List of Abbreviations
 

Chapter 6 - Introduction and Legal Consideration

Introduction

Is Forgery the Only Issue?

Burden of Proof

Standard of Proof

Admissibility of Opinion Evidence on Handwriting and Signature Identification
 

Chapter 7 - Principles and Basis of Examining and Evaluating Handwriting and Signature Evidence

The Contentions and Agreement of the Defendant's Experts
 

Chapter 8 - Wang Teh Huei's Genuine or Sample Signatures

Two other "Written Names" of "Wang Teh Huei" (王德輝)

What Sample Signatures would the Defendant have?
 

Chapter 9 - The Questioned Signatures of Wang Teh Huei (王德輝) (I) - The Macro View

The Plaintiff's Allegation of Simulated Forgery

The Opinion of the Three Experts Called by the Plaintiff

The Defendant's Experts

The Macro Analysis

The Explanation of the Defence by Her Expert Prof. Jia
 

Chapter 10 - The Questioned Signatures of Wang Teh Huei (王德輝) (II) - The Micro Analysis

Similarities 78

(1) The character " Wang" "王"
        (a) In 1A1
        (b) In 1B1
        (c) In 1C1
        (d) In 1D1

(2) The character "Teh" "德"
        (a) In 1A1
        (b) In 1B1
        (c) In 1C1
        (d) In 1D1

(2) The character "Huei" "輝"
        (a) In 1A1
        (b) In 1B1
        (c) In 1C1
        (d) In 1D1

Significant Differences

(1) The character "王"

(2) The character "德"

(3) The character "輝"

Further and Other Significant Differences

(1) The character "王" in 1A1
        (a) The vertical stroke
        (b) The eye-let of the lowest stroke

(2) The character "德" in 1A 1 in respect of radical "心"

(3) The character "德" in 1B1 in respect of the lower left corner of radical "(Chinese text)"

(4) The character "輝" in 1B1
        (a) The "shelter" "(Chinese text)" radical
        (b) The central vertical stroke

(5) The character "輝" in 1C1
        (a) The first slant of the "彳" radical
        (b) The compressed loop on the right

Tremors

Conclusion
 

Chapter 11 - The Questioned Signatures of Wang Teh Huei (王德輝) (III) - The Presence of Tremors and the Medical Evidence thereof and the Overall Conclusion on Wang's Signatures

Tremors

Medical Evidence

        (1) Dating and causation

        (2) Head injury

Overall Conclusion on the Four Questioned Signatures of Wang
 
 

List of Abbreviations
 

Cheng	Cheng Yau Sang, patrick
CI	Certificate of Identity
CUCCL	Hong Kong China United Chemical Corporation Ltd.
Dr Choa	Dr Brian Choa
Dr Woo	Dr Edmund Woo
GL	Gus R. Lesnevich
HVP	Home Visit Permit
Law	Law Ming
Leung	Allan Leung
Li	Li Kwok Kee
Ng	Ng Shung Mo
Nina	Ning Kung Ru Xin, the defendant
Prof. Jia	Professor Jia Yu-wen
Wang/Teddy	Teddy Wang Teh Huei, the deceased
Teresa	Teresa Tak Shyan Sun
Tse	Tse Ping Yim
Tsui	Tsui Chee Keung, David
Wang Sr	Wang Din Shin, the plaintiff
Xu	Xu Li-gen
Yih	Yih Lee Kong
Zhan	Zhan Chu-cai

 

"The conclusion that a writing is not genuine is only properly reached when it contains divergences in amount and quality beyond the range of variation in the standard writing that cannot reasonably be accounted for by changed conditions in the writer or surrounding the writer"

"In identifying a person, for example, scars, deformities, finger-prints, or a series of accurate measurements, must be depended upon and finally, if the conclusion of identity is reached, either in a person or a handwriting, there must not remain significant differences that cannot reasonably be explained. This ignoring of the differences, or the failure properly to account for them, is the cause of most of the errors in handwriting identification. The dishonest advocate and the dishonest witness sometimes make a labored and elaborate effort to 'explain away' differences that are as plain as the nose on a man's face."

  

- from the "bible" of handwriting examination :
Osborn on Questioned Documents 1947

INTRODUCTION

6.1 In this Section II, I shall consider the main dispute between the parties, i.e. whether the 1990 Documents are forged documents. I shall assess the issue independently, i.e. independant of the previous issue of surrounding suspicious circumstances and I shall state what findings are proved to my satisfaction and to what standard of proof thereof. Further each four sets of signatures of Wang will be assessed independently first before the four sets of Tse's signatures in these four documents. Then they will be considered together but only thereafter.

6.2 Thereafter the handwriting in the body of the four documents will be considered separately. Further, under this issue, the experts' evidence will be considered deliberately first and independently before the evidence of Teresa's identification of the handwriting thereof. Then the two separate pieces of supporting evidence will be considered together.

6.3 The overall conclusion on handwriting and the two sets of signatures shall be considered together at the final conclusion at the end of this judgment after Section III on ink-dating. There shall be an overall consideration and synthesis of all the evidence before me.

6.4 As stated in Section I hereinbefore, Section III is written before Section II which in turn is written before Section I. Apart from the practical consideration of the order of submissions received from Counsel, it is also intended to achieve the independant assessment of each issue and in turn sub-issue before the synthesis of them in turn of one after the other and finally together.

IS FORGERY THE ONLY ISSUE?

6.5 Counsel for the defendant submitted that the only issue in this case is forgery since the plaintiff challenges the 1990 Will of Wang consisting of one or more of the four documents on the basis that it was not made by him and, in particular, that "the signatures of [Wang] and [Tse] on the 1990 Documents were forged".

6.6 On the other hand, Counsel for the plaintiff submitted that it is wrong to say that the only issue in this case is forgery and it is a misleading way of characterizing the issue. The issue is whether the defendant has satisfied the Court that the four questioned documents were duly executed by Wang as his last testamentary document. It was submitted that besides the examination of handwriting evidence, the suspicious circumstances in this case, particularly the conduct of the defendant in propounding the 1990 Will should be scrutinized in minute details by this Court.

6.7 It is quite clear as considered in Section I hereinbefore, there are other background circumstances which are relevant in my consideration, for example whether Wang would execute such documents as his last will shortly after his fall from a horse in the ways as alleged by the defence but, there and then unknown to him, also shortly before his fatal kidnap. Each issue shall be considered separately and independently first. The relevant legal consideration thereof is considered hereinbelow.

BURDEN OF PROOF

6.8 Counsel for the defence submitted that, although the defendant has the general burden to satisfy the Court that the 1990 Will should be propounded as the last will of Wang, it is common ground that in respect of the issue of forgery, the burden rests squarely on the plaintiff who asserts forgery. Thus it was submitted that the burden is on the plaintiff to satisfy the Court that each of the questioned signatures of both Wang and Tse on each of the four documents was forged.

6.9 On the other hand, Counsel for the plaintiff submitted that the defendant has to prove positively that there was no forgery and it is not up to the plaintiff to prove any forgery. The plaintiff's burden was only an evidential burden, which would mean that the plaintiff would have to adduce or point to some evidence which would be sufficient for the Court to leave the issue to the jury, in the case of a trial by jury, or to leave the issue to be considered by the Judge in the case such as the present, where the Judge sits as both Judge and jury. Counsel for the plaintiff admitted that there were some statements in some text book which appears to say that the burden of proving fraud, undue influence and forgery lies on those who allege it.¹ It was submitted that the editors in William, Mortimer and Sunnucks must be referring to the evidential burden, as the editors went on to say that the burden of proof in many cases shifts during the course of the case.

6.10 I tend to accept the submissions of the defence with certain additional consideration. Since it is the plaintiff who alleges forgery the burden is on him to prove that these eight signatures and the documents thereof were forged. The question of burden of proof would only arise if the Court cannot decide whether those signatures were forged or the evidence was so evenly balanced and the one who has the legal burden of proof would fail, i.e. the plaintiff in this case would fail in his allegation of forgery. This situation will not arise here.

6.11 However, on the other hand since it is the defendant who propounded the 1990 Documents as the last testamentary documents of Wang, the burden rests squarely on the defendant to establish that the documents were indeed the last wills of Wang. It would be part and parcel of the defendant's legal burden of proving that the signatures of Wang and Tse were genuine in the course of propounding the 1990 Will. Even when the Court cannot decide whether these signatures were forged or in another case where no forgery is alleged, the defendant would still be required to prove that the Wills were signed by the testator with the necessary animus testandi. It is also part and parcel of the defendant's legal burden to clear up all the relevant suspicious circumstances in light of the plaintiff's allegation of forgery.

