HKSAR v. Chan Kam Ching (陳鑑清)

Press Summary (English)

Press Summary (Chinese)

FACC No. 10 of 2021

[2022] HKCFA 7

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2021 (CRIMINAL)

(ON APPEAL FROM CACC NO. 230 OF 2019)

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Before: Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Lord Phillips of Worth Matravers NPJ

Date of Hearing: 16 March 2022

Date of Judgment: 14 April 2022

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JUDGMENT

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Chief Justice Cheung :

1.I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ :

2.This appeal is concerned with what constitutes falsity for the purposes of forgery-related offences involving use of a false instrument under the Crimes Ordinance (“CO”).[1]  It also concerns the principles governing substitution of a conviction of another offence in place of an offence for which the accused was originally charged and convicted.  In examining the latter question, this judgment will have occasion to consider whether dishonesty is an element of the fraud offence created by section 16A of the Theft Ordinance.[2]

I.     THE CO OFFENCES

3.The appellant, Chan Kam Ching, a solicitor practising under the name of John Chan & Co, was involved with his clients in dealings relating to a property in Tuen Mun (“the property”).  Those dealings occurred in connection with the Government’s Small House Policy which enables eligible indigenous inhabitants of the New Territories to build village houses for their own occupation on concessionary terms.  The appellant was convicted after trial before HH Judge K Lo[3] of using a false instrument and using a copy of a false instrument contrary to sections 73 and 74 of the CO.  He was sentenced to a total of 8 months’ imprisonment suspended for 2 years.  His appeal to the Court of Appeal was dismissed.[4]

A.     The applicable CO provisions

4.Section 73 provides:

“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 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, commits an offence and is liable on conviction on indictment to imprisonment for 14 years.”

5.Section 74 is to the same effect, the difference being that it refers to using “a copy of an instrument which is ... false (etc)” intending to induce somebody “to accept it as a copy of a genuine instrument”.

6.By its Determination dated 13 December 2021, the Appeal Committee[5] granted leave to appeal in respect of the following question, namely:

“What on the true construction of the CO, is the meaning of ‘false instrument’ where section 69(a)(vii) is relied on?”

7.CO section 69 defines falsity for the purposes of Part IX of the CO which includes sections 73 and 74, as follows:

“For the purpose of this Part—

(a) an instrument is false if it purports to have been—

(i) made in the form in which it is made by a person who did not in fact make it in that form;

(ii) made in the form in which it is made on the authority of a person who did not in fact authorize its making in that form;

(iii) made in the terms in which it is made by a person who did not in fact make it in those terms;

(iv) made in the terms in which it is made on the authority of a person who did not in fact authorize its making on those terms;

(v) altered in any respect by a person who did not in fact alter it in that respect;

(vi) altered in any respect on the authority of any person who did not in fact authorize its alteration in that respect;

(vii) made or altered on a date on which or place at which or otherwise in circumstances in which it was not in fact made or altered; or

(viii)    made or altered by an existing person but he did not in fact exist; ...”

B.     The charges

8.The appellant faced three charges.  Charge 1, brought under section 74, alleges that he used a copy of a sale and purchase agreement (“SPA”) dated 4 June 2007 relating to the property which was, and which he knew or believed to be, a false instrument, with the intention of inducing GE Capital (Hong Kong) Limited (a finance company) (“GE”) to accept it as a copy of a genuine instrument, and by reason of so accepting it, to do or not to do some act to its own or any other person’s prejudice.[6]

9.Charges 2 and 3 relate to his using the said SPA and an assignment of the property dated 21 June 2007 (“Assignment”), both allegedly being instruments which were false and known or believed by him to be false, intending to cause staff at the Land Registry to accept them as genuine and by reason of so accepting them, to do or not to do some act to their own or any other person’s prejudice.[7]

10.In response to a request by the defence, the prosecution provided by letter dated 14 August 2018 particulars of the alleged falsity of the two instruments in question.  Those particulars are considered in the discussion which follows.[8]

11.Particulars of the prejudice alleged were not stated in the charge sheet, but the prosecution’s case at the trial was that the intended prejudice under Charge 1 involved GE’s grant of a mortgage loan; and that such prejudice under Charges 2 and 3 involved causing the Land Registry officers to register the false SPA and Assignment instruments proffered.[9]

C.     The facts

C.1   The Small House Policy

12.It is necessary to appreciate certain features of the Small House Policy which inform the events which occurred.  The Policy was recently described in this Court’s decision in Kwok Cheuk Kin v Director of Lands[10]as follows:

“The beneficiaries of the Policy are ‘indigenous villagers’ of the New Territories. This means adult males descended through the male line from a resident in 1898 of a recognised village. Recognised villages are villages included in a list approved by the Director of Lands. There are currently 642 recognised villages. The Policy relates to land in the village or its immediate environs which are not affected by any impending development or future planning or development proposals. Its object is to enable an eligible villager to build, once in his lifetime, a small house in his own village for his own occupation. It allows him to apply for three kinds of grant: (i) a free building licence, which is a licence to build on private land at a nil premium in the case of pre-1898 villages or a full premium in the case of villages recognised since that date; (ii) a private treaty grant of government land at a reduced premium; and (iii) an exchange, involving the surrender of an existing title in exchange for the grant of a new title at a nil premium so far as it was private land and a reduced premium so far as it was government land. ... Over the years, benefits under the Policy have come to be known as ‘Ding rights’.”[11]

13.Thus, only a person who qualifies as a New Territories indigenous villager (a “Ding”) is eligible for the grant of a right to build, once in his lifetime, a small house on land which he owns or acquires in his village for his own occupation on such concessionary terms. The building licence granted imposes a restriction on alienation of the land generally (as in the present case) for a period of five years from the date when the District Lands Office (“DLO”) issues the certificate of compliance upon completion of the building.[12]

C.2   The initial acquisition of the land

14.The relevant events unfolded in three phases. The first spans the period from November 1996 to 2000.  On 15 November 1996, the property (which consisted of agricultural land) was acquired by So Chi (“So”) and Lau Chi Wai (“Lau”) for $380,000.  They caused it to be conveyed on the same day to Chan Wai Man (“Chan”) ostensibly for $200,000.  Chan was a Ding and was thereupon registered as the property’s owner. 

15.The land was within Chan’s village and solicitors (Leung Kin & Co) were instructed to act on his behalf in applying on 18 November 1996 to the Tuen Mun DLO for a building licence, Chan declaring himself eligible under the Small House Policy.  A year later, the DLO accepted his application in principle and, on 2 January 1998, Chan executed a power of attorney in favour of So, authorising So to act in dealings with the DLO.  Chan was obviously a mere nominee, with So and Lau being the beneficial owners of the property. 

16.On 17 April 1998, the DLO issued a building licence in favour of Chan which So executed as Chan’s attorney.  As indicated earlier, it was a condition of the licence that there was a restriction on alienation of the property for five years from the eventual issue of the certificate of compliance.[13]

C.3   Shum, Lai and the appellant enter the scene

17.The next phase spans the period from October 2000 to May 2007.  On 26 October 2000, So, ostensibly acting as Chan’s attorney, signed an agreement to transfer what was stated to be the beneficial interest of So and Lau in the property to Lai Yee Kum, Kate (“Lai”) for $1,050,000.  Lai was described as the “de facto wife” of Shum Kin Wing (“Shum”) who funded the acquisition and regarded himself as beneficially entitled to the interest agreed to be assigned to Lai.  The appellant acted as solicitor on behalf of Shum and Lai and witnessed the execution of the agreement which was not registered in the Land Registry.  So and Lau then dropped out of the picture with Chan remaining the registered owner of the property.  Chan had to retain that status so that the concessionary terms of the Small House Policy could continue to be pursued.

18.Shum and Lai proceeded to build a house on the property.  In December 2001, the appellant’s firm, stating that it was acting on Chan’s behalf, informed the DLO that the building had been completed and applied for a certificate of compliance which was granted on 15 March 2002. Shum and Lai then took up residence in the house in 2002.  I note in passing that no charges were laid against anyone in respect of the representations made to the DLO in connection with the Small House Policy and will say no more on that matter.

C.4   Lai acquires registered title and the impugned transactions are effected

19.The third phase occurred after the five-year restriction on alienation expired in March 2007.  On 3 May 2007, Shum acquired a power of attorney from Chan (drawn up and attested by the appellant) enabling Shum to deal with the property.  Shum and Lai had decided to raise a mortgage loan on the property and instructed the appellant to take the necessary steps, including effecting transfer of the registered title into Lai’s name. 

20.The appellant’s firm prepared a draft of the SPA, naming Chan, putatively acting through Shum as his attorney, as vendor and Lai as purchaser and, on 21 May 2007, faxed a copy to GE, from whom it was proposed to obtain the mortgage loan.  According to the draft SPA, Lai was to acquire the property for $3 million and had already paid $1.5 million towards the purchase.  The SPA was executed on 4 June 2007.

