THE QUEEN v. CHOW YU CHING (D1) AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J.A.:

1. On 25th September 1985 after a long trial CHOW Yu-ching and HO Cheuk-kwan were found guilty by a jury, in the High Court, of forging US$100 denomination bank-notes with intent to defraud. The jury also found Chow guilty on three counts of possessing forged bank-notes. It was the second trial they had both had to undergo. On the following day both were sentenced to imprisonment. Subsequently they sought leave to appeal against their convictions or, alternatively, their sentences but since the applications for leave to appeal against sentence were abandoned and dismissed last December we are concerned to day only with the applications for leave to appeal against conviction.

2. The material facts from the point of view of the prosecution may be described quite briefly. On 13th August 1983 a team of police officers was present in a building at Morrison Hill Road to further the detection and discovery of dangerous drugs. They observed a man, subsequently identified as Young, approaching premises on the 9th floor and persuaded him to open the door and admit them. Inside, they discovered not dangerous drugs but a quantity of printing equipment and ink which, after about half an hour when, they discovered some partially printed US$100 bank-notes, they appreciated must have been used for purposes of forgery. Colleagues from the Commercial Crimes Branch, thought to be more experienced in this particular field, were sent for.

3. Shortly after the discovery of the forged bank-notes the first applicant arrived. He was arrested, searched and cautioned and said: "If there are any notes there, I don't know anything about it, they are nothing to do with me." In due course he explained that he had come to discuss with Yeung the purchase of expired pawn-tickets. No pawn-tickets were found but in his wallet was a single forged US$100 note which was the subject of count 2 in the indictment. The bank-notes which we have described as being partially printed were the subject matter of count 3.

4. Next arrived a man called HO Chi-kong. He too was arrested and cautioned and found to be carrying a large yellow sheet. There was evidence that this could be used to make freshly printed notes look old. Finally, the second applicant arrived carrying eight silk screens. Again there was evidence that such screens could facilitate the printing of serial numbers on bank-notes. It is unnecessary for us to specify in detail the pieces of apparatus found at Morrison Hill but they included a guillotine, dryer, typographic printing press and a large stack of special paper.

5. The two accused were kept at Morrison Hill while HO Chi-kong took police officers from the Commercial Crimes Branch to 381 Hennessy Road where were found a large printing machine, aluminium printing plates and bundles of forged. US$100 bank-notes which were the subject of the fourth count in the indictment. In all there were some 4,102 partially completed US$100 notes printed on the same type of paper as that found at Morrison Hill where the invoice for the purchase of the large printing machine was also among, the documents discovered.

6. HO Chi-kong then led the police party to his own home in Spring Garden Lane where further significant articles were found including photographic positives and negatives, forged US$100 bank-notes and some aluminium plates. In the light of this evidence the conclusion that Morrison Hill and Hennessy Road had been used in conjunction for the forgery of US currency was contested neither at trial nor before us. The material question was and is whether or not the complicity of the two applicants in that exercise was established.

7. The evidence available to implicate the first applicant has only a moment or two ago been summarised by Mr. Whitehouse, who appears before us as he appeared below on behalf of the Crown, and was recounted by Hopkinson J. to the jury in the course of his summing-up. In the first applicant's possession was found a catalogue for a numbering machine upon which had been written figures appropriate for and in accordance with the type of numbering found on US$ notes. There were also found at Morrison Hill three receipts for sums of $100,000, $42,000 and $80,000 respectively. These were receipts given to Yeung for money received by the first applicant from him. The sums mentioned and the dates on the receipts corresponded with entries appearing in certain accounts found on the person of the first applicant when arrested.

8. There were also discovered at the first applicant's office in Nathan Road three letters which appeared to emanate from Nigeria, and which the Crown suggests show the planned destination of the forgeries. At his home in Village Road nineteen sheets of paper cut to the size of US$ notes, the business card of the gentleman who had supplied the printing press installed at Morrison Hill Road and also, in a handbag, two airmail envelopes containing twenty-one US$100 bank-notes which the first applicant admitted he knew were forgeries were found.

