R. V.Tse Chung-fat
Read the full judgment text of CACC 366/1991 on BabelCite. This Court of Appeal judgment was delivered on 27 November 1992.
1. This is the judgment of the Court.
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CACC000366/1991
HEADNOTE Defence of bona fide claim of right is not raised by a contractor who has forged a cheque to obtain payment for extras in circumstances where he has not presented any itemised account in relation thereto and has not obtained approval either express or implied with regard to the amount claimed therefor.
-------------------------- Coram: Hon. Power, J.A., Bewley & Ryan, JJ. Date of Hearing: 29 & 30 October 1992 Date of Judgment: 27 November 1992 ----------------------- J U D G M E N T ----------------------- Power, J.A.: 1. This is the judgment of the Court. 2. The applicant faced a charge of obtaining property by deception, contrary to s.17(1) of the Theft Ordinance, a count of forgery of document, contrary to s.72(1) of the Crimes Ordinance, and a count of uttering a forged document, contrary to s.74(1) of the Crimes Ordinance. He pleaded not guilty to all three charges and was, after trial before Deputy Judge Ma in the District Court, found not guilty of the 1st count and guilty on the 2nd and 3rd counts. He was sentenced to 10 months imprisonment on each count to be served concurrently. He now appeals against those two convictions and sentences. 3. The particulars of the 2nd count were that on or about the 18th of July 1990, at an unknown place in Hong Kong with intent to defraud, he forged a document,. namely a withdrawal slip of Yien Yieh Commercial Bank of $12,000Hong Kong currency, purporting to be $412,000- Hong Kong currency. The particulars of the 3rd were that he, on the 18th day of July 1990, at Yien Yieh Commercial Bank Limited, No.491 Ground Floor, Castle Peak Road, Kowloon, uttered a withdrawal slip drawn on Yien Yieh Commercial Bank for the sum of $412,000- Hong Kong currency, knowing the same to be forged and with intent to defraud. 4. It was the Crown case that the Building Authority required the owners of Nos. 22, 24, 26 and 28 Pak Tai Street to carry out specified renovations and repairs to their building. The owners of No. 22 carried out their repairs. The management committees of buildings Nos 24, 26 and 28 formed a Joint Management Committee which, after negotiation with the applicant, who was the proprietor of the Wing Tai Engineering Company Limited, contracted with that company to carry out the necessary repairs and renovations for a total agreed fee of $894,000. 'There was a separate contract for each building. As these contracts are for practical purposes identical it is necessary to look only at the contract that relates to No.28. It states:
It goes on to identify the parties as the Owners Incorporation of No. 28 and the Wing Tai Engineering Company Ltd. It specifies a "Total Works charge" of $298,600. After specifying the "Scope of Works", it sets out ten "Remarks". We are concerned primarily with Remark No. 8 which reads as follows:
5. Pursuant to the agreement, a bank saving account was opened at the Lai Chi Kok Branch of the Yien Yieh Commercial Bank on 29th March 1990. Owners of each unit made deposits into that account as from 7th April and on 10th April the work commenced. On 23rd April 358 of the total contract price was paid to the defendant, being the specified first instalment in the sum of $311,850. The next instalment, being 308 of the Total Works Charge, was payable on completion of half of the drainage works and the interior renovation. 6. On 17th July 1990, at about 9 p.m. representatives of the Joint Management Committee held an extraordinary meeting inside the conference room on the rooftop of one of the buildings. During this meeting, the applicant arrived, having been informed by some members of the Committee that it was taking place. We will later look in detail at the applicant's evidence about this meeting. Suffice for the moment to say that the applicant asked for payment of the second instalment, being $260,000, and for payment of a further sum of $12,000 for the demolition of a chimney. He. had brought with him withdrawal slips made out in those two sums. The representatives of the Joint Management Committee refused to sign the slips alleging that the second instalment was not due as the second stage of works had not been completed. The applicant said that the second stage was complete or virtually complete and he confirmed this in his evidence. Eventually, the Committee agreed to pay $130,000, that being half of the second instalment, and' the $12,000 and agreed that the balance of the second instalment was to be collected before 25th July 1990. The applicant then completed a bank withdrawal slip in the sum of $130,000 and the parties signed the two slips. The applicant also signed a receipt acknowledging that he had received the two sums. The applicant in his evidence admitted that shortly thereafter, he altered the slip for $12,000 so that it read $412,000 and that he then withdrew that amount using the slip. It was from these actions that the charges arose. 7. Mr. Sedgwick Q.C., who appears with Mr. Nguyen, has argued five grounds of appeal:
