The Queen v. Lui Kwok Wai

CACC000021/1991

Headnote

Perjury: s.43 Crimes Ordinance Cap.200: meaning: effect: Lawton, L.J. in Hamid (1979) 69 Cr. App. R. 325 at 328 adopted

BETWEEN

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Coram: Silke, V.-P., Penlington & Macdougall, JJ.A.

Date of Hearing: 21 August 1991

Date of Judgment: 21 August 1991

Date of handing down reasons: 3 September 1991

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J U D G M E N T

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Silke, V.-P.

1. This is the judgment of the court.

2. Lui Kwok Wai - "the applicant" - appeared for trial before Miss Cannon, then sitting as a Deputy Judge of the District Court, on three charges. The first was perjury, contrary to section 31 of the Crimes Ordinance; the second: uttering a forged document, contrary to section 74(1) of the Crimes Ordinance; and the third: aiding, abetting, counselling or procuring forgery, contrary to section 89 of the Criminal Procedure Ordinance and section 71(3) (g) of the Crimes Ordinance, Cap. 200.

3. He was convicted after trial on the first two of those charges and acquitted on the third. He was sentenced to a period of 9 months imprisonment on each of the charges, the sentences to run concurrently.

4. He now seeks leave to appeal against his convictions and, if necessary, sentence.

5. The particulars of the perjury charge indicate the nature of the Crown's case. They were that he, on 9th May 1990, being a person lawfully sworn as a witness in a judicial proceeding namely case number C19603/89 at the Magistrates court in Central, wilfully made a statement in that judicial proceeding which was material in that proceeding and which he knew to be false or did not believe to be true namely that a receipt purportedly issued by Yee Hop Electrical Engineering (Yee Hop) for $40,000 Hong Kong currency in respect of work done by Yee Hop at Nam Cheong Estate, Block 7, - "Block 7" Shamshuipo - on behalf of Swire Engineering Ltd. was issued on 20th day of January 1989 - the falsity.

6. The uttering charge related to the production of that receipt in the course of his evidence at the Magistrates court.

7. He had been tried in the Magistrates court on three charges, the first being an agent using a false document to mislead his principal, contrary to section 9(3) of the Prevention of Bribery Ordinance, Cap. 201 - that related to a work order of Swire Engineering which contained a false statement namely that a firm called Sing Wei Electrical Engineering were to carry out the work specified in the work order; - the second obtaining property by deception - that related to obtaining $40,000 Hong Kong currency in cash from Swire Engineering by deception by falsely representing to Swire Engineering that the money was required to pay sub-contractors; and the third: inciting an agent to use a false document to mislead his principal - that related to an invoice which contained a false statement that Sing Wei Electrical Engineering had carried out a wiring job at Pacific Place, Queensway. He was convicted on the first and third of those charges though, of course, those convictions are irrelevant to these proceedings.

8. At his trial in the District Court the Crown first called expert evidence to the effect that the receipt for $40,000 and dated 20th January 1989 (Ex.P3) had come from a book of receipts. It was in fact the 14th receipt in that book in which the first receipt stub was dated 23rd March 1989. It was between two receipt stubs dated 12th January 1990 and the 23rd January 1990 respectively. It was the expert's evidence that exhibit P3 had been written on top of the receipt of 23rd January 1990 and that the one of 12th January had been written on top of Ex.P3. It was an overwhelming inference the date of 20th January 1989 was false and the trial judge expressed herself satisfied, based on that evidence, that Ex.P3 was written some time between 12th January and 23rd January 1990. She was further satisfied that the applicant uttered the receipt knowing that it was a forgery in that it was false in a material particular, that he knew it was forged and that he tendered it in evidence with intent to deceive the Magistrates court.

9. The transcript of the evidence given in the Magistrates court - admitted in the District Court trial by consent and equally taken to have been proved in the requisite fashion - showed that the applicant there gave evidence and called one witness to support him, Mr. Wong Yuk Chi, who was the owner of Yee Hop Electrical Co. a partnership in which Mr. Wong played the leading part. Exhibit P3 was first referred to by the applicant in the course of evidence he gave in support of the somewhat convoluted defence to the charges he faced that he had obtained money from Sing Wei Electrical Engineering in order to pay wiring workers at two building sites, Li Cheng Uk and Shamshuipo. He said that sometime in the beginning of January 1989, though he could not recall the exact date, Mr. Wong of Yee Hop had come to him to pursue a claim for $40,000. He at first put off Mr. Wong. Then, after a phone call two days later, Mr. Wong came to see him and he was given $40,000. This was about 10th or 12th January 1989 but the applicant could not remember exactly when. Mr. Wong did not have any receipt with him but acknowledged the payment on a piece of paper which the applicant had now lost. Eventually he received exhibit P3. Having received it he gave it to his secretary to file in the company projects file relating to Yee Hop. After his arrest, on 31st May 1989, he said he extracted Ex.P3 from the file and gave it to his lawyer to deal with. It is of some significance that no witness was called from any solicitors firm to support this allegation nor was there evidence from his secretary.

