HKSAR v. GARY SMITH

HKSAR v. GARY SMITH

The court upheld the magistrate's findings that contemporaneous fax evidence (Exhibit P.13) established the appellant knew on 19.12.2003 that his payment would be refunded, that the Cover Note tendered (Exhibit P.6) was false, and that the appellant used it knowing it was false; accordingly all elements of s74 Crimes Ordinance were proved beyond reasonable doubt and conviction was safe. On sentencing the court found a six month starting point appropriate, reduced to five months having regard to character and mitigation and suspended the sentence for 18 months; the TP insurance fine was reduced from HKD 10,000 to HKD 3,000 while the 12 month driving disqualification was upheld.

Citation
HKSAR v. GARY SMITH
Parties
Respondent: HKSAR; Appellant: Gary Smith
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 October 2005
Case Number
HCMA220/2005
Procedural Posture
Criminal Magistracy Appeal Under Section 113 of the Magistrates Ordinance (rehearing) / Court of First Instance Appeal (rehearing) Decision
Outcome
Appeal against conviction dismissed; appeals against sentence allowed in part and sentences varied
Legal Topics
Using a False Instrument (s74 Crimes Ordinance), Using Vehicle Without Third Party Insurance (motor Vehicles Insurance (third Party Risks) Ordinance), Sentence Appeal and Mitigation, Appellate Rehearing Under Magistrates Ordinance S113, Admissibility and Weight of Contemporaneous Documents
Source Language
EN
Criminal Law Motor Vehicle Law Insurance Law Evidence and Procedure Using a False Instrument (s74 Crimes Ordinance) Using Vehicle Without Third Party Insurance (motor Vehicles Insurance (third Party Risks) Ordinance) Sentence Appeal and Mitigation Appellate Rehearing Under Magistrates Ordinance S113 +1 more

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Parties

HKSAR

Respondent

Gary Smith

Appellant

Procedural Posture

Criminal Magistracy Appeal Under Section 113 of the Magistrates Ordinance (rehearing) / Court of First Instance Appeal (rehearing) Decision

Legal Issues

  1. 1 Whether the Cover Note produced was a false instrument and whether the appellant knew it to be false
  2. 2 Whether the prosecution had left a lacuna by not calling a particular witness (Ms Shek) and whether that created reasonable doubt
  3. 3 Whether the appellant had an honest and reasonable belief that third party insurance was in place on 28.12.2003

Ratio Decidendi

The court upheld the magistrate's findings that contemporaneous fax evidence (Exhibit P.13) established the appellant knew on 19.12.2003 that his payment would be refunded, that the Cover Note tendered (Exhibit P.6) was false, and that the appellant used it knowing it was false; accordingly all elements of s74 Crimes Ordinance were proved beyond reasonable doubt and conviction was safe. On sentencing the court found a six month starting point appropriate, reduced to five months having regard to character and mitigation and suspended the sentence for 18 months; the TP insurance fine was reduced from HKD 10,000 to HKD 3,000 while the 12 month driving disqualification was upheld.

Court Disposition

Appeal against conviction dismissed; appeals against sentence allowed in part and sentences varied

Orders

  • Appeal against conviction dismissed
  • Original sentence of 10 months imprisonment for Using a Copy of a False Instrument set aside and substituted with 5 months imprisonment, suspended for 18 months