The Queen v. R. Sturgeon
Read the full judgment text of DCCC 85/1975 on BabelCite. This District Court judgment.
1. The prosecution seeks to produce 40 bank drafts of £500 denomination each all drawn by the Hang Seng Bank Limited in Hong Kong on the Midland Bank Limited in London and payable to the Northern Bank Limited in Belfast. Mr. Chan Chuen Hoi (PW6), an officer in charge of the Book Section of the Exchange Department of the Hang Seng Bank, was called by the Crown, and he has testified that he holds a professional degree of an Associate of the Institute of Bankers, London, that he has been in the emp
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DCCC000085/1975 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CRIMINAL JURISDICTION CASE NO. 85 OF 1975 -----------------
----------------- Coram: Judge Liu, Q.C., in Court Date of Judgment: 28th July 1975. ----------------- RULING ----------------- 1. The prosecution seeks to produce 40 bank drafts of £500 denomination each all drawn by the Hang Seng Bank Limited in Hong Kong on the Midland Bank Limited in London and payable to the Northern Bank Limited in Belfast. Mr. Chan Chuen Hoi (PW6), an officer in charge of the Book Section of the Exchange Department of the Hang Seng Bank, was called by the Crown, and he has testified that he holds a professional degree of an Associate of the Institute of Bankers, London, that he has been in the employ of the Hang Seng Bank for 8 years of which the last 3 ½ years were spent in the Exchange Department, that although he has no international banking experience at large, he has had experience with international banking procedure for bank drafts, that once indorsed, the proceeds of the draft must have been credited to the account of the indorsee, that in his experience proceeds of a draft would not go astray into any account other than that of the indorsee's or the last indorsee's, that these drafts were paid and returned to his bank, that having been verified with his bank's statement, these returned drafts are kept in a file, that the application for these drafts are also kept in a file, that the indorsement "Account R. Sturgeon" or "Lodged to Account:- R. Sturgeon" was more likely to have been made by the purchaser than the payee bank, and that when there is no indorsement on the back of the draft, either the bank or its customer might have been credited with the proceeds. It is implicit from the evidence of Mr. Chan that the paid drafts were returned with the indorsements on their back. At this stage, I accept Mr. Chan as a bank officer qualified to give evidence on foreign bills as he did. The prosecution has also called Mr. Guy (PW1), an Investigation Officer of I.C.A.C., who disclosed to this Court that on a search of the Accused's premises on the 28th March, 1975, a cheque book of the Northern Bank Limited at 227 Autrim Road, Belfast was seized. On the cover of this cheque book was written the initials "R.S.". In response to a S.14 notice served under the Prevention of Bribery Ordinance, the Accused delivered to I.C.A.C. a Statutory Declaration dated 14th April 1975, and therein the Accused deposed to maintaining an Account with the said Northern Bank Limited and having remitted funds to the same bank since May 1973. The Statutory Declaration and the exhibits attached thereto were signed "R. Sturgeon". At an interview on the 13th May 1975, Mr. Guy asked the Accused a series of questions, but the Accused declined to supply, as he was perfectly entitled not to, any information relating to his account with the said bank in Belfast and the indorsement "Account R. Sturgeon" on certain Hang Seng Bank drafts. On the same day, the Accused was charged. Certain Colonial Service Annual Confidential Reports were tendered in evidence, and the Accused's signature thereon appears also as "R. Sturgeon". Mr. Guy was recalled with leave and told the Court that in the course of his C.I.D. duties in the United Kingdom since 1958, he was for a period a member of the Fraud Squad, that he was involved in several cases of fraud necessitating contact with banks in the United Kingdom, that from his experience when the bank was not itself a party aggrieved, it was impossible to procure any information relating to its customer without his consent or a Court Order under The Bankers' Books Evidence Act, that in this case a request was made to the said Bank in Belfast in connection with the Accused's account, and a letter was received from the said Belfast bank, and that as a result thereof no further steps could be taken. 2. I will deal with these 40 drafts in three groups:-
