Attorney General v. Li Kai Tung
Read the full judgment text of CACC 3/1968 on BabelCite. This Court of Appeal judgment was delivered on 2 September 1968.
1. In this appeal by way of case stated the Crown appeals from the decision of a magistrate's court upholding a submission of no case to answer in respect of three charges brought against the respondent defendant. The charges were as follows:-
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CACC000003/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 3 OF 1968 -----------------
----------------- Coram: Mills-Owens J. in Court. Date of Judgment: 2 September 1968 ----------------- JUDGMENT ----------------- 1. In this appeal by way of case stated the Crown appeals from the decision of a magistrate's court upholding a submission of no case to answer in respect of three charges brought against the respondent defendant. The charges were as follows:-
2. The substance of the allegations against the respondent were as follows:- Tan Kok, the person named in charge 'C', filled in an application form for a passport in the name Lo King Hong, a fictitious person, but annexing thereto photographs of himself. The application was presented at the Immigration Office on the 29th September, 1967. It is the practice, on such an application being presented, for the counter-clerk to check the application with the applicant's identity card. The number of the identity card might be written on the application beforehand or it might be noted on it by the counter-clerk himself on the presentation of the application and identity card. The application in the present case bore an identity card number, but it was the number of an identity card which, officially, did not exist. The respondent was a Sub-Inspector employed at the Immigration Office. Adjoining the identity card number, on the application, appeared the initials of the respondent - according to the evidence at that stage before the court. It remained uncertain whether the number also had been written by the respondent but it was evidently written in ball-point ink of a type similar to that in which the respondent's initials were written. On the following day, the 30th September 1967, the respondent was interviewed at Police Headquarters, when he made an admission in writing that the initials adjoining the identity card number were his. On the same occasion, during a temporary absence from the room of the police officer interviewing him, the respondent over-wrote his initials on the application; hence charge 'B'. In so far as the foregoing statement of facts contains matter additional to that contained in the case stated it was agreed on the hearing of the appeal. The reference in charge 'C' to an untrue statement, it is agreed, is to the contents of the application; the untruth being the representation thereby made that the applicant was Lo King Hong. 3. In paragraph 7 of the case stated the Magistrate said:-
4. The question asked by the case stated is whether the Magistrate was right in acceding to the submission of no case to answer. 5. In my view, quite distinctly, there was no case to answer on charges 'A' and 'B' as framed. Assuming that a prima facie case had been made out that the respondent had falsely represented that he had seen and checked the particulars of the application with the applicant's identity card, it was no forgery. Forgery is the making of a false document with the intent that it pass as genuine. In the well-known phrase of Lord Blackburn in R. v. Windsor(1) at p.123:-
In the present case, assuming everything against the respondent, it is as if he endorsed a certificate on the application to the effect that he had checked it against the identity card and found the papers correct. If he had not, in fact, so checked, or had found the papers incorrect, then he told a lie in writing; that would not be forgery. It was, however, suggested on the appeal that the charges 'A' and 'B' might hold good in the character of charges alleging that the respondent aided and abetted a forgery by Tan Kok. Tan Kok was, no doubt, prima facie guilty of a forgery in making an application in the name of another; the application was a false document in that it falsely represented itself to have been made by another person. The proposition that the respondent might be guilty on this basis appears to me, however, to suffer from a fatal defect. The charges 'A' and 'B', being framed under section 6(2) of the Forgery Ordinance, required proof that the writing or instrument forged was a "public document". No doubt in the law of forgery "public document" has an extended meaning. Russell on Crime (12th Edition) Vo1.2 at p.1240 gives the examples of a summons in a county court (R. v. Collier(2)) and a magistrate's order for the discharge of a prisoner (R. v. Harris(3)). But I fail to see how a mere application, albeit addressed to a public department, can be a "public document", in respect of which an intent either to defraud or to deceive is sufficient. Accordingly, in my view, there was no case to answer on charges 'A' and 'B' and the learned Magistrate rightly so held. 6. Charge 'C' was laid under section 44(2) of the Immigration (Control and Offences) Ordinance (Cap.243) which reads as follows:-
Section 39(1) of the same Ordinance provides:-