21.On 28 May 2007, Lai applied for a mortgage loan of $1.5 million which GE’s management approved two days later.  On 18 June 2007, the appellant’s firm submitted documentation in support of the loan application, including a copy of the SPA (the subject of Charge 1).  GE then instructed the appellant to prepare a first legal charge on the property and on 20 June 2007, the SPA was registered with the Land Registry, with the appellant signing the attached memorial verifying its content (the subject of Charge 2). An assignment of the property dated 21 June 2007, prepared by the appellant’s firm, was executed by Shum as Chan’s attorney, transferring title to Lai stating the consideration to be $3 million.  On the same day, GE transferred $1,498,500 (having deducted an amount for fire insurance) to the appellant’s firm, of which $1,442,670 was passed on to Shum.  The assignment was then registered in the Land Registry on 5 July 2007 (the subject of Charge 3), the appellant signing the attached verifying memorial.

D.     The decisions of the courts below[14]

D.1   HH Judge K Lo[15]

22.On the aforesaid findings, the trial Judge held that the prosecution had proved all the elements of the offences charged, namely, that the appellant had used a copy of a false instrument and two false instruments which he knew were false, with the intention of inducing GE and the Land Registry to accept them as genuine, and by reason of so accepting them to do the respective acts of granting a mortgage loan and accepting registration of the documents to their prejudice.  This conclusion was upheld by the Court of Appeal.  The element of the two offences with which we are concerned is the requirement that the instruments used had to be false.  

23.Counsel for the prosecution had provided particulars of such falsity by letter dated 14 August 2018, stating:

“[The] Prosecution says that the documents referred in the 3 charges were false because they contained false representation of ‘payment of 3 million as consideration’ and ‘the manner of payment stated’, which your client (Defendant) admitted to be untrue when he testified [in earlier proceedings[16]]. The Prosecution says that the documents are false within the meaning of Section 69(a)(vii) of [the CO], ie, an instrument is false if it purports to have been made in circumstances in which it was not in fact made.”

24.As we have seen, section 69(a)(vii) specifies that “... an instrument is false if it purports to have been ... made or altered on a date on which or place at which or otherwise in circumstances in which it was not in fact made or altered”.

25.The prosecution’s case was accepted by the trial Judge who stated:

“In my view, the [SPA] dated 4 June 2007 and the Assignment dated 21 June 2007 are clearly untrue in their content, and they are also in line with (the definition of) a false instrument under section 69(a)(vii) of the Ordinance.”[17]

26.By way of elaboration, Her Honour stated:

“According to the Accused’s testimony in the other case, the Accused did not dispute that LAI did not pay $3,000,000 to CHAN for the purchase of the Property. Therefore, in the content of the instrument referred to in Charge 1, namely the copy of the [SPA], and the instruments referred to in Charges 2 and 3, namely the [SPA] and the Assignment submitted to the Land Registry, the statements and descriptions relating to the purchase price of the Property are all false. Therefore, the Agreement dated 4 June 2007 submitted to [GE] is a copy of a false instrument, and (those) submitted to the Land Registry, namely the [SPA] dated 4 June 2007 and the Assignment dated 21 June 2007, are false instruments. The circumstances of those instruments or the copy of those instruments are in line with section 69(a)(vii) of the Crimes Ordinance, and (they) are therefore false instruments.”[18]

27.She found that the appellant well knew of such falsity, again focusing on non-payment of the stated consideration:

“I am of the view that at the material time the Accused was absolutely aware of the existence and the content of the instrument of 4 June 2007, in particular the consideration of $3,000,000, LAI and CHAN as the contracting parties and the payment mode as well as the Assignment of $3,000,000 were all untrue. These are false instruments, and fall into the ambit of section 69(a)(vii) of the Ordinance.”[19]

28.The Judge accordingly held that the SPA and Assignment were “false” within the meaning of section 69(a)(vii) because they contained false representations as to the fact and manner of payment of the $3 million consideration, consistent with the particulars supplied by the prosecution and with the prosecution’s written opening which dealt in detail with non-payment of the $3 million consideration.[20]

D.2   The Court of Appeal[21]

29.While endorsing the Judge’s decision, the Court of Appeal went further and concluded that the SPA and Assignment were false on a significantly different basis.  Anthea Pang J,[22] writing for the Court of Appeal, held that “leaving aside the veracity of the sale price and the payment condition as stated in the [SPA]”,[23] those documents were false because the underlying sale and purchase transaction did not, and was never intended to, transfer property in the Land to the Ding and so was a sham.

30.Her Ladyship stated:

“... the sale and purchase negotiations and transactions by both parties in relation to the Land and the Property had to exist before the preparation of the [SPA]; and the nature of the document should reflect the sale and purchase in question. Hence, leaving aside the veracity of the sale price and the payment condition as stated in the [SPA] and by solely considering the facts admitted by the Defence, i.e., LAI and CHAN had never performed any transaction at any time, that would be sufficient to show that the [SPA] is a false instrument, because that instrument was ostensibly prepared under the circumstances of LAI and CHAN performing a sale and purchase transaction, but in fact it was not so. Because both parties did not enter into negotiations or reach any agreement in respect of that transaction, nor was there the intention to do so, the transaction did not exist in nature. Hence at all material times when CHAN (or SHUM as his attorney) and LAI executed the [SPA], the identity of a real vendor and that of a real purchaser never existed, nor was there the intention to exercise the related legal rights or shoulder the related obligations arising from the provisions stated in the [SPA].”[24]

31.In summary, she likened the documents to a blank sheet of paper:

“In short, the circumstances of that sale and purchase stated in the instrument in question did not exist, and the terms on the price and payment set out by both parties were not facts either; to put it more directly, the instrument is just like a sheet of blank paper and does not reflect the truth, no matter in nature or in terms of the clauses.”[25]

32.The following observations regarding the Court of Appeal’s decision may be made at this point.  First, the “sham” approach as the basis for establishing falsity departs substantially from the prosecution’s case particularised in the letter of 14 August 2018 and outlined in the prosecution’s written opening.  They both alleged that the documents were false because of misrepresentations they contained about the fact and manner of payment of the consideration.  As we have seen, the trial Judge convicted the appellant on that footing.

33.Secondly, the Court of Appeal largely founded its “sham” conclusion on the authority of HKSAR v Lau Kam Ying[26] which, as Anthea Pang J acknowledged, was not mentioned or relied on by the trial judge.[27] However, the Lau case did not involve a forgery offence.  It had its origins in an attempt fraudulently to manipulate the Small House Policy, but the case evolved into a prosecution for conspiracy to defraud after that attempt had failed.  A company (“Howin”) had acquired land and assigned sections of the land to 17 Dings with a view to their acquiring concessionary building rights under the Policy.  The scheme failed because of objections to such building and Howin was wound up.  The Dings, who had earlier executed declarations of trust in favour of Howin, registered the assignments and became ostensibly the registered owners of the land.  Subsequently, the Government moved to resume the land and the original promoters of Howin (who with the solicitor concerned, later faced prosecution) formed a new company (“CGG”) and persuaded 12 of the Dings to assign their rights as registered owners to CGG which then claimed the right to compensation in the resumption exercise.  This meant that insofar as Howin remained the owner of the land – whether beneficially or both legally and beneficially – its rights and those of its creditors to the compensation would be usurped by CGG and its promoters. 

34.The Court of Appeal in Lau Kam Ying concluded that Howin had retained the right to claim the compensation and was the victim of a conspiracy to defraud.  It was in this context that it held that either the assignments to the Dings were a sham and of no effect so that Howin remained both legal and beneficial owner; or, if the assignments had vested legal title in the Dings, that Howin nonetheless retained beneficial ownership so that the scheme to use CGG to obtain the compensation while concealing Howin’s interest in the land constituted a conspiracy to defraud Howin, its creditors and the Government.  Thus, Lau Kam Ying shows that schemes of this type may be characterised as sham transactions for certain purposes.  However, it does not address the question whether characterising an underlying transaction as a “sham” supports the conclusion that the documents generated as part of that scheme are false instruments for the purposes of section 69(a)(vii).  That was not an issue in the case.

35.Thirdly, as the Court of Appeal’s theory of falsity was not part of the prosecution’s case and was not explored at the trial, it is not at all clear how far Anthea Pang J’s statements that “LAI and CHAN had never performed any transaction at any time”; that “... both parties did not enter into negotiations or reach any agreement in respect of that transaction, nor was there the intention to do so”; and that “when CHAN (or SHUM as his attorney) and LAI executed the [SPA], the identity of a real vendor and that of a real purchaser never existed, nor was there the intention to exercise the related legal rights”; are justified.  I do not accept the repeated assertions by Ms Maggie Yang,[28] counsel appearing for the respondent on this appeal, that those were matters of “undisputed fact”.  Given that they were not part of the prosecution’s case, it is not surprising that such allegations were not the subject of scrutiny and dispute.  There must be serious reservations as to whether it was open to the Court of Appeal as a matter of procedural fairness to hold that falsity was established on the basis identified by Anthea Pang J.

36.The acts legally attributable to Chan were done pursuant to powers of attorney that he had executed on 2 January 1998 and on 3 May 2007.  The latter power authorised Shum to deal with the property after expiration of the five-year restriction on alienation in order to transfer Chan’s registered legal title to Lai who thereby acquired those rights, enabling her to obtain a mortgage loan.  It is therefore at least questionable whether it was accurate to say that Chan had played no role at all in the scheme and that a real vendor and purchaser and an intention to create legal rights did not exist.  There is no doubt that Chan was a nominee but it is difficult to see why he did not have legal title to the property which he transferred to Lai.  The prosecution’s and the trial Judge’s description of the transaction as false because of non-payment of the consideration was factually more secure than the Court of Appeal’s characterisation of it as a “blank sheet”, non-existent transaction with no legal consequences.  Counsel appearing for the respondent sought to support the “sham” approach but retreated somewhat from the proposition that Chan had no title to give when that was queried by the Court.

