OVERVIEW
The Crimes Ordinance separates the making, use, copying and possession of false instruments into distinct offences. Section 75 itself creates two offences concerning custody or control, and their mental requirements and maximum penalties are different. The precise charge and its particulars must therefore be examined carefully.
Under section 75(1), a person commits the more serious offence if they have in their custody or under their control an instrument which they know or believe to be false, intending that they or another person will use it to induce somebody to accept it as genuine and, because of that acceptance, to do or not do an act to that person's or another person's prejudice. The maximum sentence on conviction upon indictment is 14 years' imprisonment.
Section 75(2) creates a separate offence where a person, without lawful authority or excuse, has in their custody or under their control an instrument which they know or believe to be false. This offence does not require proof of the additional intention to induce somebody to accept the instrument as genuine. The maximum sentence on conviction upon indictment is 3 years' imprisonment.
Under section 69, an 'instrument' includes any formal or informal document; any postage or revenue stamp; any seal or die; and any disc, card, tape, microchip, sound track or other device on or in which information is recorded or stored by mechanical, electronic, optical or other means. False or forged credit cards are a frequently encountered example.
Our lawyers have extensive experience in handling allegations involving false instruments and credit cards and can advise suspects and defendants at every stage of an investigation or prosecution.
STATUTORY PROVISIONS
sections 69 to 76 of the Crimes Ordinance (Cap. 200)
The relevant part of the current statutory provision states:
Section 71 — Forgery
A person commits the offence of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine and, by reason of so accepting it, to do or not to do some act to his own or any other person's prejudice.
Section 73 — Using a false instrument
A person commits an offence if he uses an instrument which is, and which he knows or believes to be, false, with the intention of inducing somebody to accept it as genuine and, by reason of so accepting it, to do or not to do some act to his own or any other person's prejudice.
Section 75 — Offences of possessing a false instrument
(1) A person who has in his custody or under his control an instrument which is, and which he knows or believes to be, false, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice, commits an offence and is liable on conviction on indictment to imprisonment for 14 years.
(2) A person who, without lawful authority or excuse, has in his custody or under his control an instrument which is, and which he knows or believes to be, false, commits an offence and is liable on conviction on indictment to imprisonment for 3 years.
ELEMENTS OF THE OFFENCE
An instrument within section 69
The item falls within the broad statutory definition. In a credit-card case, the prosecution must prove the card or stored information is an instrument.
Falsity
The instrument is false under section 70, including where it purports to have been made in a form, on authority, on terms or at a time that is untrue in a material statutory sense.
The act charged
The defendant made, used, copied, possessed or controlled the instrument, or dealt with relevant equipment, as alleged under the particular section.
Knowledge, belief and intention
The defendant knew or believed the instrument was false and possessed the specific intention required by the charged offence; lawful authority or excuse is relevant to section 75(2).
WHAT COUNTS AS FALSE
What makes an instrument false
An instrument can be formal or informal and includes documents, stamps, seals, cards, discs, tapes, microchips and other devices used to record or store information. The definition can cover a digital image stored on a telephone or computer.
The essence of a false instrument is that it is made to appear genuine when it is not. An instrument may be false if it claims to have been made or authorised by someone who did not make or authorise it; contains terms or alterations that were never genuinely made; gives a false time, place or circumstance of its creation; or purports to have been made by a person who does not exist.
A person also makes a false instrument by altering an existing instrument so that it becomes false in any respect, even if it was already false before the alteration. A common example is a document bearing a false signature which makes it appear that the named person signed or authorised the document when they did not.
- Common examples: Falsified credit cards, identity or student cards, sick-leave certificates, signatures and digital bank letters.
Penalty
Maximum Penalties
- Forgery, using a false instrument, using a copy, and possession under section 75(1): generally a maximum of 14 years' imprisonment on conviction upon indictment.
- Knowing or believing custody or control without lawful authority or excuse under section 75(2): a maximum of 3 years' imprisonment on conviction upon indictment.
- The applicable maximum depends on the exact section and particulars charged.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.