HKSAR v. Yiu Kenneth Lik Kin

CACC000101/1997

IN THE COURT OF APPEAL

1997, No.101
(Criminal)

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Date of hearing: 9 September 1997

Date of delivery of judgment: 26 September 1997

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J U D G M E N T

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Power, Ag. Chief Judge, H.C. (giving the judgment of the Court):

1. The applicant faced 12 charges: one of uttering a forged document, one of using a copy of a false instrument and ten of using a false instrument contrary to s.73 of the Crimes Ordinance, Cap.200. After trial before Gould D.J., he was found not guilty of the first two charges but guilty of each of the charges of using a false instrument. These charges alleged that on ten occasions between 1st November 1994 and 2nd January 1996, the applicant had used an instrument, namely a rent receipt, which purported to show that a sum of HK$29,000 was received from him being the rental payment for Flat 24H Pak Hoi Mansion, Tai Koo Shing, which was, and which he knew or believed to be, false, with the intention of inducing a staff member of the Hong Kong Polytechnic University ("the Polytechnic") to accept it as genuine and by reason of so accepting it to do some act to his own or any other person's prejudice.

2. The applicant was a member of the teaching staff of the Polytechnic and as such was entitled to housing benefits which allowed him to draw a Private Tenancy Allowance on rented accommodation. According to the evidence of PW1 Mr. Chan Kwong-yu ("Mr. Chan"), who is married to the applicant's sister, in April or May of 1994 the applicant made a request to him that he allow his name to be used by the applicant to purchase a property. He said that the applicant told him that there was "some problem between he and his wife, his wife wanted him to move. He worried that if he sold up the property then in case they divorce in future there might be some problem in relation to the division of the assets". He said that he agreed and that Flat 24H, Pak Hoi Mansion, Tai Koo Shing was purchased for $6.3m. He said that the applicant arranged for a mortgage with the bank and that he went to the solicitors and signed an assignment (Exh.P25). It is dated 1st August 1994. He said that he and applicant, as co-borrower, signed a mortgage with the ABN Amro Bank NV as lender (Exh.P26). This is also dated 1st August 1994. He said that monthly payments thereon of $30,000 were made by the applicant and that he made no payments at all; that the applicant moved into the premises and, in early August 1994, spoke with him about a tenancy agreement. The applicant said "that he needed to show his wife a document to prove that the property was not his but it's just a rented one. Therefore he requested me to sign a tenancy agreement for him" the rent of which was to be $29,000. The agreement (Exh.P14) is also dated 1st August 1994. It is signed by Mr. Chan as the landlord and by the applicant as the tenant. He said that thereafter he signed three or four rent receipts which the applicant told him he needed to show his wife; that the last one he signed was in October or November 1994 when he and the applicant fell out because the applicant had caused his wife to lose her job. In consequence of this disagreement he asked the applicant to have the ownership of the property transferred. As to the transfer he said that he had no negotiation with the purchaser and didn't in fact know who he was until he went to the solicitors. He said that after the sale he had no contact with the applicant and did not to have anything more to do with the property.

3. Exh.27 was a memorandum of sale and purchase between him as the vendor and Mr. Kong Wing-kay Andy (Mr. Kong) as the purchaser. This is dated 31st December 1994. The applicant admitted that Mr. Kong was a friend who he had recommended for the post of Research Associate at the Polytechnic. Mr. Chan was asked to look at ten rental receipts dated from 1st November 1994 to 2nd January 1996. Each of these states that an amount of $29,000 had been received from Kenneth Yiu "being rent for Flat 24H Pak Hoi Mansion, Tai Koo Shing and that the rent is for a specified period of one month". The witness denied that he had signed any of these receipts. He had, at the outset, admitted signing the first three or four receipts from October 1994. The evidence of the witness was not challenged by way of cross-examination.

4. Tendered as Exh.P13 was a Hong Kong Polytechnic Application for Private Tenancy Allowance form. This is dated 1st August 1994. It names Yiu Lik-kin as the applicant and states that the private tenancy applied for is Flat H, 24/F, Pak Hoi Mansion, Tai Koo Shing, Quarry Bay, Hong Kong and that the monthly rental is $29,000. Under the heading "Particulars of Landlord" it stated: "Name: Chan Kwong-yiu Tel: 1163883 A/C 2152." It contains a declaration which, inter alia, states:

"I hereby declare that the accommodation specified is not owned by myself, my spouse, or a relative as defined below of either myself or my spouse, and that neither I, my spouse nor any relative has a financial interest in it. 'Relative' here means (a) parents; (b) brothers, sisters and their spouses; and (c) children and their spouses."

