HKSAR v. Annells Deborah
Read the full judgment text of DCCC 148/2015 on BabelCite. This District Court judgment.
1. The Defendant pleads not guilty to the following charges:
Cited by 1 case
|
DCCC 148/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 148 OF 2015 -----------------------------------
-----------------------------------
---------------------------- Reasons for Verdict ---------------------------- Charges 1.The Defendant pleads not guilty to the following charges:
Crux of the prosecution case 2.On 10/4/2014, the Defendant attempted to use the copy of a forged document to misrepresent her company’s financial situation with a view to obtaining a lease of a set of office units from the landlord (1st Charge). On 11/4/2014, she produced to the Magistrate, through her counsel, the copy of the same forged document in her application to vary her bail conditions in a criminal case (2nd Charge). On 14/4/2014, in execution of a search warrant, the police seized the forged document from her office (3rd Charge). Defence stance 3.She gives evidence and calls 3 witnesses. She does not dispute that she had instructed a staff member to create the major part of the forged document. After its creation, it was placed on her desk for her own use. She had no intention to present it to anyone at all. Owing to workload and pressure, she had mistakenly sent a copy of it to the landlord. This is her answer to the 1st Charge. 4.Owing to the same reason, she had also mistakenly sent a copy of it to her solicitor in preparation for her application to a magistrate to vary her bail conditions. Her counsel received in turn a copy of it from her solicitor. Her counsel then handed up a copy of it to the magistrate without her knowledge and consent. This is her answer to the 2nd Charge. 5.The police investigated the copy of the forged document and came to seize the forged document in her office upon execution of a search warrant. Despite her possession of it, she had no intention to present it to anyone. This is her answer to the 3rd Charge. 6.She calls 3 witnesses to assist in her answer to the charges. Stephen HART (DW1) is expected to say that she had been in earnest seeking to renovate a new office to continue her business in Hong Kong. Karen CHOI (DW2) was a trainee solicitor under the Defendant’s solicitor. She was also present in the conference before the court hearing on 11/4/2014. She is expected to say what was discussed amongt the Defendant, her solicitor, and her counsel before court. DW3 Charles FEARN (DW3) is expected to say that the Defendant’s business was a going concern and her paintings in her office as assets could have been undervalued so that her business might possibly be worth more than its book value. Evidence in the case Facts in issue 7.There are certain facts admitted under section 65C of the Criminal Procedure Ordinance[1]. There are factual disputes to various parts of the prosecution case. I will highlight the disputes where applicable. The events are set out hereinbelow in chronological order for ease of understanding. I have only referred to those exhibits or witnesses[2] when there is a point of some significance to illustrate. Reference to the instrument in question 8.The document pivotal to all 3 charges is a Memorandum of Understanding passed off as signed by the Defendant and a potential purchaser of her business for a consideration of US$1,000,000. This was confirmed by the government chemist as a forged document. The prosecution case is that the Defendant had used or possessed it, as the charge may be, to exaggerate her financial soundness. I shall refer to this forged document as “the US$ MOU” because the major difference between this one and the genuine one was that the genuine one had a consideration of only “HK$1,000,000”. The genuine one remains to be called “the MOU”. I think this will minimise circumlocution as well as confusion. AzureTax and AzureTrustees 9.At all material times, the Defendant was the director, proprietor, and person-in-charge of AzureTrustees Limited (“AzureTrustees”), a Hong Kong registered trustee company. She was also the director and person-in-charge of AzureTax Limited (“AzureTax”), a Hong Kong company providing tax consultancy services. Lease of Lippo Office 10.On 15/5/2012, AzureTax commenced a two-year lease for a set of office units comprising Nos. 1001, 1009, and 1010 of 10th Floor, Lippo Centre, Tower 2, Hong Kong (“the Lippo Office”) with the landlord, Sinka Limited (“Sinka”) to expire on 14/5/2014[3]. AzureTax had to pay a rent of HK$229,467 as well as management and air-conditioning charges of HK$23,884 per month, ie HK$253,351 in total per month. 