THE QUEEN v. CHU SHEK KWAI

Headnote

                Comparison of disputed handwriting - burden of proof -Section 17 Evidence Ordinance, Cap. 8.

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JUDGMENT

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Yang, J.A.

1. The Appellant was a car dealer. In March, 1982 he purchased from a company called Fidelity four new Mazdas. The four vehicles were later registered as CU 9220 (subject of Charge 2), CV 357 (subject of Charges 3 and 4), CU 8828 (subject of Charge 6) and CV 149 (subject of Charge 8). These vehicles were purchased on hire-purchase terms. The requisite Applications for Registration and Licensing of a motor vehicle and the hire-purchase agreements showed Mr.  Poon Kam-fuk as owner and hirer of CU 9220 and CV 357, and Mr. Wong Chi-man as owner and hirer of CU 8828 and CV 149. The signatures of Mr. Poon and Mr. Wong on the relevant hire-purchase agreements were forged. By Charges 2, 4, 6 and 8, the Appellant was charged and convicted under Section 75 of the Crimes Ordinance for obtaining the four vehicles by means of the forged hire-purchase agreements.

2. The judge in reviewing the evidence relating to those four Charges misdirected himself on fact when he said that the car salesman, P.W.2, had taken the hire-purchase agreements "back with the particulars provided by the defendant". There was no evidence of this. Further he does not seem to have considered the link between the various transactions he was engaged in and the issue of the Appellant's knowledge as to the authenticity or falsity of the signatures on the hire-purchase agreements.  Whilst there was some circumstantial evidence, we do not feel it was of such a nature as to entitle the learned judge to draw the inference that the Appellant had knowledge that the signatures of Mr. Poon and Mr. Wong were forged. For these reasons the convictions on Charges 2, 4, 6 and 8 cannot stand.

3. By Charge 3, the Appellant was charged and convicted under Section 72(1) of the Crimes Ordinance for forging the Applications for Registration and Licensing in respect of vehicle CV 357 in' that he had forged Mr. Poon's signature on the Application. In coming to the conclusion that it was the Appellant who had forged Mr. Poon's signature, the trial judge said, "The handwriting expert confirmed that there was slightly over 50% of certainty that the defendant signed the application form .......The standard of proof in comparison of handwriting is on the balance of probability............On the balance of probability I find the signatures in the application forms ........ were affixed by the defendant”.

4. Section 17 of the Evidence Ordinance provides:

"Comparison of a disputed writing with any writing proved to the astisfaction of the court to be genuine shall be permitted to be made by witnesses in any proceedings, and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and to the jury, if any, as evidence of the genuiness or otherwise of the writing in dispute." (Emphasis supplied)

5. The words emphasized do not appear in the relevant English Act from which this section is taken.

6. We were informed that Section 17 had never been the subject of judicial decision in Hong Kong. It would appear that the trial judge in coming to the view that he did must have relied on R. v. Angeli [1978] 3 All E.R. 950 at 953, in which Bridge, L.J., held that the standard of proof to be applied by a judge in a criminal trial in deciding whether it was proved to his satisfaction that a handwriting was genuine, within Section 8 of the Criminal Procedures Act 1865, for the purpose of admitting the writing in evidence for comparison with disputed writing, was the civil standard of proof, and he was therefore not required to be satisfied beyond reasonable doubt that the writing was genuine. Angeli was not followed in R. v. Ewing [1983] Q.B. 1039, where O'Connor L.J. (at 1046) said:

"        In our judgment, the words in section 8, 'any writing proved to the satisfaction of the judge to be genuine,' do not say anything about the standard of proof to be used, but direct that it is the judge, and not the jury, who is to decide, and the standard of proof is governed by common law: see the passage from. Lord Pearce's speech in Blyth v. Blyth [1966] A.C. 643, 672. It follows that when the 'section is applied in civil cases, the civil standard of proof is used, and when it is applied in criminal cases, the criminal standard should be used. Were it otherwise, the situation created would be unacceptable, where conviction depends on proof that disputed handwriting is that of the accused person and where that proof depends upon comparison of the disputed writing with samples alleged to be genuine writings of the accused; we cannot see how this case can be said to be proved beyond reasonable doubt, if the prosecution only satisfy the judge, on a balance of probabilities, that the allegedly genuine samples were in fact genuine. The jury may be satisfied beyond a reasonable doubt that the crucial handwriting is by the same hand as the allegedly genuine writings, but if there is a reasonable doubt about the fact that the disputed writing was that of the accused and the case is not proved.

        It is with reluctance, and with all due respect, that we find ourselves unable to agree with the reasoning in the last paragraph of the judgment in Reg. v. Angeli [1979] 1 W.L.R. 26, which we have quoted. In our judgment, that reasoning is contrary to the decision of the House of Lords in Blyth v. Blyth [1966] A.C. 643, and we are satisfied that it must have been reached per incuriam. ……”

7. With respect, and despite the addition of the phrase "in any proceedings" in Section 17, in our judgment Ewing must be followed. The trial judge was accordingly wrong in applying the civil standard of proof in the present case.

8. Under Charge 9, the Appellant was convicted of forging an Application for Registration and Licensing in respect of a vehicle bearing registration number AX 6518. Sometime between September and October 1982 the Appellant purchased a used Mercedes Benz bearing registration number AX 6578 from one Yip Kwun-tai. It will be noted here that whilst Charge 9 referred to the forgery of an Application for Registration and Licensing, the evidence showed that the document was a Notice of Transfer of Ownership of Vehicle. No point was taken on this. The vehicle was not purchased in the Appellant's own name but in the name of one Chung Chi-pang. The Notice'"of Transfer of Ownership showed Chung Chi-pang as the new owner, but Mr. Chung in fact never purchased the vehicle. Again there is no evidence showing definitely that it was the Appellant who had forged this document, and for that reason we do not think that the Judge was entitled to come to the view that the Applicant was guilty of the offence charged.

9. We treat this application as an appeal. We allow the appeal and quash the convictions. The sentences are set aside.