Ma Tak Hing v. The Queen
Read the full judgment text of CACC 227/1968 on BabelCite. This Court of Appeal judgment was delivered on 8 August 1968.
1. The appellant was convicted in the Magistrate's court in respect of two charges concerning driving licences. The first charge was of forgery contrary to section 5(3)(1) of the Forgery Ordinance (Cap.210) and it was laid in the terms:- "with intent to deceive or defraud". The second charge was of possession of a (another) forged driving licence contrary to section 10(3).
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CACC000227/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 227 OF 1968 -----------------
----------------- Coram: Mills-Owens J. Date of Judgment: 8 August 1968 ----------------- JUDGMENT ----------------- 1. The appellant was convicted in the Magistrate's court in respect of two charges concerning driving licences. The first charge was of forgery contrary to section 5(3)(1) of the Forgery Ordinance (Cap.210) and it was laid in the terms:- "with intent to deceive or defraud". The second charge was of possession of a (another) forged driving licence contrary to section 10(3). 2. The appeal is brought on six grounds. 3. Ground 1 is as follows:-
The argument of Mr. Shears, counsel for the appellant, proceeded on the basis that section 5(3)(1) of the Ordinance creates two offences, forgery with intent to deceive and forgery with intent to defraud, and he referred, in particular, to the cases of R. v. Moon(1) and Welham v. D.P.P.(2), both of which clearly recognise a significant difference between an intent to defraud and an intent to deceive. Counsel also referred to the recent decision of the Full Court in Chan Yat Pui v. R.(3) holding that a charge that the appellant "was found in the company of another person who without lawful authority had in his possession (an) explosive substance, in circumstances which raised a reasonable presumption that (the appellant) intended to act or was about to act with or had recently acted with the said other person in a manner prejudicial to the public interest" was not bad for duplicity. The Full Court said that "The test for ascertaining whether two or more separate offences have been included is to ask whether the particulars cover only one act which may be done in one of two or more different ways or two or more acts each of which constitutes an offence". The judgment went on to refer to the case of Mallon v. Allon(4) where the Divisional Court was concerned to decide whether there was duplicity in an information charging the appellant that he did unlawfully "admit and allow to remain on premises" which were a licensed betting office a person apparently under the age of 18 years. At p.392 the learned Lord Chief Justice cited Thomson v. Knights(5) and G. Newton Ltd. v. Smith(6) and went on to say:-
4. Crown Counsel, Mr. Carolan, relied upon the Indictment Rules made under section 16 of the Criminal Procedure Ordinance (Cap.221), in particular rule 2(1) which permits the framing of charges in the alternative and Form 13 (2nd Count) in the Appendix to the Rules which uses the expression "with intent to deceive or defraud". Crown Counsel submitted that the Rules applied to proceedings in the Magistrates' Courts if not directly then by analogy. I think it is clear that they do not so apply directly, but there is authority for saying that no more strictness is required in a summons than in an indictment (see R. v. Jones, ex parte Thomas(7)). Crown Counsel also cited R. v. Molloy(8), R. v. Wilmot(9), R. v. Ottaway(10), R. v. Naismith(11), Chao Tse Yun v. R.(12), R. v. Shillingford(13). I hesitate to burden this judgment with further authorities but I think that a useful contrast may be drawn between two cases in the Court of Criminal Appeal, namely R. v. Perry(14), where a charge of obtaining credit "under false pretences or by means of other fraud" was held good as alleging one offence only, and R. v. Inman(15) where in the course of the judgment it was said that section 332 of the Companies Act, 1948 created two offences, fraudulent trading with intent and fraudulent trading for the purpose of achieving certain things. In the present case, in my view, the charge was not bad for duplicity. Only one offence is contemplated, that of forgery; the intent may be either to deceive or to defraud and may properly be stated in the alternative; forgery is the gravamen of the charge. Nor is a defendant prejudiced by a conviction in that form; he cannot be again proceeded against in either alternative. 5. Ground 2 of the appeal is as follows:-
6. This refers to the second charge, that of possession of a forged driving licence in an unlocked drawer of a desk to which, according to evidence called for the defence, others had access besides the appellant. Mr. Shears submitted that the learned Magistrate had overlooked the provisions of section 14 of the Forgery Ordinance regarding proof of possession and had relied instead on a decision dealing with possession of dangerous drugs (R. v. Hon Sai King(16).....). No doubt this is so but the question of possession was substantially one of fact. As Crown Counsel has pointed out, there was evidence, accepted by the Magistrate, that the licence was handed to the appellant personally and the appellant in his unsworn statement at the trial did admit some connection with the holder of the licence. In my view there was material upon which the Magistrate could properly come to the conclusion that the appellant had possession of the forged licence the subject of the second charge. 7. However, a point may arise on this charge. Section 10(3) of the Forgery Ordinance refers to possession of "any forged document the possession of which is not made illegal under this or any other Ordinance". In fact section 33(1)(a) of the Road Traffic Ordinance (Cap.220) expressly deals with forgery of driving licences, but section 17(2) of the Forgery Ordinance permits a charge to be brought under either enactment; and with regard to possession the Road Traffic Ordinance (section 33(1)(b))refers to possession of documents calculated to deceive, not to forged licences. The point has not been argued and I say no more about it. 8. Ground 3 is as follows:-