9. The grounds of the applications before us are numerous. No substantial criticism is made of the way the case was summed up to the jury but a number of minor attacks are made on it with a view to demonstrating overall that the convictions were unsafe and unsatisfactory; perhaps by analogy to death by a thousand cuts. A number of the attacks are common to both applicants.

10. It is said at the outset that the judge wrongly directed the jury when he told them that one of the advantages of the instant case was that it depended on circumstantial evidence. It is said that this constituted a misdirection because the credibility of witnesses was very much in issue. We do not think that this observation can in any way have misled the jury as to the task which collectively they had to perform. Very properly the judge had told them that they were perfectly at liberty to disregard what had been said to them by counsel or what he might say to them himself in relation to the facts of the case and, further, that if he failed to remind them of any material matter they should not as a result overlook it if they thought it important. He gave a full direction on their duties in relation to the assessment of evidence given on oath by witnesses and their relative credibility and said:

"- you are not permitted to guess or to speculate or make gut reactions. You cannot do that obviously. What you can do is to draw logical conclusions by way of inference from facts which have already been proved to you - before drawing any inferences of guilt you have to look at all the surrounding circumstances of the case carefully and be sure that the only inference which can reasonably be drawn from the facts is, for instance, the guilt or guilty knowledge of the accused."

He further reminded them that if there were two equally possible inferences one of guilt and one of innocence, they should draw the inference which favoured the defendant. These directions were given immediately before the passage impugned. As against the first defendant much of the evidence was circumstantial. As against the second defendant the thrust of the prosecution case involved reliance on cautioned statements.

11. It is also said that despite the passages to which we have just referred there was no sufficient direction as to how and from what evidence inferences could be drawn and that the judge had failed to direct the jury as to what were proved facts. It is further contended that he failed to direct the jury, in relation to the three receipts for $100,000, $42,000 and $80,000 respectively, that they could not draw the inference that these receipts indicated the payment of money in the context of forgery business. In one passage in the summing up it appears that either the judge or the shorthand writer made a mistake in suggesting that the money was paid "to" rather than "by" Yeung. Be that as may it is said in relation to those receipts and accounts that inferences to the effect that the first applicant was involved in the forgery business could not be drawn from their terms because the only material viva voce evidence was his own and it discounted any complicity. None of these submissions can we accept. If the jury did not believe the explanations given on oath by the first applicant it then fell to them to attach such significance to the documentary evidence as they thought fit.

12. A similar submission is made in relation to the three letters which apparently came from Nigeria and a similar conclusion is reached by this Court. These letters, with references to colours found in US$100 notes, constituted evidence which the jury was entitled to take into account. It was for them to consider whether in fact they referred, as the first applicant suggested in evidence, to duty or ad valorem stamps for some possible new military regime in Nigeria or to forged US$ notes as was suggested by the Crown. Certainly no specimens of duty or ad valorem stamps were found at any of the relevant premises.

13. Next it is submitted that the learned judge should have ordered separate trials on the ground that the confession statements made by the second applicant were so strongly prejudicial to the defence of the first applicant, albeit inadmissible as evidence against him as the jury were told, as to render a joint trial unfair to him. It is accepted that an application in this regard was made and refused once these statements had been admitted in evidence. This was a matter requiring the exercise of the judge's discretion. It was for him to weigh the evidential value of the full confession and the right of the second applicant to have it put before the jury unemasculated on the one hand and on the other the undoubted, prejudice to the first applicant that would follow if it was. He had to exercise a similar discretion when an alternative application was made to him for the editing of the confession statements so as to eliminate references to the first applicant. In support of the submission that the judge exercised his discretion improperly we were referred to a decision of Crichton J. at Mold Assizes where he in fact excluded a statement amounting to a confession by one joint defendant because of the prejudice to another. R. v. Rogers and Tarran ⁽¹⁾. But the fact that one judge so exercised his discretion in 1971 does not vitiate the exercise by Hopkinson J. of his discretion in 1985. The outcome of these applications was for him and no ground is advanced to suggest that he failed to take the relevant factors into consideration or took into account irrelevant considerations.