6.12 In this respect I would just stop here although Counsel on both sides submitted various scenario in the consideration of legal burden of proof. I do not blame them for doing so since they do not know what finding of facts I will make. This various possibilities would have no use apart from academic consideration. For example what is the legal position if I find Wang's signatures are genuine whereas Tse's signatures are forged or vice versa. In my finding these circumstances do not arise and anything I consider as the legal position would be obiter anyway in this long judgment. Thus I do not intend to prolong it any further. I would, as submitted by Counsel for the plaintiff, evaluate the handwriting experts' evidence by scrutinizing their reasoning, analysis and whether the conclusion reached was supported by cogent evidence.

STANDARD OF PROOF

6.13 Counsel for the defence submitted that it is well-established law that in a civil case where a serious allegation is made, like forgery or fraud, although the standard of proof is still on a balance of probabilities, the courts would not find such allegation established unless the evidence is strong and cogent.

6.14 In Re H and Others [1996] AC 563, at p.586 Lord Nicholls of Birkenhead said :
 

"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. ...... Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow's Will Trusts [1964] 1 W.L.R. 451, 455 : 'The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.'

This substantially accords with the approach adopted in authorities such as the well known judgment of Morris L.J. in Hornal v. Neuberger Products Ltd. [1957] 1 Q.B. 247, 266. This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters."

I accept the submission of the defence (in fact the plaintiff's Counsel did not submit otherwise) that this Court should require strong and convincing evidence before it would make a finding of forgery.² For the benefit of the parties I shall state clearly in my findings herein what findings I will make and to what standard of proof I find the facts are proved, i.e. whether it is on a balance of probability, high degree of probability, strong cogent and convincing evidence, or beyond reasonable doubt.

ADMISSIBILITY OF OPINION EVIDENCE ON HANDWRITING AND SIGNATURE IDENTIFICATION

6.15 Both sides accepted that the Court may admit the evidence of the opinion from experts upon the genuineness of a disputed signature or handwriting, whether ancient or modern, after the experts have compared it with specimens proved to the satisfaction of the Court to be genuine. Even without making comparison, experts are also entitled to give general opinion from their general knowledge of the subject on whether the writing is in a feigned or natural hand.³

6.16 However, Counsel for the plaintiff submitted that opinion evidence on handwriting is not restricted to experts. The law is stated in Halsbury's Laws of England, 4th edn, Vol. 17, para.89 as follows :
 

"89. Handwriting in general. The proof of handwriting may require either lay or expert evidence, or both, depending upon the point at issue. A person's handwriting may be proved by the opinion of witnesses who are acquainted with it. The knowledge necessary for this purpose may have been acquired by the witness at any time having (1) seen the party write, or (2) received communication purporting to come from him in answer to those addressed to him by the witness, or (3) observed documents purporting to be in the party's handwriting in the ordinary course of business. Knowledge however, acquired before or during the trial by a non-expert witness for the express purpose of qualifying him to prove the party's handwriting at the trial will not suffice to make the evidence admissible ... "

6.17 Apart from the position at common law, the Court can also admit evidence from lay persons on handwriting under section 17 of the Evidence Ordinance which provides :
 

"Comparison of disputed with genuine writing

Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses in any proceedings, and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and to the jury, if any, as evidence of the genuineness or otherwise of the writing in dispute."

6.18 There could be occasions that the court is prepared to infer from the name in a signature itself as proof of the identity of the person signing. However, the cases falling within this category would all be cases where there was nothing to raise any doubt on the identity. For example in Roden v. Ryde (1843) 4 QB 626, 114 ER 1034 an action was brought against the defendant Evans for goods sold and delivered and also on a bill of exchange accepted by the defendant Ryde. It appeared that about five years before the action was brought, the defendant Evans had been a customer of the plaintiff and had written a letter acknowledging receipt of the goods. The witness who proved these facts did not know whether the defendant was the same Evans; nor was any further evidence given of the fact. In relation to the bills of exchange, there was evidence that the defendant Ryde had kept cash at the bank where the bills were made payable, and had drawn cheques which the cashier had paid. The cashier also swore that the acceptance was in the same writing as that on the cheques. However, he had not paid any cheque for some time and did not know the parties personally and could not identify the defendant Ryde.

6.19 The court held that in the circumstances before the court, there was sufficient prima facie evidence on the identity of the respective defendants and in the absence of any contrary evidence the identity was proved. In so ruling, the court took into account the fact that the names of the persons signing on the documents were not very common names, and the chances of persons with the same names signing on the documents were remote.

6.20 Also the court further held that the case in which the defendants could prove that the signatures were not theirs was the reason for throwing the burden on the defendants to prove the negative. Lord Denman CJ said (114 ER 1307) :
 

"But where a person, in the course of the ordinary transactions of life, has signed his name to such an instrument as this, I do not think there is an instance in which evidence of identity has been required, except Jones v Jones (9 M & W 75). There the name was proved to be very common in the country: and I do not say that evidence of this kind may not be rendered necessary by particular circumstances, as for instance, length of time since the name was signed. But, in cases where no particular circumstance tends to raise a question as to party being the same, even identity of name is something from which an inference may be drawn. If the name were only John Smith, which is of very frequent occurrence, there might not be much ground for drawing the conclusion. But Henry Thomas Ryde are not so numerous; and from that and the circumstances generally there is every reason to believe that the acceptor and the defendant are identical. The dictum of Bolland B (3 Trywh. 558), has been already answered. Lord Lyndhurst C.B. asks (3 Tyrwh 543), why the onus of proving a negative in these cases should be thrown upon the defendant; the answer is, because the proof is so easy. He might come into Court and have the witness asked whether he was the man."

6.21 Since in this case this Court is sitting as both Judge and jury, the Court is entitled to take into consideration the opinion of lay persons on the comparison between the disputed handwritings and genuine handwritings, Counsel for the plaintiff submitted that the Judge is also entitled to make comparison himself between the disputed handwritings and signatures against those which had been proved to be genuine to his satisfaction and come to a decision as to whether the defendant had proved the disputed documents were the last wills of the deceased.

6.22 As the law permits opinion of lay persons on handwriting comparison to be given, Counsel for the plaintiff submitted that it must necessarily follow that the law would permit experts who are not acquainted with the language in which the writings or the signatures are made to give evidence on the authenticity of the writings or the signatures concerned. In the present case, the disputed writings are all in Chinese, but it would appear that at least to the extent that the writings are in the form of signatures, occidental handwriting expertise and methodology had been accepted by the Court to be equally applicable.

6.23 In Kung Wong Sau Hin v. Kung Kwok Sun and others, Probate No. 2 of 1982 (per Deputy Judge Nazareth QC, as he then was), the Court was concerned with the authenticity of a home made will said to be signed by the deceased propounded by the defendant. The signature was in Chinese. To support the will, the defendant called a highly qualified professor who had vast experience and knowledge on Chinese calligraphy and had given evidence on Chinese handwritings in courts before. His approach to the handwriting was that Chinese calligraphy was a living art and had much more in it than Latin script. With the trained eyes, one could recognise the "Qi" (氣) (translated as rhythmic "vitality" by the expert) in the characters and through the recognition of this feature, the writing could be identified. The plaintiff called Mr Radley as expert who admittedly did not know Chinese. In the end, the court accepted the evidence of Mr Radley notwithstanding he did not know Chinese. The court accepted the evidence that the examination of ideographic writing should proceed in the same orderly scientific manner that is employed with more familiar script, and that it was possible for an occidental questioned document examiner to make meaningful examinations of documents written with ideographic characters. The court also accepted the evidence that a signature in Chinese was different from ordinary handwriting in Chinese in that the former did not necessarily represent convention handwriting, but had become so personalised as to be a mark produced almost by reflex action with very little conscious effort.

6.24 Kung Wong Sau Hin case also reaffirmed that even in cases where the allegation was whether the will sought to be propounded was forged, the issue was whether the party propounding the will had discharged the burden of showing on balance of probabilities that the will was executed by the deceased, and not as a separate issue of whether the allegation of forgery was proved (see pages 21, 32 and 37 of transcript of the Judgment). Deputy Judge Nazareth QC first considered whether on the general evidence called by the party propounding the will that they had satisfied him that the will was duly executed by the deceased. On coming to the view that the evidence was not sufficient to satisfy him that the will was executed by the deceased, he then went on to consider the expert evidence on handwriting led by that party to see if overall he was satisfied that the will was duly executed. The Judge was not so satisfied (see page 32). The Judge remarked that it would in fact not be necessary for him to go on to consider the evidence of the party opposing the document. Thus the plaintiff's Counsel herein submitted that had it been the case that the burden was on the party alleging forgery to have the legal burden of proving positively forgery, then it would be surprising that the Judge should not approach the opposing party's evidence on forgery first. At the end of the day, the Judge concluded his decision that the defendant before him failed to establish on balance of probability that the document propounded was duly executed by the deceased. In fact, the Judge did not make any express finding that the document propounded was a forgery, which would be required if the real issue was forgery.