11.As a result of non-payment of rent, Sinka terminated the lease on 25/11/2013 and commenced legal proceedings on 22/1/2014 for the outstanding rent. On 26/3/2014, Sinka obtained judgment for vacant possession. At all material times, apart from interest, AzureTax still owed Sinka at least HK$392,501.75. Her bail conditions in committal court 12.On 5/11/2013, the Defendant was charged with 25 charges of theft of choses in action, 3 charges of fraud, and 1 charge of possessing a false instrument. On 8/1/2014, she was granted bail in the Eastern Magistracy. One of her bail conditions was that she was not to leave Hong Kong. On 26/2/2014, she was brought up in the Eastern Magistracy. She was further charged with 26 charges of theft of choses in action and 1 charge of fraud. Her bail was extended on the same previous terms. The return date was appointed for 4/4/2014 in the committal court as all her charges would be dealt with in the High Court. Negotiations of take-over of her business 13.In 10/2013, she and a businessman James SUTHERLAND (PW7) had begun a course of negotiations with a view for SUTHERLAND to take over her business interest in AzureTax and to engage her as a consultant overseeing AzureTax with the option for her to buy it back in future. The negotiations also involved the sale of the trust portfolio held by AzureTrustees. SUTHERLAND owned a batch of companies held by a company Zetland Fiduciary Group Limited (“Zetland”), which would make arrangements for the take-over, if any. She intended the takeover to be a device to finance the legal fees in her High Court trial, provide her with a decent income in the meantime and preserve her business until she re-acquired it within a few years. Loan of HK$800,000 from SUTHERLAND 14.In 11/2013, she approached SUTHERLAND for a loan of HK$800,000 to pay Sinka, which was the landlord of her Lippo Office. SUTHERLAND was prepared to lend her the money on the condition, among others, that the money be paid to her landlord directly, that she pledge all her shares in AzureTax Group, AzureTrustees and subsidiary companies to the order of Zetland to cover the loan made to her by SUTHERLAND. Meanwhile they were negotiating over the sale of her companies to Zetland to take place in 2014. SUTHERLAND through his company, HKIC, paid HK$800,000 to Sinka. The Share Pledge Agreement was signed in 12/2013 to cover 90% of her shares in AzureTax as security for the loan. Loan of HK$600,000 from SUTHERLAND 15.On 30/1/2014 and 4/2/2014, as requested by her, HKIC lent her 2 further sums, HK$600,000 in total. So far she owed HKIC HK$1,400,000. The pledge would cover all such loans. Terms raised by her for negotiations with SUTHERLAND 16.On 15/2/2014, she quoted a notional price of HK$300,000 – HK$500,000 for AzureTax with an option to buy it back by her or her designate at the same price within 5 or 7 years. Need for variation of her bail condition 17.On 21/2/2014, she informed Christopher MORLEY (PW15), who was a solicitor in private practice in the solicitors’ firm of Haldanes, of her intention to visit her parents in U.K. for a week during the Easter holidays. This necessitated an application to the committal court to vary her existing bail conditions. Terms updated by her for negotiations with SUTHERLAND 18.On 27/2/2014, she sent James LEE (PW8), the managing director of Zetland, an email quoting a Net Book Value of HK$1,691,858 for AzureTax. The next day, she requested for a price of at least HK$2,000,000. Zetland’s view of her business 19.On 8/3/2014, SUTHERLAND emailed a purchase offer of HK$1,000,000 maximum for AzureTax subject to a satisfactory sale and purchase agreement being signed. He would soon have a Memorandum of Understanding to the same effect prepared. Working under him were James LEE, lawyer Francis CHEW (PW9), and accountant Liza KO (PW10). They were not keen on the negotiations as her business was not worth the price and the risk. Loan of HK$200,000 from SUTHERLAND 20.On 27/3/2014, HKIC made out another loan to her in the sum of HK$200,000 as her legal fees. SUTHERLAND so far had lent her HK$1,600,000 in total. Signing of MOU 21.On 24/3/2014, Francis CHEW on behalf of Zetland signed each of the 2 originals of the MOU with her[4]. The consideration would be HK$1,000,000, to be offset against her pre-existing loan of HK$1,600,000. In court, she says that she regarded this consideration to be a starting point for further negotiations whereas SUTHERLAND says in court that he was adamant that it was to be final. Provisional Tenancy Agreement and the cheque as deposit 22.On 27/3/2014, she viewed 5/F of Seabird House, Nos. 22 – 28 Wyndham Street, Hong Kong (“the Seabird Office”). Apart from