HKSAR v. Wong Chi Lung

HCMA000242/2001

HCMA242/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.242 OF 2001

(ON APPEAL FROM ESCC 4306 OF 2000)

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Coram: Hon Nguyen J in Court

Date of Hearing: 20 April 2001

Date of Judgment: 31 May 2001

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J U D G M E N T

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The charges

1. The appellant was convicted of two charges on 9 February 2001 by Mr H.A. Mierczak sitting at Eastern Magistracy and on each charge was sentenced to six months' imprisonment, suspended for two years and to be served concurrently.

2. The charges that he was convicted of were, firstly, forgery under section 71 of the Crimes Ordinance, Cap.200 which alleged that on or about 10 December 1996, he had made a false instrument with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice. The second charge was using a false instrument under section 73 of the Crimes Ordinance, Cap.200 and it alleged that on or about the same day, the appellant used a false instrument which he knew or believed to be false with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice.

The facts of the case

3. The facts of the case, as proved at the trial, were that the Fire Services Department, of which the appellant was a member as he was employed as a fireman, on 21 November 1996 issued a circular inviting all confirmed and married members of the department to apply for departmental quarters. The circular was produced at the trial as Exhibit P1. In paragraph 4 of the circular, it is stated that :-

"4. Applicants are required to submit the following as and when appropriate :-

(a) ONE application form ...;

(b) a copy of the supplementary sheet 'Personal Particulars of the Applicant and His/Her Spouse' ..."

It was stated in the circular that this personal data, provided by means of this form, would be sent to the Housing Department / Housing Society for checking of public housing benefits. Those found to be in receipt of any undeclared public housing benefit might face disciplinary action and might lose the right to reside in the departmental quarters. It was also stated that the provision of personal data by means of this form was voluntary. The circular in paragraph 4 concluded by saying that :-

"... If you do not provide sufficient information, we may not be able to process your application ..."

4. On 10 December 1996, the appellant submitted a written application for quarters on the form specified in the circular, namely, FS 207. In the application form, the appellant stated the name of his wife and that she was residing with him, the applicant. Also submitted with the written application was the form entitled "Personal Particulars of the Applicant and His/Her Spouse" which was referred to in the trial as the supplementary sheet. This document was produced at the trial as part of the written application form, Exhibit P2. The supplementary sheet gave the name of the applicant, his rank, his service number and his ID number. It also gave the name of his spouse, both in English and Chinese, her ID number and her occupation. It then had the following statement :-

"I ... and my spouse understand and agree that the Department can disclose such information to departments/agencies concerned for conducting a matching procedure on our personal data for checking of housing benefits."

The form was signed by the applicant and under the column "Signature of Applicant's Spouse" was written in Chinese three characters which were the Chinese name of the appellant's wife.

5. The appellant's wife was called by the prosecution to give evidence as PW1 and her evidence was that she and the appellant separated in 1994. In 1996, she instructed lawyers in the USA to commence divorce proceedings. She testified that the handwriting on the application form, Exhibit P2, was that of the appellant but said that her signature on the supplementary sheet was not hers and on the date of the supplementary sheet, namely, 10 December 1996, she was not in Hong Kong but in the USA. She had never seen the documents before. Since 1995, she had had no contact with the appellant. She had never authorized the appellant to sign any documents on her behalf in relation to any applications for married quarters. The marriage was in fact dissolved in the USA on 16 August 1996. PW1 agreed that she had never mentioned to the appellant that she was applying for a divorce but she said that she had sent the summons which was the notice of the divorce issued by the American court to the appellant care of his parents. She agreed that she was not aware if the appellant knew of the dissolution of the marriage in the USA and she agreed that, since 1995, there was no way the appellant could have contacted her.

6. The appellant gave evidence and, inter alia, agreed that in the application form, he had put a tick in the box which indicated that his wife was residing with him. He admitted that the supplementary sheet was signed by himself and that it was he who had signed his wife's name. He said it was only a formality, so he had filled in her name and that this should not affect his ability to gain quarters.

