THE QUEEN v. ROBERT ELI LOW

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HEADNOTE

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          Low signed a form produced by the Stock Exchange. It was said be a statutory declaration under the Oaths and Declarations Ordinance. No oral declaration was made by Low. He was prosecuted and convicted for an offence under s.36 of the Crimes Ordinance. On appeal,

HELD

Allowing the appeal

1. As no oral declaration was made, no offence was committed.

2. Other defects in the form also offended the First Schedule to Cap. 11.

IN THE SUPREME COURT OF HONG KONG

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO. 1180 OF 1996

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JUDGMENT

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Background

1. This is an unusual case. Mr Robert Eli Low was a solicitor in Hong Kong for many years and in 1960, he was convicted in the District Court of nine corruption offences and sentenced to two years' imprisonment.

2. After coming out of prison on 13th February 1962, he was struck off the Roll of Solicitors. 12 years later, he applied to have his name restored which was granted. On 5th October 1982, he became a Notary Public.

3. He practised as a partner in a firm of solicitors until his retirement in 1995. In that year, he became a director of the Sincere Company which is a publicly listed company on the Hong Kong Stock Exchange. He made a return and declaration with regard to directors which was required, called Form B, to the Managing Committee of the Stock Exchange known as the Listing Committee. It is an unusual form in that it appears on its face to be a declaration made under the Oaths and Declarations Ordinance. It says "Every director must execute this declaration as a statutory declaration". There is no requirement, as I understand it, in the Ordinance relating to the Stock Exchange for this type of formality to be given as to a declaration by a director. If the Ordinance does not require it, I query whether the Stock Exchange is entitled to insist that it must be executed, but whatever the position, the piece of paper which Mr Low signed had been filled up. It asked whether he had any previous convictions and whether he had been refused admission to membership of any professional body or discipline. He wrote "No" to both. On the one hand, one might think they were deliberate lies to hide his past, on the other hand, the Rehabilitation of Offenders Ordinance protects people when they have served their sentences and he was of the view that he was entitled to that. At any rate, he said everyone knew him. It was not as though he had come from a foreign country and was trying to hide convictions in another country.

4. Whatever the true position, of course the Stock Exchange were entitled to say that they think he had not been frank with them. They could take whatever action they liked. What happened however was that he was prosecuted and convicted of an offence under the Crimes Ordinance.

Statutory Provisions

5. S. 36 of the Crimes Ordinance (Cap. 200) -

Part III of the Oaths and Declarations Ordinance (Cap 11) headed "Statutory Declarations" -

In the First Schedule is found the statutory form:

And I make this solemn declaration conscientiously believing the same to be true and by virtue of the Oaths and Declarations Ordinance.

The form in Part II is important - it is headed "Declaration by person who is unfamiliar with the English language" -

And I make this solemn declaration conscientiously believing the same to be true and by virtue of the Oaths and Declarations Ordinance.

How is a declaration made

6. The Ordinance does not say that a statutory declaration should be oral, but it is clear that in declarations not made in English, the declarant makes it orally to the interpreter who then orally interprets it in English.

7. Further, the practice over the years has been that it was in oral form. Editors of the well-known textbooks also consider it should be done orally - see Braithwaite on Oaths (4th Ed .1881) and Stringer's Oaths and Affirmations (5th Ed. 1929). More recently the Law Society of England in their "Guide to Oaths and Declarations" (1991) recommends oral declarations.

"This is a convenient way of impressing on the declarant the nature of the declaration which he is making, and at the same time complying with the obligation upon the commissioner to satisfy himself that the person before him is the declarant named in the declaration."

8. The only decided cases are found in the Commonwealth. In R. v. Schultz [1922] 69 DLR 267, the Saskatchewan Court of Appeal in construing similar statutory provisions said at p.269.

"The mere fact that it was signed by the accused does not make it a solemn declaration. The written statement by the commissioner that it was 'declared before him,' is not true. The essential requirement of the Act is not the signature of the declarant but his solemn declaration made before the commissioner."

9. In Customs Department v. Meates [1982] 2 NZLR 500, the High Court of New Zealand reviewed the Commonwealth decisions and relevant textbooks and held, when construing similar provisions that an oral declaration was necessary for a valid declaration under the Oaths and Declarations Act.

Conclusion

10. In my judgment a statutory declaration should be in the same category as an oath, that is, it has to be declared in an oral manner. This is the acknowledgement of the formality of what the person is declaring.

11. What happened in this particular case was that this document had been prepared by a solicitor, Dorina Wu and the appellant just signed it. She signed it as a Notary Public. She did not appear to think it was a statutory declaration. There was nothing which took place that gave it the formality of a statutory declaration and I hold as a matter of law that the signing of this form, therefore, did not fall within the Crimes Ordinance. There are other flaws in it. The words "before me" are absent - it has "in the presence of" - and other matters are absent.

12. At first blush, one might think that these may be 'de minimis'. In my judgment, however, the making of this document which can give rise to a criminal prosecution, if it is falsely done, must be carried out in a formal manner. The words "before me" are missing, the words "declared that" are missing, and the place of declaration is missing. Older cases state that such omissions are fatal - see R. v. Inhabitants of Bloxham [1844] 6 QB 528 and R. v. Norbury [1846] 6 QB 534. It is unnecessary to decide this appeal on errors in the document, in view of the absence of any oral declaration. This conviction had very serious consequences and the Court itself should have enquired into the legality of the particular document. It was a long case with considerable evidence given over a period of days. In my judgment, the point should have been taken as a preliminary point. However, it was not and Mr McCoy is entitled to take it, of course, on appeal. In my judgment, it is not necessary to debate he answers the appellant gave or his intern when he signed the document. Whatever he did was not the making of a false statement in a statutory declaration within the meaning of s. 36 of the Crimes Ordinance. Therefore the appeal is allowed.

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