Mo Wai Ming v. The Queen

CACC000318/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 318 OF 1969

Coram: Rigby, S.P.J. &, Huggins, J.

Date of Judgment: 24 October 1969

-----------------

JUDGMENT

-----------------

1. This troublesome case has, unhappily, not been rendered any the more easy in its final determination by reason of the judgment of the learned trial judge.

2. The appellant was charged on 11 charges with various offences of obtaining money by false pretences, corruptly receiving money contrary to the Prevention of Corruption Ordinance, and uttering forged documents contrary to the provisions of the Forgery Ordinance. For reasons to which we will here-after briefly refer, he was acquitted on the three charges of corruptly receiving money, but convicted on the four charges of obtaining money by false pretences and four charges of uttering forged documents. Upon conviction, he was sentenced to an aggregate sentence amounting to four years imprisonment. He now appeals against both his conviction and sentence.

3. The facts may be briefly stated. The appellant at the material time was the headmaster of a newly constituted school known as the Chee Oi school. The school itself was the brain child', if I may use that expression, of the appellant himself and a Mr. Hui Tai-tung, the principal witness for the prosecution: it came into being as the result of an agreement made between the appellant and Mr. Hui Tai-tung, on the one hand, and the Sau Mau Ping Resettlement Estate Kaifong Welfare Association, for the wholly admirable purpose - at any rate admirable in theory - of providing primary education for the children on that Resettlement Estate.

4. Application was made in 1967, or early 1968, to the Education Department for leave to set up and register such a school and it would appear that such permission was formally granted in September 1968, although there is some evidence that the school was in actual existence and operating prior to that time. However, the learned judge found as a fact that the school was formally recognized by the Education Department as coming into existence on the 2nd September, 1968. It was subsidized by a monthly subvention from Government, through the Education Department, One of the advantages of being a school subsidized by a Government subvention is, of course, that the school authorities are in a position to pay their teachers a somewhat higher salary than if the school had no such subvention. The appellant was the headmaster - or to put it more accurately the Headmaster-designate - of the school, and Mr.Hui Tai-tung was the Supervisor of the school and a member of the Management or Education Committee, and other persons were duly appointed as members of that Committee.

5. The procedure for the appointment of teachers appears to have been that it was first necessary for the applicant to be interviewed - and, presumably, provisionally approved - by the headmaster. Thereafter, if approved, the applicant would later be interviewed by the School Committee and subsequently the application forwarded for final approval by the Education Department. The main emphasis appears to have been undoubtedly placed upon the interview of the applicant with the headmaster; the subsequent interview by the Management or Education Committee appears to have been little more than a mere formality; and, indeed, so was the subsequent approval by the Education Department, always provided that the applicant was in fact already a registered teacher.

6. After the initial interview by the headmaster the prospective candidate, if considered satisfactory, would be handed a provisional document, signed by the Supervisor and beaded "Letter of Appointment" or, to call it by its Chinese name, a "Ping Harm". After receipt of this provisional document, it was still necessary for the applicant (1) formally to write to the school authorities applying for employment, (2) to attend before the Committee for a personal interview and (3) thereafter, if approved by the Committee, to be finally approved for appointment by the Education Department. On final approval by the Education Department, the applicant would be given a formal letter of appointment known as a "Ping Shu".

7. The four charges of obtaining money by false pretences concern the obtaining of such money from two females who applied for appointments as school mistresses at the school; the sum of $2,500 from a Mrs. Tang (the subject matter of the first charge), and $3,000, in three separate instalments, from a Mrs. Shum (the subject matter of the 3rd, 4th and 5th charges). In each case the method of operation was approximately the same; the appellant represented to these women that the moneys were required towards the establishment and operational expenses of the running of the school. In each case the two women voluntarily paid the money on the basis of that representation, and it is, perhaps, pertinent to observe that they were, in fact, appointed as teachers of the school and, at all times material to these proceedings, were in fact continuing as teachers at the school. The defence put forward by the appellant at his trial, as was apparent from the cross-examination of the main prosecution witnesses, (the appellant did not himself go into the witness box to give evidence on his own behalf nor did he call any evidence) was that these sums of money were asked for by him on the instructions of the school supervisor, Hui Tai-tung - an allegation which Mr. Hui Tai-tung himself emphatically denied. There was certainly evidence upon which the learned trial judge could have come to the conclusion that the prospective school mistresses had parted with their money solely upon the basis of the representation made to them that the money was required for the establishment and operational expenses in connection with the school, and that that representation was in fact false. Unfortunately, however, the learned trial judge has repeatedly referred to these two women - and two other prosecution witnesses who gave evidence of a similar nature - as "accomplices".

