HKSAR v. Chan Wai Tat

HCMA314/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 314 OF 2008

(ON APPEAL FROM KTCC 3677 OF 2007)

_______________

BETWEEN

_______________

Date of Hearing:  24 July 2008

Date of Judgment:  24 July 2008

_______________

J U D G M E N T

_______________

1.This is an appeal against a conviction for using false instruments, contrary to section 73 of the Crimes Ordinance.

2.In 2003, the Appellant contested the District Council elections.  He was obliged by section 37 of the Elections (Corrupt and Illegal Conduct) Ordinance to submit an election return to the Chief Electoral Officer setting out various details, including any item of expenditure exceeding HK$100, which had to be supported by invoices and receipts, in order to ensure that no candidate spent more than the limit of HK$40,000.

3.The ICAC investigated the Appellant’s return and found that three receipts had been submitted to the Electoral Officer purportedly issued by Promise Networking Limited for printed election material, but that these receipts did not correspond with the records kept by that printing company.  They found 45 blank pages of the printing company’s letterhead at the home of the Appellant and two computers containing soft copies of the three receipts, less the letterhead, there.

4.The Appellant gave evidence.  He admitted that he created the three receipts himself using headed paper from the printing company and his own computer.  He explained this conduct by relating that he had ordered the printing of election material not just for himself but also for some fellow candidates of the same party; that the invoices and receipts from the printing company thus dealt not just with his printing expenses but theirs as well; that he therefore returned to the printing company after the election and asked the saleslady there, who had usually dealt with him, to split the receipts, providing him with documents that attributed the printing expenses to the individual candidates who had incurred them; that her response was to say that she was too busy; that he therefore requested that she give him some company paper, and she so obliged him; and that he then used this paper to create the three questioned receipts, accurately and honestly reflecting his true expenses.

5.The prosecution was launched on the basis that the Appellant had not been given the blank letterhead paper, based on a statement made by PW2 to that effect.  At trial, PW2 said she had lied about this out of fear that the truth to the contrary would get her into trouble.  She was turned hostile by the prosecution.

6.It is conceded in argument before me today that the three receipts were false and that the Appellant used the receipts.  Those concessions were rightly made on the evidence.

7.What is in issue is whether or not the Appellant had the necessary guilty mind.  It is said that his state of mind was that he believed, either rightly or wrongly, that he had the authority of the printers, through the agency of the saleslady, to create the receipts; and that accordingly, he did not know or believe the three receipts to be false.

8.It was common ground that the prosecution had to negative such a state of mind and prove knowledge or belief beyond a reasonable doubt.

9.The Appellant gave evidence, the transcript of which runs for 34 closely-typed pages.  What singularly stands out about it is what is not there.  There is no claim that he believed that he had the authority which his lawyers claim for him.  The nearest question I can find as to his state of mind came in re-examination.  It is page 115 of the transcript, where his counsel asked this question:  “At that time, did you consider what you were doing, it was generally dishonest?”  Answer:  “No.”  “Why do you say that?”  “As I wanted to express the quantities and the amount which I have spent on the publications, and in a clear way, not to have several items in one document.”

10.When it came to dealing with what had passed between him and PW2 at the time that he took the blank paper, he was asked if he agreed with her evidence.  He said that he did, and that he could really recall nothing more, save that he had said words to the effect, “Why not give me the paper and I’ll type it out in the same format, and so I’ll fix it for you.”  PW2 had said this - this is page 34 of the transcript:  “We were very busy.  It was also around the time of the District Council election, and he said he needed to split the documents in accordance with the District Councillors’ names.  But because at that time I was too busy and did not have the time to reissue all the documents, I just gave him the company paper on his request.”  She later amplified this by adding, and this is at page 69 of the transcript, that she did not look into which document he needed to split; that she only knew he had a pile of documents without any name; that she did not know whether payment had been made or not; and that she just knew he was, to quote her, “unable to reimburse”, believing he was undertaking an administrative exercise to claim money for himself for his expenses.

11.The Appellant is clearly an educated man with the qualities that allow him to run an advertising agency and stand for public office.  The idea that he simply forgot to tell the Magistrate what his state of mind truly was is not to be believed.  He was a man of hitherto good character, and I judge he shied away from telling what would have been a lie.  If he had told the lie, it would have brought into sharp focus the true issue in the case.  Someone would have asked him why it was he thought the saleslady could authorise him to act in the way he did to create false documents.

12.Even without the clear focus, questions in cross-examination revealed what trouble he would have been in in answering such a question, because he had to concede that the date on the three receipts had been picked at random and bore no relation to when the printing, the subject of the receipt, was done; and that he chose invoice numbers at random; and that the identity of the salesperson named on the document may have been wrong.

13.A claim to a genuine, if mistaken, belief in the Appellant that he was legitimately authorised to do that I regard as being wholly untenable.  Even if the Appellant had made the claim in his evidence, or even if it is right to imply it or infer it from the facts of what actually occurred, the claim to a belief that this limited company authorised him to create such a document through the agency of a saleslady based on such limited discussion between them is one I regard as being wholly unrealistic.

14.Her position was too junior.  The conversation and conduct described could not begin to bear the weight of proper authority being granted.  Just what was going to go into the document allegedly authorised was never clear, and the kind of document that the Appellant in fact created in the claimed belief of authority was one which he must have appreciated would be entirely at odds with the records kept by the printing company both as to date and invoice number.  In fact, cross-examination revealed that the quantities were not entirely accurate either, as instances of an item being left out and of a misstated number of copies were shown to exist.

15.Also, it was clearly the case that PW2 was not made aware of the true use that the Appellant intended to make of these receipts.  She would not have known, as the evidence revealed, that the Appellant had kept no contemporaneous record of the expenses incurred by him and his fellow candidates, that there were six to eight of them, and that they informed him verbally of their expenses, and that orders made of the printing company did not always identify to which candidate they related.

16.It is also the fact that the Appellant’s credibility was in ruins.  I can judge this from the transcript, without having seen or heard him.  He clearly did his best on his computer to create a document designed to look as though it was generated by the printing company when in fact it came from him.  Why did he do this?  At one stage, he said it was to save the printing company the trouble of identifying his material and expenses.  At another, he said it was to save the Electoral Return Officer trouble by providing him with less paperwork.  Then he claimed that it saved him from the troublesome task of filling in the electoral return form himself when there was nothing on the true receipt to identify his and not another’s expense.

17.He was asked why he did not submit the true receipts with an explanation identifying his expenses, which would have given a true picture and avoided the creation of false documents.  His answer was this:  “At that time I did not know.  It was the first time I took part in the election.  I had no experience of handling such documents.”

18.The Appellant’s explanations for creating the false receipts were palpably unbelievable.  The true reason is all too apparent.  He clearly wanted to avoid having the Electoral Return Officer see the true position, which was that the supporting paperwork was inadequate for its required purpose.  Instead of telling the truth, he turned to deception.

19.It is, of course, apparent that the Appellant had the specific intention of inducing the Electoral Officer to accept the receipts as being genuine, and by reason of so accepting them, doing an act to his prejudice.  The Electoral Officer was clearly acting under a duty and was or would have been prejudiced in its performance by acceptance of the false receipts.  The true position would have prompted inquiry.  The false position was designed to prevent it.

20.I have no doubt that the evidence amply demonstrates beyond a reasonable doubt that this Appellant had the necessary guilty mind.

21.The Magistrate was of the same view.  He disbelieved the Appellant.  He also disbelieved some of what PW2 had said.  The Appellant sought to take issue with those findings, especially in relation to PW2.  I have not heard argument upon that, as it has not been necessary for the disposal of this appeal.

22.The appeal calls for dismissal on the basis of accepting, as I have, for the purposes of argument, the evidence of PW2 in its entirety.  There was no merit in the defence at trial, and there is no merit in the appeal, which is therefore dismissed.

Representations:

Mr Gavin Shiu, Senior Assistant Director of Public Prosecutions, of the Department of Justice, for the Respondent

Mr Martin Lee, SC, leading Mr Earl Deng, instructed by Ho, Tse, Wai & Partners, for the Appellant