The Queen v. Yeung Chung-sing

DCCC000177/1977

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

ORIMINAL JURISDICTION

CASE NO. 177 OF 1977

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Coram: Judge Jones in Court.

Date of Judgment: 4th November 1977

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JUDGMENT

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1. The defendant is charged with two offences viz uttering a forged document contrary to section 74 of the Crimes Ordinance and attempting to obtain property by deception contrary to section 17(1) of the Theft Ordinance.

2. The charges arise as a result of the defendant's claim to be the holder of the winning ticket for the first and second prizes of the 62nd draw of the Mark Six lottery which was hold on the 9th August 1977.

3. The Mark Six lottery is operated by the Royal Hong Kong Jockey Club on behalf of the Hong Kong Lotteries Board. The conduct of the Lottery is governed by the Hong Kong Lotteries Board Rules. The draw for each lottery, which is televised live on the Chinese Channal of R.T.V., is hold twice a week on a Tuesday and a Friday at about 2.00 p.m.

4. Seven numbers are drawn out of a total of thirty six, the seventh number being called the extra number.

5. The first prize requires the correct selection of the first six numbers drawn in any order and the second prize the correct selection of five out of the first six numbers drawn plus the extra number in any order. The official result of the 62nd Mark Six lottery on the 9th August 1977 was 5, 14, 16, 20, 22, 24 and the extra number was 12.

6. On the same day at 4.58 p.m. a telephone call to the Jockey Club hot line was received by Miss Kwok, one of the information staff, from a person called YEUNG Chung-sing who claimed the first and second prizes. Details of the claim were recorded by Miss Kwok on the Jockey Club's All Purpose Claim Form Ex. Pl.

7. The particulars recorded reveal that the ticket number was 86835014, machine number 499 and serial number 275.

8. The claimant had completed all five entries on the ticket at $2 each making a total bet of $10. The correct selection for the first prize was set out in the second entry and for the second prize in the fourth entry. It is common ground that the ticket was passed through the Jockey Club's ticket validating machine No. 499 after it was completed.

9. Machine No. 499 was traced to the Jackey Club's selling location at Wo Yi Mini Centre, South Kwai Chung.

10. P.W.1 Miss So was the shroff who operated this machine on the 8th August 1977 from about 4.00 p.m. until the centre closed at 8.00 p.m. It is not in dispute that the defendant purchased the lottery ticket at this centre between 5.00 p.m. - 6.00 p.m. on the 8th August 1977. No suggestion was made that Miss So had at any time interfered with the numbering mechanism of the machine. 1,258 tickets from this machine were sold on the 8th August 1977 with serial numbers ranging from 2118 - 3375. It was clearly established that the serial number has four digits and that the final one on the defendant's ticket was missing.

11. All tickets for the Mark Six lottery are divided by a parforated line into two parts, the larger part called the official record and the smaller part which is called the customer record and receipt. Before the ticket is presented to a shroff for validation the customer is required to fill in both parts with his forecast. When a ticket is placed into a machine for validation the appropriate button is operated by the shroff for imprinting on either side of the perforation i.e. the customer record and receipt and the official record details of the date, machine number, serial number, the symbol A for the lottery pool and the total amount of the bet placed. These details are also recorded upon an audit roll inside the machine, but are imprinted by a different stamp. The ticket is then detached into two parts along the perforated line, the customer being handed, after payment of the bet, the customer record and receipt, and the Jockey Club retaining the official record.

12. From the evidence adduced by the prosecution it is clear that the official records of all tickets sold on the 8th August 1977 at the Wo Yi Mini Contre were later delivered to the Head Office of the Jockey Club where they were microfilmed. Further the number of tickets sold was reconciled with the amount of the investments placed by customers.

13. Following the claim made by the defendant all the official records validated at the Wo Yi Mini Centre and the microfilms relating to the draw were examined but no record was found of ticket No. 86835014 with a serial number 275.