"- it would be impossible to lay down that where two prisoners are being tried together counsel for the prosecution is bound, in putting in the statement of one prisoner, to select certain passages and leave out others."

Per Lord Goddard C.J. in R. v. Gunewardene ⁽²⁾ at p. 610.

14. We come to the fourth ground relied on by the first applicant which comprises a series of suggestions to the effect that the summing-up was inaccurate. The first relates to the statement by the judge that on entering the flat at Morrison Hill the police immediately appreciated that it was used for forgery. This criticism is well based because the police did not appreciate this fact for another half hour. But in the overall context we are satisfied that this error in no way affected the verdict in due course returned by the jury. There is nothing in the complaint that the judge suggested that the forgeries had been carried out by "a group". We think he must have said that the paints were sold "through" Yeung while his calculation of their alleged value faithfully reflected the evidence. The first applicant fad stated that he was considering putting the counterfeit US$100 note before a money changer rather than before a travel agent but this also is a complaint without substance. Further, the judge made it quite plain where the burden of proof lay. Certain references made by the learned judge to failures by the first applicant to call one or other witness to support one or more points which he made in his own defence were perfectly legitimate. Of course a judge must be scrupulous in the way in which he makes observations of this nature but the terms in which Hopkinson J. referred to these witnesses did not, in our view, suggest for a moment that any obligation in this regard rested on the first or second applicants. And we do not think that the conduct of the trial can legitimately be criticised because it was apparent to the jury at one stage that a potential witness referred to was present in Court and available to be called by the second applicant had he so wished. That applicant had stated that he would have called and would call that witness if he were available Insofar as it was then made apparent that this witness was available the matter went to the credit of the second applicant and to no other issue.

15. Complaint is made in relation to the evidence given by the second applicant, only really significant as regards the first applicant in the context of the acquisition of paper, that he was an accomplice whose evidence required corroboration before it could be believed and that the jury were not so warned. But he did not directly implicate the first applicant in the forgery and, in our view, it was again a matter for the trial judge's discretion whether or not he should give the jury an accomplice warning or a warning approximating to it. Again we have no reason to fault the exercise of his discretion.

16. In relation to the so called Nigerian letters it is complained that the judge did not tell the jury that US bank-notes, unlike those of Hong Kong, do not contain hidden security features. But he had reminded the jury of this fact in terms:

" - which of course do not have any water-marks or hidden marks."

It is to do them an injustice to suggest that the jury would not have remembered this direction when, later in his summing-up, the judge once more referred to these letters.

17. We turn specifically to the application of the second applicant who made cautioned statements on the day of his arrest in question and answer form, one in his own handwriting, which if voluntary amounted to a complete and circumstantial confession to the offence of forgery. The ground which remains from those which, in effect, were common to those raised by the first applicant was that the trial judge wrongly directed the jury that his counsel was "speculating" when he said that the detective who had recorded the statements would have copied out names and other details from material that he had in a file since the second applicant had so alleged in his evidence. This was a misdirection and "unfair and prejudicial to the second applicant" it is contended. Whether the word "speculate" was appropriate we hesitate to say but his assertion in evidence that one of the police officers was copying from another document was an expression of opinion. The jury were reminded. of this matter by counsel and the judge stated in his summing-up:

".... how that detective could have copied out names and other matters from statements that he had got in the file. Well, that is all speculation."

Even if he should have said "opinion" we do not think that it is a matter of significance since he went on to say:

"By all means take it into consideration. But just remember that it is not evidence as such."

The second applicant's expression of opinion was fairly left to the jury for their consideration. Other matters raised in the respective grounds of appeal have been abandoned.

18. We have now considered the varied. criticisms of the summing-up. We appreciate that the gravamen of the submissions made on behalf of the applicants is that by reason of the number of suggested errors the jury were not properly guided in the discharge of their duty and that the verdicts are unsafe and unsatisfactory. For the reasons stated we do not find these submission sustainable nor do we consider.the convictions unsafe or unsatisfactory. The applications for leave to appeal against conviction are dismissed accordingly.

(1)   [1971] Crim. L.R. 413

(2)    [1951] 2 K.B. 600