HKSAR v. CHAN CHING HIU

HCMA 113/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 113 OF 2008

(ON APPEAL FROM ESCC 1409 OF 2007)

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J U D G M E N T

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1.  The appellant was convicted, after a trial before Mr William Ng at Eastern Magistracy, of five offences of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200 (the forgery offences) and one offence of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 (the theft offence).  The appellant was sentenced to 240 hours of community service and now appeals his convictions only.  

2.  The prosecution case against the appellant was that at the time of the offences, he had been an officer serving with the Independent Commission Against Conviction (the ICAC) and had been responsible for the setting up and furnishing of safe houses within the ICAC’s witness protection program.

3.  The allegations against the appellant centred on his purchase of furniture from companies owned by members of his family.  As a result of those purchases, an internal ICAC investigation eventually commenced to determine whether the appellant had, by such purchases, breached any ICAC standing order applicable to its officers failing to avoid or report any conflict of interest in the conduct of their professional duties.

4.  According to the prosecution, it was discovered in the course of that investigation that the appellant had removed from ICAC files five original invoices relating to his purchase of furniture from family owned companies and replaced those invoices with five documents he made himself purporting to be four receipts and an invoice relating to the same purchases but without the logo or letterheads of the companies his family owned and from which the furniture had been purchased.  All other details in the receipts and invoice were correct.

5.  The taking of the original five invoices was the basis for the charge of theft.  The substitution of those invoices with four receipts and an invoice was the basis for the five forgery charges.

6.  The appellant gave evidence.  His case was that he did not know the companies from which he had purchased furniture were owned by members of his family, and that when he had checked all of the files under his supervision prior to his intended resignation from the ICAC, he had discovered that the five invoices were missing.  He had therefore replaced the missing invoices with the new documents simply to ensure that his files were accurate and were in order before he left the ICAC, and that he therefore had no motive to deceive anyone or to cause anyone to act to their prejudice.

7.  There are two grounds of appeal advanced on behalf of the applicant by Mr Phillip Ross :

(1)     That the magistrate erred in convicting the appellant of the forgery offences by finding that the appellant intended to obstruct an ICAC investigation of his breach of an ICAC standing order (the standing order) which prohibited the purchase of the furniture by the appellant from his family owned companies as being a conflict of interest when there was no evidence that the standing order was in force at the time of the offences.

(2)     That the conviction for theft was unsafe as the magistrate wrongly found that the appellant stole the five invoices so as to obstruct the ICAC investigation, when no investigation could have taken place as there was no evidence the standing order was in force at that time.

8.  The standing order which underlies both grounds required the avoidance or reporting of “conflict of interest” situations which were defined by the standing order in the following terms :

“1.     Conflict of interest is a situation in which the ‘private interests’ of an officer compete or conflict with the interests of the Commission or where his ‘private interests’ stand to benefit by the influence of his official position or the exercise of his official authority.  ‘Private interests’ include the financial and other interests of the officer himself and those of the following — 

(i)        his family or other relatives;

…”

9.  The offences of which the appellant was convicted occurred between 17 July and 9 August 2006.  By way of the facts agreed at trial, it was admitted that the standing order was in effect during the period 18 January 2002 to 7 June 2006.  It was during that period that the furniture had been purchased by the appellant.  The agreed facts were silent as to any other period, including the period of the offences, during which the standing order may have been in effect.  Fundamental to Mr Ross’s submissions on both grounds is that because of the terms of the agreed facts, it should have been inferred by the magistrate that the standing order lapsed or was not valid after 7 June 2006 and so was not in effect during the period of the offences.  However it was never suggested at trial that the standing order had lapsed or that it had expired prior to the offences taking place.  Indeed it is fair to say that the trial before the magistrate proceeded on the basis that it was in effect at all material times, including the dates when the offences were alleged to have occurred. 

10.  As to the first ground of appeal, Mr Ross initially appeared to argue by his written submissions that the appellant could not properly have been convicted of the forgery offences if it was possible the standing order was not in force at the time of the alleged offences.  That is because the prosecution case was that the offences had been committed in order to obstruct the ICAC investigation into a breach of the standing order.  That position, with respect, changed somewhat during the hearing of this appeal and Mr Ross’s final argument was that the magistrate should have taken into account, if he had rightly inferred from the admitted facts that it was possible the standing order had lapsed by the date of the charged offences that, there being no basis for any ICAC investigation into a breach of the defunct standing order, the appellant had no reason or motive to commit the forgery offences.  Mr Ross went further and argued also that this state of affairs should have been taken into account in assessing the credibility of the appellant.

