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Hksar v Mak Tat Fai

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date17 October 2007
Subject MatterCriminal Appeal
Judgement NumberCACC438/2006
CourtCourt of Appeal (Hong Kong)
CACC000438/2006 HKSAR v. MAK TAT FAI

CACC438/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 438 OF 2006

(ON APPEAL FROM DCCC 293 OF 2006)

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BETWEEN

HKSAR Respondent
and
MAK TAT FAI (麥達輝) Applicant

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Before : Hon Stuart-Moore VP, McMahon and Lunn JJ in Court

Date of Hearing : 28 September 2007

Date of Judgment : 28 September 2007

Date of Reasons for Judgment : 17 October 2007

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REASONS FOR JUDGMENT

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Hon Lunn J (giving the reasons of the court) :

1. At the hearing of the applicant’s application for leave to appeal against his conviction on 18 September 2006 by Deputy Judge Mierczak after a trial in the District Court of a single charge of using a copy of a false instrument, contrary to section 74 of the Crimes Ordinance, Cap. 200 we dismissed the application and indicated that we would give our reasons in due course. This we do now.

THE PROSECUTION CASE

2. By the Particulars of Offence it was alleged against the defendant that he had :

“ … on or about the 14th day of September, 2004, in Hong Kong, used a copy of an instrument, namely, a note purported to be an agreement between the said Mak Tat Fai and Wan Chi Keung for the transfer of certain shareholdings in Wanasports Holdings Limited, which was and which he knew or believed to be a false instrument, with the intention of inducing somebody 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 his own or any other person’s prejudice.”

3. It was not in dispute that on 14 September 2004 solicitors acting for the applicant had sent by facsimile a copy of the note, the subject of the charge, to solicitors acting for Mr Wan Chi Keung (exhibit P5). They did so in support of a claim by the applicant against Mr Wan and in anticipation of civil proceedings begun by writ on 23 September 2004, in which it was claimed that the note evidenced an agreement between the applicant and Mr Wan reached in or about November 2000 in which Mr Wan agreed that in the event that Wanasport was listed on the Hong Kong Stock Exchange before the end of 2001 Mr Wan would give the applicant 3% of the shares of that company. It was an admitted fact that on 11 December 2001 Wanasport Holdings Ltd (“WHL”), which company incorporated the business of Wanasport International [HK] Ltd (“WIL”), was listed on the GEM Board of the Hong Kong Stock Exchange.

4. In April 2000 the applicant had been employed by a company subsequently known as WIL. The majority shareholder of WIL was Loyalty Enterprise Ltd (“Loyalty”), of which Mr Wan was the majority shareholder. By an agreement of 2 March 2000 (exhibit P1) Mr Wan and Mr Tsoi Siu Ching agreed to set up a sport website business. Through Loyalty Mr Wan was to hold 51% and through Incredible Holdings Ltd (“Incredible”) Mr Tsoi 49% of the shares of the prospective company, later known as WIL. By written agreements of 8 April and 10 July 2000 (exhibits P3 and P2) Incredible and Loyalty respectively agreed to give 9% and 3% respectively of the shares of WIL to the applicant as commission in respect of his acting as the introducing agent of the joint-venture project. However, by the terms of that agreement the applicant’s ability to deal with the shares was limited and they carried with them no voting rights.

5. It was the prosecution case that the note allegedly evidencing the subsequent agreement between the applicant and Mr Wan, which contained no restrictions on the use of the shares, although bearing a photocopy of Mr Wan’s identity card and his signature, was false as to the agreement written on that document. There was no such agreement. In his testimony, Mr Wan denied the suggestion put to him in cross-examination on behalf of the applicant that he and the applicant met in the Tsuen Wan office of Wanasport during which meeting, and at the latter’s request of Mr Wan’s secretary, Ms Heidi Siu Sau Fan (“Ms Heidi Siu”), at Mr Wan’s College Road office,, a photocopy of Mr Wan’s identity card had been sent by facsimile to that office and that later that same day in a car in Waterloo Road he had signed that same document after the applicant had written out the text of the agreement. In her testimony, Ms Heidi Siu denied either receiving a request from the applicant or sending a copy of Mr Wan’s identity card by facsimile to the Tsuen Wan office.