5. Also exhibited (Exh.P19) were Hong Kong Polytechnic General Guidance Notes on Private Tenancy Allowance. These state, inter alia:

"5. Reimbursement of the cost of rent for the first month is made on the presentation to the Finance Officer of all relevant receipts and a completed Claim Form. Thereafter the allowance is paid to staff members monthly through their salary account, and staff members should substantiate their claims for the allowance by submitting original receipts directly to the Finance Officer."

"14. A staff member may not claim private tenancy allowance in respect of an accommodation if the premises is owned by himself, his spouse and/or a relative of either himself or his spouse, or in which he himself, his spouse or any of his or his spouses's relatives has a financial interest."

It was not disputed that the applicant had submitted the ten rental receipts (Exh.P17) in order to claim the Private Tenancy Allowance. Indeed three of them bore the following notations: "From Ken Yiu", "Please find attached rental receipt for PTA reimbursement purposes". These receipts were, it is not disputed, used to claim reimbursement pursuant to the Private Tenancy Application (Exh.13) which related to Flat H on the 24th floor of Pak Hoi Mansion of which Mr. Chan in the Application Form (Exh.P13) was said to be the landlord. We consider it important to bear in mind the purpose for which the receipts came into being and for which they were used.

6. The argument advanced below was that the prosecution failed to prove that any of the receipts were false instruments as that term is defined by s.69 of the Crimes Ordinance. It is sufficient for our purposes to set out s.69(a)(i) & (iii):

"(a) an instrument is false if it purports to have been -

(i) made in the form in which it is made by a person who did not in fact make it in that form; ..........

(iii) made in the terms in which it is made by a person who did not in fact make it in those terms;"

It was submitted that for an instrument to be false in terms of the section it must, on its face, tell a lie about itself and that in the case of each receipt the prosecution failed to demonstrate this to be so. It was further submitted that, as regards the last nine receipts, the failure to call Mr. Kong to say that he had not signed them was fatal.

7. The judge made the following findings:

"I move to consider charges 3 to 12, but particularly charge 3 for a start. The evidence of Mr. Chan, PW1, was unchallenged and I accept that evidence. The defendant has not given me an opportunity of considering any evidence in support of alternative interpretations of the prosecution evidence. I am conscious that the defendant has a clear record.

It is evident from the evidence of PW1 and the section 65B statements of PWs 5, 6 and 7, that the Hong Kong Polytechnic University believed that the defendant had a genuine agreement to rent the flat at 24H Pak Hoi Mansion. Hong Kong PolyU believed that it held a copy of a genuine tenancy agreement in support of the defendant's private tenancy allowance application.

The defendant knew that PolyU believed it had a copy of a genuine tenancy agreement. I am talking just about charge 3 at the moment. The defendant produced a receipt to PolyU to show that someone had received rental from him. The name of the receipt issuer is not stated on the form and the signature is not legible. However, the recipient, according to the form and terms of the receipt, was clearly the person entitled to receive defendant's payment of rental; that is, the landlord of 24H Pak Hoi Mansion. By reference to the copy of the only tenancy agreement held by PolyU, that landlord was Mr. Chan, PW1.

Upon seeing the receipt, PolyU believed, according to the natural meaning of the form and terms of the receipt, that the defendant had paid the rental to Chan. The defendant knew that PolyU believed that. In fact, the landlord, Mr. Chan, did not sign the receipt, and the source for that is PW1's unchallenged evidence. The defendant knew that Chan did not sign the receipt. My source for that is PW1's account of his dealings with the defendant and how those dealings came to an end, and the reason for the falling out. I infer that, under those circumstances, defendant knew that Chan would sign no further receipts.

The receipt, bearing in mind its form and terms, was false. The defendant knew that it was false. The defendant's reason in producing the false receipt to PolyU was to induce it to accept the document as a genuine receipt, signed by his landlord, Chan, and accordingly, to do some act to its prejudice; namely, to make any unjustifiable payment of private tenancy allowance to the defendant.

Whether the defendant was, in fact, living in the rented house is not material to charge 3. It might be relevant if the charge were Obtaining by Deception. Even if the defendant did live in the house, he is guilty of charge 3 because he used the false receipt in any event. It was suggested, in closing submissions, that perhaps the charges may relate to a valid tenancy. I reject that theory; Chan said that he had not rented the property to anyone, let alone the defendant. Chan had received no rental income from anyone.

