HKSAR v. Lo Hung Kwong

CACC000525/1999

CACC 525/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 525 OF 1999

(ON APPEAL FROM DCCC NO. 378 OF 1999)

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Coram: Stuart-Moore V-P, Mayo V-P and Keith JA in Court

Date of Hearing: 13 June 2000

Date of Judgment: 22 June 2000

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. On 7 October 1999, the Applicant was convicted by Judge Muttrie in the District Court on 38 charges of forgery. He had pleaded not guilty. He was sentenced to 4 years' and 6 months' imprisonment on each charge, to be served concurrently with each other. He now applies for leave to appeal against his convictions, his application for leave to appeal against his sentences having been dismissed upon its abandonment.

The charges

2. All 38 charges were in the same form. They alleged that the Applicant had applied for credit cards in the names of persons other than himself. In each case, the particulars of the charge alleged that the Applicant

".... on or about [the particular date], in Hong Kong, made a false instrument, namely a [the name of the bank or credit card company] application form in the name of [the person named in the application form] as applicant, which was false in that it purported to be made in the form in which it was made by a person who did not in fact make it in that form with the intention that he or another would use it to induce somebody 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."

These particulars followed the language of section 71 of the Crimes Ordinance (Cap. 200), which made forgery an offence, and was the section which the Applicant was alleged to have contravened.

The evidence against the Applicant

3. It was not disputed at the Applicant's trial that between 1 November 1997 and 4 February 1998 nine banks or credit card companies had received a total of 38 applications for credit cards in the names of five applicants. Those five applicants were real people, but the forms on which those applications had been made had been forged. They had not been completed or submitted by the five persons named in them as the applicants. Nine credit cards had been issued as a result of these 38 applications, of which eight had been collected from the addresses to which they had been sent, and seven had been used to obtain cash, goods and services amounting to $263,392.40. The only question in the Applicant's trial was whether it had been he who had forged the application forms. The Applicant did not give evidence.

4. The evidence upon which the prosecution relied to prove that it had been the Applicant who had forged the application forms was entirely circumstantial, but the primary facts which were admitted by the Applicant or not challenged at his trial were as follows. The Applicant was a police officer who at the relevant time held the rank of police sergeant and whose office had been at the New Territories North Regional Police Headquarters in Tai Po. He had been earning $23,500.00 a month. He had maintained a telebet account with the Hong Kong Jockey Club, and the records of that account showed that during the 1997/98 racing season (a period of 9 1/2 months) the Applicant had placed bets exceeding $310,000.00 in all and had lost about $95,000.00.

5. The addresses which had been given on the 38 application forms for the five persons named as applicants and to which the credit cards had been sent were married quarters for police officers which had been unoccupied at the time. Moreover, the 38 application forms had been accompanied by various documents, for example copies of utilities' bills and copies of the identity cards of the persons named as applicants. Four of the persons named as applicants had criminal records.

6. A copy of the identity card of one of the persons named as an applicant, and which had been one of the documents accompanying one of the application forms, bore the Applicant's fingerprints and palmprints. That person had been arrested seven weeks before the date on the first of the application forms in which he had been named as the applicant. The arresting officers had all worked in the same platoon as the Applicant. There would usually have been no need for a more senior officer such as the Applicant to have become involved in the paperwork relating to such an arrest, though it was possible that he might have done. Again, there would usually have been no need for a photocopy of the arrested person's identity card to be kept on file, though it was possible that it might have been.

7. Sixteen telephone numbers had been given on the application forms. One of them had been the number of the police headquarters' hotline. Two of the telephone numbers which had appeared on the application forms related to telephones in rooms in the same building (though on a different floor) as the one in which the Applicant had worked. During the relevant period, those rooms were being renovated. Although the contractor had had access to the keys to the rooms, the main door leading to those rooms had been left open by the contractor during the day. The numbers of the telephones in those rooms had been labelled on the appropriate sockets.