11.  Charge 1 (which mirrored each of the forgery charges except for the details of the false document) was particularized as follows :

“Particulars of offence :

          CHAN Ching-hiu on a date unknown between 17^th July 2006 and the 9^th August 2006 in Hong Kong used a false instrument, namely a receipt dated 27^th August 2003 for the purchase of furniture in the sum of $1,660 which was and which he knew or believed to be false in that it purported to have been made on a date on which or otherwise in circumstances in which it was not in fact made, with the intention of inducing the Independent Commission Against Corruption (ICAC) to accept it as genuine, and by reason of so accepting it to do or not to do some act to the ICAC’s or any other person’s prejudice.”  [emphasis added]

That charge, and the others also, correctly canvassed the elements of the offence required to be proven by the prosecution.

12.  Section 73 is in these terms :

“73.   The offence of using a false instrument

          A person who uses an instrument which is, and which he knows or believes to be, false, with the intention of inducing somebody to accept it is genuine, and by reason of so accepting it to do or not to do some act in his own or any other person’s prejudice, commits an offence and is liable on conviction on indictment to imprisonment for 14 years.”

13.  With respect to Mr Ross, whose arguments proceeded on the narrow basis that proof of the validity of the standing order at the time of the offences was crucial to the proof of those offences, it is quite plain that what was crucial was simply proof of the intention of the appellant in the terms of section 73 at the time of the offences.  It was not necessary for the prosecution to prove any specific intent on the part of the appellant to defeat any ICAC investigation of a breach of a particular and existing standing order.   It was necessary only for the prosecution to prove that the appellant provided the false receipts and invoice with the intent to have someone accept them as genuine and thereby do some act prejudicial to their own or someone else’s interests, as expressed by the terms of section 73.

14.  In the circumstances of this case, and as it was prosecuted, that simply meant that the magistrate had to be satisfied the appellant provided the false receipts and invoice so as to have any ICAC investigating officer accept them as genuine and so hinder the investigation and any disciplinary consequences which may have been properly occasioned by a discovery of the fact that the appellant had purchased the furniture from companies owned by members of his family.  It was sufficient in the circumstances of this case to prove that, regardless of whether the standing order was or was not current at the time of the offences, the appellant intended to prevent discovery of that fact and the disciplinary consequences flowing from it, by replacing the original invoices with forged documents.

15.  It should not be overlooked that there was an investigation into the appellant’s purchases actually underway in July 2006.  That evidence was given by two ICAC witnesses PW3 and PW6 who also testified that, during the course of the investigation into the appellant’s files, the original invoices had gone missing.  Whether that investigation was under the auspices of the particular standing order or on some other basis does not matter.  The fact of the investigation and the appellant’s desire to avoid its consequences would, it seems to me, provide sufficient grounding for the formation of the “double” intent required by section 73.

16.  The magistrate in his Statement of Findings said in regard to the appellant’s actions :

“…I was certain that he did that in order to induce ICAC to accept them as genuine documents, thereby hiding the identity of his family’s shops, and by reason of so accepting them not to investigate his breach of standing orders.  …”

17.  This was a finding, it seems to me, restricted to the intent of the appellant.  It went no further.  The magistrate did not have to find, as Mr Ross submits, that the standing order was still current at the time of the offences.  It was unnecessary for him to do so in determining the intent of the appellant and even if, and it is a considerable if, the magistrate assumed incorrectly the standing order was still in existence at the time of the purchases being investigated that does not matter.  Whether the investigation was pursuant to the standing order, or some other regulation or no regulation at all, was irrelevant to proof of the appellant’s intent to hinder that investigation.  It was never in dispute that the investigation was for internal ICAC disciplinary purposes.  I might add the circumstances of the appellant having breached the standing order at the time of his purchase of the furniture render the possible lapse of that standing order, by the time of his commission of the offences, even more meaningless so far as any realistic appraisal of the appellant’s intention to disguise the fact of his purchase of the furniture from his family’s companies is concerned.

18.  Nor do I see how, as Mr Ross also argued, the magistrate could have taken into account the possible lapsing of the standing order as a matter favouring the appellant’s credibility.  As I have said it was not challenged that an investigation was underway into the appellant’s suspected purchases of furniture from family owned companies.  Whether that investigation was under a particular standing order or some other regulation or was generally just to ascertain whether the appellant had been performing his duties professionally would seem to have as little bearing on any assessment of his credibility as a witness, or the credibility of his case as a whole, or on the question of motive, as it did on the question of his intent.