Those remarks relating to charges 3 are equally applicable to charges 4 through to 12. There was the additional circumstance that after the defendant knew that the PolyU believed it had a copy of a genuine tenancy agreement, Chan transferred the property to Andy Kong. The defendant knew of the transfer because he had arranged it. However, the defendant failed to inform PolyU of the transfer.

In itself, the failure to inform was merely a breach of an administrative rule of the PTA scheme. It was not criminally culpable in itself. However, the defendant knew that PolyU would continue to believe that the landlord was Chan, thereby being susceptible to the consequences which I have already described in detail when dealing with charge 3.

The prosecution did not prove that the receipts were not signed by Andy Kong. However, that is not a defect in the prosecution case. The name Andy Kong would have been meaningless to PolyU, which was expecting receipts signed by the landlord, Mr. Chan. It is enough that the prosecution proves that the receipts were not signed by Chan or by anyone authorized by him. The prosecution has proved that through Chan's unchallenged evidence.

As a result of the foregoing ........... I am satisfied that the prosecution case, on charges 3 through 12, is proved beyond reasonable doubt, and the defendant is guilty of those charges."

8. The thrust of the appeal argued before us by Mr. Plowman, S.C., with him Mr. Keith Yeung, is that "the offence of using a false instrument contrary to s.73 of the Crimes Ordinance Cap.200 which requires proof of falsity within the meaning of s.69 of that Ordinance, is exclusively concerned with the document itself, that the document must tell a lie about itself, and that a lie about other facts extraneous to the document does not suffice". It is submitted that the issue is not whether the document contains a lie but whether it tells a lie about itself.

9. It seems to us essential from the outset to keep in mind that the prosecution was suggesting that the receipts contained 2 lies. One was a lie about the payment of rent. The other was a lie as to the maker of the document.

10. Mr. Plowman submits that the first lie is not a lie told by the document about itself but simply a lie in the document. For the purposes of this appeal we are prepared to accept that that proposition is correct and do not, therefore, have to attempt to resolve conflict between R. v. Donnelly (1984) 79 Cr.App.R. 76 and R. v. More (1988) 86 C.A.R. 234 to which we refer below. That disposes of the first lie. We come then to the second lie. If we understand Mr. Plowman correctly he does not contend that a document which purports to be made by a person who was not in fact the maker would not be a document which tells a lie about itself. What he says is that the signatures on the receipts do not purport to be those of anyone and that they cannot, therefore, be said to tell a lie about the maker of the document.

11. Mr. Plowman supported the above submissions by reference to Kevin Vincent More (1988) 86 Cr.App.R. 234. In that matter a cheque in favour of "M.R. Jessel" was sent by a stockbroker to an incorrect address and came into the possession of the defendant, More. The full name of the stockbroker's client was Michael Richard Jessell. More opened a building society account in the name of Mark Richard Jessell and paid the cheque into that account. It is to be noted that the name used was not that of the intended recipient of the cheque. Ten days later he completed a withdrawal form in the name of M.R. Jessell and was given a cheque for $5,000 made payable to M.R. Jessell which he cashed. He was charged inter alia with forgery of the withdrawal form. He was convicted but his appeal against the forgery count was allowed in the Court of Appeal and their decision was upheld in the House of Lords. Hodgson J. reading the judgment of the Court of Appeal said at p.241:

"But can this withdrawal form be brought within (a) (H.K. s.69(a)(i)). It was undoubtedly made by the appellant and it was undoubtedly made in the form of a withdrawal form. It was undoubtedly signed by the person making it, and that signature was undoubtedly the signature of the holder of the account in the name 'Mark Richard Jessell.' It cannot be said that the withdrawal form tells a lie about itself, and it does not, in our judgment, come within (a) or (c)."

Lord Ackner, delivering the opinion of the House, said at p.253:

"The Court of Appeal (Criminal Division), in my judgment, rightly concluded, however, that the withdrawal form could not be brought within either (a) (H.K. s.69(a)(i)) or (c) (H.K. s.69(a)(iii)). Hodgson J., giving the judgment of the Court said at p.241 ante, that 'It (the document) was undoubtedly made by the appellant and it was undoubtedly made in the form of a withdrawal form. It was undoubtedly signed by the person making it, and that signature was undoubtedly the signature of the holder of the account in the name 'Mark Richard Jessell.'