herself, also present were her estate agent May FAN (PW4), the landlord’s estate agent Manson NG (PW3), Noel SUNG (PW1), who was the secretary of the landlord Winchell WONG (PW2). On 31/3/2014, she (the Defendant) signed the Provisional Tenancy Agreement (“PTA”) and drew a cheque in favour of the landlord for the deposit of HK$65,000. That was equivalent to one month’s rent. It was drawn on AzureTax’s Bank of East Asia account. Noel SUNG deposited it into Winchell WONG’s HSBC account. Plans to renovate the Seabird Office 23.On the same date, the Defendant emailed Stephen HART, who had been AzureTax’s interior designer in 2008, a floor plan of the Seabird Office for his opinion on the design and renovation to be. Cheque was bounced 24.On 2/4/2014, HSBC informed Winchell WONG by letter that the cheque for HK$65,000 drawn by the Defendant was bounced for the reason that the account was closed. The account had been closed on 26/9/2013. She explains in court that she had mistakenly taken the wrong cheque book to issue the cheque. Winchell WONG instructed Noel SUNG to follow it up with the relevant estate agents. Noel SUNG did as instructed. Winchell WONG also engaged the solicitors’ firm Bernard Wong & Co. to act for him. The solicitor in charge of the matter was Kenneth NG (PW6). Defendant attending committal court 25.On 4/4/2014, the Defendant attended the Eastern Magistracy to vary her bail condition so as to allow her to go to U.K. for a week during the Easter holidays commencing on 16/4/2014. Kevin EGAN (PW16) instructed by MORLEY, applied on her behalf. EGAN took the view that the application should be made on an occasion where the Magistrate was not so busily occupied with other cases. In the meantime, she could acquire all relevant documents in support of her application. EGAN asked the court to set down another date. The Magistrate, Mr. David CHUM, adjourned the case to 2:30 p.m. of 11/4/2014 for the application. Loan of HK$75,000 from SUTHERLAND 26.On the same date, she requested SUTHERLAND for, and was granted, a loan of HK$75,000 for her legal fees. They signed the Share Purchase Agreement for AzureTax. Putting up HK$55,000 to make up for HK$65,000 bounced cheque 27.On the same date, as informed by her estate agent May FAN, she had to deposit HK$65,000 into Winchell WONG’s bank account to cover the amount of the bounced cheque forthwith. She asked her staff member to do so but only HK$55,000 turned out to be so deposited. The deposit was still HK$10,000 short. Design and renovation plans for the Seabird Office 28.On the same date, Stephen HART exchanged ideas with her as to how to renovate the Seabird Office. Full deposit made out but landlord asking for bank guarantee 29.On 7/4/2014, she deposited the outstanding HK$10,000 in cash by ATM. Bernard Wong & Co. wrote to ask her for a written bank guarantee within 7 days for her payment of rent in the light of her cheque being bounced and insufficient amounts being deposited initially. Bernard Wong & Co. informed her that without the bank guarantee, the landlord would not grant her the lease. Further contact with designer for moving office 30.On 9/4/2014, Stephen HART and a furniture company representative John YUEN visited the Defendant at the Lippo Office to see what furniture could be used in the Seabird Office. She did not have to pay him any fees as everything was only preliminary. Providing MORLEY with the US$ MOU 31.On 10/4/2014, she received from MORLEY a copy of the prosecution’s grounds of objection to her application[5]. The prosecution focused on her being a flight-risk due to her lack of local ties. MORLEY asked her for information to counter the prosecution’s objection. She provided him with the PTA, the US$ MOU, and a letter sent to Sinka. She had wanted to send him the MOU but had mistakenly sent the US$ MOU instead. The US$ MOU was possibly left on her desk to contribute to her mistake. She was not aware of such mistake. The mistake was probably due to a combination of workload and pressure: There was the removal from the Lippo Office, the plan to design and renovate the Seabird Office, the negotiations with Zetland, the absence of an experienced and most helpful accountant Shirley Siu, various civil and criminal proceedings, the legal fees, and the peak season for tax return submissions. 32.She explains in court how she had come to create the US$ MOU. There were 5 pages in all in the MOU. Pages 1 – 4 each had the initials of her and Francis CHEW at the right-hand bottom corner. Page 5 had the full signatures of her, Francis CHEW, and James LEE. Subsequent to their signing of the MOU, she and Francis CHEW each kept one of the 2 originals they signed. 