Attorney General v. Pat Chiuk Wah and Others
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CACC000639/1968 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 639 OF 1968
----------------- Coram: Hogan, C.J., Rigby, S.P.J. & Mills-Owens, J. Date: 20 March 1969 ----------------- JUDGMENT ----------------- Rigby, S.P.J.: 1. On the 18th of July, 1968, a police party raided certain premises in Hong Kong. There they found a printing press in, or upon, which stamps were actually being printed or processed at the time of the arrival of the police. The stamps bore a close resemblance to, and were clearly intended to pass as, National Health Insurance Stamps of the United Kingdom issued under, or in direct connection with, a fund under the control and management of the Minister of Pensions and National Insurance in connection with the provisions of the United Kingdom National Insurance Act 1965-1967. As a result the defendants, in different capacities, were charged in the District Court with forgery of valuable securities contrary to section 4(2)(a) of the Forgery Ordinance (Cap. 209), possession of forged documents, contrary to section 10(3), and possession of implements of forgery contrary to section 11(d) and (e) of the Ordinance. 2. At the conclusion of the case for the prosecution, the learned trial judge ruled, as a matter of law, that the defendants had no case to answer on any of the charges and he accordingly discharged them. The Attorney General now appeals, by way of case stated, against the dismissal of the charges under sections 4(2)(a) and 11(d) and (e). 3. Before proceeding any further it is, I think, directly relevant to say that section 7(4)(a) of the Ordinance deals with the forgery of seals or dies. Under section 2 of the Ordinance "die" includes a "stamp", and a stamp is itself defined to include a stamp "impressed by means of a die as well as an adhesive stamp". The maximum penalty for any offence under this section, namely section 7(4)(a), is 7 years' imprisonment. Mr. Sandor, Crown Counsel, at some stage in the course of his able argument, frankly admitted that in drafting the indictment in this case he had overlooked section 7(4)(a) and he conceded - a concession with which I am in agreement other than to say that in my view that concession does not go far enough - that it might well have been the appropriate section under which to draft this charge. But he contended that the charge might also be preferred under section 4(2)(a) as forgery of a "valuable security". Section 4(2)(a) provides, upon conviction, for a maximum penalty of 14 years' imprisonment. If Mr. Sandor's argument is correct that a stamp can properly be regarded as a "valuable security" one therefore gets the curious position that the Crown may elect to charge the forger of such a stamp either under section 7(4)(a), which carries a maximum penalty of 7 years' imprisonment or, alternatively, under section 4(2)(a) which carries a maximum penalty of 14 years' imprisonment, for what is precisely the same offence. Possibly that apparently blatant inconsistency would not, in itself, provide a valid reason for such a charge not being brought under section 4(2)(a) if, as a matter of law, an insurance stamp can properly be regarded as a "valuable security". 4. Before turning to the definition under the Ordinance as to what constitutes a "valuable security" I, for my part, as a matter of ordinary common parlance, find myself quite unable to accept or regard an unused or unstamped stamp as falling within the ordinary connotation or meaning of what I would have regarded as a "valuable security". For myself, I would have thought that in common parlance a "valuable security" is some instrument or document that provides evidence of a right, title or interest to property or goods, e.g. an title deed, a share certificate, or even a pawnbroker's ticket. 5. The question then arises whether a stamp can be brought within the definition of "valuable security" as defined in section 2 of the Ordinance. 6. Valuable security is there defined to include:-
7. The scheme of National Insurance in the United Kingdom provides for the payment of weekly contributions into a fund known as the National Insurance Fund at varying rates. Contributions are payable by affixing a stamp to an insurance card kept by, or on behalf of, an insured person in the space indicated for that purpose on the card. The cards are surrendered to the Ministry when making a claim for benefits. The stamps are adhesive stamps, purchased from the Post Office, and affixed by the contributor or his employer to the card specially provided for the purpose. Immediately after the stamp has been affixed it must be cancelled by writing in ink, or by stamping, the date upon which it is affixed. Thereafter the contributor is entitled, upon production and surrender of the stamped card, to certain benefits, subject to certain conditions. The face value of stamps not used or inadvertently spoiled may be recovered from the Ministry of Inland Revenue, but not as of right. 8. Mr. Sandor conceded, and in my view rightly conceded, that he could not successfully argue that an unused National Health Insurance Stamp was a "writing entitling or evidencing the title of any person to any share or interest in any public fund" and that such an argument could not arise unless and until the stamp has been affixed to the card and cancelled by writing in ink, or stamping, the date upon which it was affixed, so as to give the contributor a claim to benefits out of the fund. Again, as I understood his argument, he did not seek - and in my view rightly so - to place any weight upon any argument that such a stamp could be described as an "accountable receipt". For myself, I am unable to appreciate how a stamp such as this could be regarded as an "accountable receipt". He based the weight of his argument upon the contention that a stamp fell within the final limb of the definition as "an instrument evidencing the payment of money". Mr. Sandor contended that the words "instrument" or "document" were synonymous. He referred to the definition of "document" contained in the Interpretation Ordinance and to the two cases of The Queen v. Riley(1) and Rex. v. Cade(2). 9. In Riley's case the question turned upon whether a fraudulently ante-dated telegram sent to a bookmaker placing a bet on a horse - a telegram purporting to have been sent before the race was run - was a "forged instrument" within the meaning of section 38 of the Forgery Act 1861. A bench of five judges, albeit two of them expressing doubt, held that the telegram was an instrument within the meaning of the section. Hawkins J., in the course of his judgment said:
