Mariquita J Caparas v. The Queen

CACC000029/1968

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO.29 OF 1968

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Coram: Briggs, J. and Mills-Owens, J.

Date of Judgment: 21 June 1968

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JUDGMENT

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1. On January 10th, 1968 the appellant was convicted of being in possession of a large quantity of forged bank notes contrary to section 10(1) of the Forgery Ordinance. She was sentenced to three years' imprisonment. She appealed against conviction and sentence. We dismissed her appeal against conviction and sentence on June 5, 1968 for the reasons contained in this judgment.

2. The facts are simple. The appellant arrived in Hong Kong from the Phillipines by air on December 14, 1967. She was in possession of a through ticket to Saigon but it appears that she wished to take advantage of an arrangement under which transit passengers may remain in Hong Kong for a limited number of days. Because of this her luggage was searched. She had two suitcases, a handbag and a vanity case. In a tray in the vanity case there were found some underclothes and cosmetics. The tray as lifted and underneath was found to be 1,968 forged blank American Express Money Orders.

3. Various grounds of appeal were filed but we consider that it is only necessary to deal with the first ground in this judgment. This reads as follows:-

"that the trial judge was wrong in law and on the evidence in finding that the money orders, the subject of the charge, were bank notes as defined in section 2 of the Forgery Ordinance."

The documents in question are American Express Money Orders and state on their face that "the American Express Company agrees to pay at 65 Broadway New York the sum of ........". The amount is not filled in but there is a statement to the effect that it must not exceed U.S. $100.

4. The name of the issuing agent and the person to whose order payment is to be made are likewise in blank. Upon the face of each Money Order appear the words "Know your endorser cash only if recourse is available". A similar condition is expressed on the back. In the court below evidence was given that American Express Money Orders were very easily negotiable.

5. In the court below the point was taken that these Money Orders did not fall within the definition of 'bank note' contained in Section 2 of the Forgery Ordinance. The trial Judge held that they did fall within that definition in that they were 'notes of a company carrying on the business of banking' and that therefore they were 'bank notes' within the definition.

6. This point was again argued before us on appeal.

7. Mr. Bernacchi's main argument centred on the definition of 'bank note' contained in Section 2 of the Forgery Ordinance. He contended that 'bank note' bore a particular significance in the common law, and that the definition contained in the Ordinance should not therefore be read as extending the provisions of Section 10(1) beyond any document which was not, at common law, a 'bank note'. Bank notes at common law, he argued, had the meaning given by Lord Mansfield in Miller v. Race⁽¹⁾ where he said:-

"That these notes are not, like bills of exchange, mere securities, or documents for debts, nor are so esteemed; but are treated as money in the ordinary course and transactions of business by the general consent of mankind; and on payment of them, whenever a receipt is required, the receipts are always given as for money, not as for securities or notes."

8. Lord Mansfield, it may be noted, was there considering a note of the Bank of England; however, in Lichfield Union v. Greene⁽²⁾ Baron Bramwell applied Lord Mansfield's remarks to the notes of banks other than the Bank of England.

9. It is apparent that early legislation extended the law of forgery as respects bank notes to notes issued by the Bank of Ireland and to forgery in Ireland of Bank of England notes - see. Greave's Criminal Law etc. Acts, 1862 at p.274 where the learned author discusses the provisions of Section 12 of the Forgery Act, 1861 and refers to the earlier legislation. That section of the Act of 1861 further amended the previous law by extending the offence of forgery of bank notes to the forgery of the notes of 'any other body corporate, company, or persons carrying on the business of bankers'. Then follow, in the section, the words 'commonly called a bank note etc.' It is significant, in our view, that the Forgery Act of 1913 (upon which our Forgery Ordinance is based) omits these words. The Act of 1913 also extended the provisions of the 1861 Act by applying the definition of 'bank note' to notes issued by bankers in any part of the world (as does the Ordinance).

10. In our view therefore Lord Mansfield's words must, today, be read in the light of these amendments - if indeed his words are of any application at all to a statutory definition such as that with which we are now concerned. It is relevant also to bear in mind that following Lord Mansfield's day legislation was passed restricting the power of banks other than the Bank of England to issue notes payable to bearer (see the Bank Charter Act, 1844); further that since Baron Bramwell's day bank notes of banks other than the Bank of England have become virtually non-existent.

11. As we understand the argument for the appellant, it was the purpose of the forgery law to place bank notes in a special category because of their common use as a form of money or currency (not necessarily as legal tender); that the motive for so dealing with them lay in the special regard in which they were held by the community, on account of their ready negotiability or use as money. This appears to us to ignore the march of events and the evolution of the forgery legislation. When it is observed that 'bank note' is now defined so as to extend to the notes of bankers carrying on business in any part of the world it is difficult to conceive that the legislature was thinking strictly in terms of the special negotiability of bank notes; the inference rather is that the legislature was concerned to protect the integrity of note-issuing banks - that the purpose was to ascribe a special heinousness to forgery of notes of banks, as opposed to forgery of private notes where detriment to the creditworthiness of the makers of the notes would not have the devastating effect which detriment to the creditworthiness of a bank would have. In other words, the emphasis is on the character of the maker of the note rather than upon any attribute of negotiability. This, we think, is borne out by the terms of the definition with which we are concerned. The definition expressly extends to the notes of 'foreign' banks. It also expressly extends to blank bank notes which appears to us to be the nature of the notes now in question. The definition makes no reference to negotiability, such as, for example, is made, by implication, in the definition of 'bank note' contained in section 3 of the Stamp Ordinance (Cap. 117) - see para.(b) of the definition.

12. It was argued that if the intention had been to extend the definition (in the Forgery Ordinance) to non-negotiable notes that intention would have been carried out by 'deeming' them to be bank notes. No doubt that would have been an appropriate method to adopt, but it does not follow that it is the only permissible method. Prima facie, a definition which 'includes' meanings other than the primary meaning is intended to extend the definition. It would be unusual if the definition used the word 'includes' in two senses, as 'means and includes' where it first appears in the definition and as 'includes' where it secondly appears, as was argued for the appellant. If the intention was to limit the definition to 'bank notes' simpliciter, as it was argued, it would have been simple to insert the word 'bank' before the word 'note' in the first line of the definition; alternatively to add words which would have clearly indicated that the element of negotiability must be present.

13. We therefore agree with the trial judge that the Money Orders the subject matter of this charge are 'bank notes' within the definition in section 2 of the Forgery Ordinance. They are 'blank bank notes'. And this ground of appeal fails.

14. It is unnecessary to deal with the other grounds of appeal against conviction.

15. We dismissed the appeal against sentence but ordered the sentence to run from the date of conviction.

Dated 21st June, 1968.

Representation:

Mr. Bernacchi Q.C. & Shears (T.M. Chow & Co.) for Appellant.

Mr. ...(illegible) for Crown/Respondent.

(1) 1 Burr. 452

(2) (1857) 26 L.J. (N.S.)