9. This refers to the Magistrate's decision to admit the statement following a hearing on the voire dire. There was a conflict of evidence between that of the appellant on the one hand and that of a detective corporal on the other. The appellant alleged an inducement; the corporal denied it. The evidence of the corporal was preferred. I am unable to say that there is any such circumstance affecting the admission of the statement as enables an appellate court to override the decision of the Magistrate who saw and heard these two witnesses. Mr. Shears suggested that when the corporal resumed his evidence on the general issue he stated for the first time that he had seen a certain person Lo Che Hung before taking the statement; the record shows that the corporal had agreed during the voire dire that he had so seen Lo Che Hung. 10. Counsel for the appellant also submitted that it was astonishing that the corporal should say, in evidence, that he did not regard the statement as particularly serious. The corporal was asked in cross-examination did he think the statement was a serious matter and replied: "Not particularly. I have taken many statements over the years". This appears to me to be a perfectly rational answer. 11. Ground 4 is as follows:-
12. I see no reason why a Magistrate should not express strong views about a witness provided, generally speaking, he does not do so until after the re-examination is closed, or, as in this case, after cross-examination where it is indicated that it is not intended to re-examine. The case cited by Crown Counsel, R. v. Bateman(17) amply supports this proposition. (See also A.G. v. Casey (No.1)(18)). 13. Ground 5 is as follows:-
14. Under this ground counsel for the appellant made the point, that a prosecution witness admitted talking to the prosecuting officer during an adjournment in the course of the trial. I agree with Crown Counsel's submission that the witness was merely a formal witness who, moreover, gave what appeared to be an adequate explanation in regard to the conversation. Counsel also complained that the Magistrate had more or less brushed aside all but three of sixteen points made by counsel in his final address. Some of these points have been dealt with above; others concern the reliability of various witnesses. I have considered them and do not regard any of them as throwing doubt on the findings made and the verdict arrived at; I would agree however that it is undesirable that even the appearance should be given of a summary dismissal of arguments advanced on behalf of a defendant. 15. Ground 6, added at the hearing of the appeal, was that the learned Magistrate had misdirected himself in stating in his judgment that the appellant had forged signatures on both licences. Crown Counsel conceded that this was a misdirection. It is not however one which, in my view, affected the ultimate result of the trial. 16. For these reasons I dismiss the appeal. 17. I have made some reference to section 17(2) of the Forgery Ordinance which provides that where an offence under that Ordinance is also an offence under another Ordinance proceedings may be brought under either Ordinance. Section 17(2) however omits the safeguard which appears in section 19(2) of the Forgery Act, 1913 from which it is taken, namely the proviso that where under the other enactment the case is punishable on summary conviction only it shall remain so punishable. This brings about the position, in Hong Kong, that a charge may be brought as an indictable offence under the Forgery Ordinance instead of proceeding summarily under the Road Traffic Ordinance which specifically deals with the forgery of driving licences. The charge having been laid as an indictable offence may then be dealt with summarily. Thus the position is achieved of a summary trial but attended by the penalties attaching to trial on indictment (subject to the limitation on the Magistrates' powers (illegible)). In effect the specific provision made by the Legislature for a maximum punishment of a fine of $1,000 and 6 months imprisonment laid down by section 33(4) of the Road Traffic Ordinance is avoided. This is hardly the way in which laws affecting the liberty of the subject should be framed, in my view. 8th August, 1968.
Representation: Shears instructed by Messrs. Lam & Tong for appellant. Carolan, Crown Counsel, for respondent. (1) (1967) 3 All E.R. 962. (2) (1961) A.C. 103. (3) Cr. Appeal No.685/1967. (4) (1964) 1 Q.B. 385. (5) (1947) K.B. 336. (6) (1962) 2 Q.B. 278. (7) (1921) 1 K.B. 632, 635. (8) (1921) 2 K.B. 364. (9) 175 L.T. 342. (10) 175 L.T.J. 424. (11) (1961) 2 ALL E.R. 735. (12) (1962) H.K.L.R. 254. (13) (1968) 1 W.L.R. 566. (14) (1945) 31 Cr. App. R. 16. (15) (1966) 3 All E.R. 414. (16) (1950) H.K.L.R. 319. (17) (1946) 31 Cr. App. R. 106 at 111. (18) (1961) Irish Rep. 264. |