Wills J., in the course of his judgment, said:
Later on he said:
Later he said:
10. In Cade's case the question was whether a letter purporting to come from, and to be signed by, a man employed by the prosecutor to whom it was addressed, and requesting the payment of one pound, could be regarded as a "forged instrument" within the meaning of section 7 of the Forgery Act 1913, on a prosecution under that section for obtaining money by means of a forged instrument. That court, holding itself bound by Riley's case, held that the letter was a forged instrument within the meaning of section 7. In the course of his judgment in that case Lord Reading, L.C.J., delivering the judgment of the court, adopting the words of Wills J. in Riley's case, said:
11. To my mind both these cases, and the judgments in relation to the facts thereof, are readily distinguishable from the case before us. In both cases the accused was charged with obtaining, or attempting to obtain, money by means of a "forged instrument". In both cases the courts held that the documents themselves, upon the basis of which money was fraudulently obtained - or sought to be fraudulently obtained - were "instruments". They were documents which, as between the parties thereto, in the words of Wills J., "if accepted and acted upon, would establish a business relation and lead directly to business dealings between those persons". They were accordingly regarded as "instruments" within the meaning of, and for the purpose of, sections 38 and 7 of the respective Forgery Acts. It would seem manifest that the mischief intended to be avoided by that section was to prevent persons obtaining money by the fraudulent making or alteration of a writing to the prejudice of another man's right. In the context of a charge brought under those particular sections there would seem to be no reason or justification whatsoever to distinguish between a document and an instrument. The crucial question in each case was: was the document or instrument forged with the intention of obtaining money as a result of that forgery? In such circumstances it would seem to me - as, indeed, it seemed to appear to both the courts concerned - that it was an unnecessary refinement or, rather, an unnecessary quibble, to place too restricted a precise legal construction upon the meaning of the word "instrument"; it was sufficient if it was a written document - forged by the writer - which by its terms facilitated, and was made with the intention of facilitating, the obtaining of money as a result of that forged document. In my judgment the meaning placed upon the word "instrument" is to be construed in the light of the facts of each case in relation to the charges brought, and having regard to the mischief which the section was designedly intended to avert or defeat. 12. Reverting to the present case, for myself I am quite unable to appreciate how an unstamped National Health Insurance Stamp, unaffixed to any card, can be said to be an "instrument evidencing the payment of money". It is true that mere possession of the stamp shows that someone, at some time, must have paid the face value shown on the stamp for the right to possess it. But, by the same argument, could not a gaming disc issued by a gaming club in exchange for money, with the value of the disc and the name of the club upon it, be regarded as an "instrument evidencing the payment of money?" Because undoubtedly such a disc would come within the definition of "document" under the Interpretation Ordinance as meaning "any matter .............. expressed .............. upon any substance by means of letters, characters, figures or marks, or by more than one of these means." Indeed, under the definition of a document contained in the Shorter Oxford Dictionary, a coin can be described as a document. It is the argument of the Crown that "instrument" and "document", are synonymous within the meaning of the definition of "valuable security" contained in the Forgery Ordinance. For my part, I find myself quite unable to accept this argument. In my judgment the word "instrument" within the definition of "valuable security" means and includes some document of a formal nature which, on the face of it, evidences the right of a person to the payment of money or the delivery of a chattel. I come the more readily to this conclusion because it would seem manifest from a consideration of sections 4, 5 and 6 of the Forgery Ordinance itself that provision is made in those sections for a clear distinction in regard to the forgery of different types of documents, with varying degrees of seriousness and varying degrees of punishment provided. Finally, section 7 expressly, and in my view exclusively, provides for forgery of seals and dies; "seals" under the definition section of the Ordinance, includes "stamps" and the definition of stamps includes "a stamp impressed by means of a die as well as an adhesive stamp". 13. In my judgment the learned judge was perfectly correct in holding that, as a matter of law, there was no case for the respondents to meet upon the charges, the subject of this appeal, and I would accordingly dismiss this appeal. Representation: M. Sandor, C.C. for Appellant Sanguinetti (W.I. Cheung) for 1st & 2nd Respondents. 3rd Respondent in person. 4th Respondent absent. Separate Judgment delivered. (1) (1896) 1 Q.B.309 (2) (1914) 2 K.B.209. IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 639 OF 1968 -----------------