10. Mr. Wong Yuk Chi in his evidence to the magistrate said he was involved in the project at Nam Cheong Estate, Block 7 and also in respect of a kindergarten at Block 1 of that Estate. The contract was to do electrical engineering work and was due to start in mid-December 1988. He said he had finished the contract at the end of February 1989, the total amount involved being some $110,000. He first went about payment to a Mr. Peter Cheng. Mr. Cheng was the first prosecution witness in the trial in the District Court. He was the Contracts Manager of Swire Engineering Ltd. and the applicant was his superior as the Department Manager. The request for payment was made at the beginning of January 1989 and for the sum $40,000. He was told to ask the applicant. He did and eventually he received $40,000 from the applicant and issued exhibit P3 on 20th January 1989 which was written on that day. He also said that he, generally, received payment for work done.

11. At trial in the District Court Mr. Cheng's evidence was somewhat vague as a great deal of it depended on that which he was told by the applicant. He was uncertain as to dates and amounts. He did state, in the course of cross-examination, that Yee Hop had sent bills to Swire Engineering Ltd. on three occasions for the work of "nailing of wires" at Block 7. He was told by the applicant that payments had already been made. He did not remember the date of any of those bills. Neither could he remember their amounts but he did specifically say that he remembered no such figure as $40,000.

12. The second witness called in the District Court was Mr. Li Wan Wing who was the Finance and Administrative Manager for Swire Engineering. It was his evidence that he monitored payments to sub-contractors of Swire Engineering and that he, having checked his records for December 1988 and for the whole of 1989 found no individual payments to have been recorded as made to Mr. Wong Yuk Chi. Payments to Yee Hop had been made only after 22nd March 1989. There was a payment of $40,000 but this did not relate to the work done at Block 7 and was made in December 1989. He further stated that there was no record of any claims for work done on Block 7 by Yee Hop. He had no idea why there was no such record but there was a suggestion that it was a policy of Swire Engineering not to make payments to an unregistered business which might explain the lack of record as Yee Hop did not get its business registration certificate before 22nd March 1989. There was also the involvement of sub-sub-contractors. Mr. Li was unsure of the date when Yee Hop had completed its work at Block 7.

13. The Crown then called a third prosecution witness, a Housing Department Building Inspector. That witness gave evidence of his inspection of the Shamshuipo work in general and of Block 7 in particular. He prepared progress reports, copies of which he produced. The first set was dated 10th January, 16th January and 23rd January 1989 and showed that no work had been done on Block 7 up to the date of the latest report. He produced further reports, the first of which was dated 30th January 1989 and that showed some work had been done. Then two further reports in February 1989 showing that more work had been done. The trial judge concluded, on the basis of that evidence, that Nam Cheong Estate project claims for payment to Yee Hop by Swire Engineering would only have been filed some time after 23rd January 1989 - that being the date of the report which showed work having been done there.

14. The applicant did not give evidence in the District Court nor was Mr. Wong called as a witness.

15. Mr. Lawrence Lok, who appeared for the applicant both here and below, attacks the findings of the trial judge on three grounds: the first being that the trial judge had found that corroborative evidence was not required in an offence of perjury and thus erred in law, the second, that her finding that exhibit P3 was false was unsafe and unsatisfactory because: (a) as the makers of the actual receipt and the other stubs in the receipt book, to which reference has already been made, were not called in evidence there was no evidence that the dates on those documents were genuine; (b) that the expert witness had not given any evidence as to the age of the paper or the inks used and that he could not specifically pinpoint the date on which P3 had been written; and (c) the finding of the trial judge that no payments were made by Swire Engineering to Yee Hop before 22nd March 1989 was not "adequately" supported by the evidence because: (i) Mr. Peter Cheng (PW1) was not sure whether Swire Engineering had ever received claims from Yee Hop in the sum of $40,000, (ii) Mr. Li's (PW2) evidence was to the effect that he was aware that Yee Hop had done work at Block 7 but that no claims had been made in respect of the work done at Nam Cheong Estate by Yee Hop - neither was sufficient to support the finding.

16. The first ground really resolved itself in the course of the hearing into two separate grounds: (1) that the trial judge had erred in law in holding that no corroboration was necessary. (2) that there was in any event no evidence which could be considered to be corroborative.