The Court of Appeal might well have added that the document did not purport to have been made by the Mr. Jessell in whose name a cheque had been drawn to open the account, since the withdrawal form made no mention on the face of it of that cheque."

These words are deceptively simple on their face. They have, however, to be looked at with particular care in order to understand the reasoning of the court. What the court was saying was that as the Building Society account was opened by More using the name "Mark Richard Jessell" when he, More, the holder of that account, used the signature "M.R. Jessell" on a withdrawal form to operate on that account he was not using a false document as, within the context of the account, it was the proper, and indeed the only, signature that could be used to operate thereon. The fact that it was a false name was irrelevant. Had the account been the account of the real Michael Richard Jessell, very different considerations would have applied. It purported to be what it was - the signature of the holder of the account albeit a holder using an assumed name. What it did not purport to be was the signature of Mr. M.R. Jessel - the man to whom the cheque had been sent. Had it done so the document would have told a lie about itself. This seems to be the distinction to which Lord Ackner adverted in the last sentence of the passage set out above.

12. It is particularly important to note that the Court when arriving at its conclusion had no hesitation in placing the document in the context of all of its surrounding facts. Such facts were clearly considered relevant and admissible. In the case of More they assisted the defence. Admissibility is, of course, not governed by the side advancing the facts. They are equally admissible whether they assist the prosecution or the defence.

13. We now turn to see whether the receipts in the present case on their face told a lie about themselves. Did the documents tell a lie about themselves by virtue of the way in which they were signed?

14. It is important, when considering this to bear in mind the purpose for which they were being used, i.e. to make a claim for a Private Tenancy Allowance. The Polytechnic authorities had been told that the applicant was renting the subject premises at a monthly rent of $29,000 from Mr. Chan and had been prepared to grant an allowance upon that basis. Given that there was no attempt ever to amend the Application Form (Exh.P13) as far as the authorities were concerned Mr. Chan was the landlord and remained the landlord throughout. The person entitled to receive rent is the landlord. He may, it is true, receive it and acknowledge receipt of it either personally or through an agent. We remark in this regard that the signatures on the rental receipts have a marked resemblance to the signatures of Mr. Chan which appear on the tenancy agreement (Exh.P14), the assignment (Exh.P25), the mortgage (Exh.P26) and the Memorandum of Sale and Purchase (Exh.P27). When handed the rental receipts the Polytechnic authorities, as the applicant well knew, were prepared to accept them on the basis that they were signed by the landlord or his agent. Indeed the applicant continued to insist even when being interviewed by the I.C.A.C. in March 1996 that those copies of the receipts which he was shown, not, it is true, a full set, were all signed by Mr. Chan. The record of interview indicates that he was shown two of the receipts which Mr. Chan admitted he signed, i.e. the receipts dated 1st August and 1st September 1994, and four of the receipts which Mr. Chan said he did not sign, i.e. the receipts for December 1994, 1 March, 1 October and 1 November 1995. We find it difficult to see how this could be taken as other than a clear admission on his part that he was presenting them to the Polytechnic authorities upon the basis that they bore the signature of Mr. Chan. It is to be noted that in this same interview he claimed that Mr. Andy Kong became the owner of the flat in January 1995 and that thereafter he rented it from him.

15. The fact of the matter was, as proved by Mr. Chan's evidence that neither he nor his agent ever signed any of the rent receipts. They were clearly being presented to the Polytechnic authorities upon the basis that they bore the signature of Mr. Chan. In such circumstances we are satisfied, as was the judge, that the rent receipts did tell a lie about themselves to the Polytechnic authorities. We see no difference from the case of a signature upon any document which purports to be that of a person who, it is proved, did not in fact sign it. Given the reasons set out above we are satisfied that there is no material difference between charge 3 and the remaining charges. The judge was, we are satisfied, right in the conclusion which he reached. The application must be dismissed.

Representation:

Mr. Kevin P. Zervos, S.G.C. & Ms. Maggie Yang Mei-kei, S.G.C. (D.P.P.) for the Respondent.

Mr. Plowman, S.C. & Mr. Keith Yeung instructed by Messrs. Ip & Willis for the Applicant.

Remarks:
Application for Leave to appeal by the applicant to the Court of Final Appeal. Application for leave to appeal dismissed. Please refer to Appeal Judgment FAMC000006/1997.