3. These 12 drafts were indorsed "Lodged to Account:- R. Sturgeon" or "A/C R. Sturgeon" followed by what appears to be a stamp-chop of the Belfast bank with a signature which purports to be that of an officer of that bank. The stam-chop reads: "For Northern Bank Limited 227, Autrim Road, Belfast. BT15 2HB", and beneath it lies a dotted line with the description of either "Sub Manager" or "Pro Manager". The signature appears above this dotted line. The 6 drafts Nos. 99795 to 99800 were all purchased by a person claiming to be Chan Hong of No. 186B Tai Po Road, 4th floor on the 18th December 1972. The remaining 6 drafts Nos. 105924 to 105929 ("PP8") were purchased by P.C. Chan Kan (PW4) with $40,000.00 and a slip of paper from the attendant of Station Sergeant Tang Wan. P.C. Chan does not know English, and thus he could not have indorsed "A/C R. Sturgeon" on these drafts. Each indorsement on the back of these 12 drafts may be severed into two parts for consideration. I will refer to "A/C R. Sturgeon" or "Lodged to Account:- R. Sturgeon" as the "Transferee's Designation" and the rest of the indorsement as the "Belfast Bank's Signature". 4. The Defence contends inter alia (1) that none of the "Transferee's Designation" and the "Belfast Bank's Signature" forms part of a bank's record within the meaning of S.22(1)(a) of the Evidence Ordinance, (2) that there is no evidence as to by whom or when the "Transferee's Designation" was indorsed, and there is no evidence that any or any sufficient enquiry has been made to ascertain or locate such indorser in compliance with S.22(1)(b) of the Evidence Ordinance, and (3) that there is no evidence that "R. Sturgeon" refers exclusively to the Accused. 5. S.22 of the Evidence Ordinance reads as follows:-
6. For the indorsements on these twelve drafts, the position seems fairly obvious. These are bills of exchange drawn by the Hang Seng Bank in Hong Kong on the Midland Bank in London payable to the Northern Bank in Belfast. According to the opinion of Mr. Chan (PW6), the entire proceeds of these drafts must have been credited to the account of the indorsee. These drafts have all been presented for payment and duly honoured, the paid drafts have been returned to the Hang Seng Bank, more than 2 ½ years have now elapsed, and there is no evidence of any irregularity. There appears to be no reasonable ground for doubting that these indorsements were perfectly genuine indorsements. I am aware that it would not be open to me to draw any inference unless that inference is the only reasonable inference which could be so drawn from the circumstances. The irresistible inference from these circumstances is that whoever indorsed the "Transferee's Designation", "A/C R. Sturgeon" or "Lodged to Account:-R. Sturgeon", the Belfast Bank must have assumed the same as its own for presentation and that therefore to all intent and purpose the Belfast Bank was the author of the entire indorsement, the "Transferee's Designation" and the "Belfast Bank's Signature". Both the Belfast Bank and whoever put on the "Transferee's Designation" may reasonably be expected to possess personal knowledge of the transaction. 7. Do these indorsements form part of the Hang Seng Bank record? In Emilio Tirado, (1974) 59 C.A.R. 80, production of a letters file "maintained simply as a file of correspondence, and added to from time to time as letters come in" as a business record within the meaning of S.1 of the Criminal Evidence Act 1965 was frowned upon. In R. v. Gwilliam [1963] 3 AER 821, it was observed by the Chief Justice at p.823E that a consignment note for a breathalyser device from the Home Office supply and transport store to the police might not be or form part of a business record. What is significant is, nowhere in these two judgments was it categorically advocated that original documents kept could never themselves constitute a business record or part of it. Furthermore, "business record" was not directly in issue in these two cases. Mr. Winter places heavy reliance on the preposition "from" used in S.22(1)(a) of the Evidence Ordinance and submits with considerable force that business record must be a record compiled or made up from information supplied and cannot be a mere collection of documents. Mr. Winter concedes that in the compilation of a record it would not be impossible to include some documents supplied and that it may well be a matter of intention, but he submits that the 40 drafts in this case were simply collected and were not compiled into a record and that mere collection of bank drafts involving no intervention of a deliberate selection does not reflect the necessary intention of preserving them as or keeping a record. These are returned paid bank drafts which contain divers vital information. The Hang Seng Bank compiled a record of these drafts in "D1" as well as kept the returned paid drafts. It is undeniable that the bank books into which particulars of these drafts were entered under the heading "Drafts Issued Register" together with the returned paid drafts form a comprehensive bank record containing information deliberately stored and preserved for future reference. Let us imagine the case of a sheet of paper containing a thousand data: can a commercial institution be reasonably expected to transcribe verbatim such endless data into a book, ledger or index, or would not business efficacy permit the keeping of the record by an entry of a mere reference to such sheet of paper which is of course also retained so that thankless repetition may be avoided and the same purpose of preservation for future reference achieved? The extracts from the bank books "D1(1)" to "D1(10)" record entries with reference to these drafts which are also filed. Is it even remotely challengeable that these drafts and the indorsements thereon do not form part of the record of the banking business of the Hang Seng Bank compiled in the course of that business from information supplied (directly or indirectly) by person who may reasonably be supposed to have personal knowledge of it? S.22(2) of the Evidence Ordinance expressly provides for the obvious in that the Court may draw any reasonable inference from the form or content of these drafts which stand out on their own as bills of exchnage in deciding the admissibility of the indorsements thereon under this section of the Ordinance. In the circumstances, it is quite unnecessary for me to give a ruling as to whether compilation in S.22 could be in the form of a collection of documents as opposed to the making up of a record from information transcribed from documents. I rule that the drafts in this case form part of the record of the Hang Seng Bank within the meaning of "business record" in S.22 of the Evidence Ordinance. 