33.After signing[6], she instructed her accountant Serena LI to alter the consideration at clause 1.2 on page 2 from “HK$1,000,000” to “US$1,000,000” and add the word “initially” before the words “by way of set off against the Loan”. The template was retrieved as a Word document from the computer. It was the file which Francis CHEW had emailed to her before signing. After the alteration, she appended her own initials to the right-hand bottom corner on page 2. She did not know who had eventually appended the initials purported to be that of Francis CHEW beside hers. The US$ MOU was to serve as her own affirmation and she did not intend to disclose it to other people. 34.She did not know that the US$ MOU had borne the purported initials of Francis CHEW on page 2. She only knew that sometime after her arrest. Providing Seabird landlord with the US$ MOU 35.On the same date, she sent a letter enclosing a copy of the US$ MOU to Bernard Wong & Co. and counter-proposed having Zetland as her guarantee as it had a subsidiary operating as a licensed money-lender. Submitting US$ MOU to court 36.On 11/4/2014, EGAN spent about 10 minutes taken instructions from her together with MORLEY and MORLEY’s trainee solicitor Karen CHOI in the conference room before addressing the Magistrate in court. Karen CHOI cannot remember the discussion in detail between the Defendant, EGAN, and MORLEY before they entered the court room. 37.EGAN says in evidence that his impression was that she was not a passive client. She asked questions and expressed her own ideas in the conference. He regarded the US$ MOU as the most important document in her set to suggest to the Magistrate a solid financial position and business tie in Hong Kong. He was on the first row facing the same Magistrate, Mr. David CHUM, whereas she was behind him on the second row. She says in evidence that EGAN was on the first row but she was on the third row and could not hear clearly the oral exchange between EGAN and the Magistrate. 38.EGAN contended on her behalf that she was not a flight risk. She had a thriving business in Hong Kong. The MOU was an arrangement by Zetland to finance her High Court trial by granting her an option to buy back her business within the next 5 years at a price by a formula to be negotiated on further. This would preserve her profitable business in the meantime. 39.She says that, without her knowledge, EGAN then submitted the US$ MOU[7], the PTA, and AzureTax’s notice to deliver up the Lippo Tower office to Sinka by 14/5/2014, among other documents[8] to the Magistrate. It had been her practice dealing with lawyers to sign on the documents to confirm her consent before lawyers could submit them to court. She had not done so in respect of the US$ MOU. If the Magistrate had requested for its production to court, she would have asked EGAN to let her check first to make sure it was the correct document because anything could have happened. 40.Physical distance from EGAN apart, she was tired and not always attentive to what EGAN was doing. She supposes that it must have been at the crucial juncture when EGAN presented the Magistrate the US$ MOU that she coincidentally turned her head to chat with her surety Mr. Deayton that she did not expect the hearing to last so long. Only when outside the court room after the court hearing did she first become aware that EGAN had handed up the document she regarded as the MOU to the Magistrate. She expressed surprise to EGAN and MORLEY but did not instruct them to retract the document from the Magistrate for her to check back if it was the correct document. 41.After hearing from EGAN, the Magistrate changed the bail condition to enable her to depart Hong Kong on 16/4/2014. Police investigated the US$ MOU 42.On the same date, the police interviewed James LEE and Francis CHEW in relation to the copy of the US$ MOU submitted to the Magistrate. Landlord still requested for bank guarantee 43.On the same date, Bernard Wong & Co. wrote to her to insist on a written guarantee from only a bank. Sinka terminated the lease 44.On the same date, solicitors for Sinka wrote to her to the effect that the lease had been terminated and a judgment obtained from court against AzureTax for both unpaid and occupying rent, and costs. Her last efforts to acquire Seabird Office 45.On 14/4/2014, she wrote 2 letters in turn to Bernard Wong & Co. The first one asked for a meeting to discuss the lease. The second one threatened to charge the landlord with two times the deposit and the estate agent’s fee for wrongfully requiring a bank guarantee as a precondition for granting the lease. Police searching Defendant’s office 46.On 14/4/2014, the police executed a