8. Finally, between 20 and 22 January 1998, two of the credit cards had been used to withdraw eight sums totalling $31,000.00 from cash dispensers. Two of those withdrawals had been made shortly before 8.00 p.m. on 22 January 1998 from a cash dispenser in Flora Plaza. Shortly after 8.00 p.m. the Applicant had paid the sum of $20,000.00 in cash at a firm of property agents in Flora Plaza towards the purchase of a flat in Flora Plaza.

9. The admitted facts contained one ambiguous fact. It was stated that the Applicant's "previous" residence was a flat in Flora Plaza. The judge assumed that that meant that the Applicant had been living in Flora Plaza on 22 January 1998. However, it is unclear whether the word "previous" referred to a time prior to the date on which the admitted facts were compiled or prior to the events with which the trial was concerned. We were told that the Applicant gave as his address a flat in Flora Plaza when he applied for a loan on 4 February 1998, but that may have been the flat which he was in the process of buying on 22 January 1998. In the circumstances, we are not convinced that the assumption which the judge made was justified. He may well have been correct. Indeed, there may have been other evidence which supported the assumption which he made but which has not been brought to our attention. It remains the case, therefore, that we cannot say for sure that the judge's assumption was correct.

10. Turning from the facts which were either admitted or not challenged, there was one feature of the evidence which was disputed. The 38 application forms had been completed in hand. As a result of the evidence of a handwriting expert called by the prosecution, the judge found that the person who had written them had "probably" been the Applicant. One of the points taken on this finding by Mr Andrew Macrae SC for the Applicant was that it was not open to the judge to make this finding on the evidence. The most that he could have found on the evidence was that the person who had written the application forms "may" have been the Applicant. We shall return to this point later.

The judge's reasoning

11. The judge recognised that there was no direct evidence against the Applicant. He acknowledged that the evidence against the Applicant was entirely circumstantial. The direction which he gave himself was as follows:

"The defendant can only be convicted on any charge if, in respect of that charge, his guilt is the only inference that no reasonable man could fail to draw from the direct facts proved."

Despite the unusual double negative, that direction cannot be criticised. The judge's reference to "the direct facts proved" shows that the judge realised that the primary facts from which he drew the inference of guilt had themselves to be proved.

12. The judge identified seven "facts" from which he drew the inference that the Applicant had completed the applications forms:

(i) The handwriting on the application forms had probably been that of the Applicant.

(ii) The Applicant had handled the copy of the identity card of one of the persons named as an applicant, which had accompanied one of the application forms. The judge acknowledged the possibility that the Applicant had innocently handled it in the course of his duties, but he added that it was difficult to understand why a copy of the identity card of an arrested person needed to be made or why the Applicant would have needed to handle it.

(iii) The Applicant would be likely to have had access (a) to information as to which police quarters were unoccupied and (b) to the blocks in which those quarters were. He would therefore have been able to collect mail sent to those addresses, though the judge acknowledged that other police officers would have been in the same position.

(iv) Four of the five persons named in the application forms had had criminal records, to which the Applicant could be expected to have had ready access. The judge did not state why he regarded that as significant. Presumably, what he had in mind was the fact that particulars about them would have been on file, and those particulars could have been used to compile the information for inclusion on the application forms. Again, the judge acknowledged that other police officers would have been in the same position.

(v) Of the sixteen telephone numbers given on the application forms, one had been a general police number and two had been on sockets which had been situated in different rooms in the building in which the Applicant worked. Again, the judge did not state why he regarded that as significant. Presumably, what he had in mind was that the person who had completed the application forms would not have given those telephone numbers for the persons named in the application forms if he had not been a police officer himself working in the building in which the telephones were. Again, the judge acknowledged that other police officers would have been in the same position.

(vi) The Applicant's gambling seemed high when compared with his earnings.