37.Fourthly, what the Judge’s and the Court of Appeal’s decisions have in common is that they both base the falsity of the SPA and Assignment for the purposes of the CO section 73 offence on the lack of genuineness of the underlying transaction: non-payment of the stated consideration or its allegedly “sham” character.  Those features of the transaction are relied on as bringing the instruments within section 69(a)(vii).  I return to consider the validity of that approach after examining the applicable law.

E.     The competing interpretations of CO section 69(a)(vii)

38.In holding as aforesaid, the courts below favoured a wide interpretation of section 69(a)(vii).  They held, by virtue of the words “otherwise in circumstances in which it was not in fact made”, that a document which contains a lie about some extraneous fact or circumstance, such as an underlying transaction, qualifies it as a “false instrument”.  I shall call this “the wide construction”.

39.The competing view is that sections 73 and 74, read together with section 69(a)(vii), do not encompass lies concerning events or matters extraneous to the making or alteration of the instruments themselves.  It asserts that the traditional requirement in the law of forgery that the document must “tell a lie about itself” – sometimes referred to as “the automendacity principle”[29] – is preserved in the CO’s scheme.  A person who creates or uses a document which tells lies about an underlying transaction or other extraneous matters may well be guilty of other offences, such as deception or fraud under the Theft Ordinance or may be part of a conspiracy to defraud.  But forgery-related offences under CO Part IX are concerned with a particular type of fraud that involves making or using an instrument which, on its face, tells a lie about the circumstances of its own making or alteration, for example, lies as to who made it, the signatory’s authority to sign it, when and where it was made, and so forth.  I shall refer to this as “the automendacity approach”.

40.Choosing between the two approaches depends on the true construction of the relevant provisions.  They represent a codification of the law of forgery and related offences since CO section 79 abolishes the offence of forgery at common law for all purposes.  Two lines of authority and commentary have developed, supporting respectively the wide construction and automendacity approaches.  Since the CO provisions are derived from and mirror the provisions of the United Kingdom’s Forgery and Counterfeiting Act 1981 (“the 1981 Act”), English case-law interpreting sections 3 and 9(1) of that Act is pertinent, CO sections 73 and 69(a)(vii) being their direct equivalents.

F.     The wide construction

41.The wide construction is usually traced back to the 1984 judgment of Lawton LJ in R v Donnelly,[30] where the manager of a jeweller’s shop made out and signed what purported to be a written valuation he had made of certain items of jewellery. In fact, the jewellery did not exist and he had performed no such valuation, the certificate having been made with a view to defrauding an insurance company.  On a charge of making a false instrument contrary to section 1 of the 1981 Act, the issue was whether, as the defence submitted, the purported valuation certificate was not a false instrument but “just a lying one, and that an instrument was not a forgery if it did no more than on its face tell a lie, not being a lie as to what it was”; or whether, on the contrary, the certificate qualified as a false instrument within section 9(1)(g) of the 1981 Act.  The prosecution conceded that the certificate would not be a forgery at common law or under the Forgery Act 1913 but submitted that section 9(1)(g) had made new law and greatly expanded the scope of the offence. 

42.Lawton LJ accepted the prosecution’s wide construction, stating:

“In our judgment the words coming at the end of paragraph (g) ‘otherwise in circumstances …’ expand its ambit beyond dates and places to any case in which an instrument purports to be made when it was not in fact made. This valuation purported to be made after the appellant had examined the items of jewellery set out in the schedule. He did not make it after examining these items because they did not exist. That which purported to be a valuation after examination of items was nothing of the kind: it was a worthless piece of paper. In our judgment the trial judge’s direction was correct. This purported valuation was a forgery.”[31] (Emphasis in the original)

43.Donnelly was held to be binding and was followed by the English Court of Appeal in R v Jeraj.[32]  In that case, an employee of a bank signed a document on bank notepaper which purported to be verification that he had received a letter of credit issued by a named Bolivian bank and that he, on behalf of his bank, fully endorsed it.  Neither the letter of credit nor the Bolivian bank existed and it was held that this circumstance brought the case within section 9(1)(g) of the 1981 Act, qualifying the document he had signed as a false instrument.

44.The competing views were canvassed in Attorney-General’s Reference (No 1 of 2000),[33] where a coach driver was alleged to have tampered with a tachograph to show that he was taking a break as required by law, and that another driver was driving when there was in fact no other driver.  He was charged with forgery of the tachograph record sheet.  Noting academic criticisms that Donnelly had excessively broadened the scope of the offence, Lord Woolf CJ held that that decision remained binding but added:

“Both Donnelly and Jeraj should however be restricted in their application so that they apply only where circumstances need to exist before the document can be properly made or altered. If those circumstances do not exist there will then be a false instrument for the purposes of section 9(1)(g). If the circumstances do not exist the document is telling a lie about itself because it is saying it was made in circumstances which do not exist. ... The need for the existence of these circumstances prior to the making of the instrument explains why if the circumstances do not exist the document is telling a lie about itself.”[34] (Emphasis in the original)

45.It was held that the tachograph record was a false instrument: “... [t]he circumstance which was false was that the record was being made during a period when there wrongly purported to be a second driver who was driving.”[35] Lord Woolf CJ’s view was therefore that the Court’s approach was consistent with the requirement that a document should “tell a lie about itself” even though the “circumstances” in question involved facts extraneous to the document (the defendant’s continuous driving and the absence of any other driver) rather than circumstances attending the making or alteration of the document itself.

46.This line of authority, and in particular, A-G’s Reference (No 1 of 2000), was adopted by the Hong Kong Court of Appeal in Secretary for Justice v Yeung Hon Keung Larry.[36] The accused in that case applied for admission as a part-time student in a university post-graduate law course, one of the requirements being that he had to produce a letter from his employer supporting his application and confirming that he would be released for such tuition.  Apprehending that such a letter might be refused by his true employer, the accused proffered two letters which falsely stated that he was an employee of a named hotel and that his employer supported his application.  He had never been so employed.  However, the letters were signed and provided by persons friendly to the accused who were in fact the manager and a shareholder of the company owning the hotel.  He was charged inter alia with using a false instrument contrary to CO section 73.

47.The trial Judge[37] held that the letters were not false instruments since they were written on the headed notepaper of the hotel and were signed by the persons who had purported to sign them, correctly described in the letters and with authority so to sign.  The accused was acquitted on that charge.

48.That decision was overturned on an appeal by way of case stated.  Stuart-Moore VP, writing for the Court, reviewed the authorities and concluded that the legislation substantially broadens the scope of the offence:

“Whilst not binding on this court, we consider that the reasoning given in Attorney-General’s Reference (No 1 of 2000) to be powerfully persuasive. There can be no doubt that the law relating to forgery has been widened in its scope since the time of earlier legislation which confined its application to much narrower issues. The deliberate addition of the words ‘in circumstances in which it (the instrument) was not in fact made’ to s 69(a)(vii) of the Ordinance, mirroring the same addition made to the 1981 Act in England and Wales, can only have been for this purpose. The legislative intent seems to us to have been plain enough.”[38]

49.The aforesaid authorities espouse the wide construction focusing on the words in the latter part of CO section 69(a)(vii)[39] which state: “made or altered ... in circumstances in which it was not in fact made or altered”.  They regard those words as applicable to any instrument whose content involves a lie about the existence of certain extraneous facts, especially facts whose prior existence is implied or referred to in its content, treating such extraneous facts (or their absence) as the relevant “circumstances”. 

50.That approach was adopted by the respondent in this appeal.  Ms Yang argued that the SPA and Assignment were “false” for the purposes of section 69(a)(vii) because there was no underlying legally binding agreement for the sale and purchase of the property.  Such absence, she submitted, was the circumstance which brought those instruments within section 69(a)(vii).

G.     The automendacity approach in construing section 69(a)(vii)

51.Plainly, if one construes section 69(a)(vii) by focusing on what the words “made or altered ... in circumstances in which it was not in fact made or altered” are capable of encompassing simply as a matter of language, one is likely to arrive at a construction attributing a very wide scope indeed to that provision.  Taken in isolation, those words give no indication that any limits exist regarding the types of extraneous circumstances which may trigger operation of the provision.  It was by focusing on those words that Lawton LJ in R v Donnelly,[40] and Stuart-More VP in Secretary for Justice v Yeung Hon Keung Larry[41]concluded that the ambit of forgery offences had been greatly widened.  Lord Woolf CJ sought to limit the compass of those words by holding that they covered situations “where circumstances need to exist before the document can be properly made or altered”.  But applying that construction, the resultant rule is still very wide since a lie about an extraneous fact or underlying transaction contained in an instrument almost always suggests the prior existence (or absence) of such fact or transaction, and so would suffice to constitute falsity on Lord Woolf CJ’s approach.

