HKSAR v. Cheng Chi Wai

HCMA1046/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1046 OF 2004

(ON APPEAL FROM KTCC 6002 OF 2004)

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 5 January 2005

Date of Judgment : 5 January 2005

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J U D G M E N T

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1.The appellant was on 13 October 2004 convicted of using a false instrument, the particulars of which were that on 9 November 2001 at the Kwun Tong Licensing Office in Hong Kong, used an instrument, namely an application for a duplicate driving licence dated 9 November 2001, which was known to the appellant or believed by him to be false with the intention of inducing a staff of a Transport Department to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice. 

2.The facts of this matter were that on 20 February 2002 at about 16:10 hours, a vehicle driven by the PW1 was hit from the rear by a light goods van.  The driver of that light goods van produced a licence which was later found to be a duplicate licence obtained by virtue of the false instrument which is the subject of this charge.  After the accident a person who said he was the owner of the vehicle arrived on the scene and wrote out his name of address and other particulars on a piece of paper which he handed to PW1.

3.The magistrate, in coming to his conclusion, compared the writing which had been placed on the application form which was the instrument, the subject of the charge, with the writing on the piece of paper given to PW1 by the man who alleged to be the owner.  He said this :

“About three months before the accident, on the date of the present Charge, the defendant was the person who filled the application form Exh P2 : compare the handwriting on Exh P1 and P2, for example the letters ‘DD’ and the telephone number.  Whether the handwriting is similar, or different, can be ascertained by a jury, in the same way as whether a photograph or an image on a CCTV tape shows the face of a particular person.  I have given myself the necessary warning when making comparisons : see for example LUK Chiu-ki HCMA1033/2003.  But the handwriting here is so similar that no expert is needed to testify on this subject.”

4.With this I do not agree.  Mr McGowan in his skeleton argument has very helpfully set out some authorities on this matter.  Those authorities I accept.  In R. v. Tilley [1961] 3 All ER 406,the English Court of Criminal Appeal reaffirmed the statement of principle that “a jury should not be left unassisted to decide questions of disputed handwriting on their own … and should not be followed in any other case.”  In R. v. O’Sullivan (1969) 53 Cr. App. R. 274, the Court of Appeal said : “Tilley could not always be in its literal meaning exactly applied … never should it be deliberately a matter of invitation or exhortation to a jury to look at disputed handwriting. ”

5.Very properly Ms Chan, for the respondent, has conceded that the law as its stand did not permit the magistrate to take the cause which he took.

6.Accordingly, this appeal is allowed.  The conviction is quashed and the sentence is set aside.  Costs be to the appellant here and the court below, to be taxed if not agreed.

Ms Winsome Chan, SGC of Department of Justice, for the Respondent

Mr James McGowan, instructed by Messrs Chong, Fu & Co., for the Appellant