----------------- Coram: Hogan, C.J., Ribgy, S.P.J. and Mills-Owens, J. Date of Judgment: 20 March 1969 ----------------- JUDGMENT ----------------- 14. The main argument raised on this appeal from the District Court, by way of case stated, is that the alleged forged stamps are forgeries of a 'valuable security', whether within its ordinary meaning or within the extended definition provided by section 2 of the Forgery Ordinance. Included in the definition are (a) a 'writing entitling or evidencing the title of any person to any share or interest in any public ...... fund ....... of any part of Her Majesty's Dominions'; (b) 'a receipt or other instrument evidencing the payment of money'. In respect of some of the offences charged we are concerned only with that part of the definition which I have termed (a) above, as those charges are brought under section 11 of the Ordinance, which does not contain the words set out in (b) above. 15. It would be straining the language of the definition beyond proper limits to say that a British National Insurance stamp falls within (a), in my view, and, as I understood Mr. Sandor, Counsel for the appellant, he places little, if indeed any, reliance on (a). 16. For the respondents it is contended by Mr. Sanguinetti that the Forgery Ordinance does not extend to the counterfeiting or falsification of such things as stamps; they are not 'documents' for the purposes of the law of forgery; or, at least, so it is argued, if do fall within the Ordinance they fall exclusively within section 7(4)(a) under which, read with section 3(1), it is an offence to counterfeit 'any seal or die provided, made or used by or under the authority of the Government of any part of Her Majesty's Dominions ......'; 'seal' and 'die' being defined by section 2 to include any stamp or impression thereof. If this is correct the appeal must fail as the charges with which we are concerned were brought under sections 4(2)(a) and 11(d) and (e). (A charge which was brought under section 10(3) was dismissed and no appeal is brought in respect of its dismissal). 17. It is also contended on the part of the respondents that the court is precluded from making reference to the English national insurance legislation in order to ascertain the nature or characteristics of genuine insurance stamps, notwithstanding that by virtue of the Interpretation Ordinance (Cap.1 of the Laws of Hong Kong) English statutes are to be judicially noticed here. 18. Dealing first with the matter of reference to English law: in my opinion it is permissible, indeed essential, to do so. The definition of 'valuable security', in so far as it relates to public funds, expressly includes any such fund of the United Kingdom; section 11 contains a similar provision. But a question arises, in my view, whether other parts of the definition of 'valuable security' contained in section 2 extend to documents made, or intended to operate as valuable securities, out of the jurisdiction; that is to say other parts of the definition which do not expressly extend to 'foreign' documents. If this doubt is well-founded it means that the appellant cannot rely on that part of the definition of 'valuable security' which I have referred to as (b) above; that is to say the appellant cannot contend that such a stamp is 'a receipt of other instrument evidencing the payment of money', for the reason that it is a 'foreign' stamp. Section 30 of the Forgery Act 1830 (11 Geo. IV and 1 Wm. IV Cap.66) expressly extended the law of forgery to the forging of documents made out of the jurisdiction and to instruments payable out of the jurisdiction - see also section 40 of the Forgery Act of 1861, to the like effect. These provisions were not repeated in the Forgery Act 1913 upon which our Ordinance is very closely modelled, but our section 3(3)(a), as section 1(3)(a) of the English Act, provides that it is immaterial in what place within or without Her Majesty's Dominions a document is 'expressed' to take effect. However, the point has not been argued and I do not propose to pursue it. 19. On the hearing of the appeal we were referred to the English national insurance legislation but it was noted that the genuine stamps exhibited contain a small panel or inset comprising the letters 'S.E.T.', some of them also having '25/-' placed in a small panel adjoining those letters. Presumably, this means 'Selective Employment Tax 25/-' (see the Finance Act 1966), but there is no reference to this in the case stated nor was any reference made to the legislation relevant to Selective Employment Tax on the hearing of the appeal. In the view which I take of the matter, it is unnecessary for me to deal with this aspect of the case. 20. I turn to the contention that if the stamps fall within the Ordinance at all they fall exclusively within section 7(4)(a), in which case the appropriate charge would have been that of forging or counterfeiting the genuine dies by the use of which genuine stamps are produced, or the impressions or stamps of such dies. Section 7(4)(a) of the Ordinance is wider in its terms than the corresponding section 5(4)(a) of the English Act, which latter is confined to dies of the Inland Revenue and the Customs and Excise. (It is, possibly, for this reason that the making of fictitious postage stamps, in England, is dealt with by the Post Office Acts). It is a matter of construction of the Forgery Ordinance as a whole whether the insurance stamps fall within, and exclusively fall within, section 7(4)(a). No initial presumption arises that if an act or omission clearly falls within the ambit of one part of an enactment it is excluded from the ambit of another part. In the case of the Forgery Ordinance there is some basis for saying that the intention was to distinguish several forms or types of forgery and make provision for each severally. Thus, section 7 deals with seals and dies; other sections, e.g., deal, severally, with forged instruments of State, banknotes, valuable securities, registers, documents which are of a special kind etc. and with the making of false revenue and banknote paper, and so on. Clearly also, however, it is one of the objects of the Ordinance, as to the case of the Forgery Act 1913, to distinguish between the more heinous and the less heinous forms of forgery. It may well be that some documents could fall within more than one class, but counterfeiting of seals and dies and the impressions there of would appear to form a class of their own and a particular kind of 'forgery'; this, I think, receives emphasis by reason of the provision of section 3(1) that in the case of seals and dies forgery means the counterfeiting thereof. This aspect of the case has, however, not been fully argued; moreover, we have no evidence as to how genuine stamps are produced and how the alleged forged stamps were produced - by what means or process. I would not, therefore, wish to decide finally on this appeal whether section 7(4)(a) is appropriate, and, if so, exclusively applicable to the making of fictitious stamps such those with which we are now concerned. 