Arab Asian International Ltd., and secondly a telegraphic transfer addressed to the Bank of China.

6. Counts 6 and 7 dealt with the direction to the Arab Asian International, counts 8 and 9 with the telegraphic transfer.  These documents were said to have been forged by this applicant and uttered to those respective parties.

7. It is apparent from that summary of fact that the principal issue at the hearing was likely to be between Mr. Lau who asserted that all these moves had been taken without his authority, and that his signature had been forged to these various documents on the one hand; and the applicant on the other, who asserted that he had Mr. Lau’s authority to deal with the monies in this way, and that all the documents had been validly signed by Mr. Lau mostly on the occasion of trips by himself or his wife to the Philippines during the intervening period of time.  I should say these events covered the period November 1983 to late July 1985. It was therefore essential that the jury had brought to their attention by the trial judge all the matters which bore upon the credibility of these two parties.

8. One of the singular features of this case is that in the early part of his summing-up to the jury, the judge takes about 4 pages of the transcript in making detailed critical comments on the evidence of Mr. Lau, and in drawing the jury's attention repeatedly to the importance of his evidence, and to certain criticisms which had been made of certain aspects of his evidence. One of the particular criticisms revealed in this passage is that Mr. Lau, of course, was saying to his original bankers, the Hua Chio Bank that they had acted upon forged signatures and therefore had to recredit his account with the monies which had been withdrawn as long ago as November 1983. The bankers would appear to have, partially at least, accepted that position, upon condition that Mr. Lau assisted them by giving evidence in support of his assertions about the documents. The trial judge pointed out that in those circumstances the witness Lau had a personal motive, and interest in the case, and therefore this was a matter which they had to bear very carefully in mind in considering his credibility.

9. By the applicant's Notice of Appeal in this matter, complaint is made that the judge failed to direct the jury in sufficiently strong enough terms, and failed to warn the, jury sufficiently about that very point of Mr. Lau's personal involvement in the case.  With respect it seems to us that there is nothing in that point at all.  We can hardly conceive of a summing-up which could have been more helpful to the applicant in this regard, or perhaps more critical of Mr. Lau.

10. Equally there is no substance in our judgment in the suggestion that the judge should have referred specifically to the good character of the applicant.  It is perfectly apparent in a case like this that the jury was regarding all the parties who were giving evidence before them as being a previous good character.

11. I then come back to the first ground in the Notice of Appeal which complaints about the way in which the trial judge dealt with a late question from a jury.  What happen was this.  The trial judge had given the jury a direction on forgery, about which no complaint is made, which starts with these words:

‘Forgery is the making of a forged document in order that it can be used as genuine.’

The jury after they had retired for two hours, came back and presented this question to the court: “If a knowingly instructs B to forge a signature is A guilty of forgery?”  The answer to that properly given by the judge was yes.

12. This demonstrates to my mind that the jury were then in this tentative frame of mind.  These documents, alleged to be forgeries, were all produced by this applicant.  They were all uttered by him to various parties to his own particular advantage.  We are quite satisfied that the documents were forged, and Mr. Lau never signed any of them. But we do not know who in fact made the documents.  What must be clear is that this was either done by this applicant himself or by someone for him.  There was no other possibility open.  But the direction up to that time only dealt with the possibility of the document being made by him.  So they came back with the question: what is the law if he does not make it but he gets someone else to make it.

13. The judge answered that question in the positive.  He then considered the possible conclusion that instead of the jury drawing the inference that the accused forged the signature, which apparently had been the burden of the Crown’s case, that they might possibly draw the inference that it was procured by the accused.  He then suggested that it was really too far fetched.

14. After listening, however, to the further argument from both Counsel, he got the jury back again and give them this direction:

‘Members of the jury, I just want to run through this question again with you to confirm that the answer to your question is yes, that if A knowingly instructs B to forge a signature, A is guilty of forgery as being a party to the offence.

So in this case you have to be satisfied in respect of the forgery charges that, firstly, the signatures were forged; then to convict this accused, you have to be satisfied that he was the person who forged or that he knowingly instructed somebody else to forge the signatures.’

I pause there to say that that summing-up in our view is an impeccable statement of the law.  He then turns to the facts.

‘Now, there is no direct evidence if the signatures are forged.  If you are satisfied they are forged, there is no direct evidence as to who put on the signatures.  So you then have to draw such inferences as you feel proper, sufficient, if you convict the accused, to be satisfied so that you are sure that he is guilty of the offence.’

15. It seems to me that the jury were being told in plain terms:  If you reach the conclusion that these documents were forged then you have to consider such inferences as you think it legitimate to draw.  One inference is that the accused put his own pen to paper.  Another inference is that he brought the signatures into existence through the hand of someone else.  It seems to us that in the circumstances of this case, these were two inferences which this jury could very readily draw.  Indeed it is very difficult to see how they could avoid drawing one or the other inference on the facts that were being presented to them.  All that the judge’s answer really amounted to was that he was telling the jury that his original definition was too narrow, and that it did not matter as far as this offence is concerned whether the document was prepared by this applicant himself or procured by him from somebody else.

16. In those circumstances we can see no valid criticism in that aspect of the summing-up. There is nothing else here which we think would remotely entitled this court to treat this verdict as unsafe or unsatisfactory and accordingly this application is dismissed.