6. It was Mr Wan’s evidence that photocopies of his identity card were kept at both the offices of WIL in Cable TV Tower, Tsuen Wan and at Mr Wan’s own office in College Road. Mr Wan testified that he had signed those photocopy documents. Miss Connie Wan (PW4) testified that Mr Wan had signed a copy that she kept at the Cable TV Tower offices of WIA and that she had written upon it the word ‘copy’. Ms Heidi Siu testified that although she maintained a folder of photocopies of Mr Wan’s identity card at the College Road office Mr Wan had signed none of them.

THE APPLICANT’S CASE AT TRIAL

7. The applicant testified at his trial. He had begun working on the joint-venture project in February 2000. His duties included business development, sales and marketing and strategic development. The ultimate and common goal was to have the company listed. In April 2001 Mr Tsoi told him to leave the company. He did so in June 2001. At the applicant’s suggestion Mr Tsoi bought back the 9% of the shares in WIL that had been given to the applicant pursuant to the agreement with Incredible. However, Loyalty and Mr Wan had not honoured its agreement to give the applicant 3% of the shares of WIL. Mr Wan prevaricated with the applicant when he made repeated requests to be given the shares, telling him that the transfer of shares involved a lot of trouble.

8. It was in those circumstances in November 2000 and at the applicant’s initiative that the note, the subject of the charge, in which the text of the agreement on a photocopy of Mr Wan’s identity card had come to be signed by Mr Wan whilst the two of them were in a motorcar parked in Waterloo Road. Earlier the same day, whilst he was together with Mr Wan in the offices of WIL in Tsuen Wan and at Mr Wan’s suggestion, he had spoken by telephone to Ms Heidi Siu, Mr Wan’s secretary, in his College Road office and at his request, confirmed by Mr Wan, a photocopy of Mr Wan’s identity card had been sent by facsimile to the WIL office and given to him by a female assistant. It was on that document that later he had written the text of the agreement and Mr Wan had affixed his signature, Mr Wan prevaricating about signing the document there and then, with the result that was not done until the two of them met later that evening and drove to Waterloo Road in Mr Wan’s car.

9. The applicant testified that he had contacted Mr Wan both before and after the listing of WHL in his attempts to have the 3% of the shares transferred to him, but to no avail. In July 2002 he approached the Legal Aid Department to seek their assistance. On 24 September 2004 a writ was issued on his behalf against Mr Wan setting out that claim.

10. The applicant denied that he knew that signed copies of a photocopy of Mr Wan’s identity card were kept at the offices of WIL in Tsuen Wan or that he had seen such copies. He denied that he had taken such a document from those offices from which he had made the note the subject of the charge.

THE REASONS FOR VERDICT

11. Of the testimony of Mr Wan, whom he described as PW1, the judge said at the outset of his statement of the findings that flowed from his review of the evidence :

“ 47. I can say from the outset that I found PW1 to be an honest and believable witness and I accept what he says, as indeed I do the other prosecution witnesses.”

12. In respect of his evidence of the circumstances in which the note, the subject of the charge, came to be made he said :

“ 48. I accept PW1 when he said that it was impossible that he had signed D10 knowing the contents of the handwritten passage in it by the defendant.”

13. Of the issue, raised in cross-examination of witnesses called for the prosecution and in the evidence of the applicant, of whether or not a photocopy of the identity card of Mr Wan was sent by facsimile to the office of WIL in Tsuen Wan at the request of the applicant the judge said of the evidence of Ms Heidi Siu, whom he described as PW3 :

“ 50. … I also believe her when she said neither the defendant nor PW1 had ever asked her to send a faxed photocopy from the College Road office to the Tsuen Wan office in November 2000. I am satisfied this did not happen.”

14. Of the evidence adduced in the prosecution case that it was the practice of Mr Wan in WIL to allow photocopies of his identity card to be made, which copies he then signed, the judge said of the evidence of Miss Connie Wan :

“ 49. … I accept, that PW1, when he is away from the company left a copy of his Hong Kong identity card with his signature on it to handle personal correspondence. She remembered, and I accept, that this had occurred in May 2000 and that she, Connie, had written the word ‘copy’on it. That is, she identified the ‘copy’the words on D10 to be hers. I further believe her when she says that that document (D10) was kept in the defendant’s office and only the defendant and PW1 had access to it.”

15. Of the evidence of the applicant the judge said :

“ 55. He did not impress me in the witness-box. I do not believe his version of events and I reject it. It is very clear to me that the defendant, contrary to his evidence, was in fact the general manager and man in charge and, effectively, ran the
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