21. Turning to the contention for the appellant that genuine national insurance stamps fall within the expression 'valuable security' either as ordinarily understood or within the meaning of the definition: 'other instrument evidencing the payment of money', the argument is that they do so because anyone who lawfully has in his possession a genuine stamp may apply it towards securing statutory benefits, and must have acquired it on payment of money therefor at a Post Office; it is therefore, so it is contended, a 'valuable security' in both senses. I am unable to accept these contentions. A 'valuable security' must, I think, be something more than a mere 'document' or 'writing', although a valuable security must be a 'writing' and, no doubt, 'document' includes a valuable security for the purposes of the definition of forgery contained in section 3. As it appears to me, it would be artificial to hold that 'valuable security' includes such an article as an insurance stamp, or for that matter, a postage or other revenue stamp, whether the expression 'valuable security' is considered in its ordinary meaning or by reference to the definition contained in section 2. An insurance stamp, in my view, is a combination of a money token and accounting device; it represents, and is intended to represent, money - easily transportable and accountable money. The purpose of such stamps is to assist in the checking of the discharge by employers (or self-employed persons) of their obligations under the legislation and the assessment of the entitlement of persons to benefit thereunder (subject to certain other legislative conditions, such as residence, entitling them to benefit). In itself such a stamp provides no security for the payment of the amount indicated thereon, or any quantifiable portion of it. The fact that in some circumstances the Ministry may recoup the holder of an unused stamp makes no difference to its primary nature or characteristics, as it seems to me. The very word 'instrument' appears foreign to such a stamp. The object of the definition of 'valuable security' is to extend its ordinary significance, and in this respect, I think, it is evident that the Legislature had in mind the cases decided prior to the Act of 1913. Thus, to 'receipt' has been added 'or other instrument evidencing the payment of money', so as to extend the forgery law to writings which are not receipts per se but on the face of which some payment of money is acknowledged or otherwise made evident, so that, by forgery of any such writing, money may fraudulently be obtained. 'Valuable security' in its ordinary significance must be taken to mean an instrument by or under which a fixed or ascertainable sum of money is secured; an instrument which can be enforced or form the basis of proceedings for the recovery of a fixed or ascertainable sum of money, according to its terms; an instrument which is such by its very terms. Ordinarily it would not include a simple receipt, but by the legislation a receipt becomes a valuable security. The extended definition, to include instruments evidencing the payment of money, was necessary e.g. to cover the common case where a person forges something like a receipt or some form of acknowledgment or record of payment in order to obtain, by its production, money properly due to someone else. An insurance stamp in itself secures nothing, whether per se or by reference to the legislation. There is no legal right to recoupment of an unused stamp. Possession of an insurance stamp in itself gives no legal title to recovery of the amount, or part, thereof. Under the legislation, a number of conditions have to be satisfied and what is 'insured' is not payment of the face value of the stamps but 'benefits' according to the scheme of the legislation. Certain questions as to entitlement to benefit are to be decided by the Minister (27 Halsbury's Laws, para. 1364). I appreciate that in the case of some valuable securities it is necessary to resort to material other than that appearing on the face of the instrument in order to establish the right or title which it secures, as, for example, in the case of a share certificate where reference to the company's accounts, or the minutes of its resolutions, or its memorandum or articles of association may become necessary in order to ascertain, for example, whether a dividend is due or whether the company is in liquidation. Nevertheless, in substance the right or title secured in such a case derives from the face of the instrument; that, indeed, is its prupose. Without attempting an all-embracing definition, it may be said that a valuable security is such by reason of, and according to, its tenor - accepting that it may be necessary to resort to collateral material in some instances. In the case of an insurance stamp, on the contrary, one cannot speak of enforcing it, or of establishing a right or title, according to its terms; it does not purport to confer any right or title, and even by reference to the relevant legislation a stamp in itself does not necessarily secure statutory benefit. Thus, in my opinion, although such stamps are not to be considered in isolation, as it were, but to be viewed in the light of the legislation concerning them, they are not 'valuable securities'. Further, I would take the view that it is not permissible to consider the extendod definition otherwise than in the context of the law of forgery. The criminal law requires the maximum degree of definition (per Lord Tucker in Board of Trade v. Owen(1)); in my view it would be straining the language of the Ordinance to say that such stamps are valuable securities. 22. For the foregoing reasons I would disallow the appeal.
