Yung Kit-mei and Others v. The Queen

CACC001025/1981

Charge of conspiracy to forge I.D. card -wife of one co-accused called to rive evidence - irregularity - however her evidence beneficial to and adopted by all accused - otherwise conviction would be quashed on this round alone.

Apart from finger-prints of accused found on offending articles no evidence of any positive act committed by any accused - judge failed to direct jury it was for them to draw inference from finger-prints evidence and to convict only if inference one of guilt judge merely directed denial of knowledge by accused - could mislead jury into thinking they could convict if found accused lying - verdict unsafe and unsatisfactory convictions quashed.

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 2 July 1982

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JUDGMENT

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Li, J.A.:

1. The applicants were convicted of the crime of conspiracy. It was alleged that between the period of March and 8th of June, 1981 at No. 4, Stanley Main Street, Hong Kong, they conspired together with one FUNG Chiu-chau and others unknown to forge and to utter Hong Kong Identity Cards and Hong Kong Driving Licences. The 1st applicant, YUNG Kit-mei, was sentenced to 3 years imprisonment. The 2nd applicant, KWAN Chun-king, was sentenced to 2½ years imprisonment; and the 3rd applicant, YUNG Chung-ling, was sentenced to 6 years imprisonment. The 3rd applicant also had a previous conviction in respect of which a suspended sentence of 9 months imprisonment was awarded. This suspended sentence was reactivated as a result of the conviction of the present offence. Hence the 3rd applicant will have to serve a total 6 years and 9 months imprisonment. They all applied for leave to appeal against conviction as well as sentence. Such applications were refused on the 25th of June last year. They all renewed their application on the 11th of March.

2. The Crown's case was that on the 8th of June 1981 a police party, armed with a search warrant, went to No. 4, Stanley Main Street, Hong Kong to carry out a search. As a result of this search, they found in the bedroom, the kitchen on the ground floor and the middle cubicle on the upper floor a large quantity of completed and partially completed forged identity cards together with pieces of film for lamination purposes. They found an embossing seal with the mark: Identity Co. & Ltd. Hong Kong. They found cutters which could be used for cutting the edges of the forged identity cards and a typewriter with type similar to those used on genuine identity cards. There were blank off-cuts of identity card -tapers, photographs with height scales, and Chinese commercial codes. No useful purpose will be served by setting out the various articles found or in which room they were found in great Mail., Suffice it to say that the finding of these articles gives every indication that the premises at the above-mentioned address were used as manufacturing centre of forged identity cards as well as forged Hong Kong driving Licences.

3. It is of significance, however, that at least seven articles on which the finger-prints of one or other of the applicants were found. They are as follows.

4. There was a cassette recorder, found in the middle cubicle of the 1st floor, which had the finger-print of the 2nd applicant. In addition, the 2nd applicant's palm-print was found on the cupboard in the middle cubicle. The 2nd applicant's right -ring finer-print was found on a piece of blank paper printed with forged identity card formats. Such piece of paper was bundled with other partially completes papers and partially completed forged identity cards. In addition, his finger-print was also found on an inside page of an exercise book on which were written various Chinese names with the Chinese commercial code numbers. The last two items were also found in the middle cubicle.

5. The left thumb print of the 3rd applicant was found on a colour picture which was leaning against a statue in the middle cubicle. His left ring finger-print was found on one piece of cut-off which was put inside a boot resting on the top of the washing machine in the kitchen.

6. The 1st applicant's thumb print was found on a plain sheet of paper which was put in a bundle together with other papers and partially completed forged identity cards bound in a bundle in a bag within a box which was found in her bedroom.

7. At the time of the search, the 1st and the 3rd applicants were present and arrested. The 2nd applicant was not present. Inquiries disclosed that the 3rd applicant was the principal tenant of the premises which he inherited from his deceased father. The 3rd applicant and his wife, TAI Lai-wah, lived in the first front cubicle on the 1st floor. His step-daughter, HEUNG Mei-la, lived in the middle cubicle. There was an elderly couple, surname Cheung, who occupied the rear cubicle. The 1st applicant is the mistress of FUNG Chiu-chau, one of the alleged co-conspirators. She occupied the bedroom on the ground floor. The 2nd applicant and the 3rd applicant's step-son sleep normally in the living room on the ground floor. The kitchen on the ground floor was used by the family of the brother and sister, namely the rd and the 1st applicants.

8. The 2nd applicant and the 3rd applicant's wife were not present at the time of the search. The 2nd applicant surrendered himself to the police on the 23rd of June 1981, and the 3rd applicant's wife was arrested later. She was granted an immunity when she turned Crown witness on which we shall comment at a later stage.

9. There were two seals - one marked with the marking of Identity Co. & Ltd. Hong Kong and the other, Hong Kong Transport Dfpakture (sic), found in the glove compartment of the vehicle No. BJ 8428. The registered owner of this vehicle was the 1st applicant.