8. No matter who made these indorsements, I find myself driven by the nature of the transaction to the conclusion that they were or were taken as the indorsements of the Northern Bank Limited. The Belfast Bank is beyond the seas, and its officers cannot be expected (having regard to the time lapse and all the circumstances) to have any recollection of these indorsements which are not known to be otherwise than routine banking business. These 12 drafts are therefore admissible. It must not be assumed that I have not treated the other incidental arguments advanced by the Defence with equal respect. They have not been specifically dealt with by reason only that it is unnecessary for me to do so in the explanation of the basis for my ruling.
9. These three lots of drafts were purchased by persons who claimed to be Tom Chan Siu Hong of 186B Tai Po Road 4th floor, Lam Ming and M. Tang both of 234 Des Voeux Road, Central respectively. These drafts are indorsed "A/C R. Sturgeon" and do not contain any stamp-chop or signature of the Belfast Bank beneath it. The Defence mounted a similar attack and in addition made great play of the absence of any signature by the bank as an alleged indorser. It should not be forgotten that these drafts have been duly presented for payment, that payments have been effected in favour of the indorsee, that the paid drafts have been returned, that some considerable time has now elapsed, and that there is no evidence of any irregularity or protest. The inescapable inference is that the Northern Bank Limited presented or caused to be presented these drafts for payment over to the indorsee as per the instructions indorsed thereon "A/C R. Sturgeon". It matters not who in fact put the indorsement on these drafts initially. On the same line of logic, these 10 drafts are likewise admissible. I am wholly satisfied that these 22 drafts in (I) and (II) are legally admissible. In addition, common sense and the pursuit of the truth demand their admissibility. 10. Before I turn to consider the remaining 18 drafts, it may not be inappropriate for me to deal with the Defence submission of relevancy. Mr. Winter charges that there is no evidence that at the material time there was only one "R. Sturgeon", that the account with the Belfast Bank had to be necessarily that of Mr. Roy Sturgeon, the Accused, that the indorsement "A/C R. Sturgeon" was identified by an account number or address, or that the funds were in fact transferred to and deposited in his client's account. The very fact that no mark of identification was appended to "A/C R. Sturgeon" suggests that there was not more than one such account with the same bank, and that consequently there was little fear for confusion. Mr. Winter's speculation that "R. Sturgeon" might have been deliberately reserved for a person of the fairer sex does not commend itself to me. Mr. Chan Chuen Hoi (P.W.6) stressed that funds must have been received by the indorsee, and his evidence stands presently unchallenged. The time has not arrived for me to evaluate the evidence. The submission of relevancy should best be left to be advanced at the end of this case. The Accused is Roy Sturgeon who has signed his name and been described as "R. Sturgeon". The initials "R.S." are found on the cover of the Accused's cheque book with the Belfast Bank. In my judgment, "R. Sturgeon" alone tends to prove the nexus between these drafts and the Accused. The very appearance of "R. Sturgeon" in these indorsements render them material to the issues and admissible. In my view, there can be no doubt that these indorsements are relevant to the issues in the light of evidence which has been given and has yet to come. What weight, if any, I am to give to these indorsements remains to be decided. There is no substance in this submission which I do not accept. 11. One further facet of these indorsements was left unexplored. Are they admissible as real evidence which covers production of material objects for inspection by the Court? Banners bearing slogans are admissible for this purpose. Their existence which can be proved by evidence may be a relevant fact. Statements in documents, when treated as chattels, may likewise be produced, although it is not to be incorporated in the testimony of the witness who produces it as being the truth of any assertion. The indorsements in this case were vehicles whereby the Accused is now alleged to have had the benefit of those transfers. Are they not admissible as an instrument for this transfer for the limited purpose? Such production would obviously offer little comfort to the prosecution, and the matter was perhaps for that reason not ventilated before me.