8. The case presented by the prosecution was, perhaps, made to appear unnecessarily complicated by the inclusion of cumulative and distinct charges, under the Prevention of Corruption Ordinance, on precisely the same facts, alleging that the appellant corruptly received these same sums of money from these two females "as an inducement....." for appointing them as teachers at the school. It might well have been more satisfactory if those charges under the Prevention of Corruption Ordinance had been laid as alternative charges rather than cumulative charges. The learned judge dismissed the corruption charges on the technical ground - and it is unnecessary for us to consider whether it was a valid ground - that at the time of such payments made to the appellant the Chee Oi School had not yet been officially recognized by the Education Department. There was, therefore, some doubt as to whether it was a "public body" within the meaning of the Prevention of Corruption Ordinance. The fact remains, however, that despite the fact the learned judge had dismissed the charges of corruption brought against the appellant, he repeatedly referred to the main prosecution witnesses as "accomplices". By his constant use of that expression in relation to those witnesses the inference appears to us irresistible that the learned judge may well have taken the view that these witnesses were in no way deluded by any false representation made to them by the appellant that these moneys were required of them as a contribution towards the establishment and running of the school, but that in their anxiety to obtain permanent employment as school teachers they were perfectly ready and willing to pay such sums of money - even though it went into the pocket of the appellant himself - as the price of obtaining such permanent employment.

9. This inference appears to me to be strongly supported by a question put by the learned judge to Crown Counsel in the course of Crown Counsel's final address. The question was this: "What would be the position in this case if the evidence is such that I am satisfied that none of these people had been deceived at all? In other words, it is suggested that the accused asked these people for money for the benefit of the school operation, they were not deceived, they were satisfied that the accused wanted it for himself and they were quite happy to pay it over to him in the knowledge that if they did not pay it over they would not get the job".

10. It is important to appreciate that this suggestion was never put forward by the defence itself; the possibility, must, therefore, have been in the mind of the learned judge himself that that was the true position, namely that "these people" were never deceived by any representation made to them by the appellant, but that they were quite happy to pay the moneys over to him in the knowledge that if they did not pay them over they would not get the job. If the moneys were paid over on that basis then, quite clearly, whatever other offence the appellant might have committed, he did not commit the offence of obtaining money by false pretences.

11. The use of the expression "accomplice" is a term well known to those who practise law, and there can be no reason to believe that a lawyer with the knowledge and experience of the learned judge in this case must not have been entirely familiar with the meaning of that expression in his constant use of it in reference to the testimony of these witnesses.

12. It is, of course, possible to argue that in his constant use of the expression "accomplices" in relation to the testimony of these witnesses the learned judge still had in mind the charges of corruption, and that in paying over the moneys to the appellant these witnesses were accomplices in the making of corrupt payments. However, quite apart from the fact that the learned judge had acquitted the appellant on the corruption charges, the argument suggested above seems to us fallacious; and for this reason: If the school teachers genuinely believed that the money was properly required of them for the perfectly legitimate object of use in connection with the establishment and running expenses of the school, and they paid over the moneys on the basis of that representation, then there could be no question of such payments being corrupt in so far as they were concerned and there could be no question of them being "accomplices". On the other hand, if they paid over the moneys freely and voluntarily because they hoped to obtain permanent employment as the result of such payments, not only would such payments have been corrupt but, quite clearly, they would not have been made as the result of any false pretence or representation which caused, or induced, them to part with their moneys. By the repeated use of the expression "accomplices" in reference to these main prosecution witnesses, it is certainly open to the construction - and it seems to us a necessary construction - that the learned judge took the view that these witnesses parted with their money, not by reason of any false representation made to them which false representation they believed, but because they were prepared to pay over the money as a consideration for obtaining permanent employment at the school. For these reasons we are satisfied that the convictions on counts 1, 3, 4 and 5, of obtaining money by false pretences, cannot stand.