52.With respect, a more valid approach requires the relevant provisions of section 69(a)(vii) to be construed contextually and purposively.

G.1   Law Commission Report

53.It is appropriate to begin with the 1973 Report of the English Law Commission on Forgery and Counterfeit Currency (“LC Report”).[42] It formed the basis of the 1981 Act which enacted the material provisions of the Draft Bill that the Law Commission had put forward, which was in turn enacted in this jurisdiction as Part IX of the CO.[43] 

54.The LC Report explains that the purpose of criminalising forgery and kindred offences is to address a particular class of fraud involving the use of false documents designed to exude a spurious air of authenticity:

“In the many and varied activities of modern society it is necessary to rely to a large extent on the authenticity of documents as authority for the truth of the statements which they contain. Indeed, in the vast majority of forgery cases the purpose of the forger is to lull the person to whom the document is presented into a false position in which he will be unlikely, because of the apparent authenticity of the document, to make further enquiry into the correctness of the facts related. The same is not true of false statements contained in a document which carries no spurious authenticity. A letter by an applicant for an appointment setting out falsely his qualifications is in quite a different category from a letter of recommendation purporting to come from a previous employer.”[44]

55.The spurious quality targeted is reflected in the way that falsity in the instrument is approached, namely, by asking whether the document “tells a lie about itself”,[45] ie, the automendacity approach.  As the LC Report observes:

“By the middle of the nineteenth century it was established that for the purposes of the law of forgery the fact that determined whether a document was false was not that it contained lies, but that it told a lie about itself. It was in R v Windsor (1865) 10 Cox CC 118 at 123, that Blackburn, J. said-

‘Forgery is the false making of an instrument purporting to be that which it is not, it is not the making of an instrument which purports to be what it really is, but which contains false statements. Telling a lie does not become a forgery because it is reduced into writing’.”[46]

56.As the LC Report makes clear,[47] this approach is implemented by clause 6(2) of its Draft Bill which defines “falsity” in the terms subsequently adopted in Hong Kong by CO section 69(a):

“An instrument is false if, to adopt the words used in the authorities ‘it tells a lie about itself’. This phrase is put into precise language by clause 6(2). There is thus preserved the distinction between a document which merely tells a lie, and one which gives a false idea as to its source or the circumstances of its creation.”[48]

57.The Law Commission makes it clear that it was not proposing to extend the scope of the offence to cover lies reduced to writing:

“We do not think that there is any need for the extension of forgery to cover falsehoods that are reduced to writing, and we do not propose any change in the law in this regard.”[49]

58.It elaborates as follows:

“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 altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was not made or altered. Falsity needs to be defined in these terms to cover not only, for example, the obvious case of forging a testator’s signature to a will, but also the case where the date of a genuine will is altered to make it appear that the will was executed later than it in fact was, and therefore after what in truth was the testator’s last will.”[50]

59.As Professor J C Smith pointed out, preservation of the automendacity principle was the intention stated in the Parliamentary debates:

“In introducing the present section 9 in the House of Lords, Viscount Colville of Culross stated that ‘we have here a comprehensive list of the range of circumstances in which an instrument is said in law to be false. This substantially retains two things; first, the definitions in the 1913 Act and then also, the common law’ (Hansard, Vol. 416, col. 607). This statement was repeated in substance by Mr. Garel-Jones in the House of Commons (Hansard, Vol. 6, col. 1304). This explanation was accepted by both Houses without comment.”[51]

G.2   Construction of CO Part IX

60.It is clear that CO Part IX faithfully reflects the English Law Commission’s approach.  The offences created target use of instruments of spurious authenticity.  Thus, the offence of forgery created by section 71 is constituted as follows:

“A person who makes a false instrument, 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, commits the offence of forgery ...”

In other words, a forger is someone who seeks to confer spurious authenticity on the forged instrument.

61.The charges in the present case under CO sections 73 and 74[52] involve the use of such a false instrument or a copy thereof, intending others to accept the authenticity of the instruments or copies used.  The offences are thus not about intending others to accept the truth of whatever lies may be told in the contents of the instruments concerning extraneous events or transactions, but to accept the genuineness of the instruments themselves.

62.Section 69(a)[53] defines exhaustively how such falsity may arise.  Three significant features may be noted.  First, it defines falsity by reference to what the instrument “purports”, in other words, what the instrument on its face conveys.  Or as Mr David Perry QC,[54] appearing for the appellant put it, “what the instrument appears to be”.  Secondly, in each case, what the instrument purports relates to the circumstances of its making or alteration.  Thirdly, such characteristics are designed to confer spurious authenticity on the instrument itself, such as the identity or authority of its maker.  Throughout section 69(a), the focus is on the making or alteration of the document itself.

63.Taken in its proper context, section 69(a)(vii) creates no exception.  The reference to the “circumstances” in which the instrument was not in fact made or altered should be construed ejusdem generis with the other two instances of falsity enumerated in section 69(a)(vii) itself, namely, “the date on which or place at which” the instrument was made or altered.  As with those two instances, the circumstances in question relate to falsity in the purported circumstances of the making or alteration of the instrument – not to extraneous facts. 

64.Sub‑paragraph (vii) must also be read ejusdem generis with the other sub-paragraphs in section 69(a) each of which is consistent with the automendacity approach, defining an instrument as false if it purports to be made or altered by a person who did not in fact make or authorise its making in the form or terms the document assumes.  There is no basis for thinking that sub‑paragraph (vii) (by the words coming at its end), in contrast with the other sub-paragraphs, radically alters the entire fabric of the offence, so as to characterise a lie (such as a lie about some past fact or event) reduced to writing as a forgery.  The tail must not be allowed to wag the dog.

G.3   The authorities and commentaries supporting the automendacity approach

65.The automendacity approach is consistent with authorities both in England and Wales and in Hong Kong, and with the view taken almost unanimously by distinguished academic commentators, disapproving of the wide construction.

66.Professor J C Smith, commenting on Donnelly,[55]observed:

“If the present case is followed, the law of forgery is extended far beyond its proper bounds. Whenever an instrument tells a lie about some alleged past fact it purports to be made after the fact occurred. There was nothing peculiar about the alleged fact of having examined and valued the items of jewellery. Thus, virtually all documents telling lies would be capable of amounting to forgery.”

67.He advocated an ejusdem generis construction, arguing:

“... that the words ‘or otherwise in circumstances in which, it was not in fact made or altered’ must be read ejusdem generis with the preceding words, ‘made or altered on a date on which, or at a place at which.’ and indeed with all the other instances of falsity set out in section 9. There was little point in setting out all these particular instances if the words in issue in the present case were in effect, to embrace virtually all of them - and much more.”[56]

68.Stressing that the falsity envisaged by the equivalent of section 69(a)(vii) concerns the making or alteration of the instrument, he gave the examples of such circumstances:

“The sort of circumstances which the provision is intended to cover is the case where an instrument purports to be made in the presence of a witness who was not in fact present. It then purports to be something - an instrument made in the presence of a witness - which it is not; and that is the characteristic of falsity in the law of forgery.”[57]

69.In contrast, the jeweller’s valuation certificate in Donnelly “was exactly what it purported to be, except that it purported to be a true statement of facts when it was not”,[58] such falsity being insufficient for the purposes of forgery.

70.R v More,[59] was a case in which the accused, who had obtained a cheque drawn in favour of “M R Jessell”, opened an account in the name “Mark Richard Jessell” and then paid the cheque into it. He later withdrew £5000 from the account in the form of a cheque payable to “M R Jessel,” signing the withdrawal form “M R Jessell”. 

71.The prosecution contended that the withdrawal form was a forgery, relying on section 9(1)(h) of the 1981 Act,[60] arguing that it purported to have been made by a non-existent person.  The trial Judge rejected those allegations, holding that the document:

“... was undoubtedly made by the appellant and it was undoubtedly made in the form of a withdrawal form. It was undoubtedly signed by the person making it, and that signature was undoubtedly the signature of the holder of the account in the name ‘Mark Richard Jessell’.”[61]

72.However, the English Court of Appeal held that section 9(1)(h) applied “since it purported to have been made by an existing person but he did not, in fact, exist.”[62] But its judgment was reversed by the House of Lords, Lord Ackner (with whom the other Law Lords agreed) stating:

“It is common ground that the consistent use of the word ‘purports’ in each of the paragraphs (a) to (h) inclusive of section 9(1) of the Act imports a requirement that for an instrument to be false it must tell a lie about itself, in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was not made or altered.”[63] (Italics supplied)

His Lordship made no exception regarding section 9(1)(h), the equivalent of our section 69(a)(viii): the automendacity approach was applicable to all the heads of falsity enumerated.

73.Referring to the withdrawal form, his Lordship held, quashing the forgery conviction:

“... the appellant was a real person. It was he who was the holder of the account and in that capacity had signed the withdrawal form. The withdrawal form clearly purported to be signed by the person who originally opened the account and in this respect it was wholly accurate. Thus, in my judgment, it cannot be validly contended that the document told a lie about itself ...”[64]

74.Laws J, writing for the English Court of Appeal, provided a compelling analysis of that head of falsity in Warneford and Gibbs.[65] It was a case where the defendants obtained mortgage loans proffering what purported to be references from their employers when they were not in gainful employment (one was unemployed, the other a student).  The Crown’s case was that the instruments came within section 9(1)(g) of the 1981 Act,[66] the argument being that the documents, not being in truth references from employers, were not what on their face they purported to be so that they told lies about themselves. 