6.25 I do not quite accept this submission according to what I have stated earlier in this chapter on the distinct and different burden of proof on each party and they are related in some respects as two sides of a coin.

6.26 Furthermore, the Kung Wong Sau Hin case also reaffirmed the true role and value of expert evidence. The Judge expressly affirmed the statement of the law in Phipson on Evidence, 13th ed., paras.27-34 that the duty of expert "is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusion, so as to enable the judge or jury to form their own independant judgment by their application of these criteria to the facts proved in evidence."

6.27 Thus Counsel for the plaintiff submitted that it is for this Court to decide on his own view whether the signatures of Wang were executed by him in the manner and circumstances as suggested by the defendant. It is not a question of the Judge's accepting the conclusion or the opinion of any particular expert in substitute for his own. However, in deciding on my own view, I must say that I shall accept any particular expert's evidence if I find, on reasoning and analysis, his view is correct and acceptable. I shall in the next chapter consider the basis and approach of assessing handwriting evidence.
 
 

¹ William, Mortimer and Sunnucks : Executors, Administrators and Probate, para.39-11
² See also Non-no Fashion Wholesale Ltd v. Chung Kam Wing and Shu Man Lee (unreported), HCA 20335 of 1998, judgment on 31 January 2001 of Cheung J, as he then was, at 24, 29, 30; confirmed by Court of Appeal on 8 August 2001 in CACV No. 168 of 2001
³ Phipson on Evidence 15th ed.paras.37-56 and 37-73
 
 

7.1 Both sides agree that in comparing handwriting and signature between the known and the questioned ones, one has to note both similarities and differences.

7.2 However the defence complained that the plaintiff's experts (Mr Gus R. Lesnevich - "GL", Mr Cheng Yau Sang, Patrick -"Cheng" and Mr Tsui Chee Keung, David - "Tsui") have over-emphasised on similarities in comparing handwritings and on differences when comparing signatures. The plaintiff, on the contrary, complained that experts for the defence ignored those significant similarities in comparing handwritings and those significant differences in comparing signatures.

7.3 Thus it is important to state at the outset what is a similarity and what is a difference and what constitutes a significant one. This will also include the consideration of what constitutes a set of variations within the known handwritings or signatures. But before that, one would also have to consider the principles and basis of making comparison between the known handwritings/signatures and the questioned ones. I shall start with what both sides have agreed as the bible of handwriting examination - Osborn on Questioned Documents 1947.¹

7.4 Osborn said² :
 

"The conclusion that a writing is not genuine is only properly reached when it contains divergences in amount and quality beyond the range of variation in the standard writing that cannot reasonably be accounted for by changed conditions in the writer or surrounding the writer"

"In identifying a person, for example, scars, deformities, finger-prints, or a series of accurate measurements, must be depended upon and finally, if the conclusion of identity is reached, either in a person or a handwriting, there must not remain significant differences that cannot reasonably be explained. This ignoring of the differences, or the failure properly to account for them, is the cause of most of the errors in handwriting identification. The dishonest advocate and the dishonest witness sometimes make a labored and elaborate effort to 'explain away' differences that are as plain as the nose on a man's face."

7.5 In respect of "natural variation" Osborn said³ :
 

"Another indication of genuineness in a holographic document or a considerable amount of writing, or in two or more disputed signatures, are certain natural variations in the details of the writing. It is difficult for the inexperienced or unthinking examiner to understand that a certain extent of variation in a group of several signatures and variation in repeated words and letters in a continuous holographic document can be evidence of genuineness. The forger does not understand this necessity for natural variation and, as nearly as he can, makes words and letters just alike.

As is well known, one of the evidences of forgery in a tracing is its identity with a model or the damaging identity of several traced forgeries when compared with each other, or of several simulated signatures copied from one model or written from one mental design. As is easily demonstrated by experiment, when even two short signatures or any two words are written, there is possibility of slight divergence at any point in the line making up the words or signatures, and this is the genuine divergence which should appear in genuine signatures or in any continued genuine writing. The endings of repeated words in an extended writing are almost certain to show a natural variation and similar words in a simulation will usually show an unnatural similarity.

It necessarily follows, therefore, that if the several lines of a disputed document, or several signatures under investigation, show these natural variations of writing of the same word or letter, all of course within the scope of variation of the genuine writing, this variation itself, surprising and paradoxical as it may appear, is as strong evidence of genuineness as the opposite condition is evidence of forgery."

7.6 It should be noted that the proposition made by Osborn was predicated on a forger copying from one single model. Plainly when this assumption is applicable, the forger could not have introduced into the questioned signatures the natural variations found within the genuine signatures of the true author. Hence, an inference of genuineness could be drawn from the presence of the same natural variations being present in both the questioned and the genuine signatures. However the strength of the inference of genuineness would also depend on the nature of the variations found. If those variation features are personal to the author, then the inference would be stronger. If the features of the variations are those normally found in writings of a large number of persons, then the inference would be a weak or very weak one.

7.7 On the other hand if the evidence would give rise to the possibility that the forger may be copying from say, two or three selected samples, then the presence of the same features of natural variations, and more significantly, accidental features, found only amongst the two or three samples and the questioned signatures might well be the result of the copying. This inference would be more strongly drawn if amongst the samples available, the variations found within the questioned signatures are only found within the two or three particular known samples and not found from the rest.⁴

7.8 The inference would even be stronger if the variations found in the known samples belonged to a much earlier period of the writer and not found in the later period at all, if the allegation of the party putting forward the documents as genuine documents, is that the questioned signatures were made in the later period.

7.9 The aforesaid principles can be better understood in light of the formation of one's characteristic handwriting or signature which has much to do with one's hand and eye co-ordination, form of perception and also the muscular movements. The general basis for handwriting identification was dealt with by one of the plaintiff's experts, GL and his evidence in this respect has not been challenged. According to him, the basis and process of formation of one's habit of handwriting or signature are as follows⁵ :
 

"It begins with understanding how a person begins to learn how to write. What will happen is that a person will place into the student's hand either a paintbrush or a pencil or a crayon, and the person will then try to take images they see and reproduce them either on paper or a chalk board.

When a student first begins this process of taking images and reproducing them, they develop what is called hand-eye co-ordination, co-ordination between your hands and your eyes. They also develop what has been known as form perception, how you can see a form and how you can reproduce that form.

Most importantly, what the person develops are the various muscle and nerve endings that go through the fingers, wrist, elbow and shoulder. These are the muscles and nerve endings that are used when a person writes.

Over a period of many years, the one piece of writing that is most consistent to someone is their signature. It is their mark; it is what stands for them. They use it over and over again.

Once a person reaches the stage at which they can pick up a writing instrument and without actually trying to think of how letters or characters are formed, they subconsciously automatically begin to write. When they do that, the signature becomes very naturally and spontaneously written; it becomes very unique to one individual.

Once that happens, then that signature is a mark of that person. If you have other known writings of the individual, you can then make a comparison between the questioned signature and the known signatures to determine whether or not there are unique similarities or whether or not there are dissimilarities, writing differences, that cannot be explained. That is the essence of how we start an investigation or an examination."

7.10 This general observation of GL is applicable to writings and signatures in whatever language, whether it be one formed with alphabets like English or ideograms like Chinese. Thus to a document examiner, generally speaking it makes little difference whether the signature is in Chinese or English and whether he knows the language in which the signature is written. Indeed very often the words or characters in the signature are not legible. It is just a mark or scribble of somebody. What the examiner is looking for is not what it says, but rather the muscular movements of the fingers and the wrist as the signature was written and the examiner would be comparing those writing movements with known writing movements of the individual to determine if they are similar, and more importantly whether or not there are any dissimilarities.⁶

7.11 However in some limited areas, an understanding of the language would help in the comparison in order to pick out the similarity or difference. For example Tsui in comparing the known handwriting of the defendant and Document A, he picked out the similarity between the radical "he" (禾) in the character "wei" (委) and the similar beginning of the character "wo" (我) in the first slant of the character and came to the conclusion that the defendant has two ways of writing that slant as a kind of variation in her known writing. This point was not picked up by GL presumably because he did not know the two ways of writing the slant of the same radical in two different characters. Thus in this respect an understanding of the Chinese language when it was in the form of ideograms rather than alphabet would help the examiner. Similarly it is easier to compare a handwriting in the language with alphabets similar to the English alphabet when the examiner is only conversant with English, like Danish in those letters which have similar English equivalent in the alphabet but not in those Danish alphabet with no equivalent English alphabet. It will be more difficult in comparing handwriting of a language which is not totally or partially equivalent to the English alphabet like Arabian or Hebrew when it involves different ways of writing the same alphabet which will not be apparent to an examiner not conversant with that language. In this limited area it will be more difficult for an examiner not conversant with a language expressed in ideograms like Chinese or Korean.

