The Queen v. Chan Yam Yick

CACC000103/1985

IN THE COURT OF APPEAL

BETWEEN

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Coram: MoMullin, V.-P., Li, V.-P. & Silke, J.A.

Date of hearing: 29th May 1985

Date of delivery of judgment: 29th May 1985

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JUDGMENT

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Forgery and photostats.

Silke, J.A.:

1. The applicant seeks leave to appeal against convictions, and the sentences passed in respect of them, on two counts in the charge sheet - both of uttering forged documents with intent to defraud.

2. The first count related to a photostat copy of a letter of the Bank of Canton addressed to a firm of solicitors and the uttering of that letter to another firm of solicitors. The wording of the charge is: "uttering a forged document purporting to be a letter".

3. The second count related to a Letter of Credit, on the face of it issued by the Banque Nationale de Paris, made out in favour of Treeing Enterprises Limited who is, in effect, the applicant. The wording of that count reads: "uttered a forged document purporting to be a true copy of a letter of credit''.

4. Both these documents were photostats. It is accepted that, by themselves, photostats are not forgeries. There are three authorities on the matter: the first being Harris ⁽¹⁾; the second being Tait ⁽²⁾ and the third being Cheung Yiu Cho ⁽³⁾, the last in this jurisdiction.

5. In the course of his Reasons for Verdict the trial judge stated on page 2 that both the exhibits were "forgeries", adding a minor qualification, "or rather photocopies of forgeries". Further down that page he stated:

"He (the applicant) claimed he did not know either was forged."

(Emphasis supplied)

and finally at page 3 he said:

"I was satisfied beyond reasonable doubt that the irresistible inference was that he knew both documents were forgeries at the time he uttered them."

(Emphasis supplied)

6. Mr. Lugar-Mawson, with the fairness we have come to expect from him, has accepted that he cannot support the convictions in the light of one of the grounds advanced by Mr. Sanguinetti. This reads:

"That each of the convictions was wrong in point of view, inasmuch as on the evidence adduced neither of the photostat copies (Exhibits P1 and P2 respectively) was a forgery in itself, and the Learned District Court Judge treated the said photostat copies as being forgeries in themselves."

7. The District Judge would appear to have fallen into the same error as the Judges in Tait ⁽²⁾ and Cheung Yiu Cho ⁽³⁾. In Cheung Yiu Cho ^(3), another Division of this Court had this to say:

"          It is argued that Charges 2 and 4 (these were the uttering charges) disclose no offence known in law. It is common ground that the photocopies are not themselves forgeries. We are greatly assisted by the judgment in The Queen v. Tait (1968) N.Z.L.R. 126 which we respectfully adopt. In that case MacArthur, J., sitting in the Court of Appeal, held that on a charge of uttering, both the Crown and the trial judge having put to the jury that it was the photostat copy which was dealt with and so uttered, and not the original, the proper course was to quash the conviction.

On the basis of Tait, the convictions on Charges 2 and 4 cannot stand."

8. The law in England has been amended in 1981 by the enactment of the Forgery and Counterfeiting Act to provide that it is an offence for a person to use a copy of an instrument, which he knows or believes to be a false instrument, with the intention of inducing someone to accept it as a copy of a genuine instrument and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice. The law in Hong Kong has not been similarly amended.

9. There could well have been a further strong argument advanced that the requisite knowledge of the applicant here had not been fully proved but in the light of the submissions and the concession by the Crown these convictions cannot stand.

10. We would therefore grant the application, treat the hearing of the application as the hearing of the appeal, allow the appeal and quash the convictions.

(1) [1966] 1 Q.B. 184

(2) [1968] N.Z.L.R. 126

(3) Criminal Appeal No. 1 of 1984 (unreported)

Representation:

A.J.J. Sanguinetti, Esq. with K.B. Ng, Esq. instructed by Francis Yim & Co. for the applicant.

G.J. Lugar-Mawson, Esq. for Crown/Respondent.