75.Laws J construed the provision differently:

“It is entirely plain ... that section 9(1)(g) is not to be construed so as to bring within its compass every document which contains a falsehood. It has long been accepted, in cases decided both before and after the coming into force of the Act, that to be a forgery a document must ‘tell a lie about itself’ - as indeed the judge told the jury. That formulation chimes with the correct construction of section 9(1)(g). The expression ‘otherwise in circumstances in which it was not in fact made’ must, in our judgment, refer to the circumstances of the making of the document just as surely as the references in the sub-paragraph to date and place concern the date and place on or at which the document is made.”[67]

76.His Lordship emphasised that the provision concerned the circumstances of the document’s making and not circumstances involving extraneous facts:

“If, for example, the document on its face purports to have been made in the presence of certain named individuals who in fact were not present at all, it would fall within the sub-paragraph. Likewise, a document whose words purported to have been dictated by a particular person, when it was in fact entirely the work of the writer, would come within the definition. So would a document purporting to have been made at a different time of day from its actual making. Other examples may suggest themselves. But in every case the lie in the document must relate to the actual circumstances of the document’s making. A lie about other facts, extraneous to the document, does not suffice; such a lie may go in proof of other offences (notably under the Theft Act), but cannot establish forgery. The offences which, under the Act of 1981, require proof of forgery within section 9 are exclusively concerned with the document itself.”[68]

77.He pointed out that this approach was in line with the decision in R v More and added:

“... the decision in Donnelly cannot, in our judgment, stand with More. It offers a mistaken construction of section 9(1)(g). To say that the document purported to be a true valuation, but was not, is to urge no more than that it purported to be a true representation of its contents, but was not; it is, in effect, to embrace within the concept of a forgery every document which tells a lie about its subject-matter. That cannot be the right approach. It fails to ask and answer the question whether the document tells a lie about itself. It amounts to a misconstruction of the words ‘…purports to have been made… in circumstances in which it was not in fact made…’ in the sub-paragraph.”[69]

78.Professor J C Smith argued that Warneford and Gibbs is correct, noting that it is in conflict with Donnelly and Jeraj.[70]  Laws J’s comment that Donnelly cannot stand with More is echoed by the learned editors of Smith, Hogan and Ormerod’s Criminal Law.[71]  They state:

“Obviously, the valuation certificate told a lie, but did it tell a lie about the circumstances in which it was made? If it did, then a begging letter in which the beggar, or someone on his behalf, falsely states that he is homeless or unemployed, is equally a forgery because the circumstances to which the writer alludes do not exist. This would be a remarkable extension of the law of forgery as previously understood. It is submitted, however, that it cannot stand with the decision of the House of Lords in More (in which Donnelly was not mentioned).”[72]

79.Similarly, Professor A T H Smith’s view[73] was that Donnelly did not pay sufficient regard to the meaning of “purports” as explained by Lord Ackner and that insofar as the decisions were inconsistent with each other, the latter decision was to be preferred. 

80.Lord Woolf CJ in A-G’s Reference (No 1 of 2000) noted that Laws J thought that Donnelly could not stand with More but evidently did not agree, holding[74] that the Court was bound by Donnelly and Jeraj and that Warneford and Gibbs must be regarded as coming to the wrong conclusion on the facts.  His Lordship did however add that the Court was “in agreement with certain of Laws J’s remarks, to which we referred earlier” which appears to have been a reference to Laws J’s conclusion that falsity under section 9(1) was concerned with the making of the document.  How that was reconcilable with the approach in Donnelly and Jeraj was not discussed.

81.In Hong Kong, the Court of Appeal considered the effect of CO section 69(a)(vii) in HKSAR v Huynh Bat Muoi,[75] and reached a conclusion contrary to that reached six years later in Secretary for Justice v Yeung Hon Keung Larry,[76] which, as we have seen, adopted the wide construction.  Huynh was concerned with a defendant charged with aiding, abetting, counselling or procuring the use of a forged travel document contrary to section 42(2)(b) of the Immigration Ordinance.[77]  Section 42(5) of that Ordinance specified that “forged” in that provision had the meaning assigned to that term by CO Part IX, making CO section 69(a)(vii) directly relevant.

82.The instrument in question was a Belgian passport which was issued to X, a Belgian citizen who had reported his passport stolen.  A replacement passport was issued by the proper authority stating all of X’s particulars correctly but bearing a photograph of someone else which X had supplied to be used in the passport.  This was part of a fraudulent scheme orchestrated by the defendant to obtain the passport to be used by the person in the photograph.  The question was whether that passport was a false instrument within the meaning of CO section 69(a)(vii).

83.Woo JA, writing for the Court of Appeal, declined to adopt the English line of authorities culminating in A-G’s Reference (No 1 of 2000), holding firmly to the automendacity approach and focusing on whether the falsity related to the circumstances of the making of the document:

“The part of s 69(a)(vii) relevant for our consideration is that ‘an instrument is false if it purports to have been made in circumstances in which it was not in fact made’. The significant words are ‘the circumstances in which’ the instrument was ‘in fact made’. What is it that the passport purports to say about itself and about the circumstances in which it was made? Only that it has been issued by an official on such and such a date, and at such and such a place, pursuant to the authority which that officer had to issue it. The passport was in fact made in the form and upon the terms in which the maker made it. It has not since been altered, and was made on the date and place and in the circumstances in which it purports to have been made. If it also purports to represent that it was made after an application for a passport, then that too is an accurate representation about itself. The subject passport contains no lie about itself, although it contains a lie. It also contains no lie about the circumstances in which it was made, whether as to time, or place, or authority. Although it is an instrument containing a falsehood in the photograph in it not being that of the true holder …, we are not persuaded that it qualifies as a forgery under s 69(a)(vii) of the Crimes Ordinance or any of the categories of false instrument within the ambit of any other category under s 69.”[78]

84.Although the aforesaid passage in Huynh was cited by Stuart-Moore VP in Secretary for Justice v Yeung Hon Keung Larry,[79] he did not discuss the obvious inconsistency between the wide construction adopted by the Court in Yeung Hon Keung Larry, following A-G’s Reference (No 1 of 2000), and adherence to the automendacity approach by the Court in Huynh (of which Stuart-Moore VP had also been a member).

H.     The proper construction of section 69(a)(vii)

85.In my view, the proper construction of section 69(a)(vii) compels acceptance of the automendacity approach.  The foregoing analysis strongly militates against the wide construction which the Court of Appeal here embraced, applying Yeung Hon Keung Larry.[80]  It failed in particular to construe the relevant words in section 69(a)(vii) ejusdem generis with the rest of that sub-paragraph and also with section 69(a) as a whole.   The approach in Huynh Bat Muoi[81] is to be preferred.

86.By way of summary, the wide construction concentrates too narrowly on the words at the end of section 69(a)(vii).  A purposive and contextual construction of that sub-paragraph, of section 69(a) and CO Part IX as a whole is needed.  The statutory purpose is to target the perpetration of frauds using instruments of spurious authenticity, documents which tell lies about themselves.  That purpose is implemented by the statutory scheme’s focus on the making, alteration, copying and use of such instruments intending others to accept them as genuine.  The core emphasis is on what the instruments purport to convey as to the circumstances of their making or alteration.  Section 69(a)(vii) does not create an exception.  The words at the end of that provision should be construed ejusdem generis with the preceding words; and section 69(a)(vii) should be construed ejusdem generis with the other sub-paragraphs of section 69(a), leading to the conclusion that sub-paragraph (vii), like the other provisions, is directed against lies which relate to the circumstances of the document’s making or alteration. Forgery offences are centred on the bogus qualities of the instrument itself, and not on the truth or falsity of representations made as part of its contents assessed against any extraneous facts which may expressly or impliedly be referred to.  The authorities supporting this approach, especially R v More, Warneford and Gibbs and Huynh Bat Muoi, are preferable as a matter of principle to the cases adopting the wide construction.  It is an approach that has the general support of distinguished academic commentators.  The submission of counsel for the respondent that there is no authority to contradict the line of decisions culminating in A-G’s Reference (No 1 of 2000),[82] is unfounded.

I.     Application of the provisions to the facts

87.The appellant was charged with using false instruments consisting of the draft SPA faxed to GE, the SPA dated 4 June 2007 and the Assignment dated 21 June 2007 presented for registration at the Land Registry as set out in Section B above.  As we have seen,[83] the prosecution’s case and the basis of the Judge’s conviction at first instance was that the said instruments were false because they contained false representations concerning the fact and manner of payment of the $3 million stated to be the consideration for the sale and purchase of the property.  The Court of Appeal upheld the conviction on the footing that the documents were false because the underlying transaction did not and was never intended to transfer property to the Ding and so was a sham.  As noted above, I have grave reservations as to whether it was open to the Court of Appeal to adopt that approach which significantly departed from the prosecution case and was not explored at the trial. 

88.In any event, it is plain that the decisions below rest upon the wide construction which I have rejected.  Falsity under section 69(a)(vii) was held by the Judge and the Court of Appeal to have been established by reference to lack of genuineness in the underlying transaction when, on its true construction, falsity depends on the instrument itself being shown to tell a lie about the circumstances of its making rather than about such extraneous matters.