7.12 In respect of a person's signature, it was said that a signature is the product of spontaneous reproduction of one's repeated or habitual muscular action. However the human hand is not a machine and therefore there is bound to be variation in the signatures produced. Thus when a person writes his signatures, there are bound to be differences amongst them and these differences are called natural variations.⁷

7.13 On the other hand, if a person is to forge someone else's signature, he would first have to disregard his own writing habits and would have to restrain his muscular movements and through practice, try to reproduce someone else's signature. One basic rule is this : one cannot write a simulated writing with better quality than one's own natural writing. When simulation is done, most likely there are going to be mistakes made in such reproduction, which resulted in features found in the signature so reproduced different from those of the original signature. These differences are called differences or dissimilarities. If one has a consistent dissimilarity, something that cannot be found within the known signatures, then one cannot identify the signature as being genuine. If one has a number of consistent dissimilarities, then one can conclude that the signature is a forged one from the aforesaid comparisons.⁸

7.14 Thus the divergence in the views of the experts would spring from their differences on whether a particular divergence should be considered as a variation on the one hand or dissimilarity or difference on the other.

7.15 "If the conclusion of identity is reached, either in a person or a handwriting, there must not remain significant differences that cannot reasonably be explained".⁹ One such unexplained but significant difference is sufficient to prevent the identification of the writing despite the wealth of similarities.¹⁰ Thus to identify a questioned signature as genuine, the guiding principles as set out in Osborn are¹¹ :
 

"Identity is proved when two handwritings both contain a sufficient number of significant characteristics, qualities and elements so that it is unreasonable to say that they would all accidentally coincide in two different handwritings.

Identity is not proved by the presence of only a few common or conventional forms.

Identity is not proved by the presence of only system or national qualities or characteristics.

Identity is not proved by the presence of a few common abbreviated or developed forms and qualities."

7.16 Although the defendant's experts (Professor Jia Yu-wen - "Prof. Jia", Mr Xu Li-gen - "Xu" and Mr Zhan Chu-cai - "Zhan") had not discussed the general principles on the identification of handwriting either in their reports or in the evidence of Prof. Jia, it would appear that their approach is much the same. In any event both Prof. Jia and Xu had written/edited a whole book each in this respect and their approach could be derived from each of their own textbook.¹² In fact Counsel for the plaintiff have spent some time in the beginning of Prof. Jia's cross-examination to confirm whether he would agree with what he said in his own book and in Xu's book. For instance, in identifying that the questioned documents A, B and C were not in the writing of Wang, the defendant's experts referred to three dissimilarities between the corresponding characters in the questioned documents and the known writings and also remarked that "the differences represent characteristic features"¹³ (差異的特徵是個性特徵)¹⁴. Plainly they are of the view that if dissimilarities in the nature of characteristic features are found, then one can properly conclude that the questioned writing and the sample writings are not made by the same authors.

7.17 In the other parts of their report when making their conclusion on the detailed comparison between each character of the four questioned signatures with the known, the defendant's experts appeared to use the criterion of "fundamental differences"¹⁵ (本質差異)¹⁶ to refer to those divergences which would support an inference of different authorship.

7.18 While the concept of distinction between natural variations and dissimilarity (or difference) is drawn by all experts, there is no agreed formula amongst the experts as to what test one should apply in deciding what amounts to dissimilarity and what is mere variation. Certainly, the general view seems to be that if the differences would lie in those features which are personal to the writer, then such differences would be significant differences and not mere variations. But how can one tell that the feature is personal to the author? It appears that often different experts have different answers.

7.19 In this regard, I accept the evidence of GL as a kind of working guide even though that would not offer a comprehensive test in every case. He said¹⁷ :
 

"You are looking for muscular dissimilarities. For instance, if a person always writes with a wrist movement that is like a V, if all of a sudden the questioned signature has an underhand movement, that is a different muscular movement in the writing and that would be a dissimilarity.

There are many forms - size could be an area of dissimilarity. Adding flourishes and embellishments and the lack of embellishments could be dissimilarities. The form of how letters are formed can be dissimilarities. Every case is a little different but it depends on what the evidence actually shows you."

7.20 According to the defendant's experts there are also some well-known telltale of forgeries. Those features would include pen halts and retouching, rigid and awkward strokes, slow writing apparent to be fast (停筆重描，筆畫呆板，形快實慢). In the evidence of GL, when describing the other usual features found in forgeries, he said¹⁸ :
 

"It depends on the nature of a forgery. In many cases, the person trying to do a forgery cannot write as well as the signature that they are trying to reproduce. In doing so, you are going to have tremor, in the writing as the writer slows down to make a movement. There may be certain hesitations and stops in the signature as the person tries to correct a mistake. Those are some of the telltale signs that you would see in some forgeries".

7.21 However not every forgery must exhibit tremors, retouching or pen halts. There could be cases where the forger could in fact write better than the real author.¹⁹ This often happens in cases where because of old age or illness or just the deterioration of the quality of the writing of the author, the genuine signature of the author is of poor quality but the forger makes use of an earlier sample of the author as basis for the imitation to make the forgery.²⁰ Thus there could be little doubt that when making comparison, those sample signatures contemporaneous to the supposed date of the questioned signatures and similar writing conditions would carry a lot more weight.

7.22 Further even one's signatures, which are usually more consistent than one's ordinary handwriting, would change over a period of time as a result of changes in one's habit of writing. While there would usually be some basic features in the signature which remain unchanged, there would usually be new features emerging from the signature. In fact these changed features would often be the clues to dating the approximate time of a signature.²¹

7.23 This is particularly so when the time gap is large and the writing ability of the person concerned might also have changed. So over the period of years his writing ability might have improved or deteriorated. If a person's ability has deteriorated, then plainly his signatures in the later years could not maintain the same good writing quality of his earlier signatures. Thus when a questioned signature exhibits writing quality better than that could be produced by the author at the purported date of the signature, then the signature could be forged.²²

7.24 In respect of variations it should be noted that there are many kinds of variations. There are some variations which are very common amongst writers. Thus the presence of this kind of common variations (or national variations as previously pointed out by Osborn which was common amongst the nationals in a certain area or time) in the questioned signatures and also in the known signatures, would not have much significance in showing that the questioned signatures and the known signatures were written by the same person. This is because many people would have the same kind of variations in their writings. Thus it is not unusual that the same kind of variations is found in the writings of the genuine author and the forger.

7.25 There is also another kind of variations that is unique to the author. This is the kind of variations which is important and significant to tell whether two pieces of writings are by the same person.

7.26 For any given author there would be a range of variations (whether common or unique type) in his writing. If in a given questioned signature, the variations are outside this range, then usually that would become a difference and not just a range of variation. In determining what is the range of variation, one can only properly regard the known control samples. One cannot extend the range of variation found amongst the known by the range of variation found in the questioned signatures. Otherwise any difference no matter how material would at once become within the range of variation. For example, in writing the first vertical stroke of the radical "guang" () in the character "huei" or "hui" (輝), the stroke could come down vertically. It could also come down from the left or from the right. If amongst the known signatures, the stroke is either coming down vertically or from the left, then the range of variation would be between coming down from the left and vertically down. If in a questioned signature it is found that the stroke should come down from the right, then that would be a difference as it is not within the range of variation of the stroke found within the control known signatures and would be an indication of forgery.

7.27 Likewise, if amongst the known, the vertical stroke although coming down from the left would only have a small angle of deviation from the vertical, of say not more than five degrees, then if in a questioned signature, although the stroke also comes down from the left, and if the angle of deviation from the vertical is significantly more, say 10 degrees, then again, it would be outside the range of variation and would be a point of difference indicating forgery.

THE CONTENTIONS AND AGREEMENT OF THE DEFENDANT'S EXPERTS

7.28 In order to save a lengthy analysis of principles and basis of evaluating handwriting/signature evidence, it may be useful to state what the defendant's experts have agreed in this respect. As aforesaid, both Prof. Jia and Xu are textbook writers and editors. Thus the following extracts from their teaching materials written or edited by them demonstrated that the methodology or theory in conducting the handwriting examination are substantially the same as the plaintiff's experts. I shall cite the relevant extracts hereinbelow. For the benefit of bilingual readers, the original Chinese version will be stated first with a translation to be added at the end of each extract. Further this Court is relying on the original writing of the two experts and the translation is provided for non-bilingual readers only.