search warrant on her Lippo Office and seized various documents, including the US$ MOU. The MOU was found in her safe. Arrest by police for US$ MOU 47.On 14/4/2014, the police arrested her in connection with the US$ MOU. She was detained with no further bail by the police or the court. Return of the key of Lippo Office to Sinka 48.On 30/4/2014, Sinka received the key from AzureTax. Net asset value contained in her Stamp Duty submission 49.On 5/5/2014, whilst in custody she signed the Instrument of Transfer of Shares in favour of HKIC. This document, together with AzureTax’s profit and loss statement for 7/2013 to 3/2014 also signed by her, which recorded a loss of HK$1,377,273, was for submission to the Stamp Duty Office for stamping. The balance sheet as of 3/2014 also signed by her showed net assets of HK$611,318.02 in total. The US$ MOU forensically examined 50.Dr NG Po-king (PW17) of the Questioned Documents Section in the Government Laboratory conducted forensic examinations on the various exhibits seized. She made use of the MOU (P35) which was seized by the police from the Defendant’s safe in the Lippo Office as the control sample. 51.On about 27/5/2014, she compared the MOU (P35) with the US$ MOU (P33) seized from the Defendant’s desk in the Lippo Office. She concluded that pages 1, 3 – 5 of P33 were copied images of their counterparts in P35. Page 2 of P33 was not a copied image of its counterpart in P35 as revealed by the difference in contents and spacing between paragraphs, as well as the look of the initials at the right-hand bottom corner[9]. 52.On 26/8/2014, she compared the US$ MOU (P33) with the US$ MOU submitted by EGAN to the Magistrate (P40). She concluded that P40 was originated from P33[10]. MOU/US$ MOU as exhibits 53.The following MOUs and US$ MOUs are produced as exhibits:
54.She says she provided MORLEY this document to demonstrate to MORLEY that she was not a flight risk. She had the impression, which transpired to be a mistake, that it was an important term in the MOU that the completion of the sale of her shares to Zetland would take place on 2/5/2014 so that on or before that day she would have to be back in Hong Kong to sign the Share purchase Agreement. The MOU did not actually bear any such date. 55.The stamp duty for the transfer of her shares in AzureTax to HKIC was based on a net asset value of HK$611,318.02 based on AzureTax’s management accounts submitted to the Stamp Duty Office. The accounts were prepared by a qualified accountant for her to sign in the Lowu reception centre. Subsequently she admits in court that the net value of AzureTax was only HK$611,318.02. However, she explains that it might be an undervalue because it did not include the loans made to AzureTax by her in the sum of $3,400,000. 56.Whilst she accepts that the negotiations with Zetland had never touched on the US currency or any figure near US$1,000,000, she explains in court that the negotiations had not fairly reflected her loans made to AzureTax and the goodwill. In her own mind, though not communicated to anyone in the negotiations, the true worth of AzureTax and the trust portfolio of AzureTrustees ought to be quite substantial and could possibly be in the region of “US$1,000,000”. Closing submissions 57.The prosecution and the defence file into court full written submissions[11], which contain their entire addresses to court subject to some oral clarifications. 58.She has a clear record in U.K. and Hong Kong. When I consider her credibility and propensity to commit the offences in question, she is entitled to a more favourable point of view. 59.Her bare allegation apart, there is no evidence to suggest that the value of her interest business would be anything near US$1,000,000. Neither she nor anyone had ever mentioned that her business interest was worth anything close to “US$1,000,000” in the negotiations. I believe SUTHERLAND’s evidence that, knowing the value and the risk involved, he had expressly negotiated on the basis of HK$1,000,000 as the maximum. He would not pay anything beyond that. No one ever suggested to him any figure near US$1,000,000. As I see it, whether HK$1,000,000 was, as she explains in court, a notional consideration subject to further negotiations or not, the fact was that the MOU that she had signed clearly stated HK$1,000,000 as the consideration. 60.I reject her evidence that she had instructed her accountant or anyone to alter the MOU for her. It was a phantom that she set up. She could have simply made out the desired changes with a pen or pencil for her own thinking. There was no reason for her to append her initials on page 2 if she only intended to have it as “a thinking document”. It is equally implausible that she had to have the consideration altered to US$ whilst the negotiations had only touched on HK$. The irresistible inference is that she was the one who altered the wording and put in the purported initials of Francis CHEW on page 2. 