89.The prosecution did not advance any case based on the automendacity principle.  Nor did either Court below base the appellant’s conviction thereon.  The SPA and Assignment told lies about the underlying sale and purchase transaction, particularly in respect of the fact and manner of payment of the consideration, but it was not established that those documents told a lie about the circumstances of their making.  The SPA was executed by Lai and by Shum on Chan’s behalf, pursuant to a power of attorney created and attested by the appellant, granted by Chan to Shum, authorising him to execute the agreement, witnessed by a clerk in the appellant’s firm and accepted for registration by the Land Registry with the appellant signing the attached memorial.[84] Similar findings were made in relation to the Assignment which was also verified by the appellant and registered.[85]  It follows that the falsity within the meaning of section 69(a)(vii) properly construed was not made out and the appellant’s convictions under sections 73 and 74 must be quashed.

90.The complications and difficulties in the present case flow from the prosecutorial decision to charge the forgery-related offences under CO sections 73 and 74 rather than bringing more straightforward charges which might well have led to a different outcome.  It must not be thought that in holding that the offences charged were not proved, this judgment in any way condones schemes of the type that was hatched and carried out in the present case. 

II.     SUBSTITUTION OF A CONVICTION FOR ANOTHER OFFENCE

91.On the footing that the appellant’s conviction under section 73 must be quashed because the instrument was not “false”, the question arises as to whether a conviction for some other offence should be substituted.  CO section 74 does not require separate treatment as it raises identical issues regarding use of a copy of a false instrument.

92.The prosecution has submitted that substitution of a conviction for conspiracy to defraud at common law or for fraud contrary to section 16A of the Theft Ordinance (“TO section 16A”) would be appropriate.  It is therefore necessary to examine the principles which govern such substitution and how they should be applied in the present case.

J.     The statutory provisions on substitution

93.The Court of Appeal’s power to substitute a conviction for an alternative offence is contained in section 83A of the Criminal Procedure Ordinance (“CPO section 83A”)[86] which states:

“(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

(2) The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorized by law for the other offence, not being a sentence of greater severity.”

94.This Court’s power to exercise a like power of substitution flows from section 17(2) of the Court’s statute.[87]

95.CPO section 83A must be read together with section 51(2) of the same Ordinance (“CPO section 51(2)”)[88] which lays down the conditions for returning an alternative verdict of guilty against an accused at the trial:

“If on the trial of any information, charge or indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence.”

96.Section 83 of the District Court Ordinance[89] (“DCO section 83”) provides for the application (inter alia) of CPO section 83A (and so necessarily also CPO section 51(2)) to trials before a judge sitting without a jury in the District Court:

“Sections 80 to 83Y inclusive of the Criminal Procedure Ordinance (Cap 221) shall apply to criminal proceedings in the Court with such verbal alterations and modifications not affecting the substance thereof as may be necessary to render the same conveniently applicable, and, in particular, any reference to ‘indictment’ shall be understood to refer to a charge sheet, and any reference to ‘jury’ shall be understood to refer to a judge as a judge of fact.”

K.     The principles governing substitution

K.1   Two conditions and a discretion

97.It is clear that the power to order substitution is discretionary.  CPO section 83A provides that the Court of Appeal may order substitution.[90]  But before it considers exercise of that discretion, two conditions laid down by CPO section 83A(1) must be satisfied.  They impose constraints on the exercise of the power, requiring it to be apparent to the Court of Appeal that:

(a)  “the jury could on the indictment have found him guilty of some other offence” (“the first condition”); and

(b)  “on the finding of the jury ... the jury must have been satisfied of facts which proved him guilty of the other offence” (“the second condition”).

K.2   The first condition: the link between CPO section 83A and CPO section 51(2)

98.As noted above, CPO section 83A must be read together with CPO section 51(2).  The words of the first condition which require the case to be one where “the jury could on the indictment have found [the accused] guilty of some other offence” take their context and meaning from that provision.

99.CPO section 51(2) only allows such an alternative conviction if “the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence”.  It is only in such cases that the Court of Appeal might consider it apparent that “the jury could on the indictment” have found the accused guilty of some other offence, satisfying the first condition.  I shall refer to the offence for which the accused has been found not guilty as “the original offence” and the offence potentially to be substituted as either “the other offence” or “the alternative offence”.

100.The limits on the power of substitution cater for the elementary proposition that “accused persons come to court to contest the charge which is in the indictment. They may be put at a disadvantage by finding during the trial that they have to meet an allegation that they have committed another offence.”[91] The restrictions safeguard the accused’s right to a fair trial. 

K.3   The requirements of the first condition

101.The following principles are established in connection with the first condition.  It is concerned with “the allegations in the information, charge or indictment”.  For brevity, I will simply refer to “the charge”.  The court (whether at first instance or on appeal) therefore looks at the content of the charge as laid and not at the evidence in deciding whether the first condition is met.[92]

102.As CPO section 51(2) provides, substitution may be considered only if the allegations charging the original offence “amount to or include, whether expressly or by implication, an allegation” of the proposed alternative offence.  As Lord Roskill pointed out[93] four possibilities are envisaged, ie, that the allegation in the original charge expressly or impliedly includes or amounts to an allegation of the proposed alternative offence.

103.The allegation of another offence is express where, for instance, that other offence is specifically charged as an alternative.  Thus, for example, in Hau Tung Ying v HKSAR,[94]the accused were charged with conspiracy to defraud and, in the alternative, with theft.  The Court held that conviction on the conspiracy charge could not be sustained because of a material irregularity, but held that the first condition of CPO section 83A was met since allegations of theft were expressly made in the charge.[95]  Referring to the first condition, Chan PJ explained:

“... the substituted verdict must be one for an offence of which ‘the jury could on the indictment have found him (the accused) guilty’; that is to say, it must be for an offence which is open on the indictment. This is often the case where the substituted offence is laid as an alternative charge in the indictment or where there are alternatives available under the law to the convicted offence. Normally, these would be lesser offences, such as manslaughter in a case of murder or theft in a case of robbery, but that is not necessarily the case and would require consideration of the nature of both the convicted and substituted charges in question and the alleged facts sought to be proved in support of either charge.”[96]

104.Cases where an alternative verdict is available under the law include those falling within the list of Theft Ordinance offences specified by TO section 32 and the TO Schedule.[97]

105.One approach to assessing whether the first condition is satisfied by an express allegation of the other offence involves what was called “the red pencil test” in R v Lillis.[98]  That was a case where the accused was “arraigned on an indictment charging him with burglary in entering a building as a trespasser and stealing therein”.[99] It stated as particulars of the charge that the accused “having entered as a trespasser part of a building, ... stole therein a rotary grass mower”.[100]  That charge failed because the evidence showed that he had been given permission to enter and so was not a trespasser.  However, it was held that he could properly be convicted of theft of the lawn mower since, having struck out from the charge references to entering as a trespasser, there expressly remained in the charge as laid the allegation that he had stolen the object in question.  As Lawton LJ explained:

“If what is left after striking out all the averments which have not been proved leaves particulars of another offence within the jurisdiction of the court of trial which the accused can then and there defend, the judge can and should ask the jury to consider whether that other offence has been proved.”[101]

106.Less clear-cut are occasions when the allegations in the charge are said impliedly to amount to or include an allegation of the alternative offence.  In Graham, Lord Bingham CJ held that:

“A count charging offence A impliedly contains an allegation of offence B if the allegation in the particular count would ordinarily involve an allegation of offence B and on the facts of the particular case did so.”[102]

107.As Chan PJ pointed out, the alternative offence is often a lesser offence.  Indeed, as Lord Roskill noted, “... if A includes B, it must be because A is sufficiently comprehensive to include B”.[103]  And in Graham,[104] Lord Bingham CJ pointed out that the power to substitute has “usually been exercised in relation to offences of violence or public order offences by substituting a lesser offence for the offence charged, there being in such instances a clear hierarchy of offences at common law or by statute.” 

108.Thus, examples of possibly (but obviously not necessarily) complementary pairs of greater and lesser offences might include murder/manslaughter; rape/indecent assault or some other sexual offence; assault occasioning actual bodily harm/common assault; robbery/theft; burglary/theft; theft/handling stolen goods;[105] and riot/unlawful assembly.

109.It is evident that in considering whether the allegations in the charge meet the first condition, it is necessary to examine the nature and elements of the offence charged as well as the particulars alleged, to decide whether the allegations in the original charge expressly or impliedly amount to or include an allegation of the proposed alternative offence, taking account of its elements.

K.4   The requirements of the second condition

110.The second condition for substitution is that “on the finding of the jury ... the jury must have been satisfied of facts which proved him guilty of the other offence”.  The words “on the finding of the jury” are important.  An appellate court can only substitute an alternative conviction, if it appears that the jury must actually have made findings sufficient to establish such guilt.  Thus, in Hau Tung Ying,[106] Chan PJ cited with approval Widgery CJ’s statement in R v Deacon,[107] that:

“The basis of the power to substitute a verdict for a different offence must … be based on the finding of the jury. It is only when it appears to the court from the finding of the jury that the facts essential to establish the alternative offences were proved, that the court may substitute the alternative verdict.”