(1) (1957) 1 All E.R. 411 at 421. IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 639 OF 1968 -----------------
----------------- Coram: Hon. C.J., Rigby S.P.J., & Mills-Owens, J. Date of Judgment: 20 March 1969 ----------------- JUDGMENT ----------------- Hogan, C.J.: 23. This is an appeal by way of case stated from a District Court Judge's decision that the respondents had no case to answer on charges of forging of valuable securities contrary to s.4(2)(a) of the Forgery Ordinance (Cap. 209), possession of forged documents contrary to s.10(3), and of implements of forgery contrary to s.11(d) and s.11(e). The articles alleged to have been forged purported to be British National Insurance Stamps issued under statutory provisions in the United Kingdom and having on the face of them the words and figures:-
24. The 1st question put to us on the case stated is whether these stamps are valuable securities, an expression which has an extended meaning in the Forgery Ordinance by virtue of the following part of Section 2:-
25. The details of the scheme under which these stamps are issued appear in the District Judge's findings of fact as follows:-
26. If the matter were to be determined simply by the application of common sense or common knowledge, without reference to decided cases or other statutory provisions the appellant would appear to have reasonable prospects of success. If a thing is capable of ownership and contains writing, the contents of which will, at the appropriate time and place, enable the owner to obtain in exchange for it money or money's worth it would seem to fit the ordinary concept of a "valuable security". The stamps in the present case would appear to be such a thing, particularly when, like a tax certificate, they can be used to fulfill a statutory obligation to pay money. 27. Counsel for the Crown, contended that the legislation should be so interpreted and that there is no case which shows that this construction is wrong. Counsel for the respondents, on the other hand, contended that there is no case which shows that it is right; and he has directed our attention to a number of textbooks, including Halsbury's Laws of England (2nd Ed. Vol.10), Russell on Crime and the English Empire Digest (Vol.15), none of which treat stamps such as these as falling within the expression "valuable security". Moreover, he says, there are special provisions in the English Legislation, from part of which the Forgery Ordinance is taken, making specific provision for forgery of, for example, post office money orders. 28. It is a safe presumption, he said, that the Legislature does nothing in vain and these special provisions would not have been introduced in the U.K. if the matter could have been covered by general provisions of the kind relied on by the Crown in the present case, which, apart from a slight addition to the definition of "valuable security" in 1913, have been in existence for many years in England both in the Forgery Act of 1861 and the Larceny Acts. 29. He referred us to the decision in R. v. Ansell(1) for his contention that the law of forgery has many technicalities and that one must be careful of looking merely to common sense or simple logic. The history of the law emphasized the need for caution, he said, and there was a grave danger that if the present appeal was allowed the whole structure of the law of forgery, as hitherto understood, would be undermined. 30. In R. v. Ansell(1), Byles J. queried whether a post office order which required the payee to sign "the receipt on the other side" was properly described as a receipt. "Is it not in truth", he said, "an order for the payment of money" but as it had hitherto been taken as a receipt, he decided to treat it as such, whilst reserving the point for the Court of Criminal Appeal. No trace can be found of any resulting decision by the Court of Criminal Appeal but, counsel said, it was questions of this kind which illustrated and emphasized the need for the special legislation introduced in England to deal specifically with currency and banknotes, post office money orders, etc. - a point subsequently taken up by counsel for the Crown, who suggested that the special provision now contained in section 23 of the English Post Office Act, 1953, dealing with money orders, might well have had its origin in the doubt expressed in this particular case. 31. Counsel for the respondents went on to say that only if the Crown was able to put the stamps into one or other of the following three categories, mentioned in the definition of "valuable security" in the Forgery Ordinance, could they succeed on this appeal:-
32. The first category was negatived, he said, because the stamp in itself provided no title for anybody to anything. Many conditions had to be satisfied by a claimant before he could obtain National Insurance benefits; e.g. affixing the stamp to a card, residence in the U.K. etc.; whilst a refund was payable not to the employee but to the employer and was subject to the discretion of the Revenue. He reinforced this argument by reference to the case of R. v. Tatlock(2), where Cockburn, C.J., when negativing the proposition that a policy of insurance was a "valuable security", said: "A valuable security is one on which money is payable irrespective of any contingency". 