(vii) Two of the withdrawals of cash from cash dispensers which had been made with two of the credit cards to which the forged application forms related had been made (a) close to where the Applicant lived and (b) close in time and place to where and when the Applicant had paid the sum of $20,000.00 in cash.

13. In relation to these seven "facts", the judge said:

"None of the facts, by itself, is sufficient to prove beyond reasonable doubt that the defendant is the author of the application forms. The question is whether those facts, taken together in their entirety, produced any irresistible inference that he is the author."

The judge found that facts (ii)-(v) "indicated" that the person who had applied for the credit cards had been a police officer. That finding is not criticised by Mr Macrae. Indeed, the judge could have gone further and held that facts (ii)-(v) indicated that the person who had applied for the credit cards had been a police officer who had had access to the building in which the Applicant worked and who was likely to have had access in the course of his duties to a copy of the identity card of the person arrested by colleagues of the Applicant. However, the judge went on to conclude that the only inference which a reasonable man could draw from all of the facts was that it had not merely been a police officer but the Applicant himself who had applied for the credit cards and who had therefore forged the application forms. The thrust of Mr Macrae's argument was that, for one reason or another, some of the "facts" upon which the judge purported to rely were not facts at all, and that his approach to those of the "facts" which could be treated as facts was flawed. To evaluate this argument, it is necessary to consider each of the facts in turn.

(i) The handwriting

14. The evidence of the handwriting expert was that when he had initially compared the writing on the application forms with known examples of the Applicant's handwriting, he could only conclude that the Applicant "may have been" the author of them. However, a few months later he had been provided with more known examples of the Applicant's handwriting. On this occasion, he had concluded that the Applicant had probably been the author of the application forms. However, he acknowledged that the known examples of the Applicant's handwriting were few in number and would have been written faster than the application forms. He agreed that the English handwriting of Chinese writers shows elements of stylistic similarity, particularly in relation to block capitals. He admitted that he had not conducted any comparison between the Chinese characters on the application forms and the Chinese characters on the known examples of the Applicant's handwriting. And when he was asked why, he said that that had been because of the tremendous difference in writing speed - despite the fact that the difference in writing speed had not prevented him from making a comparison between the writing in English on the application forms and the known examples of the Applicant's handwriting in English.

15. These are significant points, but the impact which they had on the judge's ultimate conclusion that the Applicant had probably been the author of the application forms was for the judge to weigh. In our view, it cannot be said that the judge's acceptance of the expert's subsequent view of the matter was a course which the evidence did not permit the judge to take.

16. The other question is whether the judge's acceptance of the expert's opinion that the application forms had probably been written by the Applicant was capable in law of amounting to one of the facts upon which the judge could infer that they have been written by the Applicant. Mr Macrae contended that it was not. An inference can only be drawn from primary facts if those facts themselves have been proved beyond reasonable doubt. A number of cases can be cited as authority for that proposition, the most famous of which is the decision of the High Court of Australia in the dingo killing case, Chamberlain v. R. (1984) 157 CLR 521. At p. 536, Gibbs CJ and Mason J (as he then was) said:

"... the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt .... It seems to us an inescapable consequence that in a criminal case the circumstances from which the inference should be drawn must be established beyond reasonable doubt. We agree with the statement in Reg. v. Van Beelen (1973) 4 SASR at p. 379 that it is 'an obvious proposition in logic, that you cannot be satisfied beyond reasonable doubt of the truth of an inference drawn from facts about the existence of which you are in doubt'."

