THE QUEEN v. CHENG TON-HAU

IN THE COURT OF APPEAL

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JUDGMENT

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Barnes, J.:

1. In this case, the applicant was convicted after trial before a judge and jury on two counts: one of uttering forged documents, contrary to section 74 of the Crimes Ordinance, and the other of obtaining property on forged documents, contrary to section 75 of the Crimes Ordinance. The counts arose out of the one incident when the applicant passed over 44 banknotes, which purported to be thousand dollar banknotes issued by The Chartered Bank, in exchange for a quantity of watches.

2. At the trial, there was no real dispute about the central features of that transaction and a good deal of the evidence was before the jury by way of admitted facts and the real issue, when it came to be considered by the jury, was this: "Has it been established beyond a reasonable doubt that the applicant knew at the time he passed over the 44 banknotes that they were forged." The evidence that they were in fact, forged notes was not in dispute.

3. In his appeal against conviction, the applicant lodged homemade grounds of appeal setting out 14 grounds of complaint. Mr. Macrae, who has appeared on his behalf, both at the trial and before us did not put before the Court perfected grounds of appeal. He did, however, choose to argue before us, one of the grounds which had been put before us by the applicant himself. That ground as it came to be eventually framed by Mr. Macrae had three limbs: Firstly, he argued that certain evidence which the judge had admitted at the trial was inadmissible. Secondly, in the alternative that if the evidence was admissible, the judge should have made certain comments about it in his summing up to the jury, and thirdly that the prosecution, in seeking to get the best out of this evidence as it were, went too far.

4. In support of his submission that the evidence was inadmissible, Mr. Macrae referred us to quite a number of authorities.

5. I do not propose to set them out seriatim in the course of this judgment but merely to summarise the effect of them which, in my view, is that evidence of a transaction subsequent to the transaction which is the subject of the charge or charges is only admissible where it is of probative value on some issues before the Court: and, in particular, on an issue of knowledge of falsity in forgery. It is sufficient, I think at this stage, to dispose of this submission to say that in this particular case the evidence could have had probative value in relation to the issue as to whether the Applicant had knowledge of the forgery. The evidence was that in November - the incident involving these counts having taken in place in August 1983 -in November 1983, the applicant had, in his possession, a note which had been torn up, but which was from the same original as the forged notes which had been used in the incident in August and which form the basis of the two charges. In addition, there was evidence that he had, before November, been in possession of other notes still intact and which he passed on to another person who had been apprehended by the police in November 1983. The judge ruled that that evidence was admissible, and this Court agrees that that ruling was correct.

6. The allegation that the judge did not draw the jury's attention in a proper way to the use which could be made of that evidence is in our view unfounded. In his summing-up, the judge made it abundantly clear that this issue of whether or not the applicant knew that the notes were false at the material time was the crucial issue. He pointed out to the jury that the only point of the evidence was this:

"Is it an indication to you that the possession of notes in November indicates that he must have known in August, some three months before, that the other notes were also forgeries?"

The judge there emphasised that the evidence was before the jury for the very limited purpose for which it is admissible.

7. We, therefore, think that criticism of the judge's summing-up has no merit. Equally, we think there is no merit in the criticism that the prosecution sought to get "too much mileage out of this aspect of the case." There is no merit whatsoever in any of the other matters which the applicant mentioned in his home-made grounds of appeal and we therefore have come to the conclusion that there is no merit whatsoever in his appeal against conviction.

8. On the question of sentence, the Court is of the view that the sentences do appear to be slightly out of alignment with sentences passed in somewhat similar cases on the authorities which have been put before us this morning. I have already mentioned that the case is one where both counts arose out of the same transaction. The notes were passed over in exchange for a quantity of watches, the selling price for which had been agreed at $8,6000. The learned judge imposed a sentence of 7 years' imprisonment on the first count for uttering the forged notes and a sentence of 5 years on the second count of obtaining property by means of the deception using the forged notes.

9. We have come to the conclusion that the sentence of 7 years on the first count is too high and should be reduced to a sentence for 5 years. We accordingly, therefore, refuse the applicant leave to appeal against conviction, but we give him leave to appeal against sentence. We treat this as the hearing of the appeal, we set aside the sentence on the first count and substitute therefor a sentence of imprisonment for 5 years. The other sentence will remain untouched and both sentences are to be served concurrently.