33. At this stage in his argument counsel was, I think, disposed to say that one could, in dealing with this issue, look at the U.K. legislation providing for the issue of National Insurance stamps. But he later resiled from this approach and his argument about a contingency should, I think, be treated as subject to a primary contention that the stamps in question must be read apart from the National Insurance legislation; nothing can be read into a stamp beyond that which is conveyed by the words and figures appearing on it; one cannot go outside the instrument itself, and whatever is required must be found on the face of it. 34. As for the second category of accountable receipts, he said that these insurance stamps are neither receipts nor accountable. In this connection he adopted the argument of the judge in the court below that such a stamp is no more of a receipt than is a railway ticket which, in R. v. Gooden(3), was held by Cleasby B. not to be an acquittance or receipt under the Forgery Act, 1861. 35. He also relied on the case of R. v. Harvey.(4), which is mentioned in Roscoe's Criminal Evidence, 16th Edition, p.610, as showing that a document bearing a proper stamp and uttered as a genuine receipt which said that X paid to Y a sum of money but was unsigned by Y did not import an acknowledgment. 36. As for the third category, a receipt or other instrument evidencing the payment of money, counsel said that this category would fall only just short of a receipt, and a national insurance stamp was certainly not within it and had never been so held. 37. The Judge in the court below seems to have based his decision primarily on the analogy between a railway ticket and the stamps in question. He said, after referring to Gooden's case:-
Counsel for the Crown, in attacking this conclusion, stressed that reliance on this case and others mentioned by the Judge and counsel for the respondents was unjustified because the decisions preceded the amendment of the law in 1913, introducing the third category mentioned above, i.e. instruments evidencing the payment of money, which had not hitherto been held to amount to receipts. 38. Moreover, he said the stamps must be seen in the context of the legislation providing for their sale etc. of which, he said, judicial notice must be taken by the Hong Kong courts under section 75 of the Interpretation Ordinance, a view which would appear to have commended itself to the Judge in the court below who, in the case stated, has set out the relevant English legislation and, in effect, has rested his decision on it. 39. Although, before us, counsel for the respondents was ultimately disposed to question this approach, he had not previously queried the case stated or attempted to secure the inclusion of any such issue. No such issue having been raised on the case stated, this appeal should be decided on the basis that the Judge was right to take account of the relevant English legislation. 40. Having suggested at the outset of this appeal that the case could be decided simply by common sense and the application of ordinary logic, counsel for the Crown turned to his contention that the stamps fell within the extended definition of "valuable security" provided by section 2 of the Forgery Ordinance. 41. He sought at the outset to remove any difficulties arising from the use of the expressions "writing", "document" and "instrument" by suggesting that these were, in the context of this legislation, virtually synonymous terms. In R. v. Closs(5), Cockburn C.J., delivering the judgment of five judges, said: "A forgery must be of some document or writing". In R. v. Smith(6) Pollock C.B., in dealing with the question of forgery, used the terms "document" and "instrument" as if they were interchangeable, whilst in R. v. Riley(7), where a forged telegram was treated as a forged instrument for the purposes of the Forgery Act 1861, Wills J. (at p. 321) referred to older authorities, including Blackstone and East, for the conclusion that in this context "instruments" and "writings" could be treated as synonymous. His view was summed up in the following paragraph:-
In another passage in the same judgment, which is quoted by Professor Glanville Williams in his article on documents in the Modern Law Review(8) to which the judgment in the court below referred, instrument in this context was stated to include "any writing which, if accepted and acted upon, would establish a business relation and lead directly to business dealings with another person". 42. It seems to me that counsel for the Crown was justified, by these authorities, in his contention that no particular significance attached to the use of the word "instrument" in the definition, and that any writing which evidenced the payment of money would be covered by it. 43. Counsel also directed our attention to the case of R. v. West(9) where the judges in 1847 considered the question whether certain forged documents were acquittances and receipts within the meaning of earlier statutes and, in holding that they were not, drew a distinction between such an instrument and one which "might be used as evidence of the payment". They went on to say that "any written paper capable of being so used was not a receipt, as, for instance, a letter written by a landlord to a third person, saying that his tenant had duly paid his rent". This distinction is further emphasized in the commentary to this case appearing in the English Reports. If such a distinction is to be drawn, then counsel maintained, these insurance stamps would be evidence of receipt of money by the Post Office in England under the relevant legislation, because they show the money which has been paid for them and were created for that purpose and are treated as such. In contrast to the decision in Gooden's(3) case, he directed attention to the decision in R. v. Fitch and Howley(10), a case of greater authority as it was decided not at first instance but by the Court for Crown Cases Reserved, where a turnpike toll ticket was held to be a receipt for money, as was a pawn ticket in the case of R. v. Fitchie(11). 