HKSAR v. LEE HA YU

bjbj HCMA582/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 582 OF 1999 (On appeal from FLCC NO.2521 of 1998) -------------

BETWEEN HKSAR Respondent and LEE HA YU Appellant -------------- Before : Hon Pang J in Court Dates of Hearing : 21 and 28 March 2000 Date of Judgment : 14 June 2000 --------------------------

J U D G M E N T -------------------------- The appellant, Madam Yu was convicted after trial of one count of using a copy of a false instrument, contrary to section 74 of the Crimes Ordinance, Cap.

200. She was sentenced to four months imprisonment. She now appeals against both conviction and sentence. The particulars of the offence states that : Yu, you are charged that on the 10th day of March, 1997 at (No.76, M/F, San Hong Street, Sheung Shui, New Territories North), in Hong Kong, you did use a copy of an instrument, namely a receipt purportedly issued by Leo K.W. LOK & Co. Solicitors & Notaries with S/N 66666, which was, and which you knew or believed to be, a false instrument, with the intention of inducing TSOI

CHAN Kwai kiu to accept it as a copy of a genuine instrument, and by reason of so accepting it to do or not to do some act to her own or any other person s prejudice. The trial in the magistracy lasted for 17 days and the appellant was represented by Mr Alan Hoo, SC, who also appears in this appeal. The alleged victim in this case, Madam Tsoi Chan Kwai Kiu ( Madam Tsoi ) is a lady in her seventies. There was no dispute that the instrument in question (Exhibit P2), a photocopy of a purported receipt issued by Leo K.W. Lok & Co. Solicitors, for the sum of $154,730 in payment of legal fees was in fact a false instrument. The date appearing on the receipt was stated to be 10 March 1997. It was the prosecution s case that the appellant used the bogus receipt to deceive Madam Tsoi, who appeared at the trial as PW1, into paying the appellant the sum of $154,730 as stated in the receipt. The events which gave rise to the charge allegedly took place at the home of Madam Tsoi on 10 March and were witnessed by Madam Tsoi s son, Tsoi Lung, who appeared at the trial as PW3. On the strength of the false receipt and also on the representation by the appellant she had incurred the sum as legal fees, Madam Tsoi handed over a cashier order to her for $400,000 which sum was inclusive of the legal fees referred to earlier. The matter was later reported to the police. Subsequent investigation

revealed that an original receipt dated 24 February 1997 bearing the same serial number was issued to the appellant by the same solicitor s firm to acknowledge payment of legal fees in the sum of $10,250 for work done for the appellant. Mr Leo Lok, the proprietor of Leo Lok & Co., solicitors, gave evidence to this effect. His evidence was not challenged. There was, however, no direct evidence at the trial to suggest who had falsified the particulars appearing on the receipt and who was responsible for making the photocopy which was later presented to Madam Tsoi. There were two documents produced at the trial respectively as Exhibits P7 and P12, the contents of which contain a breakdown of $154,730. According to PW3, the appellant had written out the breakdown of the sum in his presence in response to his queries. It was the appellant s case, however, that she was not the author of the Chinese characters appearing on both exhibits. As the trial progressed, it became apparent that the identity of the person who wrote on those two documents would have a significant bearing on the prosecution s case against the appellant. If it can be proved it was the appellant who wrote on them, then this would be cogent evidence to support the prosecution s contention that the appellant had used the bogus receipt to induce Madam Tsoi into parting with her money as the purported breakdown of the

$154,730 was nothing more than figures arbitrally invented by the appellant. It was hardly surprising, therefore, that a significant portion of the trial time was taken up by both parties to enlist handwriting experts in order to shed light on this issue. As it turned out, all such efforts were ill spent. The prosecution s expert, Mr Fung, was unable to come to a firm conclusion whether or not the appellant was the person who wrote out the characters on Exhibit P7. The defence s expert, Professor Cheung, was of the view that the author of Exhibits P7 and P12 should have been the same person. But he further opined that those characters appearing on both documents could not have been written by the appellant. The learned magistrate, however, was critical of the methodology of Professor Cheung in comparing the specimen handwriting of the appellant with the Chinese characters appearing on the Exhibits. In paragraph 49 of her Statement of Findings, she said she could place no weight on either expert s opinion about the authorship of Exhibit P7. Ultimately she attempted to, as she was perfectly entitled, approach the issues solely on the credibility of the witnesses. Of the total of seven grounds of appeal against conviction, six were directed at the manner in which the learned magistrate analyzed the evidence at the trial. Ground 7 was a general ground that there must have been a