7.29  原文如下：
 

刑事科學技術 - 賈玉文主編²³

"書寫習慣的穩定與演變"

...... 個人生理功能、心理狀態的變化等, 使書寫習慣在逐漸發生演變。這種演變表現為新的特徵漸漸代替舊有的特徵,在不同時期的筆跡中存在部份或個別筆跡特徵的差異。這是個人書寫習慣自身演變的結果。這種變化不同於書寫時受心理狀態或外界條件的影響而發生的筆跡局部的、暫時的、可逆的變化。²⁴......
 

Forensic Science and Technology in Criminal Matters Editor-in-chief Jia Yu-wen

"Stability and Evolution of writing habits"

...inter alia changes in the physiological function and psychological state of an individual will lead gradually to the evolution of the writing habits of that person. This evolution is demonstrated by the gradual replacement of old features with new features, where differences in parts of or in individual handwriting features exist at different periods of handwriting. This is the result of the evolution of that person's writing habit itself. This kind of change differs from those changes in handwriting that occur under the influence of the psychological state of an individual or the external conditions at the time of writing, which changes are partial, temporary and reversible...
 

"摹仿筆跡"

摹仿筆跡是指比照他人筆跡的式樣仿寫形成的筆跡。包括臨摹、描摹、套摹、憶摹筆跡。檢驗摹仿筆跡的關鍵是注意發現摹仿筆跡的特徵, 勿將其當成正常筆跡。在檢驗過程中要注意筆跡細節特徵的異同, 不要只看大體、明顯的特徵。必要時, 應將疑是被摹仿的筆跡和被懷疑的摹仿人筆跡一併與物證筆跡作全面、綜合比較。其結果一般是摹仿筆跡與被摹仿筆跡 "大同小異", 而與摹仿人的筆跡 "小同大異"。²⁵
 

"Simulated handwriting"

Simulated handwriting refers to handwriting produced by copying the handwriting design of another person. This includes handwriting produced by simulation, by projection tracing, by superimposition tracing and from memory. It is crucial to any examination of simulated handwriting that attention is paid to those features of simulated handwriting that are found and that it is not considered as if it were normal handwriting. In the examination process, one has to pay attention to similarities and differences in detailed features of the handwriting, and not just look at general and obvious features. If necessary, a comprehensive and consolidated comparison should be made between the handwriting suspected to have been simulated, together with the handwriting of the suspected forger, and the handwriting on the material evidence. Generally speaking, the result is that the simulated handwriting will be "the same in major features but different in minor features" to the handwriting that has been simulated, whereas it will be "the same in minor features but different in major features" to the handwriting of the forger.
 

"錯誤寫法"

錯誤寫法是由於個人學習過程中, 對某些字的字形產生認知差錯而形成的一種不知為錯的習慣寫法。通常表現為多一畫或少一畫,或者錯配了偏旁。這種錯字是字典、辭書上所沒有的。習慣將某個字寫錯的人, 在他沒有改正之前寫不出該字的正確寫法。加之, 錯字特徵在人們的筆跡中出現率較低, 因此它的價值較高。圖7-1是各種寫法特徵舉例。
 

"Erroneous way of writing"

Erroneous way of writing is a habitual way of writing formed due to mistakes in recognition of the form of certain characters in the process of individual learning, without knowing that mistakes have been made. Typically, that is manifested as an extra stroke or a missing stroke or a wrongly matched radical. This type of erroneous character cannot be found in dictionaries or lexicographical books. A person who habitually writes certain characters wrongly cannot write them in the correct way before rectifying them. Moreover, the features in erroneous characters have a relatively low frequency of occurrence in our handwriting, therefore, their value is much higher. Figure 7-1 illustrates features of various ways of writing.²⁶
 

"模仿筆跡的特點"

依照他人筆跡的式樣書寫的字跡, 叫模仿筆跡。按模仿手段分為臨摹、套模、描模和憑記憶的模仿(憶模)。不同的模仿手段形成的模仿筆跡, 有其各自的特點。但一般的模仿筆跡都會出現以下的固有特徵：有連筆動作, 但筆力平緩、運筆生澀、形快實慢；行筆遲疑、中途停頓、運筆抖動；常有局部修飾、重描、連筆紊亂現象。由於這種筆跡與被模仿人的筆跡很相似, 稍有不慎會誤以為是被模仿人所寫, 所以要詳細了解案情, 善於從物證筆跡上發現模仿的固有特徵,進行深入細緻的比較鑑別, 按照物證筆跡與被模仿筆跡"大同小異", 與模仿人筆跡 "大異小同"的一般規律做出判斷。²⁷
 

"Characteristics of imitated handwriting"

Handwriting produced by copying the handwriting design of another person is called imitated handwriting. It can be categorized into imitation by simulation, superimposition tracing, projection tracing and imitation from memory (memorized imitation) according to the method of imitation. Imitated handwriting produced by each different method of imitation has its own individual characteristics. But generally speaking, imitated handwriting will exhibit inherent features as follows: connected pen movements exist but are executed with even pen pressure without variations; pen wielding movements show hesitations, apparently being written fast but in fact written slowly; pen movements exhibit hesitations, half-way stoppages; pen wielding movements show tremors; often exhibit signs of partial refining, retouching and confused connecting strokes. As this kind of handwriting is very similar to the handwriting being imitated, with just a lack of care, it could be mistaken for that of the person whose handwriting is being imitated. Therefore, one needs to have a thorough understanding of the facts of the case, to be adept in finding the features of imitation inherent in the handwriting on the material evidence, to conduct an in-depth and detailed comparative appraisal, and then make a judgment according to the general pattern that the handwriting on the material evidence is "the same in major features but different in minor features" to the handwriting being imitated, whereas it is "different in major features but the same in minor features" to the handwriting of the forger.
 

物證技術學-主編 徐立根²⁸

"反映書寫習慣動作特點的筆跡特徵"

錯誤寫法：是指由於書寫人沒有掌握字的正確結構而寫了錯字, 例如, 把 "武" 字寫成 "", 把 "展"字 寫成 "", 把繁體字 "賈" 寫成 "" 等等。穩定的錯誤寫法特徵, 在筆跡鑑定中有很重要的作用, 但要注意書寫人對某個字的錯誤寫法在社會上的出現率。愈是特殊的錯字特徵, 對同一認定的價值愈大。當然, 也要注意書寫人有否故意寫錯字的偽裝情況。²⁹
 

The Study of Technology in Material Evidence Editor-in-chief Xu Li-gen

"Handwriting features that reflect characteristics of writing habits and movements"

Erroneous way of writing: this refers to characters written erroneously because of the failure of the writer to master the correct structure of those characters, e.g. the character "wu" (武) written as "", the character "zhan" (展) written as "", the complex form of the character "jia" (賈) written as "" etc. Stable features of the erroneous way of writing will have a very significant effect in handwriting appraisal. However, attention has to be paid to the frequency of occurrence with which certain characters are written in that particular erroneous way by writers generally. The more peculiar the feature of the erroneous characters is, the higher its value will be in identifying them to be by the same hand. Of course, attention has also to be paid to whether the situation is that erroneous characters have been deliberately written by the writer as a disguise.
 

"筆跡鑑定書的製作"

鑑定人的筆跡鑑定結論, 應當以鑑定書的形式提出。鑑定書的結構應當包括案由、檢驗、論證和結論四部份。案由部份應當敘述送檢單位, 送檢日期, 檢材名稱、數量, 筆跡樣本名稱、數量, 請求解決的問題；檢驗部份應當敘述檢驗所見, 包括：檢材字跡和樣本字跡的一般情況, 以及檢驗中發現的筆跡特徵符合點和差異點, 並應製作 "特徵比較表"作為附圖；論證部份應當?述對符合點和差異點所作的評斷, 為作出鑑定結論奠定基礎；結論部份應當以明確的文字表述鑑定人對送檢單位請求解決的問題作出的回答。³⁰......
 

"The preparation of handwriting appraisal reports"

An appraisal expert should give a conclusion of his handwriting appraisal in the form of an appraisal report. Structurally an appraisal report should consist of four parts, namely the case in brief, the examination, the evaluation and the conclusion. It should be stated, in the case in brief which unit delivered the materials for appraisal, when they were delivered for appraisal, the description and quantity of the appraisal materials, the description and quantity of the handwriting samples, and the questions asked to be resolved. The examination part should cover the findings of the examination, including: the general circumstances pertaining to the handwriting on the appraisal materials and samples, as well as conformities and differences in handwriting features found in the examination. Comparison charts illustrating the features should be prepared as appendices. The evaluation part should set out the assessment of the conformities and differences, so as to form the basis of the appraisal conclusion. The conclusion part should state in clear words the answer of the appraisal experts to the questions asked to be resolved by the unit that delivered materials for appraisal ...
 