12. Apart from the purported stamp-chop and signature of the payee bank on the last three drafts, these drafts all contain no indorsement over to any indorsee. They were purchased in the early part of the month and, except for the last 3 drafts by a person claiming to be M. Tang of 234 Des Voeux Road, Central. The last three drafts were purchased by a person claiming to be Alfred Chan of 186B Tai Po Road 4th floor. Mr. Amey invites me to infer from the all too familiar circumstances in this case that these drafts were also paid ultimately to Mr. R. Sturgeon, the Accused. Mr. Amey seeks to make capital of inter alia:- (1) that all these 40 drafts were purchased from the Hang Seng Bank and in cash, (2) that they were bought at or about the same period of time in a month, (3) that they were bought by more or less the same group of purchasers, (4) that they were of identical denomination of £500 each, (5) that the payee bank was the same, (6) that 234 Des Voeux Road, Central has been demolished, and (7) that the Accused has admittedly remitted money to an account of "R. Sturgeon" with the Belfast Bank. (6) and (7), I am told, will be established by the prosecution in due course. There is no conclusive evidence that the Accused maintained an account with the Belfast Bank in 1971/1972. These drafts have all a ceiling of "NOT EXCEEDING STG. POUNDS FIVE HUNDRED ONLY", and the identical £500 denomination on these drafts seems to have little real significance. Mr. Amey and Mr. Winter are poles apart on the topic of legal relevance. Both parties invite me to make a ruling at this stage, and I was informed that no further evidence other than that adduced and enumerated would be led. On these similarities, Mr. Amey submits that these could not have been sheer coincidences and that these remaining 18 drafts must have been deposited into the Accused's account with the Belfast Bank. It has not been specifically convassed before me that these remaining 18 drafts may constitute circumstantial evidence for the other 22 drafts. The basic concepts of legal relevancy are well settled. Often is it said that circumstantial evidence derives its main force from the fact that it usually consists of a number of items pointing to the same conclusion. It is untenable that the circumstances in the purchase of these 18 drafts would corroborate the evidence against the Accused in respect to the other 22 drafts. Circumstantial evidence is well defined, and none of these 18 drafts can be brought within that definition for the other 22 drafts in (I) and (II). I do not feel impelled to accept Mr. Amey's arguments and draw the inference that the funds in these 18 drafts must have been credited to the Accused's account. In order to be admissible as being relevant, these 18 drafts must at least afford a reasonable inference that the Accused was the indorsee or otherwise in receipt of the proceeds; they ought to tend to prove this very allegation it purports to establish. In a criminal trial, an inference "may not be properly drawn from primary facts unless it is the only inference which can reasonably be drawn from those facts. Nor can any combination of inferences amount to proof of guilt unless in each instance the only reasonable inference which can be drawn from the fact on which it 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 is added to suspicion the total can be no more than suspicion". See judgment of Full Court in Chan Yuet Kwan & Chan Yiu Kuen v. R. (Cr. Appeal No. 212/73) given on 24th December 1973. To that succinct analysis, I can make no useful contribution. None of these 18 drafts could give rise to any irresistible inference by way of possible corroboration of the other 22 drafts, and no evidence given or to be given points with any sufficient clarity to the very conclusion that the Accused was the indorsee or recipient of the proceeds. In the evidence of Mr. Chan Chuen Hoi (P.W.6), either the Belfast Bank or its customer might have received these amounts. There is not an iota of evidence from which an irresistible inference may be drawn that the Accused was that customer. There is a complete lack of proof that the purchaser was an exclusive agent of the Accused. The possibilities of what in fact transpired are almost inexhaustible. Admissibility is dependent on as well relevancy as non-infringement of the applicable exclusionary rules. For these 18 drafts, Mr. Winter confines himself to relevancy. I rule that these 18 drafts are irrelevant or insufficiently relevant to be admitted. If these 18 drafts could, by any stretch of ingenious legal imagination, be let in as admissible evidence, there is every justification in the circumstances of this case to exclude them for fear that they would operate unfairly against the Accused. 13. In my ruling, the indorsement on the former 22 drafts are but the latter 18 drafts are not admissible. And I so rule.
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