13. The conduct of the appellant was disgraceful. It is manifest that the appellant, grossly abusing his position as headmaster of this school, secured and obtained employment for these four women as teachers at the school where he was employed, having first obtained for his own use and benefit consideraable sums of money from them as a consideration for such employment. Whatever loopholes the existing Prevention of Corruption Ordinance, as it now stands, may have afforded him, in plain language these were corrupt and dishonest payments.

14. It remains now to consider the charges under counts 2, 8, 10 and 11 of uttering forged documents. These charges relate to the handing over of the so-called Letters of Appointment, or Ping Harms, to Mrs. Tong and Mrs. Shum and to two further teachers - still at the school - the Misses Wong and Luk, subsequent to the payment over of moneys by them to the appellant. The learned judge found as a fact that in respect of these four so-called Letters of Appcintment the signature of Hui Tai-tung had been forged upon them, and that the appellant had handed over, or uttered, these forged documents to the four recipients. That they were, in fact, forged was proved beyond doubt; that the appellant knew that they were not the true signatures of Hui Tai-tung was also proved beyond doubt. But the cruical question is whether they were uttered by the appellant with intent to defraud. That they were designed to deceive must also be beyond doubt. But mere deceit is not sufficient; the intent to defraud is not to be equated with an intent to deceive (See Reg. v. Moon, The Times, 4/10/67). What has been described as the classic definition of the distinction between an intent to deceive and an intent to defraud was given by Buckley, J., as he then was, in the case of In re London and Globe Finance Corporation⁽¹⁾. He said

"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. More tersely, it may be put that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action."

That passage was quoted with approval by the Court of Criminal Appeal in Bassey's case⁽²⁾ and more recently in the decision of the House of Lords in Welhan v. D.P.P.⁽³⁾.

"It is not necessary for any particular person to be defrauded; someone in general will suffice. If anyone may be prejudiced by the fraud that is enough". (Welhan v. D.P.P.).

Quite clearly the appellant, when he uttered these documents knew they were forged and intended to deceive someone. But was there an intention to defraud? In order to answer that question it is necessary to answer the further question: whom was it intended to deceive? On the facts the appellant must have intended to deceive either the prospective teachers or some third person to whom the teachers were to show the documents.

15. The learned judge appears to have taken the view that it was the teachers who were to be deceived because he said "inasmuch as both teachers changed their employment and came to work at the school as a direct consequence of these letters of appointment there was an intention on (the appellant's) part to defraud Mrs. Wong and Mrs. Luk". It was not, of course, the mere fact that they changed their employment that would justify his conclusion but the fact that, if it was the teachers whom the appellant intended to deceive, the only reasonable inference is that the appellant intended them to act upon the documents to their detriment. But was the learned judge justified in finding that it was the teachers themselves who were intended to be deceived? The only evidence as to the purpose of the documents was in these terms:

What the learned judge appears to have done is to reject the first answer and take the second answer as indicating that deceiving the teachers was the real purpose. He gave no reason for so doing and we are doubtful whether he was justified in this conclusion. The only way in which the documents could be used to "enable" the teacher to resign from her school was if it was to be used to deceive the authorities of that school into believing that the teacher had to all intents and purposes been offered a new post in the Chee Oi School. Such an offer could only come from the Supervisor and the teachers might well not have been released from their contractual obligations had the existing employers been aware that the documents had been signed by someone not authorised to offer employment in the Chee Oi School. Deceiving the teachers would not "enable" them to resign. On the other hand a teacher who received one of these documents might well resign from her school and come and teach at the Chee Oi School although not herself deceived. We think the only safe course in the circumstances is to consider all the persons whom it may possibly have been intended to deceive and to satisfy ourselves that in every case any intention to deceive must have been accompanied by an intention that the person should, as a result, act to his detriment.

16. We have already considered the teachers themselves and we agree with the learned judge to this extent, that if it was the appellant's intention to deceive them there must also have been an intention to defraud them. It could be said that no reasonable person with the education of the teachers would have placed any reliance upon a document which gave her in strict law no contractual rights. Nevertheless, the learned judge found that "as a result of receiving the letter of appointment Mrs. Shum gave up her former employment and started to work at the Chee Oi School". In fact, all the teachers involved in this case did give up their employment on the strength of the Ping Harm and the evidence is that they had all been working at the Chee Oi School for some time before the Ping Shu was issued to them. It is impossible to believe that the appellant was not well aware that this would happen and that it was not his intention that it should be so when he uttered the forged Ping Harms. The teachers would thus be defrauded because they would have acted to their detriment in that they gave up their former employment at a time when they had not even the "guarantee" of a genuine Ping Harm: had the school committee discovered that the Ping Harms were forged they might well have decided not to employ these teachers.