Mr. Sedgwick submitted that until the applicant himself gave evidence, there was no sufficient evidence to establish that it was applicant who had forged the document. We do not intend to dwell upon this ground suffice to say that we are satisfied that there was ample evidence from which the District Court judge could infer that it was the applicant who perpetrated the forgery. 8. Ground 2:
This ground was amended without objection into its present form in the course of the hearing. Its thrust is that the trial judge wholly failed to address himself to the defence of bona fide claim of right. He would, of course, if such a defence arose out of the evidence, be required to address himself to it. He would have to be satisfied before convicting that the Crown had proved beyond reasonable doubt that the applicant did not hold any such bona fide claim. Such a claim was certainly not adverted to in terms by the trial judge and as there is no transcript of defence counsel's address, it remains uncertain whether it was raised by him. Mr. Sedgwick, while he concedes that such a defence may not have been specifically raised, submits that it did arise in the evidence and that it was incumbent upon the judge to consider it. Mr. Sedgwick submits that, when the evidence of the applicant is examined, it is clear that he was making a bona fide claim of entitlement to an amount in excess of the $412,000 which he obtained. 9. To see whether this is so we must now look with care at the evidence of the applicant. Mr. Sedgwick submits that the evidence of the applicant disclosed a bona fide claim to entitlement not only to the second instalment of $260,000 and to the payment of $12,000 but also to additional payments which raised the figure owed to him to an amount in excess of $500,000. He undoubtedly gave evidence claiming that he was owed the amounts of $260,000 and the $12,000 a total of $272,000. He also, however, said that he had agreed that the payment of $130,000 of that amount was to be "collected before 25.7.1990" - seven days after he presented the forged withdrawal slip and obtained the $412,000. It would certainly be arguable that he agreed thereby that the Committee had up to 25th July to pay that amount and that he would defer action to obtain it until after that date. If that were so, it might be further argued that no bona fide claim of right could exist for the amount of $130,000 prior to 25th July. The prosecution did not, however, seek to put the matter upon that basis. As the matter was argued, the real question for our determination was whether the applicant gave evidence which raised a bona fide claim for the difference between that $272,000 and the $412,000 which he obtained. 10. He said that the first instalment had been paid to him late as the Joint Management Committee had not honoured its word and he told of the difficulties between himself and Mr. Hon Keung who he said had made numerous objections from the outset. He said that by June, he had done sufficient work to entitle himself to the payment of the second instalment and that he had asked for it in mid-June but that the Joint Management Committee was "pushing the matter about". He said that four of the members, including Hon Keung, objected to the things that had been done and that even though some members of the Committee "were minded to make payments Hon would scold them". The other members were quite submissive to him because they said Hon was a Kung Fu master and a rather fierce man. He said that all of the drainage work which, it appeared included additional drainage work, was completed by early July and that he had also installed "an extra column of drainage pipe" in No. 28. He said that he paid his drainage sub-contractor on 17th July 1990 and that he went in the evening to the Committee Meeting. The relevant evidence given by him thereafter is as follows:
We pause here to note that, on his own evidence, Hon and three others were complaining as to some of the work done which was to have been paid for by the second instalment.
It seems to us clear from this evidence that he had never quantified the amount which he said was owed for the additional work. His evidence continues:
The witness here appears to be saying that, while he was more than entitled to the second instalment as he had done work that went beyond what was covered by it, there would have to be "further discussion about other additional costs".