17. However, the law has moved on since then as is demonstrated by the discussion on the topic in Bruce & McCoy, "Criminal Evidence in Hong Kong", Division III, paras. 152-153. They refer to the case of R. v. Sorby (1985-86) 21 A. Crim. R. 64, in which the Court of Criminal Appeal in Victoria sought to reconcile the approach of Chamberlain with a line of authority hitherto followed in Victoria, whereby it had been held that as long as the facts in issue are proved beyond reasonable doubt, it is not necessary for the facts from which inferences are drawn to be themselves proved beyond reasonable doubt. The basis upon which the court sought to reconcile this apparent conflict was by saying that both lines of authority were really saying the same thing, i.e. that what is important is that the case must be proved beyond reasonable doubt before the defendant may be convicted. The court accepted that when proof of an element essential to guilt is left to be inferred, the primary facts from which the inference is to be drawn must be established by evidence beyond reasonable doubt, but the court went on to hold that what that means is that the circumstances relied upon for the inference must exclude any hypothesis consistent with innocence. It does not mean, however, that every piece of evidence which does not by itself establish a fact beyond reasonable doubt must be disregarded. The court must consider what weight is to be given to the united force of all the circumstances together: one piece of evidence might resolve a doubt as to another.

18. Indeed, in R. v. Shepherd (No. 5) (1990) 51 A. Crim. R. 181, the High Court of Australia appears to have resiled from what it held in Chamberlain. In Shepherd (No. 5), the majority held that it was not necessary for the prosecution to prove each fact upon which an inference of guilt is based beyond reasonable doubt. This requirement is limited to those facts which were indispensable links in the chain of reasoning towards such an inference. Where the evidence is analogous to strands in a cable rather than to links in a chain, it will not be appropriate to give a direction that all the facts which constitute those strands must themselves be proved beyond a reasonable doubt.

19. It is unnecessary to resolve this debate. If these statements represent the law, the judge cannot be criticised for taking his acceptance of the expert's evidence that the application forms had probably been written by the Applicant into account. Since there was only one issue in the case, namely whether it had been the Applicant who had forged the application forms, this was clearly a case in which the evidence represented different strands in a cable rather than links in a causative chain. Indeed, the judge expressly treated his acceptance of the expert's evidence in precisely the way which Sorby said was permissible. He said:

"Finally, there is the handwriting expert's evidence which shows a probability that the defendant wrote the application forms. Probability is not certainty, but this probability has to be looked at in the light of the rest of the evidence. It does not stand alone."

20. What this also shows, though, is that even if the law is as set out in Chamberlain, the judge was not treating his acceptance of the expert's evidence as a finding of primary fact which enabled him, along with other findings of primary fact, to draw the inference which he did. Although he described his acceptance of the handwriting expert's evidence as a "fact", he was in fact treating it merely as supporting the inference which he was drawing from the other primary facts which were either admitted or not challenged. It follows that no valid criticism can be made of the reliance which the judge placed on the handwriting expert's evidence.

(ii) The identity card

21. The point is made that of the very large number of documents used to support the 38 application forms, only one was found to bear the Applicant's fingerprints, and that was a document which the Applicant could have handled innocently. However, the judge had those facts well in mind. He referred to the fact that the document which bore the Applicant's fingerprints had been "one single document out of 38 bundles of documents", and that there had been "a chance that the defendant could have handled it innocently in the course of his work". The point is that the fact that the Applicant had at some stage handled one of the documents used by the person who had submitted the application forms was one of the primary facts which the judge was entitled to take into account in deciding whether an inference adverse to the Applicant should be drawn. The fact that there was a possibility that the Applicant had handled the document innocently was simply a factor which the judge was entitled to take into account in deciding what weight to give to the particular primary fact.

(iii) The addresses, (iv) access to criminal records and (v) the three police telephone numbers

22. These three facts can be taken together. Three points are made on the addresses. The first is that there was no evidential basis for the judge's finding that the Applicant was likely to have had access to information as to which police quarters were unoccupied, especially as the addresses related to quarters as far apart as Ho Man Tin, Tuen Mun and Sha Tin. The second is that there was no evidential basis for the judge's finding that the Applicant was likely to have had access to the buildings. The third is that there was no evidential basis for the judge's implicit finding that the Applicant was likely to have had access to the letter boxes in those buildings. As for the Applicant's access to criminal records, the point is made that there was no evidential basis for the judge's finding that the Applicant could be expected to have had ready access to such records.