17. In her Reasons for Verdict, having set out findings in relation to specific charges, the trial judge made reference to corroboration. She directed herself that section 43 of the Crimes Ordinance was similar to - in fact it is pari materia with - section 13 of the Perjury Act of 1911. She then quoted a passage in Vol. 2 of the 43rd Edition of Archbold at paragraph 24-64. There mention is made of section 13 and the editors suggest, on the basis on a report contained only in the Criminal Law Review - R. v. O'Connor (1980) Crim L R 43 - that section 13 was best understood and applied by disregarding the word and concept of "corroboration", and by considering only the plain meaning of the provision. Section 13 required that there should be more than the evidence of one person that a statement was false. But they were of the view that, once falsehood is proved by further evidence, there is no requirement for corroboration (in the common law sense) that the defendant knew that what he was saying was false.

18. It is because of the citation of that passage from Archbold that Mr. Lok submits the trial judge ruled out any necessity for corroboration, for she nowhere else made mention of section 43.

19. The passage in Archbold stems directly from that which was stated to have been held by the Court of Criminal Appeal in O'Connor. What had happened there was that there had been a gang fight. Before leaving the scene of the fight the gang leader handed O'Connor a gun and told him to get rid of it. The gang leader was tried for an offence but the trial was aborted because O'Connor, and four other prosecution witnesses, denied that they recognised him as being present at the fight. The leader was subsequently retried, or so it would appear, and was convicted of causing grievous bodily harm with intent. That conviction was quashed on appeal. O'Connor and the four witnesses were tried for perjury arising from their denials of recognition. It was O'Connor's perjury trial that fell for consideration by the Court of Appeal. The trial judge had, if we may use the term, "over-directed" for he had told the jury that corroboration of the appellant's state of mind was required. This direction, and the report is somewhat unsatisfactory in its truncated form, would seem to have come after section 13 had been drawn to the jury's attention. The court held that there was no requirement for corroboration of state of mind. The direction was over favourable to O'Connor and the proviso was applied.

20. The report makes no reference to Hamid (1979) 69 Cr App R 324, the judgment in which was delivered on 21st June 1979, as having been mentioned in the judgment in O'Connor given on 29th October 1979. While the commentary to paragraph 24-64 of Archbold suggests that O'Connor is the better law, we note that Lawton, L.J. in Hamid considered in detail the history of corroboration in relation to perjury, the authorities and the specific wording of section 13.

21. We would interpolate that section 43 of the Crimes Ordinance reads:

"A person shall not be liable to be convicted of any offence against this Part, or of any offence declared by any other enactment perjury or subornation of perjury or to be punishable as perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false."

22. Having carried out the exercise to which we have referred Lawton, L.J. at page 328 said:

"By this century, it was clear, from the cases to which we were referred by Mr. Fitch, that the judges were referring to this requirement [section 13 of the Perjury Act] as being one of corroboration. This has been the practice ever since. It seems to us therefore that in perjury cases nowadays the judge should approach the statutory requirement as one of corroboration and that the ordinary practice rule about reminding juries of the need for corroboration should be followed. It is easy to see why this should be so. Occasionally in perjury cases those who prove the falsity of the material statement have no connection whatsoever with the defendant, but in many cases they have. The circumstances may be such that those who are relied upon by the Crown to prove the falsity may have motives of their own for making statements against the defendant which are not true."

23. With respect to the learned editors of Archbold that passage relates solely to the falsity of the statement. It does not make reference to corroboration in respect of the state of mind of a defendant. We do not think that Hamid is, in reality, in conflict with O'Connor or that O'Connor is the better law when it is the falsity of the statement which matters.

24. In this jurisdiction Sir Denys Roberts, C.J., giving the judgment of the Court of Appeal in R. v. Fok Chak Chun and another C.A. 284/79 (unreported), accepted the necessity for corroboration in perjury cases and made reference to s.43.

25. The passage which the trial judge cited from Archbold does not in our view indicate that she had ignored the requirements or section 43. While the appellation "corroboration" may be attached to the direction the trial judge should give it is not, of course, for a trial judge to give the full corroboration warning required by the "ordinary practice rule". He would not, for example, warn a jury that it is dangerous to convict in the absence of corroboration but that they could, if they thought the evidence true, convict without finding any. Section 43 is a statutory requirement and there must be more than the evidence of one witness as to falsity before a conviction can be come to. The "more than" can, of course, be oral evidence or documentary evidence and is not confined to an actual second witness. We consider that which Lawton, L.J. in Hamid said as to the direction to be given by a trial judge to, with respect, state the requirements correctly.

26. This brings us to the second issue raised by ground 1: was there "other evidence" within the meaning of section 43. This, in turn, impinges on grounds 2 and 3, all of which can be conveniently dealt with together.