44. These cases would seem to afford strong grounds for discounting the relevance of Gooden's(3) case and to suggest that the stamps in the present instance, when considered in conjunction with the legislation creating them, are evidence of the receipt of money. 45. Moreover, there are two cases mentioned in Stroud's Judicial Dictionary R. v. Boulton(12) and R. v. Beecham(13) as authority for the contention that a railway ticket, whether or not it is a receipt, is nevertheless, a "valuable security". At first sight I had some doubt as to whether these cases quite justify this interpretation of them, but on reflection I think they do. 46. Counsel for the Crown put the main weight of this part of his argument on the contention that the stamps are receipts etc. and only put forward somewhat tentatively the further suggestion that they show a title or interest in a public fund. 47. In this connection, however, it is material to mention that section 3(3)(b) of the Forgery Ordinance says:-
48. In approaching this matter, I think we must bear in mind the observations of the judges in R. v. Smith(6) where, when dealing with a theft of certificates of a foreign railway company, they laid stress on the mischief the legislation in question was intended to provide against; a consideration also well to the fore in the judgment of Wills J. in Riley's(7) case. 49. Successful use of a forgery such as this could strike directly at the financial solvency of the National Health Insurance Scheme. The aim of the scheme is to get money into a central fund and at a later stage to pay it out to those in respect of whom contributions have been made. Money flows in through the sale of stamps and there can be few more simple instances of writing evidencing the payment of money than a national insurance stamp which, on the face of it, shows the price which has been paid for it. 50. In the same way, a tax certificate shows the price that has been paid for it and it is evidence of that payment which will be accepted by Government in discharge of an obligation to pay taxes. To that extent, it is similar to a national insurance stamp but, unlike the national insurance stamp it does not fulfill the definition twice over by providing, as the stamp does, a link in the title to financial benefits from the central fund. 51. The tax payer gets benefits as a citizen of the territory but his title to these benefits is not normally dependent on the possession and production of appropriate certificates. He merely discharges an obligations by presenting his certificate, his rights as a citizen are usually dependent on something else and independent of the tax payment, but the beneficiary of the fund depends on being able to produce stamps and cards at the appropriate time just as the holder of shares may be required to produce his share certificate as evidence of his title to receive dividends or distribution of capital etc. 52. One might perhaps be misled by the fact that this article is called a "stamp": a name which does not readily conjure up the idea of a valuable security. Moreover, it is small, has gum on the back and bears comparatively few words or figures. All these tell against immediate acceptance of the article as a valuable security but they are all mere incidentals that do not affect the cardinal test, which is the function of the article. What does it do? 53. It is, in the first place, the instrument whereby money is obtained from the public and members of the public can show that money has been paid. In the ordinary course of business, a national insurance stamp does not get into the hands of the public unless money has been paid for it and the presence of the stamp in the hands of the public is an indication that money has been paid into the national fund. It is evidence of that payment; evidence of the discharge of a financial obligation and accepted as such. This brings it within the first limb of the extended definition of valuable security. 54. True, it is not evidence until it gets into the hands of the public in the ordinary way but then no receipt is evidence of payment until it is delivered as such. Prior to delivery and whilst still in the hands of the person who signs it and who signs in anticipation of payment it is not a receipt. It does not become so until it is handed over or delivered as a receipt. Similarly, the stamps would presumably become evidence of payment when they come into the hands of the public in the ordinary way. 55. But not only are they valuable securities because they are evidence of the payment of money, which is perhaps their primary function, they are also valuable securities because they form an essential link in the title to receive financial benefits from the fund. They are part of a chain which draws money out of the fund when the prescribed conditions are satisfied. The fact that these rights are not spelt out on the face of the stamp is immaterial. The document or instrument, call it what you will, has to be read in its own context. Its purpose and effect must be gathered not only from what is apparent on the face of the stamp but from the rules, regulations etc. under which it is issued and the context in which it is produced. Once it is accepted that regard has also to be had to these it is immaterial how much or how little appears on the face of the stamp and how much appears in the statute or regulations which spell out the rights etc. to which the stamp will give access. In all this, it resembles very closely a share certificate which would seem a very obvious type of