HKSAR v. Khan Mohamed Farouk

HCMA 866/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 866 OF 2005

(ON APPEAL FROM ESCC 5520 OF 2004)

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BETWEEN

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing:  18 November 2005

Date of Judgment:  30 November 2005

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J U D G M E N T

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1.This Appellant, a man of previous good character in his early 50s, was convicted after trial before Eddie Yip, Esq. in the Magistrate’s Court at Eastern on two charges brought under the Crimes Ordinance, Cap. 200.  Charge 1 was of using false instruments, contrary to s. 73.  Charge 2 was of using a copy of a false instrument, contrary to s. 74.  The Appellant was convicted on both charges and sentenced to 4 months’ imprisonment by way of concurrent terms of that duration on each charge.  He now appeals against conviction and sentence.

2.The particulars of offence under Charge 1 were that the Appellant

“on or about 14 July 2003, in Hong Kong, used instruments which were and which he knew or believed to be false, namely

(a) Guard Posting Record for the period between 1 January and 30 June 2003 in respect of the security services provided by Security Alliance Limited at Tuen Mun Training Ground of Construction Industry Training Authority; and

(b) Guard Posting Record for the period between 1 February and 30 June 2003 in respect of the security services provided by Security Alliance Limited at Sheung Yuet Road Training Ground of Construction Industry Training Authority,

with the intention of inducing Construction Industry Training Authority to accept them as genuine, and by reason of so accepting them to do or not to do some act to its own or any other person’s prejudice.”

The particulars of offence under Charge 2 were that the Appellant

“on or about 14 July 2003, in Hong Kong, used a copy of an instrument which was and which he knew or believed to be false, namely a copy of security guards attendance record of Sheung Yuet Road Training Ground of Construction Industry Training Authority for the period between 1 and 30 June 2003 with the intention of inducing Construction Industry Training Authority 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 its own or any other person’s prejudice.”

3.Under the sub-heading “The Crux of the Prosecution Case”, the Magistrate said this in his Statement of Findings:

“The defendant was the general manager of Security Alliance Limited (“SAL”).  SAL entered into a contract with the Construction Industry Training Authority (“CITA”).  SAL had to provide security guard in 3 shifts of 8 hours each at CITA’s Tuen Mun Training Ground and Sheung Yuet Road Training Ground.  Actually only 2 shifts were provided.  SAL invoiced CITA, and CITA paid SAL, on the basis of 3 shifts.  Upon CITA’s request, SAL submitted various documents to CITA when CITA conducted an enquiry into the matter.  The documents were false.  The defendant knew and intended to induce CITA to accept them as genuine and by reason of so accepting it to do some act to its own or other person’s prejudice.”

4.The main point taken by the defence at the trial and repeated before me on appeal is that the prosecution’s own evidence gives rise to at least a reasonable doubt as to whether or not the provision of two shifts, which is what the security guards wanted to do, rather than three shifts, which they did not want to do, and the submission of the records the subject matter of the charges, were part of an arrangement tacitly agreed between SAL and CITA with a view to dealing with the discontent of the security guards and pressure from their trade union.

5.I am persuaded by the able arguments presented by Mr Graham Harris for the Appellant in support of that main point.  These arguments are well summarised in the skeleton argument helpfully provided by Mr Harris, and I do not propose to rehearse them here.  Suffice it to say that having studied the evidence, I am of the view that there is such a doubt not adequately excluded by the Magistrate.  That being so, there is at least a reasonable doubt as to whether the Appellant acted with the intention which forms an essential ingredient of the offences charged.  On that basis alone, and without the need to consider the other grounds of appeal argued on the Appellant’s behalf, I feel driven to the conclusion that these convictions are neither safe nor satisfactory, and that they must be quashed.  Accordingly the appeal is allowed to quash both convictions.

6.It was common ground between counsel at the hearing that if the appeal were to succeed the Appellant should have his costs of the appeal, but not of the trial.  Accordingly I award the Appellant his costs of the appeal to be taxed if not agreed.

Mr Graham Harris and Mr Martin Wong, instructed by Messrs Paul W Tse, for the Appellant

Mr Jonathan Man, SGC, of Department of Justice, for the Respondent