Sheung Kwok Leung and Another v. The Queen

CACC000561/1976

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Coram: Pickering, Ag. C.J., McMullin, Ag. J.A. & Leonard, J.

Date of Judgment: 7th September 1976.

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JUDGMENT

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Pickering, Ag. C.J.:

1. The two appellants each faced three charges in the District Court. These were forgery of a document contrary to s.72(1) of the Crimes Ordinance, uttering that document contrary to s. 74 of the same Ordinance and endeavouring to obtain money by virtue of the document contrary to s. 75. The first appellant was convicted upon all three charges whereas the second appellant was acquitted of the first charge and convicted of the remaining two. The first appellant was sentenced to a total of three years' imprisonment and the second to a total of 2 ½ years. They appeal against both conviction and sentence.

2. The document alleged to have been forged was a Royal Hong Kong Jockey Club quartet betting ticket which related to race No. 7 at Happy Valley on 14th February 1976, a race which was run at 5 p.m. We were indebted to Mr. Sherrard, who appeared for both appellants, for an exhaustive and illustrative explanation of the form which a quartet betting ticket takes. For our purposes it is sufficient to say that the form is perforated near the middle and that the top half and the bottom half, each of which bears the same serial number, are for practical purposes identical except that the top half bears, at the upper edge, a line of fourteen holes each of which is contained in a horseshoe-shaped design and which are numbered from 1 to 14. That section of the form with which we are concerned contains four spaces marked 1st, 2nd, 3rd, 4th in which spaces the punter is required to forecast, in the correct order, the numbers of the four horses first past the winning post. When both portions of the form have been so completed and the amount of the stake filled in the punter is required to punch out, with a special implement provided, the horseshoe-shaped design at the top of the form in respect of the four horse numbers which he has selected. The ticket is then taken to a selling centre which, in this case, was window No. 10 of the Jockey Club Selling Centre at the Excelsior Hotel. There, the completed form together with the amount of the stake is handed in and checked by the selling shroff who then feeds the whole ticket into a validation machine which impresses on both parts of the ticket certain identical crucial details in a form somewhat like typescript. Amongst these details is a number which is different for each ticket sold and that number is also recorded separately on the till roll. The ticket is then torn in half along the perforation and the lower half returned to the punter whilst the selling shroff retains the top half which is placed in one of two metal compartments on the top of the validating machine from where they are collected at irregular intervals by employees of the Jockey Club known as "collators". The collators sort the tickets and a feature of the sorting is that all $50 bets attract a special requirement in that the collator is required to list them on a form headed "Selling Shroff's Record of $50 Single Quartet Tickets". Whilst it is manifest that the lower half of the ticket with which we are concerned had been processed through the validating machine it is equally clear that the selling shroff's record of $50 single quartet tickets in respect of window No. 10 which bore six entries upon the day in question, contained no record of the sale of the particular ticket in question.

3. The lower half of the ticket was the document which the two appellants were alleged to have forged, to have uttered and, by means of which, attempted to obtain money. The first four horses past the winning post in the race in question were in fact Nos. 2, 12, 13 and 3 and the allegation of forgery was that the original markings in the four spaces in the portion of the ticket retained by the appellants had been altered to those four numbers.

4. There was evidence from employees of the Jockey Club working at the Excelsior Centre to the effect that nothing unforeseen occurred on the day in question until, after the sale of quartet tickets had ceased at 2:30 p.m., it was found that the upper half of the ticket in question was missing. It is fair to say that the Crown's case was not presented on the basis of the existence of any inside accomplice and that, whilst there may well be suspicion as to the existence of such an accomplice there was no evidence to point to any Particular individual.

5. It was common ground that at about 11 a.m. on the morning of the day of the race the first appellant and a friend had filled in some 19 quartet tickets together with two forecast tickets. The friend dealt with seven of these tickets whereas the appellant filled in 14 including that with which we are concerned, his intention, so far as the quartet went, being to buy 14 $10 tickets and 5 $50 tickets. The first appellant carried out this transaction at window No. 10 at the Excelsior Hotel and thereupon returned to his car where his aunt, the second appellant, awaited him. She agreed to bear half the cost of the tickets and, of course, stood to gain half of any winnings. She also took possession of the bundle of lower half tickets.

6. At 5 o'clock in the same afternoon the race was run with the result which we have already recited. According to a statement made by the first appellant to the police, when the winning horses were announced he took back the winning ticket and kept it in his possession until, on Monday, 16th February, the two appellants presented themselves at the Royal Hong Kong Jockey Club premises for the purpose of claiming their prize at which time the ticket was handed over to the Jockey Club. The appellants were not paid and it transpired that the upper half of the ticket was not in the possession of the Jockey Club. Its whereabouts have never been ascertained.

