HKSAR v. CHAN KIN SANG

HCMA252/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 252 OF 2001

(On appeal from Eastern Magistracy Case No. ESCC3909/2000)

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REASONS FOR DECISION

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1. On 7 February 2001, T.H. Casewell, Esquire, Magistrate, convicted the appellant after trial of three offences, namely, possessing equipment for making a false instrument with intent, stated on the charge sheet as being contrary to s.76 of the Crimes Ordinance, and forgery and using a false instrument, respectively contrary to s.71 and 73 of the same ordinance. He now appeals those convictions.

2. There were disputes of fact necessitating findings of fact by the magistrate with which in the appeal the appellant takes no issue. Thus, the circumstances as established are as follows:

3. A Miss Rita Leung at the material time was the manager of a property agency. In that capacity she received a telephone call from a man claiming to be employed by the property division of Sun Hung Kai. He called himself Edward Au Yeung. He said Sun Hung Kai was looking for prospective buyers of units in a new development in the course of construction in a place called Tung Chung Crescent, Lantau. As a result of the conversation Miss Leung promoted the development and found 50 interested parties. They filled out application forms, apparently supplied by Sun Hung Kai, and submitted cashier's orders of $150,000 each, made payable to a named firm of solicitors.

4. The appellant came into the picture next. Miss Leung received a call that a representative of Sun Hung Kai would come to her office to collect the application forms and cashier's orders, and that morning, being 13 October 1998, the appellant arrived. He told her he was from Sun Hung Kai. When he was shown the applications, he checked them. Asked if he agreed to sign a receipt for them prepared by Miss Leung, he said he would. He took a chop from his bag and affixed it to the receipt and signed. The chop purported to be of Sun Hung Kai. On request, he left particulars of his ID card also. Then he departed with the application forms and cashier's orders totalling $7.5 million. Miss Leung received another call from Edward Au Yeung who said everything was in order.

5. But it was all a sham. There was no development at Tung Chung Crescent and Sun Hung Kai had no knowledge or involvement. There was no Edward Au Yeung on the staff. The appellant was traced through his ID card.

6. The magistrate found that the appellant knew that he was participating in an unlawful venture. He knew that the chop he was carrying was not what it purported to be, namely a Sun Hung Kai chop. He knew he was in possession of it for the purpose of making a false instrument, a receipt. He proceeded to forge the receipt.

7. On these findings of fact, the magistrate found the ingredients of the three charges proved and convicted the appellant.

8. Mr Poon, for the appellant, raises a number of grounds of appeal but there are essentially only two. The first that I deal with relates only to Charge 1 and reads:

"The appellant should not be convicted of the charge as it is duplicitous. s.76 creates two separate offences, a s.76(1) and a s.76(2) offence. The prosecution, he says, should have charged the appellant under s.76(1) or 76(2), not s.76."

9. There is no question the charge sheet failed to record with which of the two offences in s.76 the appellant was charged. Surprisingly no one spotted this omission and alerted the magistrate to it in the court below. But I do not accept that that makes the charge bad for duplicity.

10. The offences are quite different. The second offence deals with possession of an implement designed to make a false instrument. The first requires the additional ingredient of intent to use it to induce someone to accept it as genuine and to act to that person's or someone else's prejudice. The second carries a maximum sentence of 3 years, the first of 14 years.

11. The particulars clearly allege all the ingredients of S.76(1). The trial proceeded on that basis. It cannot be said that the appellant was unaware or uncertain of all the issues the prosecution had to establish. The magistrate found all the ingredients of s.76(1) proved. The appeal against Charge 1 fails on that ground.

12. The remaining grounds stem from the premise that the magistrate erred in law by finding the receipt to which the false chop was affixed was a false instrument within the definition of s.71, 73 and 76(1).

13. Mr Poon's argument, if I follow it correctly, is that the document having been prepared by Miss Leung was a genuine document not tainted by the affixing to it of a false chop. The application of the chop was to acknowledge the passing of the documents therein recorded which in fact took place. The receipt was not a document purportedly issuing from Sun Hung Kai. Accordingly, the ingredients in each charge of intention to make a false instrument, making a false instrument and using an instrument knowing it to be false, had not in fact been established.

14. To consider the merits of this argument it is necessary to go to the definition of false instrument of which there are a number of examples in s.69 of the Ordinance. s.69(a)(ii) states for the purposes of this part of the Ordinance:

"An instrument is false if it purports to have been made in the form in which it is made on the authority of a person who did not in fact authorise it in that form."

15. Sun Hung Kai purported to have authorised the signature on the receipt when, of course, on the facts, it clearly had not. I cannot see how this does not falsify the entire document. A receipt, as such, is not complete until signed, otherwise it is meaningless and valueless, just as a cheque that is unsigned is no more than a piece of paper. It is a forged signature, that is, a signature purportedly made or authorised by the maker but in fact not made or authorised by the maker, which makes a cheque - the whole document - a false instrument.

16. The same goes for a receipt. The document became the appellant's when he was handed it and he affixed the chop knowing it to be a counterfeit. By doing that and signing it, he made it into a false instrument. Miss Leung was induced by that to accept it as genuine and thereby to act to the detriment of all those whose cashier's orders she then handed over.

17. The magistrate having found the receipt to be a false instrument had not erred in law in doing so. In fact, with singular clarity, he found all the ingredients of all three charges proved in a manner that cannot be faulted, save that the conviction under Charge 1 shall be amended such that it is to record that it is contrary to s.76(1) Cap. 200. The appeal is dismissed.