The High Court of Hong Kong in 香港特別行政區 v 梁偉堂 [2024] HKCFI 289 has overturned the conviction of an individual over use of false instrument.
Background
This case involved engagement of contractors in a construction project in Hong Kong. The main contractor in a construction project engaged sub-contractors to perform various working. The main contractor specifically required sub-contractors to submit a declaration form confirming that the workers had received their wages before applying for payments. This requirement was also applicable to third-tier sub-contractor, which was managed by Mr Leung, the appellant in this case.
Around late August 2020, a second-tier sub-contractor provided Mr Leung with an incomplete declaration form with information such as “green card number”, “wages” and “signature of the workers” outstanding. Upon receipt of the incomplete declaration form, Mr Leung returned the form, with signature of the workers, to the representative of the second-tier sub-contractor.
On 12 October 2020, the workers engaged by the fourth-tier sub-contractor complained to the Labour Department for unpaid wages. During the mediation meeting, it was revealed that their signatures had been forged on the declaration form.
At the hearing at the Magistrates’ Court, it was held that there was no evidence indicating that anyone besides Mr Leung had handled the form before its submission to the main contractor for payment. The only irresistible inference is that Mr Leung, upon returning the incomplete declaration form, was at least aware that the signatures of the workers had been forged. However, he nonetheless used the forged document for payment application. Accordingly, Mr Leung was found guilty of using false instrument contrary to section 73 of the Crimes Ordinance, and was sentenced to 5 months imprisonment in the Magistrates’ Court.
Appeal against Conviction
Mr Leung subsequently appealed against the conviction. There were two main grounds of appeal:
- The Magistrate erred in inferring that the appellant could obtain the worker’s Green Card number; and
- The Magistrate made an error by not considering the possibility of multiple reasonable inferences from the circumstantial evidence.
Consideration
The testimony given by the prosecution witness (“Mr Man”), who was the owner of the Fourth-tier Sub-contractor and responsible for paying wages to the workers, was of vital importance. The prosecution relied on Mr Man’s allegation that: – (i) he had never handled/seen the declaration form, or in similar format, in question; and (ii) he was not the person who completed the form, and invited the Magistrate to infer ‘Mr Leung knew or believed the signatures on the declaration form were forged’.
However, according to the witness statements given by the workers, in particular, when describing whether they would need to affix their signatures for the acknowledgement of receipt of wages, two of the workers stated that they indeed affix their signatures on certain documents provided by Mr Man. In addition, one of the workers stated that he had asked Mr Man to affix his signature on a wage receipt on his behalf.
Accordingly, there were some inconsistencies between Mr Man’s allegation and the witness statements provided by the workers. It was considered that at the very least, Mr Man did handle/see documents similar to wage receipts. Therefore, the reliability and credibility of Mr Man are questionable.
Only Reasonable Inference
If there are two conflicting inferences, with one favouring the defendant and the other not, the unfavourable inference should not be relied upon. In this case, one can infer from the facts that ‘Mr Man have received and handled the form’ could be another reasonable inference. The above-mentioned inference is another reasonable inference to the one that ‘Mr Leung knew or believed that the information on the form is forged’. As such, the inference that ‘Mr Leung knew or believed that the information on the form is forged’ should not be relied upon due to the existence of more than one reasonable inference. On this basis, the appeal was successful and Mr Leung’s conviction was overturned.
Takeaway
In criminal cases, the burden of proof typically rests on the prosecution, where the standard of proof requires is ‘beyond reasonable doubt’. This standard applies even in cases that rely on drawing inferences from circumstantial evidence – such an inference must be a compelling one and the only one that a reasonable man would draw.
For cases that are short of direct evidence, it is crucial to thoroughly investigate and analyse the facts, including the seemingly trivial ones. An insignificant detail can have a significant impact on the outcome.
Contact us today to learn more about how our team can help you navigate the complex legal and regulatory landscape.
Alfred Leung, Partner
(E: alfredleung@hkytl.com; T: +852 3468 7202)
Ariel Kong, Trainee Solicitor
This article is introductory in nature. Its content is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this article. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.