lurking doubt in the prosecution s case so that the conviction was rendered unsafe and unsatisfactory. The appellant elected not to give evidence. There were a total of six defence witnesses. Apart from the handwriting expert referred to earlier, the learned magistrate found the remaining defence witnesses to have been coached as to the material parts of the evidence when their accounts were at variance with that of Tsoi Lung. After giving a careful and detailed analysis of the evidence, the learned magistrate made the following findings at paragraph 58 : .... I found PW3 to be an honest and reliable witness. I found the defence witnesses to be coached and on the whole rejected their evidence in particular about the events of the 31st January and 10th March 1997. I found the appellant did give Exhibit P2, the copy of a false instrument, to PW1 on the 10th March 1997 at her name to prove she had already paid the solicitor, Mr. Lok $154,730.00 with the sole intention of inducing PW1 to pay her this sum. .... Later at paragraph 59 : I found the appellant did use P2 to induce PW1 to accept it as genuine and to pay her $154,730.00 which PW1 did, in the sum of the $400,000.00 cashier order. .... Further down at paragraph 60 : I found P12 was written by the appellant on 8th March 1997 as described by PW3 and based on this calculation, the $400,000.00 cashier order including $154,730

fee was paid to the Defendant on 10th March 1997. I found I believed PW3 s evidence that Defendant wrote on P7 on 10th March 1997. ... It is apparent from the passages above that the appellant s conviction is founded on the evidence of the son when she accepted his account that the appellant was the author of the characters appearing on Exhibits P7 and P12 and that she did use Exhibit P2 on 10 March 1997 to induce the old lady into reimbursing her of the sum of $154,730. Although the mother also gave an account on what took place on 10 March, the learned magistrate was of the view that she was muddled with locations of events of that date (10 March 1997) and said : .... because of her emotive manner, elderly age and sometimes less than clear evidence, I found that I cannot attach much weight to her evidence. I treat her as a neutral witness that is in no way dishonest . It was clear from the transcript that her evidence was indeed muddled and sometimes less than clear. That being the case, I find it to be rather surprising when the magistrate described the son s evidence as : His evidence (PW3) is in essence the same as PW1 s in relation to what occurred on 10th March 1997. Bearing in mind that the son s evidence was crucial in the appellant s conviction, the above description of his evidence would have left one in some degree of bewilderment. The crucial question on this

appeal however remains to be this : Is the evidence of the son worthy of the reliance upon which the learned magistrate convicted the appellant? If the evidence of PW3 is taken in isolation without reference to the evidence of his mother and that of the handwriting experts, the magistrate might have been entitled to find PW3 to be a credible and honest witness. An appellate court would be extremely reluctant to disturb a finding on the credibility of a crucial witness when the trial magistrate had had the benefit of observing the witness in the course of the trial. With great respect to the learned magistrate, however, this is not a case where PW3 s evidence could be considered in isolation. One simply cannot disregard the evidence of the handwriting experts and that of the old lady. The prosecution expert was inconclusive regarding the authorship of the two documents. The defence expert concluded that the appellant could not have been the author of both documents. Looked at in their proper context, the experts evidence when taken as a whole, must have cast some doubt on the veracity of the observations of PW3 when he said it was the appellant who wrote out the breakdown of the sum of $154,730 on both documents. In so far as it relates to the cashier order, it was the old lady s account that it was handed over to the appellant at the bank and that the appellant had never

written out Exhibit P7. This was in direct contradiction to PW3 s account when he said it was handed over to the appellant at his mother s home and the appellant then wrote out Exhibit P7. As to Exhibit P2 which forms the basis of the charge, PW3 s version was that the appellant handed the document to the old lady upon his request after she had written out Exhibit P7. This, however, was not borne out in PW1 s account of the events. When asked about the solicitor s receipt, the old lady was not able to recall whether any such receipt had in fact been handed over to her, let alone to say the place where it was handed over. Her evidence in this regard was plagued with ambiguity. I have also noted that the appellant and Madam Tsoi had developed a relationship over a period of time starting from about the summer of 1996. It started as a trusted personal relationship with occasional business involvement. Their relationship had since deteriorated because of arguments over the construction of an access road on the land belonging to the old lady. At the date of the alleged offence, however, their relationship was still an harmonious one. It was not surprising when the old lady said in her evidence that even if the amount of $154,730 was not for payment of legal fees, she would have given the money to the appellant if only she had asked for it. This attitude of the old lady would

certainly have put into question whether the bogus receipt did have any effect in inducing her into parting with her money. I have taken the liberty to review the evidence of the case as contained in the appeal bundles. One cannot simply choose to accept the evidence of the son in total isolation of the other evidence. Taking the evidence as a whole, and especially in the light of the evidence of Madam Tsoi and the inconclusive evidence of the handwriting experts, I am driven to the conclusion that there is a lurking doubt in the veracity of the evidence of Mr Tsoi. The conviction of the appellant which is founded solely on his evidence is therefore, in my view, rendered unsafe and unsatisfactory. For the reasons given, I would allow this appeal. The conviction is quashed and the sentence of four months imprisonment is set aside. (K.K. Pang) Judge of the Court of First Instance, High Court Mr Kelvin Zervos, SADPP, leading Mr Lai, GC, for the Respondent Mr Alan Hoo, SC leading Mr Lee Wai Keung, instructed by Messrs Fred Kan & Co., for the Appellant -

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