"摹仿筆跡"

......摹仿筆跡通常是在對檢材字跡與被摹仿人的筆跡自由樣本進行比較檢驗而作出否定結論後才確定的。確定摹仿筆跡的依據, 有以下特徵³¹ :
 

"Simulated handwriting"

...Usually, handwriting will be determined to have been simulated when it has been concluded that the handwriting on the appraisal materials do not compare with the free samples of the person whose handwriting has been simulated. A determination that handwriting has been simulated is based on the following features:
 

(1) 檢材字跡與被摹仿人的筆跡樣本字跡, 在寫法、形態、搭配比例、連筆形狀等方面大體一致, 但在起筆、收筆動作, 筆畫轉折、連接等細微特徵方面, 卻存在許多差異；特別是, 一些書寫速度較快的速筆動作, 往往表現出運筆不自然、不流暢, 筆畫粗細不勻, 在顯微鏡下觀察, 筆畫中有停筆的墨點, 有的筆畫有修飾重描、抖動彎曲現象。這一切都說明, 書寫速度從連筆形式看很快, 而實質上卻是很慢, 這種形快實慢的特點, 是判斷字跡乃對照摹仿書寫的可靠依據。
 

(1) Handwriting on the appraisal materials is generally consistent with the samples of handwriting that has been simulated in its way of writing, its shape and form, in its arrangement and proportion as well as the shape of connecting strokes; yet many differences exist in minute features such as the way that movements start and end and that strokes turn and connect. In particular some quick pen movements executed at a relatively fast writing speed will, very often, exhibit unnaturalness and lack smoothness in pen wielding, and the strokes will be of uneven thickness. Under microscopic examination, ink dots from pen halts are found within strokes and some strokes exhibit refining and retouching, as well as tremors and bends. That all illustrates that by looking at the way in which the strokes are connected, the writing speed was apparently fast, but in fact, slow. This characteristic, where slow writing appears to have been fast, is a reliable basis for concluding that handwriting has been simulated with reference to the model.
 

(2) 如果是記憶摹仿的字跡, 雖然運筆可能比較自然流暢, 一些突出的筆跡特徵大體相似, 但在許多細節特徵方面卻與被摹仿人筆跡存在明顯差異。由於記憶不準, 有些寫法特徵也可能相差甚多。
 

(2) If handwriting is simulated from memory, although the pen wielding movements may be relatively natural and spontaneous and some pronounced handwriting features are generally similar, a lot of detailed features exhibit obvious differences from the handwriting that has been simulated. Due to inaccurate memory, some features in the manner of writing may be quite different.
 

(3) 如果是套摹筆跡, 檢材字跡往往發現有形態、大小不協調, 文字佈局不規則, 重複出現的字可以重合, 筆劃複雜的字少筆丟畫等現象, 還可能發現由於套摹方法而形成的一些痕跡, 如：抑壓痕跡、複寫筆痕等。
 

(3) If handwriting is produced by superimposition tracing, very often, in the writing on the appraisal materials, form, shape and size are found to be discordant, the layout of the characters is irregular, regularly appearing characters are superimposable, and characters with complicated strokes have strokes missing. Some marks such as pressure marks and tracing marks formed during the process of superimposition tracing may also be found.
 

應當指出, 摹仿筆跡與被摹仿人筆跡的相似程度, 以及在摹仿筆跡中摹仿人筆跡特徵的自我暴露程度, 不僅和摹仿手段、文字多少有關, 而且和摹仿人的書寫水平有關。³²......
 

It should be pointed out that the degree of resemblance between the simulated handwriting and the writing which has been simulated, and the extent to which the forger has exposed his or her own features in the simulated handwriting are not only related to the mode of simulation and the number of characters, but are also related to the level of writing of the forger ...
 

"摹仿筆跡"

(3) 在檢驗過程中應當分清檢材筆跡中，哪些是仿照被摹仿人筆跡書寫的筆跡特徵, 哪些是摹仿人在摹仿過程中流露出來的筆跡特徵, 哪些是摹仿動作本身形成的特徵。在對檢材與摹仿嫌犯人的樣本、被摹仿人的樣本進行檢驗時, 要善於 "同中找異" 和 "同外找異"。所謂 "同中找異", 就是指在一些明顯的、大的相同的特徵中, 找出運筆不自然等形快實慢的特徵(即摹仿動作形成的特徵或稱摹仿走樣的特徵), 找出這類特徵就可以證明檢材字跡是摹仿筆跡, 不是被摹仿人所寫。³³
 

"Simulated handwriting"

(3) In the process of examining the handwriting on the appraisal materials, one should specifically identify what handwriting features are those of the person whose handwriting has been simulated, what handwriting features are those of the forger that are revealed during the simulation process, and what features are formed in the simulation movements themselves. When examining the appraisal materials alongside the samples of the alleged forger and the samples of the person whose writing has been simulated, it is necessary to be adept in both "finding differences amongst similarities" and "finding differences apart from similarities". This so-called "finding differences amongst similarities" means identifying from prominent and major points of similarity, features such as unnatural pen wielding movements that have been executed fast but in fact slowly (i.e. features that are formed in the simulation movements or features of what is called out-of-shape simulation). By identifying this type of features, it can be proved that the handwriting on the appraised materials is simulated handwriting that has not been written by the person whose handwriting has been simulated.
 

"文書作成時間檢驗的一般方法"

(1) 簽名中反映的年月變化特徵。每個人的簽名都有比較穩定的書寫動作習慣, 但相隔幾年之後, 簽名的基本特徵雖然保留不變,卻可能出現一些新的花樣特點, 一些年齡較大的書寫人, 還可能由於生理上或病理上的原因而在筆跡中出現運筆呆板、抖動等特徵, 年月相隔愈長, 變化可能愈明顯。當然, 如果相隔時間較短, 這類特徵也可能無法利用。³⁴
 

"The general method of examining the time at which the document was made"

(1) Features in signatures reflect change over months and years. Each person's signature is executed with a relatively stable writing movement and habit, but after a lapse of several years, although basic characteristic features of the signature remain unchanged, some new characteristics with flourishes may appear. For some comparatively elderly people, due to physiological or pathological reasons, their handwriting may exhibit features such as rigid and awkward pen wielding movements and tremors. The longer the lapse of time, the more obvious the change may be. Of course, if the lapse of time is relatively short, it may not be possible to make use of this type of feature.

7.30 Further, Prof. Jia agreed with the following propositions regarding identification of forged signatures as submitted by Counsel for the plaintiff as follows :
 

"(a) Prof. Jia agreed in his testimony that if there is a simulated forgery, there will be similarities and also significant differences. One can judge whether a signature is a forgery by referring to the significant differences, which cannot be explained, even if there is only one significant difference.³⁵

(b) If there is a difference which cannot be explained by saying it is either accidental or within the natural variations, one cannot identify the two groups as being from the same author.³⁶

(c) Prof. Jia agreed that with the statement written by Osborn (cited above) that "in identifying a person, for example, scars, deformities, finger-prints, or a series of accurate measurements, must be depended upon, and finally, if the conclusion of identity is reached, either in a person or a handwriting, there must not remain significant differences that cannot reasonably be explained."³⁷ Prof. Jia [also] agreed with the statement stated in the aforesaid book edited by Xu at F7-2061 was to the same effect as Osborn's statement³⁸, which stated as follows : 原文如下「如果不可能用上述產生非本質差異點的種種原因來解釋比較檢驗中發現的差異點, 那就不能對檢材字跡與樣本字跡是否同一人書寫的問題, 作出認定同一的結論。」  "It cannot be concluded that the handwriting on the appraisal materials and that on the samples are by the same hand if the differences found in comparative examination are of a fundamental nature and do not fall within the various causes set out above which explain those differences that are not fundamental."

(d) If a forger is to forge the same genuine signatures four times, he may be able to incorporate the special features successfully in one of his forgeries, but not be able to incorporate the same special features in another of his forgeries.³⁹

(e) Logically, if a signature is forged, chances are that one will find some features in the forged signature which one cannot find in the genuine, known sample signatures.⁴⁰

(f) The forger very often allowed his own personal habit to come out subconsciously.⁴¹

(g) It is very often that he did not pay enough attention to simple things, and hence he allowed the mistakes to be made.⁴²

(h) Generally speaking, a forger would not have much knowledge or would not study much as to the characteristics of a signature or a piece of handwriting. He or she would only look at the face of it or just look at the outward appearance or shape.⁴³

(i) The forger may omit to copy some features of importance, and allow his own personal habits to override the features of importance.⁴⁴

(j) [sic as it is just a repetition of (a) above]

(k) Regarding the change of writing habit, Prof. Jia further agreed that :
 

(i) It is also normal for people either to get rid of certain features of their signatures, or to incorporate new features into their signatures, say over a period of years, five or ten years.⁴⁵

(ii) One would also expect, say for instance, the external appearance of his signatures to be gradually simplified to get rid of the unnecessary embellishments.⁴⁶

(l) Regarding the relevance of the language capability of the handwriting expert, Prof. Jia had the following to say :
 

(i) He did not know English as he cannot read or speak English⁴⁷, but he had individual cases where he had to make certain assessment on English signature.⁴⁸

(ii) In general, one would expect a person's signatures to be a lot more consistent than his handwriting.⁴⁹

(iii) No matter in what language a signature is written, he may be asked to give an opinion on signatures which are in fact illegible⁵⁰, and that it will not deter a handwriting expert, like himself from making an attempt to make a comparison and, if possible, give an opinion.⁵¹"

7.31 By reason of the aforesaid matters, I cannot accept the submissions of Counsel for the defendant that there is a fundamental difference in approach between the defendant's experts and the plaintiff's experts.

