Leung Tak-fuk v. The Queen
Read the full judgment text of CACC 389/1970 on BabelCite. This Court of Appeal judgment was delivered on 11 December 1970.
1. The appellant was acquitted on one forgery charge and one obtaining charge and was convicted upon twelve similar charges. He now appeals against conviction.
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CACC000389/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 389 OF 1970 -----------------
----------------- Coram: Mills-Owens, Huggins & McMullin, JJ. Date of Judgment: 11 December 1970 ----------------- JUDGMENT ----------------- Huggins, J.: 1. The appellant was acquitted on one forgery charge and one obtaining charge and was convicted upon twelve similar charges. He now appeals against conviction. 2. The charges upon which he stands convicted related to six separate transactions, all of which were similar in nature. The appellant is a foreman in the Water Works Office of the Public Works Department and his co-accused was a marine hawker. As foreman the appellant had the duty of indenting for stores required on works sites. There are several foremen in the Water Works Office and they share an office. The indent is prepared in duplicate on a Form No. WW057. The form is then submitted to an inspector, who, if he approves the request for materials, authorises the preparation of a stores requisition (Form GF210). This is typed in another office and returned to the inspector for signature. It is typed in quadruplicate, the last copy remaining in the bound book. The original and two copies, having been signed by the inspector, are sent to the engineer-in-charge, whose signature is required to authorise the requisition. After authorisation requisition forms are returned to the foreman's office by a messenger and, as we understand it, are placed in a pile for each foreman to extract those relating the jobs for which he is responsible. The foreman then hands the Form GF210 to whoever who is going to the Government Stores to collect the materials. At the stores the person collecting has to sign a register, after which he presents the Form GF210 to the storeman. On receipt of the materials he signs the receipt on the three copies of Form GF210. The original and triplicate of the form are retained by the stores and the duplicate is returned to the Water Works Office, where it is supposed to be pasted into the book containing the quadruplicate. 3. The case against the appellant alleged that after authorisation of requisitions for materials by the engineer-in-charge the appellant had altered the Forms GF210 so that they appeared to authorise the requisition of more materials than had in fact been authorised. It was further alleged that in pursuance of a conspiracy with a third party the altered forms were used to obtain unauthorised materials, which were passed to the co-accused, the appellant and the co-accused (and, it may be, the third party) sharing the financial advantage thus obtained at the expense of the Government. The documents alleged to have been forged were, remarkably, not particularised in the charges but they were identified in the evidence for the prosecution. 4. It is important to an understanding of the case to know that the documents identified as having been forged were not by a long way the only documents which had been altered without apparent authorisation by the engineer-in-charge. It is common ground that requisitions were frequently altered - as it is described - "innocently": that is to say, although the alterations were not authenticated by the engineer-in-charge they were not made for any fraudulent purpose and were not objected to. Nor, we think, has it been seriously disputed that the system of requisition is such that many persons besides the appellant had access to the relevant signed forms and, therefore, the opportunity of feloniously altering them. 5. Counsel for the Crown before us very properly made two concessions. First, he conceded that apart from a cautioned statement which the judge found to have been made voluntarily by the appellant to the police there was no evidence to support a conviction on any charge, and we do not think that the learned judge thought otherwise. Secondly, counsel conceded that the cautioned statement could not be said to identify any of the documents alleged to have been forged except possibly those to which charges 3, 4, 5 and 6 relate: therefore he did not seek to support the convictions on the other charges. With respect to the learned judge we think that is clearly right. As I have already indicated, on charges of this kind it is always necessary to identify the documents alleged to have been forged: it is not enough to prove that the accused has forged unspecified documents and then to show that somebody has altered the documents to which the charges relate - unless it can also be shown that no other document had been forged so that the accused, if he forged documents at all, must have forged the ones specified in the charges. We shall have to consider this point more fully in a moment but it is sufficient here to say that in our view there was no evidence at all to connect the appellant with the alteration of the documents to which the majority of the charges relate. The learned judge appears to have taken the view that as the appellant admitted having committed a number of offences of the kinds charged and as he thought the cautioned statement identified the documents in two of the transactions the other offences charged must have been those to which the charges related. We do not think that was proved beyond reasonable doubt. 6. There is in truth no doubt that the appellant did commit offences of the kinds charged because his cautioned statement was in the following terms:
The inference of guilt of forgery and of obtaining goods on forged instruments is inescapable. But were the admitted offences based upon the particular documents relied upon in support of Charges 3 to 6 inclusive? The evidence shows that the Form GF210 dated the 29th May, 1969 was altered by (inter alia) changing "the quantity ..... to eleven pieces of pipes from one piece". The appellant said this was "the first voucher" although there were charges based upon a document earlier in date than this one. The appellant should, as I have said, clearly have been acquitted on those charges and it may be that if the appellant did commit the offences alleged in Charges 3 and 4 the voucher used to commit them was in fact "the first voucher" altered by the appellant. These offences must have been committed "sometime around the month of June last year". On the other hand there were other alterations in this particular form which are not referred to in his statement, although the fact that the appellant did not in his statement mention every alteration which appears in the document may be of little significance. 7. The second offence admitted relates to an application for "5 pieces of pipes" in respect of which "265 feet" were collected and the next forged Form GF210 in sequence which is relied upon by the prosecution was one which had been altered from "5" pipes to "15". Apparently because the stock of the type of pipe required was low only 260.5 feet could be issued. The most that can be said is that there is some similarity between the offence admitted and that charged. However, the number of pipes applied for by the appellant with this form was not "5" but "15" (for by that time the form had been altered) and the quantity issued was "260.5 feet" and not "265". These may have been slips by the appellant (he wrote the statement himself) but it is equally possible that they were not. Had the prosecution led evidence, as one would have expected them to do, that the altered documents relied upon were the only ones which had been altered without authority express or implied it might reasonably be said that the similarity of the facts admitted to the facts alleged was sufficient to justify an inference that they related to the same transactions. Unfortunately the case has to be considered against the background of astonishing laxity in the keeping of records in the Water Works Office outlined at the beginning of this judgment. We do not know whether there were any other instances "around the month of June" where there was alteration of documents in a manner similar to that in which these two forms have been altered, although it would have been a simple matter to check and about which to lead evidence. 8. Apart from the evidence already mentioned it was proved that in relation to both transactions the duplicate copy of Form GF210 had not been pasted on to the quadruplicate in accordance with the normal procedure. Any possible significance of this fact is minimized by the further fact that the duplicates were missing in instances where the Crown does not allege that the original form has been fraudulently altered. Similarly, the Form WW057 was missing in relation to one of the two transactions but not in relation to the other. 9. In the result we have been driven to the conclusion that although it may be that the case against the appellant was proved upon a balance of probabilities it was not proved with that degree of certainty which is essential for conviction upon a criminal charge: there was opportunity for others to have forged these particular documents and the possibility that they did has not been negatived. It is lamentable that a self-confessed forger should be allowed to go free but the rules which have been laid down to prevent miscarriages of justice by the conviction of the innocent cannot be ignored because there is some reason to think that a particular accused person is guilty. The blame lies at the door not of the Court or the law but of those who, under our adversary procedure, have the duty of putting before the Court evidence which is sufficient to prove the guilt of an accused person, evidence which on what we have been told we believe may readily have been available in the present case. We cannot help suspecting the investigations were not pressed on because it was thought (wrongly as we hold) that the cautioned statement was conclusive of the appellant's guilt on these charges and we take the opportunity to say that in the experience of the judges of this Court too great reliance is often placed upon statements by accused persons where other and more satisfactory evidence could be adduced after further investigation. 10. With great reluctance we allow the appeal and quash the convictions. Representation: H. Litten, Q.C.L.P. Fok (S.Soo. Co.) for Appellant. Stapp E.C. for Respondent. |