111.As Chan PJ pointed out:[108]

“... the court’s power under s.83A is quite different from the power to apply the proviso under s.83 of the same Ordinance which is governed by different considerations.”

112.In the same case, Lord Hoffmann NPJ[109] (with whom all the other members of the Court also agreed) highlighted the difference between the two exercises, citing Lord Mustill in Moses v The State,[110] as follows:

“The question whether an appellate court should use the proviso to uphold the verdict which the jury actually returned is quite different from the issue whether the court should substitute a verdict which the jury did not return. The former is a question of assessing the evidence; the latter involves an assessment of the verdict ...”

113.Thus, the proviso in CPO section 83 lays it down:

“... that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.”[111]

114.Its effect has been reiterated in many cases. Thus, in Tam King Hon v HKSAR,[112] Li CJ stated:

“The test for the application of the proviso is whether a reasonable hypothetical jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion.”

115.Application of the proviso therefore involves the Court’s assessment of the evidence, asking whether a hypothetical jury would have undoubtedly convicted if properly directed.  But in deciding whether conviction of an alternative offence should be substituted, the Court examines whether the jury sitting in the case did actually make the findings necessary to prove the accused guilty of that alternative offence.

116.Moreover, for the appellate court to find it apparent “that the jury must have been satisfied of facts which proved him guilty of the other offence” the jury’s finding has to be soundly based.  As Chan PJ emphasised:

“To make a finding upon which an accused can be convicted there must be a factual and legal basis for such finding: it must be based on properly admitted evidence and upon a correct direction on the law. If there was no evidence to support the finding or the jury’s finding was based on inadmissible evidence, or they were misdirected on the law in respect of the substituted offence, the finding was simply not a proper finding of fact upon which the appellate court can convict. In such case, there is no room for the application of s.83A.”[113]

117.Lord Hoffmann NPJ went on to highlight certain differences arising where the appellate court is concerned (as in the present case) with the Reasons for Verdict of a Judge after trial without a jury.  In the case of a jury trial his Lordship pointed out:

“As the question is what facts the jury must have found, and the jury gives no reasons for its decision, the application of s.83A requires an analysis of the facts of which the jury had necessarily to be satisfied if they were to reach the verdict which they did, and then to consider whether those facts, or more usually a subset of those facts, constitute another offence of which he could have been convicted.”[114]

118.And in relation to the verdict of a Judge sitting alone:

“In a trial by judge alone, however, the verdict can be penetrated a little further. The section itself gives no guidance on how it should be adapted to such a case. It is for this Court to do so. The Court is in my opinion entitled to consider the reasoning by which the judge arrived at his conclusion and treat the facts which were essential to his conclusion that the appellant was guilty as facts which can form the basis of a substituted conviction. But I wish to guard against any suggestion that the court could substitute a conviction on the basis of facts which the judge said he found but which were not essential to his conclusion that the appellant was guilty. A verdict should not be substituted on the basis of an obiter dictum.”[115]

119.In Hau Tung Ying itself, the issue was whether alternative convictions for theft should be substituted for the failed prosecution for conspiracy to defraud.  It was held that both CPO section 83A conditions were satisfied and the Court proceeded to exercise its discretion to order substitution.  As noted above, offences of theft were expressly included as alternatives in the charge sheet, satisfying the first condition.  The Judge also clearly made findings that theft had been established.  He did not enter verdicts on those charges because he thought they were encompassed by the conviction for conspiracy to defraud.  As Lord Hoffmann NPJ held:

“What justifies a substitution in this case is that the judge (contrary to the submissions of prosecuting counsel, but in my view rightly) treated the theft allegations as overt acts of the conspiracy and treated his findings that they had committed the thefts as an essential basis of his finding that they were guilty of conspiracy. It is because the shape of the case took this very unusual form that I consider that the convictions of theft should be substituted.”[116]

120.Thus, it was clear from the Judge’s Reasons for Verdict that he had made findings establishing guilt for the alternative offences charged and that his findings were not merely obiter dicta but were an essential part of his decision to convict for conspiracy to defraud.

K.5   The Discretion

121.As Chan PJ pointed out in Hau Tung Ying:[117]

“If the conditions in s.83A are met, the appellate court has a discretion whether to substitute a conviction on the other offence for the conviction on the offence which it has quashed. This depends on the justice of the case, including on the one hand, the public interest in having a guilty person properly convicted and on the other hand, whether it is fair to the accused to convict him on the other offence.”

122.It is unsurprising that the discretion is narrowly circumscribed.  As has been pointed out, defendants should obviously not be put at a disadvantage either by finding during the trial that they have to meet an allegation that they have committed an offence other than the ones charged or finding themselves convicted of an alternative offence upon which the jury has not been specifically directed or where that other offence has not properly been the focus of the judge’s decision to convict. 

123.In many cases, the appellate court might consider ordering a retrial instead of substituting a verdict.  It is noteworthy that the power to order a retrial is similarly circumscribed. Thus, CPO section 83E provides:

“(1) Where the Court of Appeal allows an appeal against conviction and it appears to the Court of Appeal that the interests of justice so require, it may order the appellant to be retried.

(2) A person shall not under this section be ordered to be retried for any offence other than—

(a) the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in subsection (1);

(b) an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence; or

(c) an offence charged in an alternative count of the indictment in respect of which the jury were discharged from giving a verdict in consequence of convicting him of the first-mentioned offence.”

124.The limits on the power to order a retrial set by CPO section 83E(2) as to the classes of offence on which an accused may be retried echo the rules constraining the power of substitution, balancing in this context fairness and the avoidance of double jeopardy against the need to bring guilty parties to justice.

125.The discretion to substitute is broad and allows the appellate court to cater for the defendant’s right to a fair trial without being confined to strictly legal considerations.  As was pointed out in Spies v The Queen,[118] a decision of the Australian High Court cited in Hau Tung Ying, even where the equivalent of the two CPO section 83A conditions have been satisfied:

“... the legal error may have put the appellant at some forensic, as opposed to legal, disadvantage. In such a case, it would be proper not to substitute a verdict.”

L.     The substitution principles applied

126.In my judgment, the submission that there should be substitution of a conviction for conspiracy to defraud or for fraud under TO section 16A must be rejected.  The case for substitution falls at the first hurdle, failing to satisfy the first condition of CPO section 83A.  It is unnecessary to consider the second condition and the question of discretion.

L.1   Substituting conspiracy to defraud

127.As explained in the foregoing discussion, the Court must examine the allegations contained in the charges (rather than the evidence) to see whether they expressly or impliedly amount to or include either of the other offences advocated by the prosecution.  I will begin by considering conspiracy to defraud. 

128.As will be recalled, the essential features of the charges faced by the appellant are as follows.  Charge 1, preferred under CO section 74, alleges that he used a copy of the SPA dated 4 June 2007, a false instrument known by him to be false, with the intention of inducing GE to accept it as genuine and, by reason of so accepting it, acting to its own or another’s prejudice.  Charges 2 and 3, both laid under CO section 73, make similar allegations in respect of his using the SPA and the Assignment dated 4 June 2007 and 21 June 2007 respectively, with knowledge of their falsity and with the intention of inducing staff of the Land Registry to accept them as genuine and, by reason of so accepting them, acting to their own or another’s prejudice.

129.Plainly, the charges laid against the appellant do not “amount to or include, whether expressly or by implication, an allegation of” a conspiracy to defraud.  As this Court held in Mo Yuk Ping v HKSAR:[119]

“...the offence is constituted by becoming a party to an agreement with another or others to use dishonest means (a) with the purpose of causing economic loss to, or putting at risk the economic interests of, another; or (b) with the realization that the use of those means may cause such loss or put such interests at risk. The offence extends also to cases in which the dishonest means cause a person to act contrary to his public duty, this being a class of case which requires no further consideration by the Court in the circumstances of this case.”

130.The present charges do not allege any agreement between the appellant and any other person, let alone an agreement with the abovementioned characteristics.  So the first condition is not met.   The Judge could not, on the charges laid, have found him guilty of conspiracy to defraud. 

L.2   Substituting fraud under TO section 16A

131.The elements of the CO section 73 offence charged,[120] as we have seen, consist of: (1) a person’s use of an instrument; (2) which is false; (3) which he knows or believes to be false; (4) with the intention of inducing somebody to accept it as genuine, and because of such acceptance, to act or omit to act to that person’s or someone else’s prejudice.  The actus reus is use of the false instrument in (1) and (2); and the mens rea involves knowledge of falsity and the further intention in (3) and (4). 

132.It is important to note that neither the charges laid, nor the elements of the CO section 73 offence, involve any allegation or requirement that use of the false instruments produced a prohibited result. The allegations stop at describing the accused’s act and intention.  The offence under CO section 73 is committed without proof that anyone was in fact induced to act as intended by the accused.

133.The elements of the fraud offence, in contrast, do require as an essential element, the occurrence of a prohibited result.  TO section 16A(1) materially states:

“If any person by any deceit (whether or not the deceit is the sole or main inducement) and with intent to defraud induces another person to commit an act or make an omission, which results either—

(a) in benefit to any person other than the second-mentioned person; or

(b) in prejudice or a substantial risk of prejudice to any person other than the first-mentioned person,

the first-mentioned person commits the offence of fraud ...”