7.32 Further I do not accept that when the plaintiff's experts were challenged in cross-examination on the significant similarities, some of which were striking even to the layman, they tried to sweep them away by saying that when a signature was forged, whether by simulation or by superimposition, there were bound to be similarities, because as Tsui put it, "it could well have been copied". For GL he did not count the number of dissimilarities against similarities.

7.33 The defence relied on Tsui's contention at T65:60:14-19. The transcript shows clearly that Tsui insisted that those were only superficial similarities. He only dealt with dissimilarities because of what Osborn said as agreed by Prof. Jia that significant dissimilarities can prove forgery even though there are similarities.⁵²

7.34 As for Cheng he said under cross-examination that those features pointed out by Counsel for the defence are not identifying. They are only superficial features which could be observed by the forger.⁵³

7.35 Further, in terms of methodology Tsui also made the same contention to the same effect when he said that in comparison of handwriting, similarities are controlling factors and in the comparison of signatures, differences are the controlling factors. It is due to the fact that, say in comparison of signatures, if the questioned signature either is a simulated forgery or traced signature, it is bound to have similarities when you compare it with the known. For some similar features, if the forger is skilful enough, he would simulate one or two of these features.⁵⁴ Thus it is incorrect, as submitted by Counsel for the defendant, to say that these three experts even went so far as to say that there was no need to set out the similarities which they claimed to have observed on the ground that such an exercise would be meaningless since the conclusion was one of forgery - thus putting the cart before the horse. This is an incorrect way of describing their methodology.

7.36 The defence suggestion that Cheng had taken the general view that a normal forger would be able to incorporate the natural variation of the signatures of Wang. This suggestion is a misunderstanding of Cheng's evidence. Cheng was merely saying that the forger might have more than one signature as model. He would have to study and practise imitating them.⁵⁵ If the so called variations amongst the genuine signatures were obvious features which were also found in the models used by the forger, then plainly it is not surprising that the work reproduced by the forger would also contain those features as variations.⁵⁶ Furthermore, if the so called variations are the very common type of variations amongst writers, the existence of these variations in common between the control and the questioned signatures would not be of any great value in showing authenticity.⁵⁷ Hence, much would have to depend on whether the features concerned were good points for comparison.⁵⁸ Further he said that one could not come to a conclusion on genuineness based on just one point without regard to others.⁵⁹

7.37 In the end I do not accept the defence suggestion that the experts called by the plaintiff did not keep an open mind in their comparison and in particular, when looking at the further samples available to them. Suffice it for me to say here that the further samples on Wang's signatures in 1984 and 1985 only served to strengthen the change in the writing of the signatures of Wang since 1958. Thus Cheng, who previously had made some reservations on his view because of, inter alia, the insufficient control signatures and the lack of contemporaneous controls, would find that he should express a stronger view on forgery in light of the new evidence. The further samples in 1984 and 1985, although not exactly contemporaneous with the alleged date of the 1990 Documents, were at least closer to this date of the questioned documents than the controls previously available.

7.38 The further new samples of Tse in 1999 again confirmed the sharp contrast between the more natural way of his writing of his signatures in 1990 and the much slower and painstaking way of writing in 1999.

7.39 On the other hand, no doubt in light of further samples, some of the features which hitherto would justify an inference of features of differences could no longer be maintained by the experts. In this respect, Tsui had been very careful in his evidence in pointing out points set out in his original report that he would no longer rely on as points of difference in light of the new samples of 1999 he was later on given.

7.40 Furthermore, the fact that the expert would not agree with the views put forward by the defendant's Counsel could not be said to be stubborn or not keeping an open mind when the points put forward were not agreed by them. In contrast the attitude of Prof. Jia in his evidence and the way the defendant's experts presented their report will be considered later when the signatures of Wang and Tse, and the handwriting in Documents A, B and C are considered. It is therefore appropriate to end this chapter on principles and basis here and go straight to the application of those principles, especially those agreed by the defence experts, in the evaluation of the signatures of Wang and Tse, and the handwriting in Document A in the four questioned documents. I shall start with the known samples of Wang first.
 
 

¹ G7-item 2
² pp.205 and 245, G7-item 2
³ pp.368-369, G7-item 2
⁴ T67:22:12-25:9, the evidence of Tsui under cross-examination
⁵ T17:4:24-6:10
⁶ T17:6:14-22
⁷ T17:7:2
⁸ Osborn, supra and T17:7:10-17
⁹ Osborn p.245, G7-item 2
¹⁰ T19:41:15 per GL
¹¹ Osborn p.388, G7-item 2

¹² 賈玉文主編《刑事科學技術》（第二版）、人民衛生出版社 2000
Forensic Science and Technology in Criminal Matters (2nd Edition),
Editor-in-chief Jia Yu-wen, People's Medical Publishing House, 2000.

徐立根主編《物證技術學》（第二版）、中國人民大學出版社 1998
The Study of Technology in Material Evidence (2nd Edition),
Editor-in-chief Xu Li-gen, China Renmin University Press, 1998.

¹³ p.629, E6
¹⁴ p.531, E6
¹⁵ p.640, E6
¹⁶ p.538, E6
¹⁷ T17:8:9-20
¹⁸ T17:9:1-7
¹⁹ This, of course, is different from the previous contention that "one cannot write a simulated writing with better quality than one's own natural writing".
²⁰ T17:9:12-23, per Xu's textbook
²¹ p.2073, F7, per Xu's textbook
²² Supra
²³ p.1977 onwards, F7
²⁴ p.1992, F7
²⁵ p.1993, F7
²⁶ p.1995, F7, the Figure is not included here.
²⁷ pp.2000-2001, F7
²⁸ p.2003 onwards, F7
²⁹ p.2050, F7
³⁰ p.2062, F7
³¹ p.2068, F7
³² pp.2068-2069, F7
³³ p.2069, F7
³⁴ p.2073, F7
³⁵ T100:38:7-13 and 19
³⁶ T95:68:23-25 and 69:1-2
³⁷ T94:50:1-8
³⁸ T94:50:11-13
³⁹ T100:27:10-14
⁴⁰ T100:40:17-20
⁴¹ T100:42:11-14
⁴² T100:42:15-18
⁴³ T100:43:7-11
⁴⁴ T100:43:12-15
⁴⁵ T94:57:6-9
⁴⁶ T94:59:22-24
⁴⁷ T94:47:25
⁴⁸ T94:48:16-20
⁴⁹ T94:49:7-9
⁵⁰ T94:49:10-13
⁵¹ T94:49:14-17
⁵² T19:43:7-12
⁵³ T31:28:20-29:23
⁵⁴ T65:42:23-43:6 and T65:60:14-19
⁵⁵ T30:26:13-29:14
⁵⁶ T30:35:2-6 and 12
⁵⁷ T30:32:8-13
⁵⁸ T30:38:8-10
⁵⁹ T30:40:15
 
 

8.1 There were 18 samples used by various experts for the purposes of the examination of Wang's signatures on the four questioned documents. All these signatures are set out in E6-654(37B). Those 18 signatures are found in documents set out hereinbelow. Most of them are signatures signed vertically (except Nos. 3, 4, 6, 7, and 11) as follows :
 

(1) DPH 668 (commonly called "668" in the trial) dated March 1958 - found in an agreement signed by Wang and Yih Lee Kong ("Yih") concerning the investment by Yih in the business of Hong Kong China United Chemical Corporation Ltd ("CUCCL").¹

(2) DPH 669 (commonly called "669" in the trial) made in about August 1958 〞 found in an acknowledgement of receipt of various payments by Yih, the last of which was made on 11 August 1958.²

(3) DPH 735 ("735") dated October 1967 - made in an application form to the Jockey Club.³

(4) DPH 675 ("675") dated 11 July 1975 - made in an application for membership to the Real Estate Developers Association.⁴ (Nos. 3 and 4 are both horizontal signatures.)

(5) DPH 695 ("695") dated 5 December 1980 - made in an application form for certification of personal seal for use in Taiwan.⁵ This is a photocopy document.