10. Having regard to the evidence from the government chemist, the large number of completed forged identity cards, partially completed forged identity cards, driving Licences, blank forms for forging identity cards, there is ample indication that the premises were used as a forging factory for Hong Kong identity cards and driving Licences. Nor was there any dispute that the various finger-prints of the three applicants were found on the articles as set out above-mentioned.

11. The case for the defence in respect of the three applicants may be summarized as follows. The 1st applicant was at one time a ballroom hostess. She met FUNG Chiu-chau, the co-conspirator, a few years ago. She started to cohabit with him at the beginning of 1981. They live together in a bedroom on the ground floor of 4, Stanley Main Street. However, this Fung had a family of his own in Kowloon. He only visited the lst applicant about 2 or 3 times a reel. Fung was originally a printer. He used to print lottery tickets for the Hong Kong Government. Later, he turned to import-export business and the manufacturing of cans. The 1st applicant said that at first she had no idea that the applicant was forging identity cards or driving Licences. On the 10th of May last year, however, she observed that Fung was typing something on a piece of paper which had the resemblance of an identity card. She thought that he was doing it for the Hong Kong Government. A few days later she found some forged identity card papers. She confronted Fung with them. On that occasion, Fang told her that those identity cards were forgeries. She could not explain why her thumb print was found in one of the loose paper: which was put in a bundle and was found in a bag inside a box underneath her dressing table except that: she was a housewife and she would tidy up things from time to time. It would be quite possible for her to have innocently touched such papers and put them away. As to the car she said that she seldom drove it herself it was for the use of her husband and she had no knowledge as to the contents in the glove compartment.

12. The 2nd applicant said that he was a decoration worker and a nephew of the let and the 3rd applicant. He lived away from his home because he did not want his parents to know that he gave up his studies. He said that he never saw the various articles that were found in the middle cubicle or in the kitchen. He slept once in the middle cubicle. Apart from that he had been once or twice inside only. When he gave up his studies, he brought some of his text books and exercise books to 4, Stanley Main Street. He stacked them in a corner in the sitting room. His explanation for the presence of his finger-prints on the exercise boos was that it was his property. He had given up using it for a long time. There was no evidence that he wrote on that exercise book. He had used the cassette recorder before. Vis-a-vis his print on a piece of blank paper he said that one day before the Dragon Boat Festival in 1981 at, about 2 p.m., it was raining very hard. Fung came into the house with a wet bag which broke. A lot of papers were dropped. He helped to pick them up. He did not suspect anything was amiss because he knew Fung used to do printing for the Government. Fung also explained to him that he Rung) had been printing lottery tickets for the Government.

13. He said the reason why he was not in Stanley on the day of the police search was that he went to visit a friend in Yu Long a couple of days before. He fell ill and he stayed with his friend up to the 22nd of June when he was better. On that day, he telephone his parents to assure them that he was alright. He was told that he was wanted by the police and about the search and the arrest of the lst and 3rd applicants. Hence, he surrendered himself in order to clarify the matter.

14. The 3rd applicant said that he was a hawker. He denied Knowledge as to any forging activities being carried on in the premises. Nor did he see any of the many articles found in the kitchen or in the middle cubicle. He had no idea how his print had got to the off-cuts that were found inside a typing book which was resting on top of the washing machine in the kitchen. Some days before the search he saw some of these off-cuts on top of the television set in the sitting room. He might have touched them by accident. As to his thumb print on the colour photograph found in the middle cubicle, he said that on the day Then the police came, one of the police officers took up the photo and asked him who was the girl in the photograph. He pointed at the photograph and touched it by asking the police whether that was the girl the police officer meant. The evidence of this print is of little moment.

15. Thus, the issue between the prosecution and the defence may be summarized as follows: The prosecution case was that having regard to the large number of finished, half-finished and unfinished products of forgery, the large number of various articles capable of being used to commit the forgery and the presence of the three applicants living in the premises, it would be difficult to accept that they did not know what was going on. Further, having regard to the presence or existence of their fingerprints on various articles and papers, the irresistible inference is that they took active participation in the forgery.

16. The defence case was that the one and only forger was FUNG Chiu-chau. The 1st applicant admitted knowledge which she gained during her conversation with Mr. Fung in May 1981 , but she did not take part in the forgery herself. She did not inform upon Funs as she regarded. Fung as her husband. The 2nd and the 3rd applicants denied knowledge as to Fung's activity. They explained the existence of their fingerprints on various items or materials by ;way of innocent association or accidental contact.

17. In his summing up to the jury the learned trial judge gave adequate directions or, the Two relating to the offence of conspiracy. He also properly directed that it was often difficult to obtain direct evidence of an agreement to commit something unlawful, and that such agreement was usually inferred from acts committed by the persons concerned as a consequence of that agreement. Prior to that, he also properly directed the jury as to matters of inference. He said:

"And you can draw inferences from the evidence that you have heard, put two and two together and then come up with the final result. But only if the reasonable inference is one of guilt should you draw that. In other words, as Mr. Kwan has quite properly addressed you upon this morning, if there is another inference open to you upon the evidence then you should draw that inference in favour of the defendants. As I say, if the only reasonable inference is one of guilt should you then bring back a verdict of guilty."

