HKSAR v. Dong Xiao Ming and Another

CACC000150/1999

CACC 150/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 150 OF 1999

(ON APPEAL FROM DCCC NO. 1084 OF 1997)

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Coram: Keith JA in Chambers

Date of Hearing: 6 September 2000

Date of Judgment: 6 September 2000

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J U D G M E N T

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Introduction

1. This is an application by the 2nd Defendant for the grant of an appeal aid certificate, pursuant to rule 12(3) of the Legal Aid in Criminal Cases Rules, in order to finance her application for leave to appeal against her conviction. Such a certificate was originally granted by the Director of Legal Aid but subsequently discharged. The application is supported by an opinion from Mr Desmond Keane SC dated 28 October 1999.

The two original arguments

2. I do not think that the two arguments developed by Mr Keane in his opinion are sufficiently arguable to justify the grant of an appeal aid certificate. So far as the argument set out in paras. D.2. and D.3. of his opinion is concerned, I do not think that it is arguable that the passage in the Reasons for Verdict complained of amounted to a finding that an expert witness called by the defence is less worthy of credence than an expert witness called by the prosecution. It follows that I do not think it arguable that the judge thought that therefore the fact that there were two expert witnesses supporting the defence case rather than one was immaterial. What I think the judge was saying, though she may not have expressed herself as clearly as she might have, was that it was the quality and persuasiveness of the expert evidence which was important rather than the number of experts who subscribed to a particular view.

3. So far as the argument set out in para. D.5. of the opinion is concerned, the judge found that the differences between the signature on exhibit P2 and the control signatures of the deceased were significant differences and not just natural variations of a genuine signature. I do not think that she came to that conclusion because she thought that, for a signature to be regarded as having been forged, it had to look different from a genuine one, or because the signature on exhibit P2 had been accepted by the Probate Office as genuine. Before she made the comments which are complained of, she had already accepted Mr Leung's evidence that the differences were significant ones, and looking at the judge's Reasons for Verdict as a whole, it is plain, I think, that she arrived at her conclusion because of the nature of the differences rather than the overall impression which the signature on exhibit P2 created when compared with the control signatures.

The genuineness of the control signatures

4. However, a third ground of appeal has been advanced today by Mr Philip Ross on behalf of the 2nd Defendant. He argues that of the ten signatures treated by the expert witnesses as the genuine signatures of the deceased, four had not been proved beyond reasonable doubt to have been his genuine signatures. The documents on which those four signatures appeared, namely immigration documents and a bank savings book, were on the face of it unlikely to be the sort of documents on which the signatures of the deceased would have been forged. Moreover, it is impossible to tell from the papers before me whether the genuineness of those four signatures was in fact proved at trial. However, for present purposes, I am prepared to assume that they were not.

5. In those circumstances, the critical question is whether it is arguable that the conclusion of Mr Leung that the signature on exhibit P2 was forged, and the judge's acceptance of that conclusion, are undermined by the fact that four of the ten control samples were not proved to be the genuine signatures of the deceased at all. I note that Mr Leung's evidence was that he would have liked to have been given more control samples for comparison, but that the number which he had been given was sufficient for him to reach a conclusion. However, having regard to the reasons which he gave for his conclusion, as summarised by the judge in her Reasons for Verdict, and having regard to the reasons given by the judge for her acceptance of Mr Leung's conclusion, I have not been persuaded that it is arguable that either Mr Leung's conclusion or the judge's acceptance of his conclusion would have been any different if he had had only the six control samples to work with. I say that because the points which Mr Leung made to support his conclusion were points which applied, for the most part, with equal force to the six genuine control samples as well as to the four questioned control samples. The 2nd Defendant's application for an appeal aid certificate is therefore refused.

The conviction of the 1st Defendant on the second charge

6. However I cannot depart from this application without mentioning that I am troubled by the 1st Defendant's conviction on the second charge. In my view, it is strongly arguable that the affirmation which he made was not a false instrument. The judge equated a false instrument with a genuine instrument which contained a false representation of fact. That is not one of the circumstances covered by section 69 of the Crimes Ordinance (Cap. 200), which sets out the circumstances in which an instrument may be said to be false. Indeed, I doubt whether the judge's view is correct in the light of the definition of a false instrument in R. v. Dodge and Harris [1972] 1 QB 416 which the judge referred to in her Reasons for Verdict, in which she reports the English Court of Appeal as having said:

"The essential feature of a false instrument in relation to forgery is that it is an instrument which tells a lie about itself in the sense that it purports to be made by a person who did not make it or otherwise purports to be made or altered in circumstances in which it was not made or altered."

I have not found that passage in the report of the judgment itself, but that is clearly the ratio of the case. The affirmation did not, on the face of it, contain a lie about itself. It contained a lie about the will. However, since no application by the 1st Defendant for the grant of an appeal aid certificate is before me today, I say no more on the matter.

Representation:

Mr Philip Ross, instructed by Messrs Clarke & Kong, for the Applicant

Mr Kelvin Lee, of the Department of Justice, for the Respondent