THE ATTORNEY GENERAL v. TAI CHIN WAH [1993] HKCA 20; [1993] 1 HKC 1; CAAR5/1992 (18 March 1993)
CAAR000005/1992
IN THE COURT OF APPEAL
1992, No. 5
Application for Review
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| BETWEEN | ||
| THE ATTORNEY GENERAL | ||
| and | ||
| TAI CHIN WAH |
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Coram: Silke, V.-P., Power & Macdougall, JJ.A.
Dates of hearing: 9 - 11 December 1992
Date of judgment: 18 March 1993
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J U D G M E N T
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Silke, V.-P.:
1. This is the judgment of the court.
2. Tai Chin Wah appeared for trial before His Honour Judge Britton on a charge sheet which contained five charges. The first charge was that of uttering a forged document, contrary to section 74(1) of the Crimes Ordinance, Cap.200 - "the Ordinance". Its particulars alleged that Tai Chin Wah, on or about 6th May 1983, at the office of the Law Society of Hong Kong, uttered a forged document: namely a document purporting to be a Law Society of England and Wales Certificate of passing the Solicitors' Final Examination. The Certificate was dated 26th November 1982. It was alleged that Tai Chin Wah - whom we shall from hereon called the respondent - knew it to be forged and had the intent to deceive.
3. The second charge was a similar offence and its particulars were that on 6th June 1983, also at the office of the Law Society of Hong Kong, the respondent uttered a forged document: namely a document purporting to be a letter from the Law Society of England and Wales dated 30th May 1983 knowing that it was forged and with intent to deceive.
4. The third charge was that of making a false statutory declaration, contrary to section 36(a) of the Ordinance. Its particulars alleged that the respondent, on 16th May 1983, in Hong Kong, in a declaration which was entitled "a Declaration as to Service under Articles" made under the Oaths and Declarations Ordinance, knowingly and willfully made a statement which was false in a material particular, that is that he had complied with the requirements of rule 14(b) of the Articled Clerks Rules as to the passing of examinations. The fourth charge was possession of a forged document, contrary to section 76(3) of the Ordinance, and its particulars alleged that the respondent, on 7th October 1991, at his home had in his custody without lawful authority or excuse a forged document, which he knew to be forged; namely a Law Society of England and Wales Certificate of passing the Solicitors' Final Examination which certificate was dated 26th November 1982.
5. The fifth and final charge was also that of possession of a forged document and its particulars alleged that he, on 7th October 1991, at his home had in his custody or possession without lawful authority or excuse forged documents, that is writing paper of the Law Society of England and Wales which he knew to be forged.
6. To all these charges he pleaded guilty, and upon his plea being accepted, the trial judge sentenced him to 6 months imprisonment on each of the charges, those sentences to be concurrent. The judge then went on to suspend those sentences for a period of 12 months.
7. The sentences having been imposed on 27th February 1992 the Attorney General, on 18th March 1992, filed an application under the provisions of section 81A of the Criminal Procedure Ordinance, Cap.221 for leave to apply to the Court of Appeal to review those sentences on the basis that they were "manifestly inadequate and/or wrong in principle". On the same day the solicitors acting for the respondent wrote a letter to the court seeking to have the application for leave heard on an inter parses basis. The single judge, in the person of the Chief Justice, having considered that which was said in "Applications for Review Nos. 10, 11 and 13 of 1990" [A.G .v. Tse Ka Wah and Others [1992] 1 HKCLR 103] refused that request. He granted the Attorney General's application for leave and directed that the papers be filed within 14 days. That order was made on 19th March.
....
68. We have no doubt at all that an immediate custodial sentence should have been imposed by the sentencing judge, and of greater length than the 6 months imprisonment he thought appropriate. That was manifestly inadequate. It was wrong in principle to suspend. We would assess the proper sentence now to be 9 months imprisonment concurrent on each charge. We would allow the Attorney General's review and make that order.
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多名議員先後犯法入獄
立法會議員因犯法被判入獄或虛報資料其實早有前科，戴展華、梁錦濠、詹培忠和程介南曾先後因觸犯法例而被判入獄，並喪失議員席位，而黃宜弘和何秀蘭等亦曾因虛報個人資料而被公眾質疑誠信。
戴展華梁錦濠等判坐監
九二年剛取得新界西直選立法局議席的戴展華，因被控偽造英國法律考試合格證書，並向香港律師會發假誓後在港冒認律師罪成，被判入獄九個月，他在入獄前已辭去議員一職。立法局議員梁錦濠亦在九三年被廉政公署起訴，指他曾向多名區議員買票，結果被控兩項提供利益及一項行賄罪名成立，判監三年。
現任立法會金融服務界議員詹培忠，亦曾於九八年八月被指企圖違反證券及期貨監察事務委員會的收購及合併條例，偽造文書罪名成立，被判入獄三年，詹培忠同時被褫奪立法會議席。
監禁期間，廉政公署再起訴他於九八年立法會選舉中賄賂選民罪成，罰款十萬元。
二○○○年八月，民建聯前副主席程介南在參選立法會港島區直選期間，被指利用議員身份向其公關顧問公司客戶提供利益，以權謀私，他當選後旋即辭去立法會議員一職，直至○一年底被控身為公職人員收受利益及行為失當罪名成立，判監十八個月。
至於虛報個人資料，何秀蘭曾被指於九八年立法會選舉期間呈報的學歷資料不盡不實，沒有說明自己未能在加拿大滑鐵盧大學完成學位課程，個人誠信遭到打擊。另外，立法會前議員黃宜弘更被揭在美國取得的工程學博士學位，是由美國兩間「文憑工廠」頒授，未獲當地政府認可，被指誤導公眾及立法會。
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