Later in the examination in chief there appeared the following exchange:
11. Under cross-examination, the following exchange occurred:
We think it significant that, in the applicant's own words, there was, in October, no "proper computation" of the total of the extra charges. 12. The law as to bona fide claim of right is in our respectful view correctly stated in Kastratovic [1985] 19 A.Crim.R. 28 by White J. when he said, at.p.55:
13. Mr. Sedgwick contended that this evidence squarely raised the issue of bona fide claim of right and that the conviction is flawed as the judge failed to consider it. 14. Mr. Bruce for the Crown submitted that what the evidence did, at best, was to indicate that the applicant had, when negotiating, in order to press home his demand, made mention of an additional claim which would, at some future time, be quantified and presented. He submitted that such evidence could never raise a bona fide claim of right. 15. He relied upon the evidence that the applicant went to the meeting with the intention of making two claims: one for $260,000, being the second instalment, and the other for $12,000: He submitted that, on the applicant's own evidence,, what he did when he found difficulty in obtaining agreement to pay these two amounts was to point out to the meeting that he had an entitlement to them under the agreement and that he sought, by way of argument, to reinforce the merit of his claim by pointing out that he had already incurred further expenses for extras. He submitted that it was plain from the applicant's evidence that there was neither submission of accounts in relation to the extras nor agreement as to the amount owed therefor. King C.J. in Kastratovic sets out the law with regard to bona fide claim of right as follows:
We refer particularly to the words "an intent to do no more than procure the payment of a debt which is presently due and payable to the accused, or which the accused believes to be presently due and payable ......". We have no hesitation in holding that in circumstances such as this, a person who has never presented a quantified bill for the extras and who has never obtained agreement as to the amounts which he seeks to charge cannot be held to have raised the "possibility" that he had a bona fide belief that he had an immediate entitlement to be paid therefor. A bona fide claim of right to payment could, in such circumstances, only arise after presentation of a quantified bill, or the equivalent thereof, to which there was either express or tacit agreement. A suggestion of the existence of unquantified amounts owed for extras which will in due course be made specific, in our view, falls considerably short of raising a bona fide claim of right. The trial judge was, therefore, not called. upon to consider any such claim. 16. Mr. Sedgwick next submitted that, when considering whether there had been an intent to defraud, the trial judge had failed to apply the second limb of Ghosh, that is to ask himself whether or not he was satisfied that the defendant had realized that what he was doing was contrary to the standards of honesty of ordinary reasonable people. This in our view is plainly not so as the trial judge specifically found that "the defendant himself must have realized that what he was doing was by those standards dishonest." 17. Ground 3:
The application to call Mr. Chan was withdrawn, however, the thrust of this ground was maintained as Mr. Sedgwick argued that the accounts and the moneys therein belonged in law to the applicant as the account was in the name of the company of which he was the sole proprietor. We are satisfied that this submission is, given the words of the contract which were that the parties would open 'a temporary joint account', untenable. 18. Ground 4. Under this ground Mr. Sedgwick argued that the judge had failed to take into account the evidence which was relevant to show lack of mens rea on the part of the applicant. Mr. Sedgwick submitted that the trial judge had failed to bear in mind that it had been agreed between the parties that it was the applicant who would pursue defaulting owners, and that the applicant undoubtedly believed himself to be entitled to $260-,000, the second payment. Mr. Sedgwick argued that the trial judge had not only failed to take these matters into account, but that he had equated the duplicity involved in forgery with the intent to defraud which was required to be proved in each charge. He submitted that the judge being satisfied that the applicant had duplicitously forged the withdrawal slip, proceeded without further consideration, to the finding that he had an intention to defraud. He relied-particularly upon two passages in the Reasons for Verdict:
19. Mr. Sedgwick submits that these show that the trial judge was really concerning himself with the duplicity involved in the forgery and not with whether the applicant was dishonest in a way which would establish intent to defraud. Mr. Bruce contends that when the judgment is read as a whole it is clear that the trial judge rejected the defendant's evidence that he did not have any dishonest intention and that he made a positive finding, having referred to Ghosh, 75 Cr.App.R. 154, "that the defendant had acted dishonestly by the standards of ordinary and decent people and I also find that the defendant himself must have realized that what he was doing was by those standards dishonest." 20. The findings of the judge, in our view, make it clear that he was satisfied that the defendant was dishonest and had an intent to defraud both when he forged the cheque and when he presented it for payment. We do not accept either that the judge failed to consider relevant evidence or that he somehow confused the duplicity involved in forgery and the dishonesty involved in an intent to defraud. 21. The fifth ground argued was that the conviction was overall unsafe and unsatisfactory.--we have given anxious consideration to this whole matter as clearly the difficulties which arose were ones which might, had the parties not adopted such confrontational stances, have been resolved by negotiation or, at worst, by a civil action. Having said that, we are nonetheless quite satisfied that the defendant was guilty of both-offences as charged-, and that the trial judge was right so to find, and that the convictions are neither unsafe nor unsatisfactory. 22. The applications for leave to appeal against the convictions are dismissed. Re Sentence: 23. We do not repeat the facts generally as they are already set out in the judgment which we have just delivered. We do, however, stress the observations in the penultimate paragraph of that judgment in which we observed that had the parties not adopted such confrontational stances they might have resolved the matters by negotiation or at worst by a civil action. What the applicant did was high handed and unlawful but we are satisfied that he acted on the spur of the moment out of a keenly felt sense of grievance which he had considerable justification for holding. We are satisfied in all the circumstances that custodial sentences were not called for. We therefore grant the application, order that the hearing of the application to be the hearing of the appeal. We quash these two sentences of 10 months imprisonment, and we impose in place therefore suspended sentences of 10 months, suspended for 12 months, which are to run from today.
Representation: Mr. A.A. Bruce (Crown Prosecutor) for the Respondent. Mr. Sedgwick Q.C. & Mr. P. Nguyen (Messrs. Liau, Ho & Chan) for the Applicant. |