7. It was the evidence of the handwriting expert that in his opinion the four boxes in the lower half of the ticket which eventually bore the numbers 2, 12, 13 and 3 had originally each contained the figure "1". That an alteration has been made to the figure 2 in the first box and to the figure 3 in the fourth box is apparent to the naked eye. That alterations had been made in the second and third boxes was an opinion reached by the handwriting expert with the assistance of a three-dimensional stereo-microscope which revealed troughs in the paper in areas where the pressure of writing was heavier than in other areas.

8. The learned judge found that the lower half of the ticket was fraudulently prepared and submitted by the first appellant for validation with one numeral "1" in each box and that the validation of the lower half of the ticket and the absence of the upper half from the Jockey Club's custody took place as the result of the first appellant being assisted actively by an undetected member of the centre's staff who had access to the machine at window No. 10. The judge further found that the first appellant subsequently forged the winning numbers by altering the existing ones on his lower half ticket after he had ascertained the results of the race. He found also that both appellants knowingly attempted to utter the forged ticket and to obtain winning dividends on 16th February. Of these matters he declared himself satisfied beyond reasonable doubt and he found the first appellant guilty of all three charges and the second upon the second and third charges.

9. We are at a loss to understand the reasoning of the learned judge in regard to the guilt of the second appellant. It is common ground that she did not fill in, buy or alter the ticket although she did present herself, with the first appellant, at the premises of the Hong Kong Jockey Club on the 16th February in order to collect the winning dividend. In the absence of any activity on her part in regard to filling in, buying or altering the ticket and in the absence of any evidence of any other activity on her part beyond attempting to collect the dividend we are wholly unable to agree that there was proof beyond reasonable doubt of her knowledge of the fact that the ticket had been forged. In this respect the learned judge misdirected himself upon the evidence and we accordingly quashed the convictions of the second appellant and set aside her sentences.

10. There was evidence before the learned judge which may or may not have led him to convict the first appellant. He did not use that evidence but convicted upon the basis of a plot between the first appellant and an inside accomplice as to which there was no satisfactory evidence. We must ask ourselves whether there was other evidence upon which the judge could have convicted and in order to answer that question we must form our own opinion of the evidence. We consider that we are in a better position to do that than in the average case for although the trial judge saw and heard the prosecution witnesses - the appellants gave no evidence - his advantage in that respect was considerably less than in the normal case since the evidence took the form of agreed statements, so that instead of giving their evidence in chief by the usual means of question and answer the witnesses merely listened to a reading aloud of their statements and signified their agreement with the contents. This process was followed, in the case of about half the witnesses by cross-examination, frequently brief. Thus the learned judge's opportunity for observing the demeanour of the witnesses was relatively slight.

11. The grounds of appeal centred primarily around the complaint that the learned judge had found that the attempted fraud had been essayed with the assistance of an unidentified inside accomplice, a member of the Jockey Club's staff, a finding which was described as speculation. It was the contention of Mr. Stevenson, for the Crown, that quite apart from this finding there was adequate material to point to the first appellant as a person guilty upon all three counts. In this connection Mr. Stevenson pointed to the long odds against completing a winning ticket multiplied by the odds against the upper half of that ticket being lost by the Jockey Club. For this he was criticised by defence counsel as embarking upon mathematics.

12. We consider, however, that Mr. Stevenson's approach was legitimate. In considering reasonable doubt it is appropriate to consider probabilities. That of filling in a $50 ticket in such a way that it will result in a prize of more than $3 million is slight but no man is to be condemned because he has had that good fortune. When the ticket is shown to have been the subject of alteration the first flicker of doubt arises. When the alterations are shown to be four in number, that is to apply to everyone of the forecast numbers, that doubt is not weakened. However, in the absence of any evidence as to when the alterations were made it is possible that they were made before the bet was laid and not after the race was run and the Court must not assume the latter. When the alterations are all found to be alterations from the figure "1" further doubt must arise for the object of writing down four numbers is to forecast the numbers of the first four horses past the winning post - and in the right order. A ticket filled in with four figure "1"s is unlikely so to have been completed by accident for patently horse number 1 cannot finish in all four first places. Such a mistake would only be likely to be made by a novice punter who completely misunderstood the ticket and its purpose yet the evidence was that the appellant was an experienced gambler on the horses. It was the first appellant's evidence that he wrote the selections on the "winning" ticket. A question arises as to why a person experienced in filling up quartet tickets initially filled in this one in a manner which apparently stultified the purpose of the exercise. When the alterations were made they were not casual alterations of a person having second thoughts about the chances of a particular horse or horses but alterations in each case from the figure "1" - a circumstance singular in itself but certainly not conclusive of guilt.