Later, he said:

"You have to be satisfied that, were the acts the defendants in this case done in pursuance of a criminal purpose, held in common between themselves and Mr. Fung and the other people unknown."

18. There was no misdirection as to facts. He gave a very careful direction as to the effects of evidence, given by the applicants and as to what approach the jury should adopt even if they o ere not impressed by the evidence given by any of the applicants. However, after he had accurately summarized the evidence given by each of the applicants, he told the jury at page 171:

"Is it really conceivable, members of the jury, that one or other of these defendants did not have knowledge of what was going on in those premises during this particular time, or do you think, do you think they have been lying to you.  It is a matter for you.''

19. Counsel for the applicants relies on two grounds in support of their applications. The first ground is that the learned trial judge wrongly allowed one, TAI Lai-wah, the wife of the 3rd applicant to give witness. Counsel for the Crown concedes that TAI Lai-wah as not a competent witness. Indeed, her evidence was admitted because, at one stage, prosecuting counsel was under the mistaken impression that she was at least a competent witness in respect of those accused other then the 3rd applicant. In the course of the trial, no objection was taken by defence counsel. The irregularity was discovered by the trial judge himself. Before the close of the prosecution case, he directed the jury to ignore the evidence of TAI Lai-wah in total. We have gone through the transcript of the evidence carefully and we find that her evidence in no way incriminated any of the applicants. On the contrary, part of her evidence assisted to some extent, the defence case. Indeed, in their evidence, the applicants adopted the line of her evidence. For this reason, we are of the opinion that there has been no miscarriage of justice even if her evidence had, despite the specific direction of the trial judge, been considered by the jury. Had we thought otherwise, we would have quashed the conviction out right on this ground alone.

20. The second ground is that the learned trial judge failed to give sufficient and/or adequate direction on law in that he failed to direct the jury that in the said offence of conspiracy, evidence of mere knowledge by the applicants of the commission of the alleged offence or of the agreement to commit such offence by others without their positively agreeing to join in or be a party to the same is not sufficient to find the applicants guilty of conspiracy. Counsel also submits that the trial judge failed to direct the jury sufficiently or adequately on the nature and danger of circumstantial evidence and in what manner the same should be considered by the jury. By these grounds, we understand counsel for the applicants to be saying that the judge over-emphasized the presence of knowledge, but fell short of telling the jury that mere knowledge, even coupled with their presence, was not sufficient to prove conspiracy against any of the applicants.

21. Counsel for the Crown concedes that the judge indeed did not expressly direct the jury on the point of active participation, However, he says the judge did tell the jury to consider all evidence. It is further contended that in his earlier direction, the judge had told the jury the proper definition or ingredients of the crime of conspiracy, told them that often the agreement could only be proved by reference to the acts committed by each of the conspirators in furtherance of the conspiracy and also told them how to approach the matter of drawing inference in the sense that only if the inference was one of guilt, could they convict.

22. With due respect, this appears to be begging the question. There was no evidence of any positive act committed by any of the applicants apart from the existence of their finger-prints on various articles found on the premises. It is obvious that the Crown's case had to rely very heavily on the finger-print evidence so as to indicate a guilty association with the conspiracy charge. The trial judge should have told the jury further that if they inferred from the finger-print evidence that such prints were left on the articles by innocent or accidental contact, they should acquit the applicants. The jury should have been directed that it was only if they drew the inference that the finger-prints were left on the articles because of an applicant's active participation that they could convict that particular applicant. As it was, I will repeat what was said at page 171 which bears repetition, The judge said:

"Is it really conceivable, members of the jury, that one or other of these defendants did not have knowledge of what was going on in those premises during this particular time, or do you think, do you think they  have been lying to you? It is a matter for you."

In our opinion, the mere direction to the jury to consider the denial of knowledge as to what went on in the premises without further inviting the jury to draw any inference from the presence of the finger-prints (be it innocent or culpable) could have misled the jury into thinking that once they found the applicants were lying in their denial or knowledge, they (the jury) should or could convict the applicants. Had the jury been told the proper approach to consider the inferences which could be drawn from finger-print evidence, they might or might not have convicted the applicants. The whole issue would depend on whether the jury found the finger-prints were left as a result of an active participation on the part of any of the applicants in the forgery, or left there purely by innocent contact.

23. In the absence of such further direction, the vital question was not left to be determined by the jury. We are of the opinion that whilst the judge had properly directed the jury as to the approach in drawing inferences, he had not directed them as to the inferences to be drawn in respect of the finger-print evidence.

24. For this reason, we are of the opinion that the direction was inadequate in this respect and that the verdicts are unsafe and unsatisfactory. We order that leave be granted, to appeal against conviction. We treat this application as the appeal itself, allow the appeal, quash the conviction, set aside the sentences in respect of all applicants.

Representation:

Mr. Jerome Chan (Wing Sum Lo & Co.) for appellants

Miss Crebbin (Crown) for respondent