14. Machine No. 499 is a Sweda which is manufactured in Sweden. Two witnesses from the Westrex Company who service these machines for the Jockey Club described its modus operandi and mechanism. Both witnesses said that it would not be possible for anyone without technical knowledge to adjust the serial number of the machine. Mr. Tang P.W.7 inspected machine No. 499 on 16th August 1977 and found it to be in working order. He produced ten specimen tickets that he passed through the machine on that day which showed no defects in the validation details that were recorded.

15. On the 10th August 1977 the defendant in the presence of his solicitor, Mr. Paul Li of Messrs. K.M. Lai & Li was interviewed at the Jockey Club by Mr. S.C. Wong a security officer of off-course betting.

16. During the interview the defendant completed a Dividend Claim Questionnaire, and made a signed statement.

17. No objection was taken by the defence to the admissibility of these documents.

18. Subsequently the customer record and receipt Ex. P3, the winning ticket produced by the defendant, was submitted together with thirteen counterfoils numbered 2748 - 2760 dated 8th August 1977 and validated by machine 499 for forensic analysis by a Government Chemist Dr. Dailly.

19. Dr. Dailly said that upon a microscopic examination of exhibit P3, he found on the side where the serial number is imprinted three complote numbers, and a trace of a fourth number. Having regard to the position of the trace remaining he opined that the fourth digit could only be a 3, 4, 6 or an 8.

20. Of the thirteen counterfoils that he examined Dr. Dailly found ticket number 86835018 with serial number 2753 Ex. P6a to be of partioular significance in that he discovered a trace of glue down the tear. He found no glue on any of the other twelve counterfoils.

21. Traces of glue were also found on the perforated edges of customer receipt Ex. P3. Dr. Dailly's examination shawed conclusively that at one time Ex. P3 had been joined to Ex. P6a. He was unable to say whether the glue found on both exhibits was the same, but that it was a water soluble adhesive of the same type.

22. Chemical tests carried out on Exs. P3 and P6a gave an identical result in respect of the traces that were discovered.

23. Dr. Dailly expressed his opinion that the traces could not have come into contact accidentally with the two exhibits, but that they had been applied with care beforehand. It is particularly significant that the traces were found in vital areas as was described in evidence. Glue spots were found on both exhibits in abutting positions all along the edge. The traces are readily apparent from the photographs that were produced in evidence. Dr. Dailly said that the ink used on Ex. P3 was different to that on Ex. P6a.

24. Dr. Dailly explained how Ex. P3 could have been masked at the time of its validation in order that it gave the appearance of being the correct customer record and receipt to the counterfoil Ex. P6a. He carried out such an experiment himself and with the knowledge and permission of the Jockey Club the ticket was passed through the Jockey Club centre with no difficulty on 27th October 1977.

25. In cross-examination Dr. Dailly agreed that he was unable to say whether any piece of paper had at any time been attached to exhibit P3.

26. The defendant gave evidence, and agreed that he complated a Mark Six lottery ticket on the 8th August 1977 at the Wo Yi Mini Centre placing a $10 bet.

27. He said that he had brought a lottery ticket from his home, but as he made a mistake when complating this ticket he completed another one that he obtained at the centre.

28. The defendant denied that he had ever placed any paper onto the ticket or that he had attached his customer record and receipt to another ticket.

29. In cross-examination the defendant said that he did not know the procedure to register his win although he conceded that he had won $268,080 being the first dividend on a quartet in February 1975.

30. When he ledged his claim for that win the defendant engaged the services of Messrs. K.M. Lai & Li the same firm of solicitors who represented him when he submitted his claim in the present case.

31. It is common ground that the defendant completed a ticket for the 62nd Mark Six Lottery on 8th August 1977 and placed a $10 bet. The customer receipt and record details are number 86835014, machine No. 499 and serial No. 275. The fourth digit of the serial number was missing, but a trace was discovered upon forensic examination which indicated that the number could have been a 3, 4, 6 or an 8.

32. The correct entries for the first and second prizes were set out in the second and fourth columns of the customer record and receipt.

33. The defendant submitted the oustomer record and receipt exhibit P3 to the Jockey Club on the 10th August 1977 claiming the first and second prizes.