13. But there was further evidence before the learned judge. If the opinion of the handwriting expert as to the initial entries in the four boxes, those entries consisting of figure "1"s be accepted, it is apparent, in the light of the first appellant's statement to the effect that he made the selections upon the ticket and that he made no alterations thereto, that the latter part of this assertion was false. Indeed so much is apparent without the assistance of the handwriting expert since alterations in the first and fourth boxes are apparent to the naked untrained eye. In this connection it was argued in the court below that the first appellant in his two statements had only denied having altered the ticket after its completion. It will be instructive to examine exactly what was said in those statements. The first statement was made to a Mr. S.C. Wong of the Jockey Club on 17th February 1976 and contains the assertion:

"I did not change my mind and did not alter the entry in the ticket".

14. His second statement was made to Detective Inspector Becker one week later and contains the following questions and answers:

15. In our view these answers are susceptible only of the interpretation that the 1st appellant was denying having made any alterations to the ticket at any time.

16. In the case of Reg. v. Chapman⁽¹⁾ Roskill, L.J., reading the judgment of the court, said:

"But, in the view of this court, there is a clear distinction in principle between a lie told out of court and evidence given in the witness box which the jury rejects as incapable of belief or as otherwise unreliable. Proof of a lie told out of court is capable of being direct evidence, admissible at the trial, amounting to affirmative proof of the untruth of the defendant's denial of guilt. This in turn may tend to confirm the evidence against him and to implicate him in the offence charged. But a denial in the witness box which is untruthful or otherwise incapable of belief is not positive proof of anything. It leads only to the rejection of the evidence given, which then has to be treated as if it had not been given. Mere rejection of evidence is not of itself affirmative or confirmatory proof of the truth of other evidence to the contrary."

17. In the present instance the lie as to no alteration to the entries on the ticket having been made by the first appellant was a lie told out of court and capable of being direct admissible evidence amounting to affirmative proof of the untruth of the first appellant's denial of guilt.

18. The other extraordinary feature which was before the learned judge was that the Jockey Club had no trace of the upper portion of the ticket which should normally have been in its possession. It is, we consider, at this point that doubt ceases to be fanciful and there is established proof beyond reasonable doubt. It seems to us that Mr. Stevenson's approach upon the basis of probabilities was vindicated by the conjunction of a missing upper half of the ticket together with a lower half which not only had been altered to a winning selection but had originally been filled in in a manner inexplicable upon any conventional basis. The four figure "1"s are explicable only upon the basis that they were written with an ulterior motive and, in the light of what happened to these four figures and of the missing upper half of the ticket there can be no reasonable doubt that the motive was fraud. It is the first appellant's case that he filled in the ticket and it must follow that it was he who perpetrated the forgery the only alternative to that being that the forgery was perpetrated by the second appellant during the period in which the ticket was in her possession: but in that latter event, of which there is not the slightest evidence, since the initial filling in had been done by the first appellant any alteration of four "1"s by his aunt must have been performed under his instructions or with his complicity. Whichever be the case he is guilty of forgery and once that be established his convictions upon the other two charges must, on the evidence, follow.

19. We appreciate that the learned judge did not say that he based his conviction upon the materials which we set out but made a finding that the forgery was accomplished by the first appellant with the assistance of an inside accomplice, a finding which may well represent the fact but which was unsupported by the evidence and did not represent the basis upon which the Crown presented its case. That basis lay in the matter which we have recited and it was all before the learned judge who chose not to refer to it but to make a finding regarding an inside accomplice. It was Mr. Sherrard's contention that in so doing the learned judge fell foul of the dictum of Lord Goddard, C.J. in Reg. v. Abbott⁽²⁾ where he said:

"Another point which it seems to me it is necessary to take into consideration in deciding the present case is that, with all respect, it cannot be right for a judge to leave a case to the jury where the whole of the structure upon which the prosecution has been built up to that moment collapses and falls, for that is what happened in this case."

20. With the greatest respect to that argument the case of Abbott⁽²⁾ is not in point because here the "whole of the structure upon which the prosecution had been built" did not collapse and fall. The whole of the evidence was there staring the learned judge in the face and his failure to refer to it and his election to make a finding about an inside accomplice did not cause that evidence to disappear.

21. It was further argued that to hold that the evidence before the trial judge compelled a finding of guilt regardless of the existence or otherwise of any inside accomplice, would be to reject the evidence of Stella Wong who was the issuing shroff at window No. 10. Her evidence was:

"Had anyone handed me a quartet ticket where all the horse selections were No. 1 I could not possibly have missed it. I can definitely state that I did not receive such a ticket".

This is a confident assertion in regard to a situation in which "all the horse selections were No. 1" - a circumstance which postulates four figure "1"s in the boxes of the lower half of the ticket and four more in the upper half boxes. There is no evidence however of what figures were contained in the upper missing half of the ticket when it was handed in. We do not know what Mrs. Wong's reply would have been had she been asked if she would have been bound to have noticed a ticket bearing four "1"s in the lower four boxes and, for example, a normal selection of numbers in the upper four.

