The Queen v. Chen Yik-yan

CACC001194/1982

Criminal law - possession of forged documents - not a "Lawful excuse" if Defendant had them merely to deceive his wife as to his financial position.

Date of hearing: 18th February,1983

F. Eddis (H.M. So & Co)for Appellant.

Mawson for Crown/Respondent.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date of hearing: 18th February,1983

Date of Judgment: 18th February 1983

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. In this case we are concerned with five charges in a charge sheet containing 26 charges. They are, notwithstanding what appears from the Notice of Appeal, the 19th, 20th, 23rd, 24th and 25th charges and each relates to possession of a forged document. The charges were laid under s.76(3) of the Crimes Ordinance, which reads:

"         Any person who, without lawful authority or excuse and knowing the same to be forged, has in his custody or possession any forged document the possession of which is not made illegal under this or any other enactment for the time being in force shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 3 years."

2. The facts that the Applicant was, to his knowledge, in possession of the five documents and that - because he himself forged them - he was aware that they were forged are not in dispute. What is in dispute is whether the Applicant had lawful authority or excuse. The material part of the Reasons for Verdict reads:

"The onus is on the defendant to establish on the balance of probabilities that he had the document in his possession with lawful authority or excuse. The definition is to be interpreted as without lawful authority or lawful excuse. It is the defendant's evidence that the documents were prepared by him to allay the fears of his wife as to his financial position which was at that time deteriorating. That is not a lawful excuse ..."

Mr. Eddis submits that that was a lawful excuse - or rather, since he now concedes that the judge was not accepting the Applicant's evidence but merely assuming for the purposes of argument that it might be true, that the excuse could be a lawful excuse.

3. A provision in the terms of ss. (3) does not find any place in the comparable English legislation and there is no authority directly in point. Mr. Eddis relied, however, upon Dickins v Gill 1896 2 Q.B. 310, where the ratio decidendi was that the excuse could not be lawful because it was wrong for the defendant to have the forged die in his possession at all, he having deliberately had it made abroad in order to evade the penalties to which, under the statute, he would have beer liable if he had had it made in England. Counsel referred also to Reg. v Wuyts 1969 2 Q.B. 474, where a taxi driver who had received forged bank notes from a fare had left them in his taxi overnight instead of surrendering them to the police immediately he discovered that they were forged. His evidence was that he intended to surrender them next day. On appeal it was held that would have been a lawful excuse. The contention on behalf of the present Applicant is that both these cases show that there is a lawful excuse if there is no intent to defraud, and counsel. submits that it is difficult to see what was the mischief which the provision was intended to prevent unless it was fraud.

4. We accept that that was the mischief which the provision was intended to prevent, but we do not think it necessarily follows that the words "without lawful authority or excuse" must be construed as meaning "with intent to defraud". The answer to the argument is to be found in Reg. v Wuyts itself at p. 479B, where Lord Widgery, C.J. said:

"          In the view of this court, the construction put upon section 8(1) of the Forgery Act, 1913, by the judge was too narrow. The court does not propose to attempt anything in the nature of a definition of the phrase 'lawful authority or excuse; but the court recognises that the passing of forged banknotes was made a felony by the Act of 1913, and that it is at common law the duty of any citizen to assist the police in the prosecution of a felony. Accordingly, it seems to us that if an accused person in the position of this defendant is able to prove on a balance of probabilities that, although in possession of notes which he knew to be forged, he had retained possession of them solely in order to place them before the police authorities so that the previous. possessors of the notes might be prosecuted, in our judgment, if that is shown on a balance of probabilities, that amounts to a lawful excuse.

Lord Stormont has contended that to take such a view would, in fact, open the door to allowing a defendant to plead any reasonable excuse. But the court does net take that view. The reason why the excuse to which I have referred is, in our judgment, a lawful excuse is because it is an excuse which is wholly consistent with the common law: it is wholly consistent with the duty of the citizen to assist in the capture and prosecution of a felon. The excuse is 'lawful' in the strict literal sense of that word."

In our case there could be no argument that the Applicant was, when telling a "white lie" to his wife, fulfilling a legal duty, and accordingly he had no "lawful excuse" for possession of the forged documents.

5. The application was therefore dismissed.

18th February 1983

Representation:

F. Eddis (H.M. So & Co)for Appellant.

Mawson for Crown/Respondent.