27. We do not accept Mr. Lok's submission that because the maker of the actual receipt stubs and the body of exhibit P3 was not called meant that there was no evidence that the dates on those exhibits were genuine. Be it remembered that the applicant had given evidence that he had signed it and that it had been made on the date stated on its face, the 20th January 1989. This receipt book was a form of business record and the trial judge was entitled to look at it as it stood and draw from it the overwhelming inference that exhibit P3 had come from that book at a place between the two stubs of 12th January and 23rd January 1990. While the expert witnesses could not specify the precise date upon which it was made his evidence, as we have noted, was that it had been written on top of the receipt of the 23rd January and that the stub of the 20th January had been written on top of P3. This, coupled with the nature of the receipt book, made the inference of falsity inevitable.

28. Mr. Daley who appears in this court for the Crown accepts that, individually, the evidence of Mr. Peter Cheng (PW1) and that of Mr. Li (PW2) might not be sufficient to satisfy the requirements of section 43. But he further submits that their evidence combined with that of the Housing Inspector (PW3) was more than sufficient for that purpose.

29. We agree. The trial judge was perfectly entitled on the evidence before her to be satisfied, as she stated herself to be, that claims by Yee Hop would only have been filed some time after 23rd January 1989 when work had actually been done. While she did not specifically say so, this was clearly evidence which, in the sense that corroboration is used in perjury cases, did corroborate the falsity of exhibit P3. Combining the evidence of all of those three witnesses there was more than enough to satisfy the requirements of section 43.

30. It was for these reasons that, at the conclusion of the hearing, we refused the application and stated we would give our reasons later which we now have done.

Sentence

31. Having considered the submissions as to the sentence of 9 months imposed upon the applicant, we also dismissed his application for leave to appeal against sentence. In so doing we bore in mind that which was said by another division of this court in R. v. Antnony Wu Wing Keung, Criminal Appeal 202 of 1988 (unreported) in which Hunter, J.A., having indicated that perjury is an offence which strikes at the root of the administration of justice and which demands an immediate custodial sentence, went on to indicate that this type of case is broadly divisible into three categories.

32. At page 5 of the judgment it is said that:

"The first is the man who commits perjury in the course of giving evidence in his own defence. That is the sort of case which the law looks upon somewhat benevolently. Attempts to bring a charge of perjury against such a man are few."

33. Mr. Lok relies very heavily on this passage.

34. The second and third categories were indicated as being, where a family rallies round to support a member who has strayed, and where there is a third party coming in and deliberately giving false evidence in support of a defendant.

35. In Attorney General v. Suen Chun Kwong [1980] HKLR 543 the Court of Appeal on a Review of sentence - wrongly stated in the Headnote to be an appeal by the Crown by way of case stated - made reference to the Crown's stated policy of not charging defendants with perjury where it appears that a defendant had told lies on oath in his defence. That case related to a man charged with the possession of a dangerous drugs for the purpose of trafficking who, at trial, denied possession and, having been convicted, applied for a review of that conviction. When the hearing was reopened he gave further evidence admitting possession of the drugs which he said were for his own consumption. He was convicted and the Crown sought to review the concurrent sentence passed upon him for a later conviction for perjury. The Review was dismissed. Very different from the circumstances here.

36. In the latest case in the chain, R. v. Poon Sau Tin, Criminal appeal 533 of 1990 (unreported) another division of this court, having considered the general line of authorities including Suen Chun Kwong and Wu Wing Keung, made reference to the various categories as set out in Wu Wing Keung and found the applicant there to fall within the second of those categories. It reduced a sentence of 18 months imprisonment, passed upon him for wilfully making a contradictory statement of fact on oath, contrary to section 39 of the Crimes Ordinance, to one of 12 months imprisonment.

37. It is Mr. Lok's submission that the applicant here fall squarely within the first category and that the court should continue to look benevolently upon offenders such as this. But, with respect to Mr. Lok, that would be to overlook the deliberate manufacturing of a false document and the calling of a false witness to support it which goes beyond mere false oral evidence in the course of a defence. This was a deliberate course of conduct entered into for the apparent purpose of bolstering his evidence. Mr. Lok fully accepts that it was material.

38. The trial judge, in imposing the sentence she did, bore in mind that the applicant had lost his job with Swire Engineering and that the matter has been hanging over his head for some considerable time. She thought that he had been motivated by stupidity rather than malice. She found the offences were serious and accepted that an immediate custodial sentence was merited, though she did consider whether she should in fact suspend. In the circumstances here the trial judge was perfectly entitled to impose the quantum of sentence she did. We did not consider it such as to warrant our interference.

Representation:

Lawrence Lok, Esq. & Miss Valerie Lim (Tang, Wong & Cheung) for Applicant

R.M. Daley, Esq. for Crown/Respondent