22. The learned judge may have been right as to the existence of an inside accomplice: he may have been wrong. It is immaterial. What is essential is to keep in mind the charges. The first was of forgery of the ticket. The second was of uttering it on the Monday following the race, and the third of attempting to obtain money on it. Whether or not he had an inside accomplice to perfect the general purpose matters not. In this connection Mr. Sherrard was driven to argue in a circle. That is, there was no evidence upon which the learned judge could properly have concluded that there was an internal accomplice; without an internal accomplice the exercise must have entailed the return to the first appellant, by the counter shroff, of both his own "receipt" half of the coupon and the top half thereof which properly should have been retained by the Jockey Club; that upon this latter eventuality the possibilities of fraud left open to the first appellant were so impossible, that he must have had an internal accomplice - if he did in fact attempt to perpetrate a fraud. Which brings us back to the fact that the existence of an internal accomplice or not was irrelevant to the charges. The question was not how it was done and in conjunction with whom, if anybody, but if it was done at all and if so, did the first appellant do it?

23. Mr. Sherrard argues that without determining "how", it is impossible to determine "if". The non sequitur here is that the "how" and the "if" relate to two different matters. The "how" concerns the whole mechanics, from start to finish, of the attempted fraud, if such an attempt there was. The "if" relates only to the first and the last steps in such an attempt, that is, to the initial forgery and the final uttering and endeavour to obtain money on the ticket. The question for the judge was not what were the elaborate details of an alleged attempted fraud starting on Saturday and ending on Monday, but was the ticket forged and did the first appellant forge it - and if so did he subsequently utter it and attempt to obtain money on it.

24. Unfortunately the learned judge found that there existed an accomplice within the Royal Hong Kong Jockey Club and there was no evidence of this so that his finding has rightly been criticised as speculation. Upon the evidence there was no more justification for this finding than there would have been for a finding that an attempt at fraud was rendered possible by the accident that the issuing shroff returned both halves of the ticket to the first appellant instead of retaining the top half. The finding was however irrelevant to the decision in that it related to how the fraud was attempted rather than to whether and, if so, by whom.

25. In the result the learned judge came to the right conclusion but for the wrong reasons. But all the right reasons were before him just as they were before the defence for the defence to deal with them. Ex post facto the learned judge went off at a tangent and convicted for reasons which were speculative. Had he done that in circumstances in which no valid reasons for conviction co-existed with the speculative reasons, we should have allowed the application. But valid reasons for conviction did exist and the application must be dismissed. We would add that we do not feel it necessary to apply the proviso but that if we were of the contrary view we would unhesitatingly apply it.

26. One other matter calls for comment. Three days after the end of the trial junior defence counsel telephoned the Clerk of Court to the President of the Court indicating that Mr. Sherrard wished to make further submissions, that Crown counsel had not yet been contacted in this regard and that the question whether those submissions should be made orally or in writing had not yet been finalised. A holiday weekend intervened upon the expiration of which, that is six days after the trial had ended, a note was received from Mr. Patrick Yu, junior defence counsel, presumably at the instance of leading defence counsel, enclosing written submissions said to be delivered with the consent of the prosecution "and with the express understanding that the Court should indicate whether the submissions of fact ...... are acceptable in that form or whether the Court would have it read in open court." The answer, of course, is that they are acceptable in neither form without the leave of the court. No such leave was obtained by either side and the submissions when perused consisted of references to authorities well known to the Court and of reiteration of argument previously put before the Court.

27. Had there been genuinely new matter to be placed before the Court, defence counsel had adequate time in which to do that since the case was set down for four days and finished at 5 o'clock on the afternoon of the second day. Had such new matter existed two whole days remained for its exploitation.

28. There are no grounds for the assumption that this Court will permit further argument either orally or in writing after the conclusion of the hearing of the appeal. Were this to be allowed as a practice the task of the Clerk of Court in organizing the court's calendars would be rendered unmanageable and that of the judges in hearing and deciding the appeals coming before the court, impossible. There may be cases in which something both cogent and urgent comes to counsel's attention after the conclusion of the hearing of the appeal and in such circumstances - and they must be very rare - with the consent of the other side and, we emphasise, the approval of this Court, it may be permissible to allow a second bite at the cherry. In the present instance the exercise was unauthorised, unhelpful and unnecessary and therefore unwelcome.

29. As to sentence, Mr. Yu offers no submissions. We are of the opinion that we would not be justified in interfering with the sentences totalling three years imprisonment so that the application for leave to appeal against sentence is also dismissed.

Representation:

M.D. Sherrard, Q.C. and Patrick Yu (Henry C.K. Tung & Co.) for appellants.

Stevenson, C.C., for respondent.

(1) 1973 2 W.L.R. 877, 883.

(2) 1955 2 Q.B. 497, 506.