7. The application form itself was not the subject matter of the charges. What was the subject matter of both charges was the supplementary sheet which was produced at the trial as part of the application form. In the supplementary sheet where it stated that the appellant's spouse was PW1, that was clearly a falsehood. PW1's evidence was by that date, she was no longer together with the appellant and, by that date, their marriage had been dissolved. Her evidence was accepted by the Magistrate.

8. That particular falsehood was, however, not relied on by the prosecution who, at the trial, only relied on the forged signature of the appellant's wife as the matter which constituted the document a forgery. That matter is, to my mind, incontrovertible and because of the appellant's own admission, must be right.

The ingredients of the charges

9. The ingredients of the offence of forgery under section 71 of the Crimes Ordinance are that :-

(1) the appellant made the instrument;

(2) the instrument was false;

(3) it was made with the intention that he or another shall use it to induce somebody to accept it as genuine; and

(4) by reason of so accepting it, the other person is to do or not to do some act to his own or any other person's prejudice.

10. The appellant admitted that he had made the instrument which, as I mentioned above, was clearly false. The intention, on the part of the appellant, had also been proved by the prosecution because it was quite clear that the appellant intended that the supplementary sheet, as part of the application form, would be acted upon by a member of the staff of the Fire Services Department who, on the face of it, would be induced to accept the document as genuine. The question is "By reason of so accepting it, was the person induced to do some act or not to do some act to his own or any other person's prejudice?". Prejudice is provided for in section 70 of Cap.200 which states :-

(1) Subject to subsections (2) and (4) [which are inapplicable here], an act or omission intended to be induced is to a person's prejudice if, and only if, it is one which, if it occurs, will-

[(a)-(e) are not relevant to this case]

(f) be the result of his having accepted a false instrument as genuine, or a copy of a false instrument as a copy of a genuine one, in connection with his performance of any duty."

So, if the prosecution has shown that a person in performing his duty was induced to accept the document as genuine and by reason of so accepting it, that person did or did not do some act to his own or any other person's prejudice, then the ingredient of prejudice will have been proved by the prosecution.

11. In addition to that, there was the obvious prejudice that if the department had known that the document had not in fact been signed by the appellant's spouse, then the department no doubt would have refused to process the application. If it was known by the department that on the date of the application, the appellant was no longer married to his then wife, that would have disentitled him to make application for married quarters. Even though it is not strictly relevant to the case, it is pertinent to note that, in the appellant's evidence, he testified that he had received the summons in relation to his wife's petition for divorce in America. But because he did not read English, he had just signed it and left it with his father because he thought that the form had something to do with his emigration application to America. This bit of his evidence was rejected by the Magistrate who found that it was impossible to believe that the appellant did not know what the document was.

12. The ingredients of the second charge under section 73 are similar, that :-

(1) the person used an instrument;

(2) the instrument was false;

(3) he knew or believed the instrument to be false;

(4) he used it with the intention of inducing somebody to accept it as genuine; and

(5) by reason of so accepting it, for the other person to do or not to do some act to his own or any other person's prejudice.

13. The appellant admitted that he had used the instrument. He admitted that he knew or believed that his wife's signature had not been signed by her and he had used the instrument with the intention that a member of the staff of the Fire Services Department would process the document and, quite clearly, he had the intention of inducing that person to accept the document as genuine. The last ingredient is similar to the first charge under section 71.

The grounds of appeal

14. The main ground of appeal is that the convictions were unsafe or unsatisfactory. To support this main ground, the following sub-grounds were relied upon :-

(1) The learned Magistrate erred in admitting the evidence of PW3 who was only in post after mid-1998 in determining, inter alia, whether at the material time (i.e. on or about 10 December 1996) :-

(a) the "Personal Particulars of the Applicant and His/Her Spouse Form" is part of the application, i.e. if the Spouse Form is not signed by the spouse, then the application is not proceeded with; and

(b) it was a direction from the Director of the Fire Services Department that the supplementary sheet to Fire Services Department Application for Quarters be submitted.