134.Section 16A(1) therefore requires proof that the accused’s deceit induced the victim to act or omit to act with either of the results specified in paragraphs (a) and (b).  TO section 16A(2)[121] makes it clear that the accused must have a corresponding mens rea, defining “with intent to defraud” as intending to induce the victim to act, etc, with either or both of the stated consequences.  Furthermore, section 16A(3) defines “benefit” as “any financial or proprietary gain, whether temporary or permanent” and “prejudice” as “any financial or proprietary loss, whether temporary or permanent”.

135.It follows that, looking at the allegations in the CO section 73 charges (and not at the evidence), one must conclude that they do not “expressly or impliedly amount to or include” an allegation of a TO section 16A offence.  They lack any allegation of the prohibited results which are an essential ingredient of the latter offence so that the first condition is not met.  

L.3   TO section 16A and dishonesty

136.That disposes of the proposal to substitute a conviction under TO section 16A.  However, it was submitted on behalf of the appellant that another reason exists for holding that the first condition is not met in relation to the fraud offence.  As the appellant was able to rely on the Court of Appeal’s decision in HKSAR v Ho Ka Keung[122] in support, that submission deserves to be substantively examined. 

137.The appellant argues that whereas dishonesty is not required for proof of an offence under CO section 73, it is an essential ingredient of the TO section 16A offence.  If that contention is correct, it would follow that a conviction for the latter offence cannot be substituted since it requires proof of dishonesty which forms no part of the forgery-related offences charged.  For the reasons which follow, I am unable to accept that argument.

138.TO section 16A has its origins in the Report of the Law Reform Commission of Hong Kong on Creation of a Substantive Offence of Fraud[123] and enacts without alteration the provisions in the Draft Fraud Bill proposed by the Commission.[124]  The question of whether dishonesty should be prescribed as a separate ingredient was raised as part of the consultation process and examined in detail in the Report.  Having noted the inclusion of the requirement of an intent to defraud, the Commission concluded:

“We have carefully considered the arguments for and against such an approach and have, by a majority, concluded that there should be no separate requirement of dishonesty.”[125]

139.“Dishonesty” is thus not mentioned as an ingredient in the offence-creating provisions of either CO section 73 or TO section 16A.  Leaving aside the point previously made about the difference regarding a “result” ingredient as part of the actus reus in the fraud offence, the two offences can be seen to be similarly structured in that they both involve the accused practising a form of deceit (“any deceit” under TO section 16A, and knowing use of a false instrument to induce its acceptance as genuine in the CO sections), in order to get someone else to act to their prejudice (or in the case of fraud, alternatively to the benefit of the accused).  Given such similarity, one might naturally be inclined to think that either both offences involve no separate ingredient of dishonesty or, if dishonesty is to be an implied requirement, that this should apply equally to both offences.  Of course, as a matter of popular speech, both offences can quite properly be described as offences of dishonesty.  But that is not the same thing as saying that as a matter of law they require proof of dishonesty as a technically independent element of each offence.

140.Existing authority supports the proposition that forgery offences including that under CO section 73 do not require proof of dishonesty.  This was accepted by the Court of Appeal below, albeit without analysis.[126] The learned authors of Smith, Hogan & Ormerod’s Criminal Law[127] endorse that proposition relying on the judgment of Ackner LJ in R v Campbell[128] in which his Lordship recorded that one of the grounds of appeal was that the trial judge had erred in ruling that dishonesty was no longer a necessary element in the offence of forgery.  His rejection of that ground of appeal was implicit since there is no discussion excluding dishonesty in the short reported judgment.  His Lordship nevertheless held that all the ingredients of the offence had been established so that the aforesaid ground of appeal was necessarily rejected by implication. 

141.With respect, there are good reasons for the Campbell approach.  The Ordinance spells out the elements of CO section 73 in detail. They require proof of the accused’s use of a false instrument, knowing or believing it to be false with the intention of inducing somebody to accept it as genuine and for that reason, to act or omit to act to that person’s prejudice, without mentioning dishonesty. It would therefore be wrong to suggest (as the appellant unsuccessfully sought to do in Campbell) that dishonesty should be introduced as an independent element of the offence.  Nothing in the section supports such a requirement.

142.The same arguments are germane to the offence created by TO section 16A.  In line with the recommendations and Draft Bill prepared by the Law Reform Commission, that section also spells out the culpable mental state, defining with precision the meaning of “with intent to defraud” in section 16A(2):

“For the purposes of subsection (1), a person shall be treated as having an intent to defraud if, at the time when he practises the deceit, he intends that he will by the deceit (whether or not the deceit is the sole or main inducement) induce another person to commit an act or make an omission, which will result in either or both of the consequences referred to in paragraphs (a) and (b) of that subsection.”

143.There is no mention of dishonesty.  As indicated above, one can well see that in general parlance, the offence may properly be described as involving dishonesty by the accused, but this does not justify the court in introducing a requirement of proof of “dishonesty” as a separate element of the offence. 

144.That is what the Court of Appeal did in Ho Ka Keung.[129] It was an appeal against a conviction under TO section 16A on facts which are not presently relevant.  One of the grounds of appeal was that the trial judge had “applied the wrong test in relation to dishonesty”, which implied that dishonesty was a necessary ingredient of the offence.  In dealing with that ground, Yuen JA set out the elements of the offence as enacted in section 16A(1) and (2)[130] and continued as follows:

“It would be noted that the word ‘dishonestly’ does not appear as a specific element in s 16A, unlike in s 2 (theft), s 17 (obtaining property by deception), s 18 (obtaining pecuniary advantage by deception), or s 18A (obtaining services by deception) and other offences. However, ‘deceit’ incorporates the element of dishonesty and the judge was well aware of the requirement that the prosecution must prove that the Defendant had been dishonest ...”[131]

145.Thus, although her Ladyship noted that, unlike the other TO offences listed, section 16A did not specify dishonesty as an element, she held that it was a necessary element because “deceit incorporates the element of dishonesty” (without citing any authority).  She rejected the aforesaid ground of appeal holding that the judge had been well aware of and had properly dealt with that requirement.  Wright J, concurring, held that the Judge was required to apply “the appropriate test for dishonesty in accordance with the well-known decision in R v Ghosh (1982) 75 Cr App R 154.”[132]  He was satisfied that the Judge “was alive to the Ghosh test”[133] and had not applied some erroneous test.

146.With respect, the Court of Appeal’s decision on this point cannot be supported.  When the TO creates an offence requiring proof that the accused acted dishonestly, it expressly so prescribes.  It has done this in respect of at least twelve different offences.[134]  Its approach to section 16A is different.  It does not mention “dishonesty” but, as we have seen, prescribes and defines in detail the culpable mental state required, consisting of the accused’s “intent to defraud”.  Thus, construing TO section 16A in the context of the Ordinance as a whole, there is no justification for concluding that the legislative intent was impliedly to incorporate an element of dishonesty as part of the offence.

147.The suggestion that “deceit incorporates the element of dishonesty” is, with respect, untenable.  “Deceit” and “dishonesty” are entirely different and independent concepts.  Thus, the classic definition of “deceit” is provided by Buckley J in In Re London And Globe Finance Corporation, Limited,[135] stating:

“To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false.”

The application of this definition in the context of conspiracy to defraud was accepted in Scott v Metropolitan Police Commissioner.[136]

148.“Dishonesty” addresses a wholly different matter. As Sir Anthony Mason NPJ noted in Mo Yuk Ping v HKSAR,[137] it “describes a state of mind”. He pointed out[138] that the House of Lords in Scott,[139] when considering the offence of conspiracy to defraud, emphasised the element of dishonesty while rejecting deceit as an indispensable element of that offence. This highlights the difference between the two concepts. 

149.Sir Anthony Mason NPJ noted that the Ghosh test for dishonesty represents the law in Hong Kong at present,[140] expressing the two-stage test as follows:[141]

“In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did ...”

150.It is therefore obvious that “deceit” and “dishonesty” are quite distinct concepts.  No basis exists for the proposition that “‘deceit’ incorporates the element of dishonesty”, thereby importing the Ghosh test into TO section 16A.  Ho Ka Keung should not be followed on this point.

M.    Disposition of this appeal

151.For the aforesaid reasons, I would allow the appeal and quash the appellant’s convictions for offences under CO sections 73 and 74.  I would also reject the submission that substitution of an alternative offence pursuant to CPO section 83A would be appropriate.

Mr Justice Fok PJ :

152.I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Lam PJ :

153.I agree with the judgment of Mr Justice Ribeiro PJ.

Lord Phillips of Worth Matravers NPJ :

154.I agree with the judgment of Mr Justice Ribeiro PJ.

Chief Justice Cheung :

155.The Court unanimously allows the appeal and quashes the appellant’s convictions.  It also declines to substitute alternative convictions in the present case.

Mr David Perry QC, Ms Maggie Wong SC and Ms Karry Lau, instructed by Chui & Lau, for the Appellant

Ms Maggie Yang, DPP, Mr Derek Lau, SADPP (Ag) and Ms Sabra Lo, SPP, of the Department of Justice, for the Respondent