19.  There was no merit in this complaint.  The magistrate’s finding as to the appellant’s intent to disguise his purchases and defeat the investigation was perfectly proper and in my view was the only finding available on the evidence.  In terms of Chou Shih Bin v. HKSAR [2005] 1 HKLRD 838 at 844 paragraph 17 and onwards, it is a finding I agree with. 

20.  The other ground advanced by Mr Ross is put on the basis, and solely on the basis, that if the conviction was flawed for the reasons advanced under the first ground then the theft conviction cannot stand.  It is said that is because the magistrate must have convicted of the theft offence as a result of finding that the theft of the original documents was part and parcel of a scheme by the appellant to deceive the ICAC into not investigating a breach of the standing order.

21.  It is enough to dispose of this ground of appeal that the first ground failed.  But I wish to deal with aspects of the argument advanced in any event.  Mr Ross relied upon the terms of the magistrate’s finding as follows :

“…In the circumstances, I was also sure that he stole the original documents … as it was obviously part and parcel of his scheme to cover up his mistakes and to deceive ICAC.”

But it is plain that the magistrate was simply deciding, consistently with his earlier finding as to the appellant’s intentions, that his intention rendered the appellant’s taking of the original documents dishonest.  Mr Ross’s argument in this regard was wholly unsustainable.  The elements of the theft offence established by the prosecution in no way require proof of any specific motive.  Once the magistrate had found on the evidence that the appellant had appropriated the original documents dishonestly, that was sufficient.  In no way was the determination of the theft offence dependent upon proof of the existence of any particular standing order. 

22.  Further, once the appellant’s evidence was rejected and the magistrate concluded that the original documents had been taken and substituted with false documents so as to cover up or conceal the appellant’s relationship with the companies from which the furniture had been purchased there was no room for any finding other than that the appellant had been dishonest.  This ground was misconceived.

23.  There is a penultimate matter.  Mr Ross suggested that if I were to find that the convictions did not depend upon proof of the standing order and that the convictions were justifiable on the broader basis I have indicated, that would be an approach which breached the principle expressed in the leading case of R. v. Falconer-Atlee (1974) 58 CAR 348.  I do not think that is so.  That case was concerned with the trial of an offence of theft.  The Court of Appeal concluded that it was wrong for the judge to have left to the jury two bases for conviction; firstly that the dishonest appropriation had occurred at the premises where a dog had been purchased by the appellant by way of her substituting a more valuable dog for that purchased, or secondly and in the alternative, by the appellant electing to continue any originally innocent appropriation of the wrong dog after she had later been informed that she had in fact taken the wrong dog.

24.  It is quite clear in Falconer-Atlee that what was left to the jury were two separate offences in that the actus reus of each differed and which were founded on two different allegations as to the formation of the appellant’s intention to appropriate.

25.  In a the present case all that may have differed, even if Mr Ross is correct, is that the intent of the appellant as alleged at trial may have been narrower than the somewhat broader intent I have referred to in this judgment.  That does not offend the principle in Falconer-Atlee.  The prosecution, in suggesting the purpose of the appellant in both the forgery and the theft offences was to defeat any investigation of a breach of the standing order, was attributing an intent which inevitably incorporated the intent I have referred to.  If Mr Ross had directed his arguments to the magistrate at trial as he has directed them to me, I am sure the magistrate inevitably would have convicted and done so on the same basis.

26.  In any event this being a re-hearing; see Chou Shih Bin (supra), I am sure that the prosecution proved its case against the appellant on either view of his intent.  The concept central to the defence case of the appellant finding the original five invoices missing from the file and replacing them for the sake of completeness with documents he constructed from his memory down to the minutest detail concerning delivery and collection instructions, descriptions of the colour of individual items and telephone numbers and other matters unique to the individual transaction, could never have been accepted as credible. 

27.  Once his evidence was rejected, and given the strength of the prosecutions evidence, the appellant’s conviction was inevitable. 

28.  There is one final matter.  Mr Ross’s arguments in this appeal depended entirely on one factual circumstance, i.e. that there may have been no standing order of the sort set out above in effect at the time of the offences.  I considered calling evidence so as to establish whether or not this was so.  However both Mr Man for the respondent and Mr Ross objected to this course on the basis that such additional evidence was neither necessary nor expedient and in any event was available at trial.  At the end of the day, somewhat reluctantly, I did not order any such evidence be called.

29.  For the reasons I have given, this appeal is dismissed.