HKSAR v. DONG XIAO-MING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 153
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The 1st Applicant was convicted after a trial in the District Court before Her Honour Judge Chua of one offence of forgery contrary to s. 71 of the Crimes Ordinance and one offence of using a false instrument contrary to s.73 of the Crimes Ordinance. The 2nd Applicant was also charged with the first count of forgery.

2. Particulars of the first charge were that:

"Dong Xiao-ming and Cheng Ching-iu, on or about 4th March, 1994, in Hong Kong, made a false instrument, namely a document dated 4th March 1994 purporting to be the last will and testament of Tung Chen-yee, deceased, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice."

Particulars of the second charge were:

"Dong Xiao-ming, on or about the 8th February 1995, in Hong Kong, used an instrument, namely an affirmation made by him on 24th January 1995, in support of his application for Letters of Administration in respect of the estate of Tung Chen-yee, deceased, which was and which he knew or believed to be false, in that the annexed will, referred to therein, was false, having been forged by him, with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any another person's prejudice."

3. Both Applicants seek leave to appeal against their convictions.

4. As can be seen from the charges they relate to a purported will made by the 1st Applicant's father shortly prior to his death and to the affirmation in support of the 1st Applicant's application to the Probate Registry for a Grant of Letters of Administration with will annexed to his father's estate.

5. The Judge had set out the salient facts in some detail. Suffice it to say that the Applicant who was the third child of the deceased was the eldest son. There were altogether five girls and two boys.

6. The 1st Applicant gave evidence that his father became ill on 4th March 1994 and had to be admitted to hospital. As his father believed that his illness was terminal, he instructed him to prepare a will. He did so. The main disposition under the will was a bequest of 6,000 shares in the Hongkong Shanghai Banking Corporation to himself. According to him his father signed the will and it was witnessed by himself and the 2nd Applicant. Shortly after this his father died.

7. He did not tell his siblings about this will. A family meeting was arranged when there was agreement as to how the shares would be divided amongst the children. It was agreed that the 1st Applicant would be entitled to 2,000 shares. The agreement was reduced to writing and the share certificates distributed.

8. PW1, one of the 1st Applicant's sisters attempted to sell 1,200 of the shares. She was unable to do so as she was advised that Letters of Administration with will annexed had been issued to the 1st Applicant and that he was beneficially entitled to all of the shares.

9. PW1 consulted a solicitor who arranged for the release of the will from the Probate Registry to the Government Laboratory where it was examined by a Senior Government Chemist. This expert gave evidence to the effect that the will was a forgery.

10. The 1st Applicant gave evidence that the will was a genuine will which had been executed by his father. He also called a handwriting expert from the United Kingdom Mr. Maclean who gave evidence which supported this.

11. The 2nd Applicant did not give evidence. The Judge was satisfied with the prosecution evidence and convicted the Applicant on both counts.

12. The 1st Applicant's 1st ground of appeal is:

"In all the circumstances the Applicant was denied a fair trial and the conviction was unsafe and unsatisfactory and material irregularities arose as:

1. i) At the trial there was no evidence or agreement proving that the writing used for comparison purposes was genuine nor did the Learned Trial Judge make any determination or finding that such writing was genuine;

ii) Even if such a determination was made or arose the Learned Trial Judge not only made no finding upon the issue she did not indicate what standard of proof was applied upon this issue, if any, and whether she was satisfied beyond reasonable doubt that the comparison writing was genuine, and

In the circumstances of i) and ii) above the absence of evidence or agreement or finding upon the comparative writing and the non-direction upon the standard of proof was fatal to the conviction."

13. Section 17 of the Evidence Ordinance, Cap. 8, reads as follows:

"Comparison of disputed with genuine writing

Comparison of a disputed writing with any writing proved to the satisfaction 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 genuineness or otherwise of the writing in dispute."

14. Ms Yang for the prosecution accepted before us that there had been no specific agreement struck between the parties that the control signature upon which the experts had based their deliberations be admitted as evidence in the trial. Also no agreement such as to meet the requirements of s.65C of the Criminal Procedure Ordinance had been concluded.

15. The consequence of this is that the requirements of s.17 have not been complied with and accordingly this ground of appeal must succeed.

16. Mr. Grounds for the 2nd Applicant adopted Mr. Buchanan's submissions on this and this being the case the 2nd Applicant appeal must also succeed.

17. There is a further matter which we must revert to.

18. Mr. Grounds' 2nd ground of appeal on behalf of the 2nd Applicant complained that the Judge intervened excessively during the course of the examination-in-chief of Mr. Maclean, the handwriting expert. We have examined the passages referred to by Mr. Grounds. There would appear to be considerable merit in the complaint which is made in this ground. Even if the 1st Applicant's 1st ground of appeal had not been successful there is a real likelihood that this ground would have succeeded. It could be strongly argued that the Judge effectively took over this examination-in-chief and, in effect, usurped the function of counsel whose duty it was to conduct the cross-examination.

19. These convictions cannot be regarded as being safe and satisfactory. We allow the application and treating it as the appeal, allow the appeal and quash the convictions.