Wong Wing Koon v. The Queen
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IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 649 OF 1969 -----------------
----------------- Coram: Blair-Kerr & Huggins, JJ. (Full Court) Date of Judgment: 10 January 1970 ----------------- JUDGMENT ----------------- Blair-Kerr, J. : 1. The appellant and one Yeung Wing-ping (hereinafter referred to as "the second accused") were charged before the District Judge with the following offences:-
2. The Crown was unable to call Lam Mui-tuen. An inspector of the Anti-Corruption Branch of the Royal Hongkong Police Force testified that he took a statement from this man on 21st January 1969; that Lam had been released on police bail on condition that he should return to the Anti-Corruption Branch on 25th January bringing with him his passport, identity card and birth certificate; that he failed to keep this appointment and had never been seen since. 3. In June/July 1967, there were serious riots in Hongkong; and the case for the Crown was briefly that Lam Mui-tuen, who was not a British subject, wished to obtain a British Hongkong passport (presumably to enable him to travel, or emigrate, abroad should the necessity arise); that he contacted a friend named Chan Hung-kei who, in turn, contacted a solicitor's clerk named Fong Yee-kuen; that Fong obtained application forms from the Immigration Department and spoke to the appellant on a number of occasions; that Fong asked a friend named Chan Seak-wing (who was a clerk on the staff of the Registrar General's Department) to obtain a copy of a birth certificate in respect of any male person surnamed Lam aged about 32 years; that Chan Seak-wing gave Fong a birth certificate in respect of a person named Lam Sam-tai, born on 26th July 1935; that Fong arranged for the application forms and the birth certificate to be passed on to Lam Mui-tuen for completion in the name of Lam Sam-tai; that Lam Mui-tuen filled up the application forms not in his own name but in the name of Lam Sam-tai; that the application forms and the birth certificate together with three photographs of Lam Mui-tuen were then transmitted by Chan Hung-Kei to Fong, who subsequently handed all these documents to the appellant at the home of the appellant; that Fong later obtained Lam Mui-tuen's identify card and handed this document to the appellant; that the appellant handed all these documents to the second accused (who was then the Immigration Inspector in charge of the North Point Sub-office of the Immigration Department); that the second accused forwarded the application forms and the birth certificate to Immigration Department Headquarters where, after some further checking had been carried out, a passport was prepared in the name of Lam Sam-tai and subsequently handed to Lam Mui-tuen by the second accused in the presence of the appellant and Fong. As regards the third charge, the Crown case was that the appellant was an accessory to the forgery in that he aided, abetted and counselled the completion of the application by Lam Mui-tuen. 4. Chan Hung-kei and Fong Yee-kuen both gave evidence in support of the Crown's allegations. Fong said that he had discussed the matter with the appellant on five occasions; that he had three telephone conversations with him; and that it was the appellant's suggestion that a birth certificate should be obtained from the Registrar General's Department. He further said that the appellant had informed him that the application would be submitted to the North Point Sub-office; that the appellant demanded an initial payment of $1,000 and said that a further $2,500 would have to be paid after the issue of the passport. 5. Fong said that he told Chan Hung-kei that the applicant would have to pay $10,000 and that there would have to be an initial payment of $5,000. Chan said that he passed this information on to Lam Mui-tuen; that Lam gave him $5,000; that he (Chan) kept part of this sum and passed on $4,000 to Fong. Fong said he actually received the initial payment of $4,000 from Chan Hung-kei; that he paid the Registrar General's clerk $1,500 for obtaining the birth certificate; and that he gave the appellant $1,000 on the occasion when he handed the latter the application forms, the birth certificate and the three photographs at the appellant's home. 6. Chan also said that he saw Lam Mui-tuen complete the application forms in the name "Lam Sam-tai" and that he saw Lam Mui-tuen sign the forms "Lam Sam-tai". He also said that, as a result of a telephone call from Fong, he asked Lam Mui-tuen to produce his identity card; that Lam did so; that he (Chan) noted that the identity card was in the name Lam Mui-tuen, and that the nationality claimed on the face of the card was "Chinese"; that this card was forwarded to Fong; that he later received an identity card back from Fong; and that he knew it was Lam Mui-tuen's card because Lam's photograph and the name "Lam Mui-tuen" were on the card. 7. Fong confirmed that he received an identity card from Chan bearing the name "Lam Mui-tuen"; that he handed this card to the appellant and that, when he did so, he told the appellant that it was Lam Mui-tuen's card; that he later received back this identity card from the appellant and that he gave it back to Chan Hung-kei. 8. Fong said that some time later he received from Chan Hung-kei a further $4,000; that two or three days later he, Chan Hung-kei and Lam Mui-tuen went to the North Point Sub-office of the Immigration Department where Lam Mui-tuen received a passport; and that, after leaving the Sub-office, he paid the appellant $2,500 in the street. 9. The prosecution produced, from Immigration Department records, the application in the name "Lam Sam-tai" (Ex. P.2). The date of the applicant's birth is stated on Ex. P.2 to be 26th July 1935. Endorsed on page 2 of Ex. P.2, in the handwriting of the second accused, there appears the following words and figures:-
10. The prosecution also obtained a copy of an entry in the Register of Births in respect of a person named Lam Sam-tai (Ex. P.11). The number on this certificate is "2008 B and D"; and the clerk (Chan) from the Registrar General's Department confirmed that he gave Fong a copy of this birth certificate in 1967. The date of Lam Sam-tai's birth is given in Ex. 11 as 26th July 1935. 11. The prosecution also produced from records kept by the Commissioner of Registration an application for registration under the Registration of Persons Ordinance 1960 dated 13th January 1962 by a person giving the name Lam Mui-tuen (Ex. 9). From the particulars given on this application it appears that the applicant did not possess a Hong Kong identity card prior to the date of application; that in response to a request to give all other aliases the applicant gave two names viz. "Lam Mui-ha" and "Lam Mui-yuen"; that he gave his place of birth as "Fukien, Nam On"; that in answer to the question: "Have you a birth certificate" the applicant said "nil"; that he did not know the date of his birth but claimed Chinese nationality and stated that he had arrived in Hong Kong "from Nam On, Fukien, via Macau" on 9-11-1961. On the form there also appears an entry reading: "H.K.E.P. No. 105816 issued by I.O.H.K." The applicant gave his residential address as 91 Kow Pui Lung Road, 3rd floor. Under the heading "For Office Use Only" there appears this entry: "New Identity card number XXXXXXX". 12. The prosecution also produced from Immigration Department records an application for a certificate of identity signed by a person named Lam Mui-tuen who gave his Hong Kong address as 91 Hau Pui Loong Road, 3rd floor, Kowloon (Ex. P3). It is dated 16th February 1967; and, from the particulars given, it appears that the applicant required a certificate of identity for the purpose of visiting Indonesia. The particulars further indicate that in February 1967 the applicant claimed to have been born in Amoy, China; that he had resided in Hong Kong for 5 years, and that his Hong Kong identity card, which was issued on 13-4-1962, bore the number XXXXXXX. 13. The prosecution also produced from Immigration Department records an application for a re-entry permit dated 20th December 1968 by a person named Lam Mui-tuen whose address is given as 91 Hau Pui Loong Road, 3rd floor, Kowloon (Ex. P.5). This document indicates that the applicant's Hong Kong identity card was issued on 13-4-1962 and that it bore the number XXXXXXX. 14. Finally, the prosecution produced a memo dated 28th July 1969 from the Commissioner of Registration to the Commissioner of Police which reads:-
15. Attached to each of the four documents (Exs. P.3, P.5 and P.10) there was a photograph. The witnesses Fong and Chan Hung-kei identified each of these photographs and the photograph attached to Ex. P.2 as being that of Lam Mui-tuen, the person with whom they had dealings in relation to this passport application. 16. At the close of the case for the prosecution the District Judge ruled that the appellant had no case to answer as regards the third charge and that the second accused had no case to answer as regards the first and second charges. 17. The appellant gave evidence. He admitted that he knew Fong; but the remainder of his evidence consisted of a complete denial of the prosecution case. 18. In evidence the second accused said that he knew the appellant because they had previously worked together in the Airport Section, the Harbour Section, and the Chinese Section at Immigration Department Headquarters; that, on one occasion, he had accepted from the appellant an application by his mother for a British passport; that some time later the appellant had handed him the application (Ex. P.2) together with a birth certificate similar to Ex. P.11 in the name of one Lam Sam-tai and a letter from an airline company certifying that a ticket had been reserved for the applicant; that he asked the appellant where the applicant's identity card was; that the appellant said he had it; that he searched his pockets for it, but eventually said that he had forgotten to bring it with him; that the appellant obtained the number of the identity card by telephoning some person (not in the second accused's presence); that he trusted the appellant as a fellow Immigration Inspector and endorsed on the application form not only the number of the birth certificate and the number of the airline ticket, but also the number of the identity card as given to him verbally by the appellant; that he had no reason to think that the application was not a genuine one by a person named Lam Sam-tai; and that he accordingly forwarded the application together with the birth certificate to Immigration Headquarters for further processing. 19. The District Judge acquitted the second accused on the uttering charge. 20. The appellant now appeals against his conviction on a number of grounds. First he says that the District Judge "failed to direct himself" that the evidence of the second accused implicating the appellant was that of an accomplice. 21. There is no doubt that the evidence of the second accused, if accepted, tended to establish the guilt of the appellant. The case for the Crown (all of which was denied by the appellant) was that Fong passed the application for a passport (Ex. P.2), the birth certificate in the name of Lam Sam-tai, and the identity card in the name of Lam Mui-tuen, to the appellant. But there was no direct evidence that it was the appellant who passed the documents to the second accused. The Crown asked the District Judge to infer that this was so from the whole of the evidence. It was not until the second accused testified that there was direct evidence that the appellant handed the application and the birth certificate to him. There was nothing on the face of the application which conflicted with the particulars given on the birth certificate; and therefore, looking at these two documents alone, there was nothing upon which a court could infer that the second accused ought to have been put on his guard. On the other hand, he could not admit having seen an identity card in the name of Lam Mui-tuen because he would then have been asked to explain why he had passed an application which was supported by a birth certificate in the name of Lam Sam-tai and an identity card in the name of Lam Mui-tuen, more particularly as the latter document disclosed on its face that Lam Mui-tuen claimed Chinese nationality. It was therefore in his interests to say that the reason he endorsed the number of the identity card on the application for the passport was because he trusted his friend, the appellant. 22. As was said in R. v. Prater(1), when a judge is sitting with a jury it is
There is no doubt that the District Judge was perfectly well aware of the rules relating to accomplice evidence. However, counsel for the appellant submitted that although the District Judge, in his Reasons for Verdict, mentioned a number of prosecution witnesses by name, and stated:
he did not say specifically that, in considering the evidence against the appellant, he treated the second accused as an accomplice. 23. Counsel for the Crown submitted that the second accused, having been acquitted, could not be regarded as an accomplice; that it was implicit in the District Judge's finding that the second accused did not have guilty knowledge as to the falsity of the application; that it was completely inconsistent for an accused person to be acquitted and yet to be held to be an accomplice; that the evidence of the second accused did not require corroboration; and that there was no necessity for the District Judge to warn himself that the second accused might be a person with some purpose of his own to serve. 24. We are of the opinion that this is a highly artificial approach. The District Judge did not make a specific finding that the appellant did not hand the identity card to the second accused. He simply acquitted the latter because he had a reasonable doubt as to his guilt. Clearly the second accused's line of defence was to admit as much as possible of the Crown's case and to endeavour to persuade the judge that he had no guilty knowledge. He certainly succeeded in raising a doubt in the judge's mind; but he was accused as an accomplice; and it must have been obvious to the judge that he was a person who had a purpose of his own to serve in giving false evidence against the appellant, namely to be acquitted of the charges against him. As it was obvious we do not think that the judge's failure expressly to describe the second accused as an accomplice is sufficient reason for us to think that the judge did not treat him as such. 25. The next three grounds relate to the fact that the Crown were permitted to elicit from Chan Hung-kei and Fong what they saw written on the identity card handed to Chan by Lam Mui-tuen and the admission in evidence of Exhs. P.9 and 10. Counsel for the appellant submitted that all this evidence was wrongly admitted. In our view, it was perfectly proper for Chan and Fong to be asked what they saw written on the identity card handed to Chan by Lam Mui-tuen - a document which Fong said he passed to the appellant. If Fong's evidence that he handed this identity card to the appellant were accepted (as indeed it was), it was reasonable for the Crown to ask the judge to infer that the appellant looked at the identity card and thereby became aware of its contents. If Chan and Fong looked at the identity card, they were in a position to inform the Court of its contents; and their evidence as to what they saw was relevant to the question of the appellant's knowledge. The trial judge was concerned with the appellant's knowledge, not the truth of the statements on the identity card. The Crown was asking the judge to infer that the appellant knew that on an identity card issued to a person named Lam Mui-tuen who had applied for a British passport in the name of Lam Sam-tai there was a statement to the effect that he was born in China. 26. It seems to us that much of the difficulty in the court below was caused by the fact that the District Judge appears to have misunderstood the Crown's purpose in adducing this evidence. It was not incumbent upon the Crown to prove that Lam Mui-tuen was born in China. They were however concerned with the appellant's state of mind in regard to the application for a passport. If, rightly or wrongly, the appellant believed that Lam Mui-tuen was a person who was born somewhere other than in Hongkong, this went a long way towards establishing his guilty knowledge as to the falsity of the application for a passport in the name of Lam Sam-tai. 27. As to the falsity of the application, there can be no doubt at all. A witness from the Registration of Persons Office said that he had searched his records and had found that there was only one person registered under the name Lam Mui-tuen and only one person registered under the name Lam Sam-tai; and that the latter was a female. It is evident from Exhs. P.3 and P.5 that in February 1967 a person giving the name Lam Mui-tuen and claiming to have been born in China, applied for a certificate of identity to enable him to visit Indonesia, and that a person of the same name applied for a re-entry permit in December 1968. The photographs attached to Ex. P.2 and Exs. P.3 and P.5 are clearly photographs of the same person although the application (Ex. P.2) is by a person signing the name Lam Sam-tai. Even without Exs. P.9 and P.10, there was ample evidence to justify the District Judge coming to the conclusion that the application (Ex. P.2) was false. 28. It would appear that Ex. P.9 was admitted in evidence by virtue of the provisions of s.4 of the Registration of Persons Ordinance Cap.177 which reads:-
It appears that the Commissioner of Registration photographed the application for registration by Lam Mui-tuen in 1962 and destroyed the original. The photographic record kept in accordance with reg. 8 of the Regulations made under the Ordinance is in the form of a microfilm, and Ex. P.9 is a photostatic enlargement of this microfilm. 29. Counsel for the appellant submitted that Ex. P.9 was not admissible because the Crown had not shown that the microfilm was a photographic record of the original application and that, for all the court knew, it might be a record of entries made by some official who transcribed the particulars from the original application to some other document. 30. We do not think that there is anything in this submission. On the reverse side of Ex. P.9 there is a certificate which reads as follows:-
Below this certificate there appears the Commissioner's seal. There is a signature over the seal and below the signature there appear the words "Commissioner of Registration". The Commissioner's certificate says that the photographic print (Ex. P.9) is a true facsimile of "the application ...... made by Mr. Lam Mui-tuen" - not a facsimile of some transcript made by some other person. In our view Ex. P.9 was clearly admissible in evidence. 31. Chan Hung-kwong, who said that he was Registrar of Records in the Registration of Persons Office, produced Ex. P.10; and he was asked from where the photograph attached to this document came. In answer, he said:
He was then asked this question:
and his answer to that question was: "Yes". He was not questioned as to the sources of his knowledge; and although his answer "yes" may not carry a great deal of weight, there is nothing on the record to contradict it, and the document was clearly admissible. 32. Once the documents were admitted, no improper use was made of them by counsel for the Crown. When Chan Hung-kei and Fong were shown the photographs attached to Exs. P.2, P.3, P.5 and P.10, care was taken to ensure that these witnesses were not shown the documents to which the photographs were attached. In the case of each of the documents, both witnesses said that the photograph was that of Lam Mui-tuen, the person with whom they had dealings in relation to the application for a passport in the name of Lam Sam-tai; and there was no suggestion in the lower court that any photograph had been attached to the wrong document. 33. A number of submissions made by counsel for the appellant were, he said, referable to the only ground framed by the appellant himself when he filed notice of appeal in prison. This ground reads:-
Anyone who has practised in these courts for any length of time knows perfectly well that this very general ground of appeal is usually typed on the notice of appeal by the prison officers when an appellant has indicated that he wishes to appeal against conviction. It really tells counsel for the Crown, and the court, nothing at all; and, in our view, if it is desired to challenge particular findings of fact or to put forward specific points of law, reliance should not be placed on such a very general ground of appeal. Further grounds pin-pointing the specific points to be argued should invariably be framed stating explicitly whether it is alleged that there was no evidence on each point or whether the finding is alleged to be unreasonable. 34. Proof of the falsity of the application (Ex. P.2) did not depend upon the evidence of Fong; but the appellant's conviction depended very largely on the extent to which the District Judge felt that Fong could be relied upon to tell the truth. It was Fong's evidence which, if accepted, established the fact that the appellant was a party to the conspiracy to obtain a British passport for Lam Mui-tuen; that the appellant did not (as any honest Immigration Inspector would have done) report to his superiors the fact that he had been approached concerning a matter which did not fall within the scope of his duties at Kaitak, and that he received the false documents from Fong, documents which found their way to the desk of the second accused who, in turn, set in motion the process which led to the issue of the passport. 35. In attacking the evidence of Fong, counsel for the appellant referred to the fact that, in his opening, Crown counsel had said that the $2,500 was paid by Fong to the appellant at the latter's home in Lockhart Road, whereas in evidence Fong said that he made this payment to the appellant in the street outside the North Point Immigration Department Sub-office, the suggestion being that Fong must have said something to the police which was different from his evidence in court. Counsel for the appellant submitted that this was a glaring discrepancy to which the judge, apparently, did not advert at all; that if Fong, (who, on the evidence, had not been honest even with his co-conspirators in regard to the sharing of the $10,000), could say two different things at different times in regard to such an important matter as the paying over of the $2,500, could he be believed at all in regard to his alleged dealings with the appellant? 36. The difficulty about entertaining a submission that Fong said something in evidence which differed from what counsel for the Crown is reported to have said in opening is that we do not know exactly what the witness Fong said to the police nor do we even know whether counsel for the Crown, in summarising his case in opening, made a mistake. He was not a witness in the case. Yet, it is implicit in a submission of this kind that counsel has not made a mistake. 37. The judge, clearly thought little of Fong from any point of view. Nevertheless, it is also clear, from his Reasons, that he accepted Fong's evidence that he handed the false application and other documents to the appellant and that he paid the appellant the two sums of $1,000 and $2,500, sums which, on the evidence, were clearly referable to the part which it was intended the appellant should play in forwarding the application for the passport. 38. The trial judge saw and heard Fong; and we are quite unable to say that in accepting Fong's evidence to the extent to which he did, he acted unreasonably. 39. However, counsel for the appellant argued that the evidence, even if it were accepted by the judge in toto, did not support the charges as framed. So far as the first and second charges are concerned, when one compares these charges with s.3(1) of the Prevention of Corruption Ordinance one sees that the draftsman has apparently misunderstood the grammatical construction of the subsection for he has used some of the words of the statute but has changed a conjunction in so doing. The provisions of this Ordinance are certainly complicated and this court has, on a number of occasions, had to interfere because of a failure to make a close analysis of them. It may be helpful to divide the relevant subsection into its constituent parts and to extract from the charges as drafted the particulars which relate to each part:
There are here two persons jointly charged.
The charges do not expressly say through whom the money was received; but in view of the all inclusive terms of the statute that was unnecessary.
It is alleged that they actually received the money.
It is alleged that they received it for themselves.
It is at this point that some ambiguity arises. Looking at the first charge, it alleges receipt of $1,000 "as a fee or inducement" and not, as one would expect, "being a fee as an inducement". In the statute "fee" and "inducement" are not alternatives; but the word "inducement" appears in the next part of the subsection, where the purpose of "the gift, loan, fee, reward or advantage" is indicated. In order to make sense of the words "or otherwise on account of" in the charge it is necessary grammatically to read the word "fee" in that next part but to relate its meaning to this part.
The evidence adduced was to the effect that the $1,000 was paid in advance of the act or acts agreed to be done but that the $2,500 mentioned in the second charge was paid after the act had been done. Therefore the charges correctly indicated that the payments were either an inducement to do the act or otherwise on account of it.
The persons to do the act were alleged to be the two accused themselves and that is why they were described in the charges as "Inspectors of the Immigration Department".
Nothing more needs to be said about this.
It is in relation to this and the next part that much of the difficulty has arisen and it is convenient to deal with the two parts together. The next part is:
The charges refer to "their arranging for the issue of a British (Hong Kong) passport". It was an unfortunate choice of words. "Arrange" in the context means "to plan, or settle details, beforehand". It is, therefore, a word more appropriate to a charge of conspiracy than of corruptly receiving. The Crown's case as presented was that the two accused expressly agreed to forward from the Immigration Office at North Point to the Immigration Headquarters the application of Lam Mui-tuen for a British passport. Whether or not it was desired to allege that they were to do something more if a query arose concerning the application is not very clear. In the result there was no query and a passport was issued. However, as we shall see, counsel before us contends that he is not limited to the case as initially presented.
Nothing turns upon the question whether it is material for the public body to be concerned at the time the charge is brought although the charge alleged such concern both at that time and, as was clearly necessary, at the time of the act to which the alleged agreement related. No other difficulty arises on this part of the subsection. 40. In our view the accused could properly have asked for further and better particulars of these somewhat inelegant charges but it cannot be said that the charges as drafted did not allege conduct which constituted crimes known to the law. Neither of the counsel who appeared for the two accused at the trial thought it desirable to ask for further particulars and we do not for a moment think that anyone was in the least doubt as to the substance of the allegations. That is not to say that the argument which has been addressed ...(illegible) is by any means frivolous. The undisputed position is that the second accused was in charge of the North Point office; that nobody at the North Point office could issue a passport; that the duty of the second accused in relation to applications for British passports was to satisfy himself that the applicant could produce an identity card and a birth certificate the particulars on which were consistent with one another and consistent with the particulars stated in the application form, to enter the numbers of the identity card and birth certificate on the application form and then to forward the application to headquarters together with the birth certificate, the ...(illegible)identity card being returned to the applicant; and finally, on receipt of the passport, to deliver it to the applicant. The appellant, although a member of the Immigration Service, was not employed at the North Point office and had no duties assigned to him there. The evidence was that without his having any official duties relating to the application in the name Lam Sam-tai he handed the application to the second accused and untruthfully informed the second accused that the applicant had an identity card bearing the number which he gave to the second accused, the second accused not insisting on seeing the card for himself but accepting the word of a fellow member of the Immigration Service. In the result the learned District Judge was not satisfied beyond reasonable doubt that the second accused knew the information given to him was untruthful. Since it was only if the second accused knew that the application was fraudulent that sufficient nexus existed between him and the appellant to render the second accused particeps criminis, counsel for the appellant argued that the acquittal of the second accused must result in the acquittal of the appellant. As we have seen, the case as presented for the Crown was that the "thing" done or to be done in respect of the matter or transaction or proposed matter or transaction was the forwarding of the papers from the North Point office to headquarters. Counsel said that, since the accused were charged with corruptly receiving money in relation to something which they were to do jointly, the "arrangement" could only be the joint forwarding of the papers: the particulars were not appropriate to cover an allegation that the money was received in relation to the delivery of the papers by the appellant alone to the second accused. Thus, he said, when, by acquitting the second accused, the learned judge found that the "thing" was not the joint forwarding of the papers from the North Point office to headquarters it was not open to the judge in effect to redraft the charge and to substitute an allegation that the "thing" done or to be done was the delivery of the papers by the appellant to the second accused. 41. Counsel for the Crown approaches his canvass with a broad brush. He contends that the "thing" done or to be done should be expressed in more general terms and that he is not restricted to the case as initially presented. He would describe the act as putting into the machinery of the Immigration Department the papers relating to the application of Lam Mui-tuen. It matters not, he says, whether the papers were put in by the two accused together at the point when the application was forwarded to headquarters or by the appellant alone at the point when they were first delivered to the North Point office. 42. Not without some reluctance we are driven to accept that this is the correct approach. We would not have felt the same reluctance had the charge in fact been drafted in this way. We think the course of the trial might have been such that the appellant would have been misled, but in the event we see no reason to suspect that the appellant's counsel was not fully alive to the possibility that his client might be convicted even though the second accused was acquitted and that could only be on the basis that the act was something which the appellant could perform alone. That being so no prejudice resulted to the appellant. If it were not open to the Crown to frame a charge in the general terms we have indicated it would, as counsel for the Crown said, be necessary in a case of this kind to lay against the accused a multiplicity of charges designed to cover every eventuality. Especially where a case was to be tried by a jury this might lead to confusion and misunderstanding. 43. Counsel for the appellant took his argument a stage further: he said in effect that even assuming that it was proper to charge his client in such general terms the prosecution was still bound to prove that what his client did or was to do was something which was within the scope of his employment. In fact, he said, the appellant was not acting as an inspector of the Immigration Department when he delivered the papers to the second accused: he was merely acting as agent of Lam Mui-tuen in the same way as any other person, not being a member of the Immigration Department, might have done: it was, therefore, entirely fortuitous that the appellant was an inspector of the Immigration Department rather than a butcher, a baker or a candle-stick maker. While there was a measure of truth in this it is, we think, not the whole truth. Although an outsider could have delivered the papers physically in the same way as did the appellant, in view of the fact that Lam Mui-tuen was relying upon a birth certificate which was not his it is clear that the machinery of the Immigration Department would never have accepted those papers: it required somebody who could adjust the machinery so that it would admit what normally it would not admit. It was by virtue of his membership of the Immigration Department that he was in a position to persuade the second accused to delegate to him a responsibility which was the second accused's, namely the checking of the application form against the identity card and it was this "service" that was being paid for by Fong Yee-kuen. It is unnecessary to consider what would have been the outcome if the appellant had been an officer very junior to the second accused so that the only "service" which might reasonably have been expected from him was that he could give advice from his knowledge of the internal working of the Department. It is manifest from the evidence that something more than that was expected for the payment made by Fong Yee-kuen. 44. In respect of the uttering charge a similar question arose as to the moment when the forged document was alleged to have been delivered. It was said that since the charge was that the two accused jointly uttered the document it must have been intended that the delivery occurred when the second accused despatched the document to headquarters. When the second accused was acquitted on this charge the appellant could not be convicted unless the uttering took place at the time when he delivered the document to the second accused. In our view it was immaterial what was the point of time at which, consistent with the findings of the learned judge, the document was uttered: the material question was whether he uttered it at all. It cannot be said that he did not, upon the definition of uttering in s.8 of the Forgery Ordinance, utter this document and the evidence would support a finding that he uttered it knowing the same to be forged and with intent to defraud. The acquittal of the second accused was based upon a doubt whether he did know the document to be forged and whether he had an intent to defraud. From what we have already said it will be seen that in our opinion there was no defect in the charge and nothing inconsistent in the verdicts. 45. For the above reasons, the appeal against conviction is dismissed. 46. The appellant was sentenced to 1 1/2 years imprisonment on the first charge, 2 1/2 years imprisonment on the second charge and 2 years imprisonment on the fourth charge. The sentences were ordered to run concurrently with one another. Counsel for the appellant has submitted that the fee for this corrupt transaction was $3,500; that if the appellant had been charged with soliciting instead of receiving, one charge would have been preferred; that two charges were necessary only because the fee was paid in two instalments; and that if 1 1/2 years was considered a sufficient sentence as regards the first charge, the second charge should not carry any greater sentence. 47. In Lui Shu Tong v. The Queen(2) this Court said:-
48. In this case if the appellant had been charged with soliciting there would, of course, have been one charge. But because the money was actually paid to the appellant on two separate occasions, the Crown naturally preferred two charges. It might be said that the promise of the $3,500 and the actual payment of $1,000 was the initial inducement which caused the appellant to set in motion the process whereby the false passport was issued. The payment of the $2,500 after the issue of the passport was in fulfilment of the initial promise, or alternatively it could be regarded as a reward to the appellant for his having caused the corrupt transaction to materialise. In any event the evidence relating to the time, place, and circumstances of each payment was distinct, and the evidence relating to each payment had, necessarily, to be judged on its own merits. 49. Presumably the judge imposed a higher sentence on the second charge because the sum which had been corruptly received by the appellant on the second occasion was 2 1/2 times the amount which he received on the first occasion. Whether this was a sufficient reason for the judge to draw any distinction between the two offences may possibly be open to argument. It was right and proper for the sentences to be made to run concurrently with one another because they arose out of the same set of facts; but, if the judge had passed a sentence of 2 1/2 years imprisonment upon the first charge, we would not have interfered with the exercise of his discretion. 50. We would not wish to say anything which would detract in any way from the approach to sentencing recommended in the above-quoted passage from Lui Shu Tong(2). On the other hand, every court is ultimately concerned with the length of time which, as a result of the sentences passed, an accused person is to remain in prison. We have no reason to think that the judge, in this case, did not consider the overall effect of his sentences. Clearly, on this indictment, the judge considered that the appellant's conduct merit...(illegible) an overall sentence of 2 1/2 years; and, having regard to the prevalence of this type of offence in Hong Kong, we see no reason to interfere with the sentences imposed. 51. For these reasons the appeal against sentence is dismissed.
Representation: Mr. Litton instructed by Messrs. John Ip & Co. for the Appellant. Mr. Sceats, Crown Counsel for the Respondent. (1) (1960) 2 Q.B. at p.466. (2) (1961) H.K.L.R. p.129 at p.136. |