17. If it was not the prospective teachers but some third person whom the appellant intended to deceive - and the argument of counsel for the Crown was that the obvious purpose of the documents was that the teachers should be able to produce them to some third party and to defraud that third party by deceiving him into doing something which he would not have done had he known the truth - what third person could that have been? We have already indicated that the Ping Harms might have been presented by the teachers to their then employers when submitting their resignations. That would be a possible explanation if they were seeking release from their contracts otherwise than in accordance with the contractual terms, although no one has said in so many words that the documents were required or used for this purpose. If they were intended to be so used, then there was an intent to defraud those employers because they would be giving up contractual rights on the strength of the forged documents.

18. The only other possible alternative suggested was that the Ping Harms were intended to be produced to the Committee of the Chee Oi School in support of the formal applications for employment. Again, there is no evidence that they were required or used for that purpose, but if they were intended to be so used (and we think this unlikely) then it is clear that the intention was to defraud the Committee by leading them to approve the appointment of teachers in the mistaken belief that the Ping Harms had been signed by the Supervisor.

19. For these reasons we are of the opinion that the appellant was rightly convicted on Charges 2, 8, 10 and 11.

20. In conclusion, we would only add that Charges 3, 4 and 5 in fact related to the alleged obtaining by false pretences of one sum from Shum Wai-chu although payment was to be made by instalments. We think it was unnecessary and undesirable that three separate charges should have been laid.

21. Upon the four charges of uttering forged documents the learned judge passed the following sentences in respect of each charge:-

In his grounds of decision the learned judge appreciated that the procedure adopted by him of taking charges into consideration rather than imposing a specific sentence on each charge upon which he had recorded a conviction, was in fact wrong (see Lo Yin v. The Queen)⁽⁴⁾ and he said that if he had passed sentence at the time on the 8th and 11th charges he would in fact have imposed sentences respectively of 3 years and 4 years on each charge, such sentence in all cases to run concurrently, making in the aggregate a sentence of 4 years imprisonment. The appellant has applied for leave to appeal against these sentences imposed upon him and it now becomes necessary to consider that application.

22. It would seem manifest that these sentences were imposed upon the basis of the convictions recorded on the charges of obtaining money by false pretences from the school mistresses, the Ping Harms being uttered by the appellant as part and parcel of his plan to defraud the school mistresses by pretending that he was in a position to obtain employment for them at the Chee Oi School. We have quashed the convictions on the charges of obtaining money by false pretences because we consider that both upon the facts of the case and on the judgment of the learned judge it was open to the view that the school mistresses paid over the moneys perfectly willingly to the appellant, not by reason of any false pretences made by him but because they were perfectly ready and willing to pay over the money in order to obtain employment at the Chee Oi School. In view of this conclusion the uttering of the forged Ping Harms loses a great deal of its sinister purpose, inthat it becomes equally consistent with the facts that they were uttered by the appellant, not as documents connected with his intention to defraud the school mistresses, but as documents to assist the school mistresses in obtaining their release from the schools at which they were then employed in order that they could fulfil their wish to obtain employment with the Chee Oi School; to put the matter more concisely, we are clearly of the opinion that the proper construction to be placed upon the evidence is that these documents were uttered not for the purpose of deceiving and defrauding the school mistresses but for the sole purpose of assisting the school mistresses to obtain their release from their former employers. In those circumstances, reprehensible as conduct of the appellant undoubtedly was, we are satisfied that the sentences imposed were manifestly excessive. We therefore allow the application for leave to appeal against sentence. The appellant has now been in prison since the 23rd April, 1969 - a period of just over 6 months - serving the term or imprisonment imposed upon him. We direct that the sentences imposed upon him in respect of these 4 charges be quashed and such sentence on each charge be substituted therefor as will ensure and enable his release and discharge from prison forthwith, unless he is detained in respect of any other conviction.

Representation:

Martin Lee (Deacons) for Appellant.

Lucas, S.C.C. for Crown/Respondent.

(1) (1903) 1 Ch. D. 728 732

(2) (1931) 22 Cr. AWP R 160

(3) (1960) 44 Cr. AWP R 124, 128

(4) 1967 H.K.L.R. 471