34. The Jockey Club was unable to locate the counterfoil to ticket 86835014.

35. I am satisfied and accept the evidence of the prosecution witnesses that the records relating to lottery tickets sold from the Sweda validating machine No. 499 on the 8th August 1977 were correct. I also accept that no one interfered with the mechanism of the machine on that day. It is also clear that the machine was found to be in good working order when it was inspected on the 16th August 1977.

36. There is no doubt that unless a person has some technical knowledge the serial number mechanism of the machine cannot be altered.

37. Dr. Dailly's evidence reveals that traces of glue were found on both the customer record and receipt exhibit P3 and the counterfoil exhibit P6a. His evidence which I accept shows beyond a shadow of doubt that at one time these two exhibits were joined together to give the appearance of forming one lottery ticket. It is quite clear that the glue that was discovered did not come to be there by accident.

38. The defendant was an evasive witness who was not even prepared to admit that he did not know how to lodge his claim with the Jockey Club. Upon the evidence alone of his quartet win in 1975 this was obviously untrue. Further I do not accept that he brought a lottery ticket from his home to the Wo Yi Mini Centre in arder that the forms of the Jockey Club should not be wasted. Having observed his demeanour and listening to his evidence I have had no difficulty in deciding that the defendant was not an honest witness.

39. Mr. Stansfield who appeared for the defendant argued that the missing digit of the serial number may have been due to a malfunction of the machine. However, I do not consider that there is any merit in this submission. Of all the serial numbers imprinted by machine No. 499 on 8th August 1977 only the ticket submitted by the defendant had the fourth digit missing. When subsequently tested the machine was found to be in proper working order. Specimen lottery tickets that were produced all contained four digits.

40. There is no doubt that the fourth digit of the serial number of exhibit P3 had been erased with the result that only a trace was discovered by Dr. Dailly in his microscopic examination. Unless an innocent explanation for its erasure is to be accepted such as a malfunction of the machine the oustomer record and receipt tells a lie about itself in a material particular which amounts to a forgery. I do not accept that there was a malfunction, but find that the fourth digit was deliberately erased in order to deceive the Jockey Club.

41. The customer record and receipt was uttered by the defendant to the Jockey Club on 10th August 1977 as a genuine document in support of his claims to the first and second prizes. However, it is abundantly clear that the receipt was not what it purported to be.

42. In the words of Huggins J. in CHAN Yuet-kwan and another v. The Queen Criminal Appeal 212/1973 ..... "An inference of guilt may not properly be drawn from primary facts unless it is the only inference which can reasonable be drawn from these facts. Nor can any combiration of inferences amount to proof of guilt unless in each instence the only reasonable inference which can be drawn from the facts on which is is based is one of guilt, for where primary facts admit of two inferences, one of guilt and one of innocence, they can give rise to no more than suspicion and if suspicion be added to suspicion the total can be no more than suspicion."

43. The evidence adduced in this case can only lead to the irresistible conclusion that the defendant's acts in presenting an adulterated customer record and receipt joined to a different numbered counterfoil were carried out with the express intent of defrauding the Royal Hong Kong Jockey Club.

44. In D.P.P. v. Stonehouse [1977] 3 W.L.R. 143 the House of Lords held that the constituent clements of the inchoate crime of an attempt were a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts which were merely preparatory to the commission of the offence were not sufficiently proximate.

45. By submitting his ticket and claiming the first and second prizes the acts of the defendant were sufficiantly proximate to the complete offance to be capable in law of constituting an attempt, since the defendant had done all that he could in the circumstances to obtain the prize money. His acts were carried out with this end in mind. The only reasonable inferance to be drawn from the facts is one of guilt.

46. The defendant set out with the object of deliberately defrauding the Royal Hong Kong Jockey Club of $2,055,945 by a clever, but dishonest deception. However, his carefully laid plans were exposed by forensic science.

47. Both charges have been proved beyond all reasonable doubt with the result that I find the defendant guilty.

Representation: