HKSAR v. Yuen Oi Yee, Lisa

[English Translation - 英譯本]
HCMA 402/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 402 OF 2009

(ON APPEAL FROM ESCC 5404 OF 2008)

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Coram: Hon D. Pang J in Court

Date of Hearing: 19 February 2010

Date of Judgment: 19 February 2010

Date of Reasons for Judgment: 10 March 2010 

Reasons for Judgment

1.The appellant was convicted after trial of one count of Forgery, contrary to section 71, Crimes Ordinance, Cap. 200, Laws of Hong Kong and was sentenced to 3 months’ imprisonment. She now appeals against her conviction.

The charge

2.To put it simply, it was alleged in the charge that the appellant made a false instrument, namely a Writ of Summons dated 1 February 2008, about High Court Civil Action HCA189/2008, purported to be signed by Anthony Boulton.

Facts

3.The appellant had worked as an accounting officer at a company called Robertlam Color. The first prosecution witness (“PW1”) Ms. Lam was the general manager of the company. In 1999, Robertlam Color was acquired by a foreign company. The person who dealt with matters concerning the acquisition on behalf of the latter was the second prosecution witness (“PW2”) Anthony Boulton, who was of Australian nationality.

4.Owing to change in personnel arrangement, the appellant did not remain to work for the new company. However, PW1 received ceaseless telephone calls, faxes and SMS from the appellant, whether in her own name or other names. Apart form that, the appellant commenced a number of civil actions against PW1 and PW1’s elder brother Robert Lam. In the end, the Court of First Instance made an order that the appellant is prohibited from commencing any proceedings against these two persons without leave. The appellant was unable to pay the costs of the opposite party and consequently a bankruptcy order was made against her.

5.On 21 January 2008, the appellant sent a letter in the name of PW1 to PW2, who was then in Australia, enclosed therewith was a duplicate copy of a Writ of Summons of the High Court and that of a Statement of Claim. The appellant wrote in the letter that if she did not receive PW2’s objection before 31 January 2008, she would institute proceedings in the High Court on 1 February 2008 on behalf of PW2 to sue PW1 and the appellant for defamation and to claim for $30,000,000 damages.

6.On 1 February 2008, a Writ of Summons and Statement of Claim for High Court Civil Action with the case number HCA189/2008 was indeed delivered to the High Court Registry. Shortly afterwards, PW1, who was one of the defendants, learnt of this matter and communicated with PW2, who was still in Australia. Then, on 14 February 2008, PW2 faxed a letter to the High Court, wherein he explained that he did not institute the proceedings, nor did he authorize any person to institute the proceedings for him. He also pointed out that the signature on page 2 of the Writ was not written by him.

7.In respect of this matter, PW2 gave evidence in court that he did read the letter dated 21 January 2008 sent by the appellant to him, but he forgot when it was. However, in view of the appellant’s previous conduct, he just treated the content of the letter as a joke and ignored it. On the other hand, he adamantly denied the allegation of the defence that he had discussed matters about HCA189/2008 with the appellant over the phone. He said that he had all along been on good terms with PW1 after she was transferred to the new company to be general manger, and that he had no intention at all to institute any proceedings against her.

Defence case

8.The appellant admitted most of the facts mentioned above, but she maintained that PW2 authorized her to draft the Writ involved in this case. That was the appellant’s case. She said that because the mass media gave enormous publicity to this case after proceedings were instituted, PW2, at the instigation of PW1 and her legal advisers, falsely accused her of forging a document.

Verdict at the trial

9.The outcome was that the appellant was found guilty by the learned magistrate.

10.To put it simply, the learned magistrate accepted PW2’s evidence and believed that at all material times he had never given authority to the appellant through whatever channel, including telephone calls and text messages, to institute any proceedings. On the contrary, he did not believe that under such circumstances the appellant would still subjectively believe that PW2 had given her authority to institute the proceedings.

11.As far as motive is concerned, the learned magistrate had this to say on page 7 of his written judgment:

“Obviously, the defendant wanted to use the name of Tony Boulton to institute this kind of proceedings because she was prohibited from commencing any civil proceedings against [PW1]. She longed to take part in these proceedings. Therefore she joined in as a defendant using an assumed name. Such behaviour on her part made a mockery of the proceedings.”

The appeal

12.The appellant sent a huge quantity of documents to the court relating to her conviction, the contents of which are about dealings ----- some happy, some unhappy----- between her and the people involved in this case, or about various allegations she made against the people involved in this case. In fact, the grounds of appeal she relies on are nothing but suspicions that should have been aroused (from the appellant’s point of view) about the credibility of PW1 and PW2 as a result of such dealings and allegations. In addition, she complains that the learned magistrate prevented the defence from conducting in-depth cross-examination of the prosecution witnesses in respect of such dealings and allegations. Contrary to the view taken by the learned magistrate, she thinks that such cross-examination has great relevance to the question of where does the truth lie in this case.

13.But what are the central issues in this case?

14.My view is that they are whether the law allows PW2 to authorize another person to institute the proceedings. In other words, assuming that what the appellant said is true, i.e. PW1 did authorize her to do so, could the appellant forge his signature without contravening the criminal law?

15.In my judgment, the answer is clearly no.

16.Section 69(a)(i) of the Crimes Ordinance provides that “an instrument is false if it purports to have been made in the form in which it is made by a person who did not in fact make it in that form”.

17.On the basis of this provision alone, one cannot sign a document on behalf of another person without giving clear indication of this fact. Otherwise, it is no different from misleading other people into believing that the document in question was made personally by the person whose signature appears on it.  That means the offence of Forgery has been committed. This is the clearest and most straightforward interpretation arrived at from the wording of the provision.

18.Furthermore, section 69(a)(i) of the Crimes Ordinance is practically identical with section 9(1)(a) of the Forgery and Counterfeiting Act 1981 of England.  According to the analysis made in Arlidge & Parry on Fraud (2007, 3rd edition), section 9(1)(a) undoubtedly is applicable to a document which was signed by someone who was authorized to do so but on which there is no indication of this fact.  Documents of such a nature are also to be regarded as false.

19.The relevant paragraph in Arlidge & Parry on Fraud (para. 11-017, p.287) reads as follows:

“The corresponding provision in the 1913 Act was construed so as not to apply where a document was made with the authority of the person in question, even if it purported to have been made by him in person.  Such a document would clearly fall within FCA 1981, section 9(1).” [emphasis added]

20.As to why the provision in the 1913 Act mentioned above (the full name of which is Forgery Act 1913) would produce a different effect, that is entirely because of the provisions in question.  Section 1(2) of the 1913 Act was worded in a way different from section 9 of the 1981 Act and section 69 of the Crimes Ordinance.  Section 1(2) of the 1913 Act provides that:

“A document is false within the meaning of this Act if the whole or any material part thereof purports to be made by or on account of a person who did not make it nor authorize its making …” [emphasis added]

21.In R v Vincent (1972) 56 Cr. App. R. 281, the Court of Appeal of England held that the way the provision was worded clearly excluded this kind of document from the definition of false document (p. 290):

“One has only to read those words to see how the Crown failed to begin to prove that this document was a forgery because it was a document … which was authorized by the person on whose behalf it was made.  The appellant signed Keith’s name and did it with Keith’s authority. Therefore … this document, however dishonest the purpose for which it was brought into existence, was not a false document within section 1(2) of the Forgery Act 1913”.

22.Based on the above analysis, even if what the appellant said is true, by virtue of section 69(a)(i) of the Crimes Ordinance, she still should be convicted.  Actually, the learned magistrate had ruled on this issue at a very early stage. However as a matter of caution, he spent time hearing all the evidence and finally decided to accept PW1 and PW2 as honest and reliable witnesses.

23.That being the case, there is really no need for me to deal with other grounds put forward by the appellant.

Decision

24.I dismiss the appeal.

Mr. Simon Tam, Senior Public Prosecutor of the Department of Justice, for the HKSAR.

The Appellant, acting in person, present.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.