61.She says owing to workload and pressure, she had mistakenly sent a copy of the US$ MOU, instead of a copy of the MOU, to Bernard Wong & Co. and MORLEY each. I do not believe her evidence. 62.She says she was neither paying attention to EGAN when he submitted the US$ MOU to the Magistrate nor aware that it was not the correct version of the document as EGAN did so, otherwise she would have checked it to make sure it was the correct version. I do not believe her evidence. 63.Defence counsel submits that the US$ MOU would have no effect on the landlord as it could not possibly substitute a bank guarantee, so it was akin to attempting the impossible. I do not think the prosecution has to prove the impact, if any, of the US$ MOU on the landlord. It is not even relevant whether the landlord could rightfully demand for a bank guarantee as a result of the cheque for the deposit being bounced. In my judgment, the purpose intended for her use of the US$ MOU was to seek to mislead the landlord into believing that AzureTax was a valuable business venture that was financially sound and possibly worth the equivalent of US$1,000,000 minus HK$1,400,000, ie HK$6,400,000, so that it would not default in the payment of rent. 64.Defence counsel submits that the transcript[12] indicates that the Magistrate had not asked EGAN whether the US$ MOU was legally binding, so this reflected that the Magistrate had not considered the US$ MOU in his ruling on the bail variation application. I do not agree with this submission. In the context of the present case, the charge of perverting the course of public justice does not require the Magistrate to be actually misled. In answer to the prosecution’s objection, she would not be a flight-risk if she could demonstrate that she had a valuable business established in Hong Kong, from which she could tap for her legal fees, and buy it back when her trial completed. The US$ MOU was a false reflection of her business and financial position. I am satisfied that the US$ MOU would and did carry a most significant weight in her application before the Magistrate as intended by her. In his deliberation as to whether she was a flight-risk, the Magistrate was no doubt misled by the US$ MOU to look to a good prospect of her return to Hong Kong after the trip. 65.In my judgment, her intended purpose in giving MORLEY the US$ MOU was for it to be submitted to the Magistrate to influence his decision in her application. Not only did she intend and manage to deceive the Magistrate, she also intended and managed to deceive MORLEY and EGAN and had EGAN pass it off as genuine before the Magistrate. 66.I do not believe her evidence that the US$ MOU was only intended for its having expressly stated the date “2/5/2014” for the take-over to be completed, a date which she had at all material times misremembered to be there. 67.I believe all prosecution witnesses and reject her evidence on all facts in issue. Her defence witnesses do not really advance her case. Prosecution’s problem under original 3rd Charge 68.The original 3rd Charge is based on section 75(1) of the Crimes Ordinance (Cap. 200). Apart from possession, the prosecution has to prove, as particularised therein, an intention on the part of the Defendant for some person to accept the instrument as genuine and by reason of so accepting it to do or not to do some act to that person’s own or other person’s prejudice. The US$ MOU was seized from the Defendant’s desk in the Lippo Office. The prosecution argues that she might use it to obtain a loan or some pecuniary advantage. I think its remaining there on the desk might equally suggest, from the defence point of view, that she had desisted from using it further after the events under the 1st and the 2nd Charges. The prosecution should at least prove a type of victim, which might well have been, say, the shopkeepers where a case of forged credit cards possessed by a defendant was concerned. In our present case, there is no evidence suggestive of a particular person or type of victim that she would have intended to target in possessing the US$ MOU as at 14 April 2014. I find such ingredient in respect of the original 3rd Charge not proved by the prosecution. 