23. Mr Darryl Saw SC for the Government was not able to confirm or deny whether there had been any evidence on these topics. But we do not think that this matters. Facts (iii), (iv) and (v) were incapable of pointing at the Applicant personally. Facts (iii) and (iv) pointed to police officers generally, and fact (v) pointed to police officers who had access to the building in which the Applicant worked. The judge only relied on facts (iii), (iv) and (v) to draw the inference that the person who had submitted the application forms had been a police officer.

(vi) The Applicant's gambling

24. Mr Macrae contended that the probative effect of the evidence was that the Applicant had lost $95,000.00 over a period of 91/2 months, resulting in an average loss of $10,000.00 a month. The judge would not have been entitled to conclude from the evidence that the Applicant had gambled $310,000.00 over a period of 91/2 months, thereby putting at risk an average of $32,500.00 a month. That was because much of the $310,000.00 which the Applicant staked would have come from his winnings. We agree, but we do not think that the judge did treat the evidence in that way. It is true that the judge described the Applicant as "clearly living beyond his means", but that is not an unfair description of someone losing $10,000.00 a month when his monthly salary is $23,500.00. Although the judge commented on the fact that there had been no explanation as to how the Applicant had financed his gambling losses, which on any view were heavy relative to his income, he did not find in terms that the Applicant must have been financing his gambling from other sources

(vii) The events of 22 January 1998

25. The fact that cash withdrawals had been made with two of the credit cards to which the forged application forms related so close in place and time to where and when the Applicant paid the sum of $20,000.00 is, in our view, evidence of the most telling nature. It is true that the judge was not entitled to conclude that this had occurred close to where the Applicant lived, but that does not in any way diminish the significance of this other point which the judge made.

26. The point made by Mr Macrae was that it was possible that the Applicant could have got the money from another source - perhaps from his own bank account in view of the fact that the following sentence had been removed from the Summary of Facts:

"The Defendant did not make any cash withdrawals from his own bank accounts known to the police."

What we were being asked to assume was that the prosecution was accepting that this $20,000.00 could have come from the Applicant's own bank accounts. That may be so, but the fact that credit cards to which the forged application forms related were used to obtain cash at that particular time and place was undoubtedly one of the facts upon which the judge could rely to infer that the Applicant had got part of the $20,000.00 by using the two credit cards.

27. It is here that the Applicant's failure to give evidence is relevant. Although he was, of course, entitled not to give evidence, the fact that he chose not to offer an explanation as to where the $20,000.00 came from makes it less easy for him to criticise the judge for inferring that he got the $20,000.00 by using the two credit cards. As was said by Lord Devlin (himself a great liberal on the subject of proof of guilt) in the Privy Council's report in R. v. Sharmpal Singh [1962] 2 WLR 238 at p. 245:

"When the prisoner, who is given the right to answer [a particular point], chooses not to do so, the court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence it has got nor dissuaded from reaching a firm conclusion by speculation upon what the accused might have said if he had testified."

28. Conclusion

For these reasons, save for the assumption which the judge made as to where the Applicant had been living at the relevant time, we reject the criticisms which have been levelled at the judge for his reliance on these seven "facts". In our view, it was open to the judge, on the primary facts which he found established, to draw the inescapable inference that it had been the Applicant who had completed the application forms, especially when that inference had been confirmed by the handwriting expert's evidence that the writing on the forms had probably been that of the Applicant. This view is not undermined by the assumption which the judge made as to where the Applicant had been living, because looking at his Reasons for Verdict as a whole, we are quite satisfied that the judge would have come to the same conclusion even if he had not made that assumption. Accordingly, this application for leave to appeal against conviction must be dismissed.

Representation:

Mr Andrew Macrae SC and Mr James McGowan, instructed by Messrs Ivan Tang & Co., for the Applicant.

Mr Darryl Saw SC and Mr Derek Lai, of the Department of Justice, for the Respondent.