Attorney General v Li Kai Tung

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 3 OF 1968

-----------------

-----------------

-----------------

JUDGMENT

-----------------

1. In this appeal by way of case stated the Crown appeals from the decision of a magistrate's court upholding a submission of no case to answer in respect of three charges brought against the respondent defendant. The charges were as follows:-

"(A) Forgery of a public document. Contrary to Section 6(2) of the Forgery Ordinance, Chapter 209, Volume 8, Laws of Hong Kong. LI Kai-tung, you are charged that on the 29th day of September, 1967, at the Immigration Office, Hong Kong, in this Colony, with intent to defraud or deceive, forged a certain public document, namely, Form C1 used by the Immigration Department, Hong Kong, for application for a British passport for persons over sixteen years of age.

(B) Forgery of a public document. Contrary to Section 6(2) of the Forgery Ordinance, Chapter 209, Volume 8, Laws of Hong Kong. LI Kai-tung, you are charged that on the 30th day of October, 1967, at the Police Head-quarters, Arsenal Street, Hong Kong, in this Colony with intent to defraud or deceive, forged a certain public document, namely, Form C1 used by the Immigration Department, Hong Kong, for application for a British passport for persons over sixteen years of age.

(C) Aiding and abetting making an untrue statement to a travel document. Contrary to Section 44(2) of the Immigration (Control and Offences) Ordinance, Chapter 243, Volume 10, Laws of Hong Kong. LI Kai-tung, you are charged that you did on the 29th day of September, 1967, at the Immigration Office, Hong Kong, in this Colony, aid and abet Tan Kok to make a statement which to your knowledge was untrue in an application for a British Passport."

2. The substance of the allegations against the respondent were as follows:- Tan Kok, the person named in charge 'C', filled in an application form for a passport in the name Lo King Hong, a fictitious person, but annexing thereto photographs of himself. The application was presented at the Immigration Office on the 29th September, 1967. It is the practice, on such an application being presented, for the counter-clerk to check the application with the applicant's identity card. The number of the identity card might be written on the application beforehand or it might be noted on it by the counter-clerk himself on the presentation of the application and identity card. The application in the present case bore an identity card number, but it was the number of an identity card which, officially, did not exist. The respondent was a Sub-Inspector employed at the Immigration Office. Adjoining the identity card number, on the application, appeared the initials of the respondent - according to the evidence at that stage before the court. It remained uncertain whether the number also had been written by the respondent but it was evidently written in ball-point ink of a type similar to that in which the respondent's initials were written. On the following day, the 30th September 1967, the respondent was interviewed at Police Headquarters, when he made an admission in writing that the initials adjoining the identity card number were his. On the same occasion, during a temporary absence from the room of the police officer interviewing him, the respondent over-wrote his initials on the application; hence charge 'B'. In so far as the foregoing statement of facts contains matter additional to that contained in the case stated it was agreed on the hearing of the appeal. The reference in charge 'C' to an untrue statement, it is agreed, is to the contents of the application; the untruth being the representation thereby made that the applicant was Lo King Hong.

3. In paragraph 7 of the case stated the Magistrate said:-

"7. I, however, was of the opinion that the respondent had no case to answer on any of the three charges. As regards the 2nd Charge I was of the opinion that the facts did not in law amount to forgery. As regards the 1st and 3rd Charges I was of the opinion that the facts were insufficient to amount to proof beyond reasonable doubt of the guilt of the respondent. In reaching this conclusion I reminded myself of the words of Lord Parker, C.J. in the Practice Note (1962) 1 All E.R. 448 and in particular the following:-

' If however a submission is made that there is no case to answer the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer'.

This suggested to me that a tribunal could say 'We have a reasonable doubt and would (indeed must) acquit, but we conceive that another tribunal might reasonably take another view of the evidence and might convict. What is the position?' Taken literally Lord Parker says there is none the less a case to answer. But how can there be a case to answer if, at that stage, the tribunal has a reasonable doubt? I, therefore, came to the conclusion that the note was never intended to be a restatement of the law but merely a guide to lay justices and since I was left in reasonable doubt of the guilt of the respondent. I found he had no case to answer on any charge."

4. The question asked by the case stated is whether the Magistrate was right in acceding to the submission of no case to...