69.By 2 letters to me after court on the 2/10/2015[13], the prosecution requested me to consider convicting the Defendant based on section 75(2) of the Crimes Ordinance (Cap. 200) which provides that “a person who without lawful authority or excuse has in his custody or under his control an instrument which is, and which he knows or believes to be false, commits an offence and is liable on conviction on indictment to imprisonment for 3 years.” The prosecution indicates that section 51(2) of the Criminal Procedure Ordinance (Cap. 221) has empowered the court to substitute a conviction for an offence not charged but whose ingredients were established by the prosecution in the trial of another charge. 70.Defence counsel by a letter dated 6/10/2015[14] has responded to this issue. I am satisfied that there is no prejudice suffered by the defence or other reasons to suggest that this power should not be invoked at the present juncture. In answer to the prosecution, defence counsel refers me to the definition of “instrument” in section 68 of the Crimes Ordinance as “any document whether of a formal or informal nature”[15]. His argument is that except for its provision for exclusive negotiation under clause 1.2, which is of highly doubtful legal application, the US$ MOU was not legally binding. Therefore it was only “a writing” and not “a document”. I do not think this is the correct interpretation. To my understanding, a document is a setup of text or information contained on a paper or as a file in the computer. Such setup of text or information does not depend on its legal effect to become a document. Nor does it cease to be a document if it has no legal effect. 71.Defence counsel further argues that the Defendant has “an excuse” to have the US$ MOU in her custody or under her control. Her evidence is that it was to serve as her own affirmation and she did not intend to disclose it to other people. I do not believe such of her evidence. There is no excuse made out in answer to the charge under section 75(2) of the Crimes Ordinance. Matters proved by the prosecution beyond reasonable doubt 1st Charge 72.On 10/4/2014, the Defendant sent Bernard Wong & Co. a letter enclosing the US$ MOU. It was the copy of a false document as it was forged by her. By way of the forgery, the consideration for the purchase of 90% of AzureTax’s issued and fully paid up capital had been altered to “US$1,000,000 whereas the genuine document had it stated as only “HK$1,000,000”. The document was also forged to bear the purported initials of Francis CHEW’s to imitate the genuine document. The Defendant did the said acts with the intention to induce the landlord Winchell WONG to give out a property (in the form of a lease) to her company AzureTax (by misleading Winchell WONG into believing that AzureTax was a valuable business venture that was financially sound and possibly worth the equivalent of HK$6,400,000 so that it would not default in the payment of rent) and to result in prejudice or substantial risk of prejudice to Winchell WONG (in granting a lease to a tenant of questionable financial capability). 73.Her acts did not achieve her purpose but were far beyond preparatory in committing the offence. They suffice as an attempt to commit the offence. 2nd Charge 74.On 11/4/2014, acting upon the Defendant’s instructions, EGAN submitted the false document and explained on her behalf to the Magistrate that it reflected her financial strength for facing the High Court trial and strong local ties established by her business. Such acts were instrumental in seeking to persuade the Magistrate that she was not a flight-risk so as to vary her bail condition so that she could depart Hong Kong on 16/4/2014. She had provided MORLEY the document so that EGAN could use it in her application to so persuade the Magistrate. 3rd Charge 75.I invoke the power by virtue of section 51(2) of the Criminal Procedure Ordinance and consider the 3rd Charge in terms of section 75(2) of the Crimes Ordinance. On 14/4/2014, the police searched the Defendant’s Lippo Office and found in her custody and under her control the false document. I am satisfied that she knew it was a false document. She had no lawful authority or excuse to have it there. Verdict 76.On the aforesaid basis, I convict her of the 1st, the 2nd, and the 3rd Charges.
[1] P91 [2] I have compiled a full list of witnesses at the end of this paper [3] The tenancy agreement is P51 [4] He kept P1 whereas she kept P35 [5] P41 [6] It is not clear on which date [7] P40 [8] P40A [9] See her witness statement P43 and album P43A [10] See her witness statement P48 and album P48A [11] MFI-1 and MFI-2 respectively [12] P39 [13] MFI-3 and MFI-4 respectively [14] MFI-5 [15] The other definitions that follow are not relevant for the purpose of this trial |
Other judgments that cite this case
Further hearings and rulings under DCCC 148/2015