15. This is the way that the Magistrate dealt with PW3's evidence in his Statement of Findings :-

" PW3 is in charge of the allocation of Quarters for the Fire Services Department (FSD). She says that the policy is that only married men can apply for Quarters. If the wife does not reside with the husband there are no quartering points given. An Applicant has a duty to state on the forms if his wife is not residing with him, and if the applicant was divorced at the time of the application i.e. 10/12/96, he could not be allocated such quarters.

Here the 'Personal Particulars of Applicant and Spouse Form' is part of the application i.e. if the Spouse Form is not signed by the spouse then the application is not proceeded with. Likewise if the applicant's wife's signature is forged the application should not be proceeded with. Here PW3 referred to various sections of P1, i.e. the Headquarters Administrative Circular especially Paragraph 6. It was a direction from the Director of the FSD that the supplementary sheet to P2 be submitted. In the relevant application here the Appellant had stated he was residing with his wife.

In re-examination PW3 said there was no indication in P2 that the wife was not residing with him (Appellant). There was other evidence from PW3 with respect to various scenarios that are suggested to her."

16. The position at the trial was that the circular in question (Exhibit P1) was produced. The instructions contained in the circular were clear and were there for the Magistrate to read. In the circular, it was stated quite clearly that the supplementary sheet to be filled in was the one attached at Appendix V. It was also clearly stated that the personal data provided by means of the form would be sent for checking of public housing benefits and that if the applicant did not provide sufficient information, the department might not be able to process the application.

17. Appendix V of the circular was produced and it can readily be seen that Appendix V was in exactly the same form as the form which was in fact submitted by the applicant as part of his application form (Exhibit P2). The format was the same and the wording was exactly the same.

18. When the appellant gave evidence, he agreed that when he submitted the application for quarters, he knew that the supplementary sheet had to be filled in as part and parcel of the procedure. To my mind, the purpose of calling PW3 was to formally produce the forms before the court. Her evidence related to what happened as from mid-1998 when the events in question were in 1996. However, the prosecution did not really require PW3 to give any evidence about the procedure. The matters spoke for themselves and the forms spoke for themselves. I do not think there is anything to this ground.

19. The second ground was that the learned Magistrate failed to consider or to consider sufficiently the effect of the fact that the supplementary sheet was to be submitted by the applicant as and when required, the provision of personal data by means of this form was voluntary by virtue of paragraphs 4 and 4(b) of the Headquarters Administrative Circular No.11C/96 dated 21 November 1996 and that both the appellant and his wife needed not submit this form.

20. In my judgment, there is nothing to this ground. The appellant, when he gave evidence, said that he did not leave the space for his wife's signature blank as he feared it would extend the time of the application. He knew that both the application form and the supplementary form had to be submitted. He knew that both would be considered by the Fire Services Department to determine his application for married quarters. He agreed that when he had submitted the application for quarters, he knew that the supplementary sheet had to be filled in as part and parcel of the procedure. He knew the forms would be checked to see if there were double benefits. The provision of the personal data, by means of the supplementary sheet, was quite clearly on a voluntary basis. However, it must have been known to the appellant that if he did not submit the application form, or the supplementary sheet, or the forms were not signed by his spouse, then the application would not be proceeded with.

21. Ground three was that the learned Magistrate failed to direct himself sufficiently or at all that in order to draw the inference of guilt on the part of the appellant, it was incumbent upon him to consider the evidence (or lack of) and make findings on the following important matters, namely :-

(a) what was the prejudice that the appellant intended to cause to the Fire Services Department by accepting the supplementary form as genuine;

(b) would Fire Services Department be duty bound to check all applicants and their spouses against the records of Housing Authority at the material time NOT after mid-1998; and

(c) would Fire Services Department ignore the supplementary sheet once they noticed that the applicant and his/her spouse were not enjoying any housing benefits as declared in the application form at the material time NOT after mid-1998.

22. In relation to this aspect of the case, this is how the Magistrate dealt with the matter in his Statement of Findings :-

" PW1 was not residing with him at the time and even on his own version that had been for a period of about 16 months before the application. Further he knew that when he signed PW1's name that it would appear to the FSD, as it did, that the form was actually signed by PW1. Clearly it would have led the relevant officers in FSD to believe that PW1 gave her permission to see if she was on any other benefits which may disqualify them from quarters.