valuable security. A share certificate doesn't spell out the financial benefits which will come to the holder of it. The certificate must in the first place be read in the light of the legislation under which it is issued and the other documents affecting it such as the Memorandum and Articles of Association of the Company, but even these do not give the right to dividends, refund of capital, bonus shares etc. which make this type of instrument a valuable security in the eyes of the majority of people. All these are dependent on on other contingencies, the success of the company and the decision to pay out money in this way but an essential link in the right to get this money is the ownership of the share certificate. In the same way, under the National Insurance Scheme, an essential element in the creation of a right to benefit under it is the ownership and presentation of a properly stamped card. The stamp forms an essential link in the chain which draws out these benefits. 56. Whilst the observations of Pollock, C.J. in Tatlock's(2) case may have been appropriate to the facts of the case in the context of which they were used they cannot, I think, be taken as having a universal validity. It would be going altogether too far to say that the presence of a contingency prevents any document from being a valuable security. A statement so sweeping would appear to exclude, for example, bonds which are to be drawn for redemption, if not indeed share certificates, in respect of which the payment of dividends or the return of capital etc. must depend on a number of contingencies. Something which at the appropriate time and place will or may, because of what is written on it, produce financial benefits would appear to possess the essential characteristics of a valuable security. 57. Consequently it seems to me that the forgery of stamps such as these is a forgery of a valuable security in the sense in which that term is used in the Forgery Ordinance because they will, by means of the writing and figures appearing on them, entitle an individual, when they are presented for payment in the appropriate circumstances, to the receipt of financial benefits. I think they fall within the ordinary meaning of "valuable security", as used in this legislation without regard to any special definition; but, if wrong in that construction, so that it becomes necessary to look at the extended definition, I am satisfied that a genuine stamp of this kind would be evidence of the receipt of money by the post office in the same way that a turnpike toll ticket or the pawnbroker's receipt could be regarded as evidence of the receipt of money, and that they are also evidence of title to a share or interest in a public fund, not necessarily as yet complete but sufficient to bring the stamp within the purview of section 3(3)(b). 58. The argument that because forging a stamp could be charged as an offence under Section 7(4) it cannot therefore be an offence of forging a valuable security under section 4(2) turns on two factors; first, whether it is an offence under section 7(4) and, secondly, whether that would prevent it from being an offence under another section. 59. Whether it is an offence under section 7(4) appears to depend on whether these stamps are to be regarded as "stamps or impressions of a seal or dye". They may be but I don't think it is necessary to decide this question because the second part of the argument seems to me untenable. The Stamp Ordinance is not constructed on the basis of a series of exclusive categories; so that what falls into the category prescribed and protected by one section cannot fall into the category prescribed and protected by another. Far from it. It is apparent that in the earlier sections there is a great deal of overlapping so that the same act may be an offence under two or more sections e.g. forgery of a banknote may be an offence under section 4(1)(a) which carries a penalty of life imprisonment or may be forgery of a valuable security under section 4(2) which carries a penalty of 14 years. There are some sections in the Ordinance which adopt the exclusive basis e.g. section 6 which prescribes punishments for certain types of forgeries which have not been covered by other sections. Clearly if so covered section 6 would not catch the operation again but sections 4 and 7 are framed in an entirely different manner and do not bear this relationship. 60. As for the question why the same action should be an offence under section 7(4) which carries a maximum penalty of 7 years and also an offence under section 4(2) which carries a maximum penalty of 14 years, the answer could be simply that forging every kind of stamp would not necessarily be as serious as forging the type of stamp which creates a valuable security or a banknote for that matter. 61. Turning to the second question put to us, whether there was ...(illegible) of an offence against S.11, where the writing in question must entitle or be evidence of title to a fund etc. in part of Her Majesty's dominion etc.; for the reasons already indicated, I would answer that also in the affirmative. 62. I would allow the appeal. Representation: M. R. Sandor, Crown Counsel, for the Appellant. A. J. J. Sanguinetti (W. I. Cheung & Co.) for 1st & 2nd Respondents. ...(illegible) Respondent in person 4th Respondent absent. (1) 8 Cox C.C. p. 409 (2) Vol. 2 Q.B.D., pp. 157, 163. (3) 11 Cox C.C., p. 672. (4) (1812) R. & R. 227. (5) 7 Cox C.C., p.494. (6) Vol. 169, E.R. p.1122. (7) (1896) 1 Q.B. p. 321. (8) Vol. 11 Modern Law Rev., p.150. (9) 169 E.R. p. 236. (10) 169 E.R. p. 1344. (11) 169 E.R. p. 965. (12) 19 L.J.M.C. 67. (13) 5 Cox C.C. 181. |