The question is whether there was a prima facie case that Tan Kok was guilty of making a false statement in signing and presenting the application for a passport in the name of another, and that the respondent aided and abetted him in so doing. An aiding and abetting must be at the time of the commission of the offence. Here it might be said that Tan Kok's offence had already been committed before the application was initialled by the respondent. But 'the time of the offence' is a matter which the law interprets broadly. (See Glanville Williams - Criminal Law (2nd Edition) para. 121). It ought, in my view, to be held that the false application remained a false statement, made for the purpose of procuring a passport, at the time when it came into the hands of the respondent at the Immigration Office because the purpose was to mislead the officers into whose hands it might come. I turn to the question whether there was a prima facie case against the respondent of aiding and abetting Tan Kok. The proved practice of the Immigration Office and the juxtaposition of the false identity card number and the admitted initials of the respondent do not of themselves exclude the possibility of mere negligence or inadvertence on the part of the respondent, but knowledge of the falsity on his past might well have been inferred, in the absence of explanation, from his action in over-writing the initials. In my view that inference was one properly to be drawn, and accordingly it follows that inference was one properly to be drawn, and accordingly it follows that in my opinion a prima facie case was shown against the respondent on charge 'C'. 7. It remains to consider whether the learned Magistrate was, nevertheless correct in his decision, having regard to the view which he had formed of the evidence. It is accepted on the appeal that if, following an unsuccessful submission of 'no case', the defence decide not to call evidence, the magistrate or other tribunal may nevertheless acquit on the basis of a reasonable doubt. It is submitted on behalf of the respondent, further, that a magistrate may, although there is, technically, a case to answer, nevertheless proceed immediately to acquit, equally as a jury may return a verdict of not guilty immediately upon the conclusion of the case for the prosecution although the judge has ruled that there is a case to answer; in other words that the magistrate may hold as a matter of law that there is a case to answer and immediately proceed as a tribunal of fact to acquit. But, whether or not this latter proposition is correct, on a plain reading of paragraph 7 of the case stated this is not what was done in the present case. The learned Magistrate clearly appears to have introduced, into his consideration of the submission of no case, the matter of a reasonable doubt then existing in his mind. Counsel have referred to numerous authorities which make it clear that the question to be decided upon such a submission is whether there is evidence upon which a reasonable tribunal might convict, as the Practice Note of 1962 also indicates. (See Sher Singh v. Jitendranath Sen(4); Lau Woon v. R.(5); Bhatt v. R.(6); Wibiro v. R.(7); De Filippo v. De Filippo(8); Ryder v. Wombwell(9); Banbury v. Bank of Montreal(10); Hawkins v. Powells Coal Co.(11); Barnabas v. Bersham Colliery Co.(12)). If there is a doubt as to the evidence for the prosecution then, in my view, if the submission is to be upheld it must be such a doubt as leads to the conclusion that the evidence is so unreliable, flimsy or shaken that no reasonable tribunal would convict. The test is objective, not subjective, and at that stage the matter of reasonable doubt does not arise for consideration. 8. I appreciate that different views have, on occasion, been expressed on this subject. Indeed the views expressed in paragraph 7 of the case stated appear to be based on an article by Professor Coutts in 26 J.C.L. 230. That article appears to me, however, to have been entirely answered by the article appearing at pp.311-317 of the same volume. 9. In the circumstances, therefore, I consider that there was a case to answer on charge 'C' and that it should have been so held; in the circumstances, also, the case should now go before another magistrate. I therefore order a trial de novo before another magistrate on charge 'C'. 10. I should perhaps add that this is not a case where the defence had indicated that it would be calling no evidence in the event of the submission of "no case" failing. If there had been such an indication the position would have been different. The whole of the evidence would then have been before the Magistrate and he would have been entitled to acquit the respondent on the basis of lack of proof beyond a reasonable doubt; such a decision could not then have been challenged, by way of case stated, except on the basis that it was 'perverse', as a point of law. 23 SEP 1968
Representation: M. Wong, C.C. for Appellant. O.V. Cheung, Q.C. & A. Zimmerns (Deacons) for Respondent. (1) (1865) 10 Cox C.C. 118. (2) (1831) 5 C. & P. 160. (3) (1833) 1 Moo. 393. (4) (1931) A.I.R. Calcutta 607. (5) (1964) H.K.L.R. 276. (6) (1957) E.A.L.R. 332 (E.A.C.A.). (7) (1960) E.A.L.R. 184 (E.A.C.A.). (8) (1964) 108 So. Jo. 56. (9) (1868) 4 L.R. Ex. Ch. 32. (10) (1918) A.C. 626. (11) (1911) 1 K.B. 988. (12) (1910) 103 L.T. 513 (H.L.). |