The Appellant knew that the FSD would act on the form to proceed with the application, and he knew it was false. Nevertheless he submitted the form to FSD and knew or ought to have known that it would be considered by them; that is, he intended for it to be accepted as genuine. There can be no other inference drawn. Clearly he made and used the form for that purpose and clearly that was done to the FSD's prejudice which, as the authorities indicate, do not have to be financial in nature."

In my judgment, that was the correct approach and, in the circumstances, was sufficient to deal with the matter. The prejudice found by the Magistrate was clearly within the terms of section 70(1)(f) of the Crimes Ordinance, Cap.200 which I have quoted above.

23. Ground four is that the learned Magistrate erred in regarding the Application Form as part of the subject matter of this case, whereas it is the prosecution's case that only the supplementary sheet to P2 is the subject matter, and he erred in finding the fact that the appellant lied in the Application Form that he was at that time residing with his wife as an inference of guilt.

24. I can see nothing in this ground. Quite clearly, even though only the supplementary sheet was the subject matter of the charges, it was obvious that the supplementary sheet was part and parcel of the application form, and the two documents should be taken together in the evaluation of the evidence. I cannot see how it can be said that the Magistrate had erred in finding as a fact that the appellant lied in the application form when he said that his wife was residing with him when quite clearly she was not. It is quite erroneous to say that the Magistrate used this as an inference of guilt.

25. Ground five is that the learned Magistrate failed to consider or consider sufficiently whether it was reasonable for the appellant to believe he would have the consent or authorization from his ex-wife (PW1) to sign the form on her behalf, namely that :-

(a) shortly after they got married in 1992 in Hong Kong, PW1 wanted to get a divorce in 1994 but was objected to by the appellant;

(b) the appellant made his first application for a departmental quarter in 1992 and was not objected to by PW1 and there was no need to ask PW1 to sign on any form at that time;

(c) this was the first time an applicant for a departmental quarter was required to fill in the supplementary sheet and he could not find PW1;

(d) PW1 had not seen the appellant since 1995;

(e) in 1996, PW1 went to the USA to instruct a lawyer to commence divorce proceedings without mentioning to the appellant and she sent notice of divorce to the appellant care of his parents;

(f) PW1 was not aware if the appellant knew of the dissolution of the marriage in the USA and there was no way the appellant could contact her in 1995 to clarify the position;

(g) the reason for PW1 to leave him as perceived by the appellant was the fact that PW1 had to live with him like a beggar;

(h) the appellant intended to benefit PW1 by applying for a quarter which was the appellant's fringe benefit as a fire officer;

(i) that a subjective instead of an objective approach should be adopted in assessing whether it would be reasonable for the appellant to have believed or presumed that he would have PW1's consent or authorization to sign on her behalf;

(j) that it would be unreasonable for the appellant to have incurred unnecessary legal costs by instructing a solicitor in December 1997 to commence divorce proceeding with PW1 in Hong Kong had he known his marriage with PW1 had been dissolved by 16 August 1996.

26. This ground of appeal can be disposed of quite briefly by my adopting the submission of Mr Cheung, counsel for the respondent, which is that dishonesty is not an essential ingredient in these offences. The mens rea of the offences is that : ( 1) there should be an intention to induce someone to do or not to do some acts; and (2) the doing or not doing of that act should be to that or some other person's prejudice. Whether the appellant reasonably believed that PW1 would give consent or authorization for him to sign the form was not relevant. I should also add that reasonable expectation hardly comes into the matter because the fact is the form had not been signed by his wife and the appellant knew this, and therefore the appellant should have known that the form itself was a forgery.

27. The last ground of appeal is that in all the circumstances, there were material irregularities which give rise to a lurking doubt. As I have found in the course of this judgment, there were no material irregularities at the trial and there are no matters which have given rise to a lurking doubt about the safety of these convictions.

28. In the circumstances, the appeal against conviction is dismissed.

Representation:

Mr W.S. Cheung, SADPP, for HKSAR

Mr Peter Chow, instructed by Messrs David Hui & Co., for the Appellant