Ma Tak Hing v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 227 OF 1968

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JUDGMENT

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1. The appellant was convicted in the Magistrate's court in respect of two charges concerning driving licences. The first charge was of forgery contrary to section 5(3)(1) of the Forgery Ordinance (Cap.210) and it was laid in the terms:- "with intent to deceive or defraud". The second charge was of possession of a (another) forged driving licence contrary to section 10(3).

2. The appeal is brought on six grounds.

3. Ground 1 is as follows:-

"1. That the "A" charge of forgery of a document was and is bad for duplicity."

The argument of Mr. Shears, counsel for the appellant, proceeded on the basis that section 5(3)(1) of the Ordinance creates two offences, forgery with intent to deceive and forgery with intent to defraud, and he referred, in particular, to the cases of R. v. Moon⁽¹⁾ and Welham v. D.P.P.⁽²⁾, both of which clearly recognise a significant difference between an intent to defraud and an intent to deceive. Counsel also referred to the recent decision of the Full Court in Chan Yat Pui v. R.⁽³⁾ holding that a charge that the appellant "was found in the company of another person who without lawful authority had in his possession (an) explosive substance, in circumstances which raised a reasonable presumption that (the appellant) intended to act or was about to act with or had recently acted with the said other person in a manner prejudicial to the public interest" was not bad for duplicity. The Full Court said that "The test for ascertaining whether two or more separate offences have been included is to ask whether the particulars cover only one act which may be done in one of two or more different ways or two or more acts each of which constitutes an offence". The judgment went on to refer to the case of Mallon v. Allon⁽⁴⁾ where the Divisional Court was concerned to decide whether there was duplicity in an information charging the appellant that he did unlawfully "admit and allow to remain on premises" which were a licensed betting office a person apparently under the age of 18 years. At p.392 the learned Lord Chief Justice cited Thomson v. Knights⁽⁵⁾ and G. Newton Ltd. v. Smith⁽⁶⁾ and went on to say:-

"In both those cases, however, it is quite clear that what was being considered was a single act, in the one case driving, in the other case failing to comply with conditions. The expressions 'wilfully or negligently' or 'drink or drugs' were merely descriptive of the particular act complained of.

This is a case, as it seems to this court, which is quite different. There are two separate acts, first of all admitting a person, and secondly allowing him to remain after he has got onto the premises, and in those circumstances it seems to me perfectly clear that these are two separate offences".

4. Crown Counsel, Mr. Carolan, relied upon the Indictment Rules made under section 16 of the Criminal Procedure Ordinance (Cap.221), in particular rule 2(1) which permits the framing of charges in the alternative and Form 13 (2nd Count) in the Appendix to the Rules which uses the expression "with intent to deceive or defraud". Crown Counsel submitted that the Rules applied to proceedings in the Magistrates' Courts if not directly then by analogy. I think it is clear that they do not so apply directly, but there is authority for saying that no more strictness is required in a summons than in an indictment (see R. v. Jones, ex parte Thomas⁽⁷⁾). Crown Counsel also cited R. v. Molloy⁽⁸⁾, R. v. Wilmot⁽⁹⁾, R. v. Ottaway⁽¹⁰⁾, R. v. Naismith⁽¹¹⁾, Chao Tse Yun v. R.⁽¹²⁾, R. v. Shillingford⁽¹³⁾. I hesitate to burden this judgment with further authorities but I think that a useful contrast may be drawn between two cases in the Court of Criminal Appeal, namely R. v. Perry⁽¹⁴⁾, where a charge of obtaining credit "under false pretences or by means of other fraud" was held good as alleging one offence only, and R. v. Inman⁽¹⁵⁾ where in the course of the judgment it was said that section 332 of the Companies Act, 1948 created two offences, fraudulent trading with intent and fraudulent trading for the purpose of achieving certain things. In the present case, in my view, the charge was not bad for duplicity. Only one offence is contemplated, that of forgery; the intent may be either to deceive or to defraud and may properly be stated in the alternative; forgery is the gravamen of the charge. Nor is a defendant prejudiced by a conviction in that form; he cannot be again proceeded against in either alternative.

5. Ground 2 of the appeal is as follows:-

"2. That the possession of a forged document was never or insufficiently proved at the trial."

6. This refers to the second charge, that of possession of a forged driving licence in an unlocked drawer of a desk to which, according to evidence called for the defence, others had access besides the appellant. Mr. Shears submitted that the learned Magistrate had overlooked the provisions of section 14 of the Forgery Ordinance regarding proof of possession and had relied instead on a decision dealing with possession of dangerous drugs (R. v. Hon Sai King⁽¹⁶⁾.....). No doubt this is so but the question of possession was substantially one of fact. As Crown Counsel has pointed out, there was evidence, accepted by the...