1. The Appellant was a solicitor involved with his clients in dealings relating to a property in Tuen Mun (the “Property”). He was charged with one count of “using a copy of a false instrument” and two counts of “using a false instrument” contrary to ss.74 and 73 respectively of the Crimes Ordinance (Cap. 200) (the “CO”). Charge 1 concerned the use of a copy of a sale and purchase agreement (the “SPA”) of the Property in support of a mortgage loan application. Charges 2 and 3 concerned the use of the SPA and an assignment of the Property (the “Assignment”) respectively for registration at the Land Registry. 2. The Prosecution alleged that the SPA and Assignment were “false” instruments by relying on s.69(a)(vii) of the CO, which provides that: “For the purpose of this Part— (a) an instrument is false if it purports to have been— … (vii) made or altered on a date on which or place at which or otherwise in circumstances in which it was not in fact made or altered;” 3. At trial, the Judge found that the SPA and Assignment, which the Appellant helped prepare and witness, were “false” because they falsely stated that a consideration of HK$3 million was paid by the purchaser to the seller. On appeal, the Court of Appeal held that those documents were false on a significantly different basis, namely that the underlying sale and purchase transaction was a “sham” because it did not, and was never intended to, transfer title to the Property. The proper construction of s.69(a)(vii) of the CO 4. The Court observed that the courts below favoured a wide construction of s.69(a)(vii). They based the falsity of the SPA and Assignment on an extraneous fact or circumstance: non-payment of the stated consideration or the “sham” character of the underlying transaction. However, there is a competing view that s.69(a)(vii) covers only lies concerning the circumstances of the instrument’s own making or alteration, such as lies as to who made it, the signatory’s authority to sign it, when and where it was made etc. This is known as the “automendacity” approach. 5. The Court held that, on a purposive and contextual interpretation, s.69(a)(vii) must follow the automendacity approach. The statutory purpose of the forgery offences in the CO is to target frauds that use instruments of spurious authenticity, documents which tell lies about themselves. The main emphasis is on what the instrument purports or appears to be. Accordingly, s.69(a)(vii)’s reference to “circumstances” in which the instrument was not in fact made or altered should be construed consistently with the other two instances of falsity specified in that provision, namely, falsity as to the date or place of the making of the instrument. As with those two instances, the “circumstances” in question relate to falsity of the purported circumstances of the making or alteration of the instrument, not to extraneous facts. Application of the relevant provisions to the facts 6. The Court noted that it had grave reservations as to whether it was open to the Court of Appeal to uphold the Appellant’s conviction on a basis which significantly departed from the Prosecution’s case and was not explored at the trial. In any event, the decisions below rest upon the wide construction which the Court rejected. Although the SPA and Assignment told lies about the underlying transaction, they did not tell a lie about the circumstances of their making. Thus, they were not “false” according to s.69(a)(vii), and the Appellant’s convictions were quashed. 7. The Court observed that the difficulties in the present case flowed from the Prosecution’s decision to charge the forgery offences rather than bringing more straightforward charges which might well have led to a different outcome. In holding that the offences charged were not proved, it must not be thought that the Court in any way condones schemes of the type which was carried out in the present case. Substitution of a conviction for another offence 8. The Prosecution sought, in the alternative, to substitute the Appellant’s convictions for a conviction for conspiracy to defraud at common law or for fraud under s.16A of the Theft Ordinance (Cap. 210) (the “TO”). The Court observed that the power to substitute an alternative conviction is discretionary. Section 83A(1) of the Criminal Procedure Ordinance (Cap. 221) contains two conditions that must be satisfied before the discretion is exercised. First, the case must be one where the trial judge could, on the indictment, have found the accused guilty of some other offence (the “First Condition”). This means that the allegation in the original charge must expressly or impliedly include or amount to an allegation of the proposed alternative offence. In deciding whether the First Condition is satisfied, the court looks at the content of the charges as laid and not at the evidence. Secondly, the trial judge must have made findings sufficient to establish guilt of the alternative offence (the “Second Condition”). 9. The Court refused to substitute an alternative conviction because the First Condition is not met. As to conspiracy to defraud, the present charges do not allege any agreement between the Appellant and any other person, let alone an agreement which amounts to a conspiracy to defraud. As to fraud, the present charges do not contain any allegation that the use of the allegedly false instruments produced a prohibited result: the present allegations only describe the Appellant’s acts and intention. The offence of fraud and dishonesty 10. The Appellant submitted that, in relation to the fraud offence, another reason why the First Condition is not met is that the present charges do not contain an allegation of dishonesty, which is an essential ingredient of fraud. Although the Court held that the First Condition is not met on other grounds, it proceeded to examine this submission because the Appellant was able to rely on the Court of Appeal’s decision in HKSAR v Ho Ka Keung [2009] 1 HKC 61 in support. 11. The Court held that dishonesty is not an element of fraud. “Dishonesty” is not mentioned in s.16A of the TO. When the TO creates an offence requiring proof of dishonesty, it expressly so provides. It has done this in respect of at least twelve different offences. The Court of Appeal’s suggestion in Ho Ka Keung that the word “deceit” in s.16A incorporates the element of dishonesty is untenable. “Deceit” and “dishonesty” are entirely different and independent concepts. Thus, Ho Ka Keung should not be followed on this point. Disposition 12. Accordingly, the Court unanimously allowed the appeal and quashed the Appellant’s convictions. It also declined to substitute any alternative convictions.