R. v. TO TAT WAH

MA No. 1521 of 1994

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H E A D N O T E

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FORGERY - ATTENTION DRAWN TO PROVISIONS OF PART IX CRIMES ORDINANCE IN RELATION TO FORGERY CHARGES

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1521 OF 1994

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J U D G M E N T

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1. The appellant faced one charge of forgery of a document, contrary to s.111(1)(a) and (2) of the Road Traffic Ordinance in that he, with intent to deceive, forged an identifying mark applied to a vehicle by a manufacturer, namely, by welding the Chassis No.JHMED 35200S-0046651 on a motor vehicle with Registration Mark ET 7657 onto another Japanese used vehicle allocated with a Chassis No.EF 2-3106066. He pleaded not guilty but was found guilty after trial and now appeals against that conviction.

2. The brief facts were that on 1st January 1994 a white Honda Civic Registration No.ET 7657 was stopped by police officers and as the chassis number appeared to have been altered, the car was sent for examination and it was found that the Chassis No.JHMED 352005-0046651 had been welded on top of another set of chassis number. Enquiries revealed that the appellant, a garage proprietor, had authorised his employee to weld the chassis number of a wrecked car onto the refurbished second-hand Japanese car which he had imported from Japan. The magistrate, having been satisfied on the facts, found the appellant guilty.

3. Mr McCoy who appears for the appellant argues only one ground of appeal which is that the learned magistrate erred in fact and law in interpreting the elements of the offence "with intent to deceive" and "forgery", that by virtue of the Interpretation and General Clauses Amendment No.2 Ordinance of 1993, the relevant definitions in Part IX Crimes Ordinance apply to the interpretation of s.111 of the Road Traffic Ordinance and that this was never considered by the learned magistrate. Mr McCoy hastens to add that no blame can be directed at the magistrate for having taken the approach that she did given that the true state of the law in Hong Kong was not drawn to her attention by either the prosecution or the defence.

4. On 17th December 1993 Part IX of the Crimes Ordinance, Cap.200, came into force and dramatically changed the elements required to be proved in respect of the offence of forgery. Section 68(2) provides "In any ordinance, unless the context otherwise requires, 'forgery' shall be construed in accordance with this Part." Part IX goes on to set out in detail the meaning of "false" and "making", of "prejudice" and "induce" and sets out the definition of the offence of forgery.

5. Mr Casewell who appears for the Crown concedes that the provisions of Part IX of the Crimes Ordinance must apply to s.111 of the Road Traffic Ordinance, which is the section dealing with forgery of documents.

6. As a result of the amendment to the Crimes Ordinance, it is now incumbent upon the prosecution in such cases to state clearly which parts of ss.69 and 70 of the Crimes Ordinance the prosecution relies upon, for the magistrate to consider the definition of "forgery" in s.71 and to make findings of fact in relation to the provisions relied upon by the prosecution. Through no fault of the magistrate this was not done in this case. Mr McCoy's submission is that without such findings, the appeal must succeed. Mr Casewell concedes that this is so. The appeal is therefore allowed and the conviction quashed. I should add that if I had had the power to exercise the proviso, I would have done so in this case. Pleas for such powers have in the past fallen on deaf ears and will no doubt continue to do so.