(6) DPH 672 ("672") dated 10 May 1983 - made in a form for the application for birth certificate.⁶ This is a horizontal signature and the document is a photocopy document.

(7) DPH 671 ("671") dated 19 July 1983 - made in an authorization letter in connection with the application for birth certificate.⁷ This is a horizontal signature. The document is a photocopy document.

(8) DPJ 6006 ("6006") dated 13 March 1984 - made in a Power of Attorney appointing solicitor, Mr Roderick Wu for recovery of money in Taiwan.⁸ The document was notarised.

(9) DPJ 6005 ("6005") dated 27 March 1984 - made in a Power of Attorney appointing Taiwan lawyer.⁹ The document was notarised.

(10) DPJ 5997 (2) ("5997 (2)") dated 17 October 1984 - made at the corner of a photograph in Wang's Taiwan passport.¹⁰

(11) DPJ 5997 (1) ("5997 (1)") dated 17 October 1984 - signature on Wang's passport.¹¹ (This is a horizontal signature.)

(12) DPJ 5998 ("5998") dated 8 March 1985¹²

(13) DPJ 5999 ("5999") dated 8 March 1985¹³

(14) DPJ 6000 ("6000") dated 8 March 1985¹⁴

(15) DPJ 6001 ("6001") dated 18 June 1985¹⁵

(16) DPJ 6002 ("6002") dated 18 June 1985¹⁶

(17) DPJ 6003 ("6003") dated 18 June 1985¹⁷

(18) DPJ 6004 ("6004") dated 18 June 1985¹⁸

(Nos. 13 - 18 made in various Power of Attorney appointing lawyers in Taiwan)

(Nos. 15 to 18 were made jointly with the defendant.)

8.2 Document Nos. 1, 2, 5, 6 and 7 originated from the plaintiff's witnesses and were discovered by the plaintiff. They were all disputed by the defendant. However, it appeared from the defendant's evidence, that in fact the defendant's experts heavily relied on the signatures on Document Nos. 1 and 2, i.e. 668 and 669. Thus if the signatures on the 1958 documents, i.e. 668 and 669, were not genuine, there was hardly any argument or point as put forward by the defendant's experts.

8.3 Document Nos. 3 and 4 were found with the effort of the Police and the defendant had not disputed the authenticity thereof and hence the authenticity of those two signatures are not in dispute.

8.4 In respect of Document No. 5, although initially the defendant disputed its authenticity, the defendant did not seek to challenge the further witness statement of the plaintiff dealing with the production of this document. Thus I accept that the signature on this document was a genuine photocopy of the signature of Wang.

8.5 Those two signatures of 1983 in Document Nos. 6 and 7 were produced by "Teresa" Tak Shyan Sun. The circumstances of her receipt of these two photocopy documents will be discussed under the chapter in respect of the comparison of handwriting for Document A hereinbelow. In view of the established circumstances surrounding the receipt of the photocopy documents by Teresa (which shall be considered hereinafter), I draw the inference that the original of the authorization letter as well as the application form were signed by Wang himself.

8.6 The rest of the documents, i.e. Nos. 8 to 18, were originally supplied by the defendant only to her experts Prof. Jia, Xu and Zhan for examination. That is why they bore a DPJ prefix instead of a DPH prefix of the Government Laboratory number. They were intended to be used for the cross-examination of Cheng by the defence. However in order to be fair to Cheng (and later on Tsui), they should be examined by each one of them first. The hearing was adjourned for one day on 6 September 2001 for Cheng to examine these additional sample signatures of Wang (and Tse as well). Cheng had admirably produced a full and written Further Report the next day with high efficiency and professionalism when the Court re-convened on 7 September 2001.¹⁹

8.7 668 and 669 were produced by Yih. His evidence was that sometime in or about 1957 he realised that there was great opportunity in plastic business. He suggested the same to Wang Din Shin ("Wang Sr") and Wang and they agreed to engage in this business. Wang Sr realised that Yih had some money and therefore invited him to invest in the plastic business of Chinachem. The negotiation for the terms of his participation was conducted between him and Wang. However he did not have the necessary cash as his money had been invested with his friend in Taiwan.20 Hence he did not immediately sign an agreement with the Wangs.

8.8 Yih paid the Wangs by various installments after he had collected money from his friend since 28 September 1957 as stated in 669. Eventually when he felt confident enough to be able to obtain sufficient repayment from his friend, he then signed the agreement with Chinachem, i.e. 668.²¹ He drafted and wrote out the agreement with a carbon duplicate copy. In fact the original of 668 produced was the carbon copy thereof. However, both the original and a carbon copy were signed by him as well as by Wang. That was deliberate because the original copy was then kept by Wang and Yih kept the carbon copy which contained original signatures of the two of them.

8.9 Since the signing of the agreement in March 1958 as in 668, Yih made further payments to Chinachem as dated in 669. Eventually on 11 August 1958 he made the last payment and recorded the same in 669. This document 669 was also drafted by him with a carbon copy duplicate. Again Wang signed the original as well as the carbon copy to acknowledge the receipts of the various payments as set out therein. Wang kept the original and Yih kept the carbon copy which also contained Wang's original signature.

8.10 Subsequently there were withdrawals of money by Wang on three separate occasions in 1959 and each of the withdrawals were endorsed by him on this document 669 and signed in English by Wang. Yih himself made a withdrawal in 1961 and this was endorsed by him on the document as well and the endorsement was signed by him also in English.²²

8.11 In respect of how Yih kept the two documents 668 and 669, he said that they were kept together with certain statements of account which he prepared in relation to the profit of the plastic business of Chinachem calculated in accordance with the formula agreed in 668 i.e. the March 1958 agreement, for the period of 1 April 1959 to 31 March 1961. The account documents were prepared on the instructions of Wang. When Chinachem embarked on real estate business in 1961 through the corporate vehicle of Chinachem Investment Company Ltd, Yih became one of the founders. He was alloted 10% of the shares of this company in 1961.²³ His capital contribution was from his share of profit from the plastic business.²⁴

8.12 In 1969, when he negotiated with Wang on the sale of his interest in the Chinachem group, Wang asked him to show him the 1958 document saying that he, Wang could not locate the document. Since Yih kept the document at home, so he suggested to make a photocopy for Wang which he did later on in respect of both 668 and 669.²⁵ In fact Wang did not specify exactly which documents he wanted. But he was given the photocopies of the two 1958 documents as well as the account statements for the two years from 1 April 1959 to 31 March 1961.²⁶ The photocopying was done by Mrs Yih in her own office.²⁷

8.13 Yih was cross-examined in extreme detail on how he kept the documents. According to him, when 668 was drawn up, he folded it up and put it in an envelope in his office. Thereafter 669 was signed, he put the two documents together and folded them up and put them in an envelope in his office.²⁸ On each of the three occasions of the withdrawal by Wang and one by him, he took out 669 and made the endorsement thereon. Thereafter he put the document back together with 668.

8.14 After the two account documents were made and the original given to Wang, he kept the carbon copy of these two pages together with 668 and 669 in the same envelope.²⁹ He kept the envelope in the office for another year or so and then took them home. Those four sheets were then spread out and stapled together and then put in a clip file.³⁰ When he moved to Canada, he took the file with him³¹ and when Wang Sr asked him for assistance as to the signature of Wang, he gave the two documents to the plaintiff's solicitors. He was asked to demonstrate how the folding was done, and he gave the demonstration on the basis of how he usually folded letters and papers of that size.³²

8.15 Yih confirmed that he saw Wang signing the agreement in 668 and also 669 in August 1958. On each occasion Wang signed on both the original and also the carbon copy.³³ Further, on each occasion, Wang signed in the same style and the signatures had similar appearance on both the original and also the carbon copy.³⁴

8.16 Yih had been subject to an unduly long cross-examination and at the end of which, in my view his credibility was affirmed by the cross-examination than anything else. There is no doubt that the two sample signatures on 668 and 669 were the genuine signatures of Wang signed on those two occasions as deposed to by Yih. These two signatures had been heavily relied on by the defendant's experts themselves and in particular Prof. Jia in his evidence.

TWO OTHER "WRITTEN NAMES" OF "WANG TEH HUEI" (王德輝)

8.17 Apart from those 18 samples as set out hereinbefore, there were also two so-called "written names" of Wang being referred to. "Written name" "xie ming" (寫名) is a term used to describe the name of a person written by him himself but not as his signature. The first one is the name "Wang Teh Huei" (王德輝) written in the form found in DPH 735 (1967). This is only a photocopy document. This name was referred to by Prof. Jia when he tried to justify the apparent absurdity of comparing just the signatures of Wang with the characters "Wang" (王), "Teh" (德), and "Huei" (輝) in the body of the three questioned Documents A, B and C in order to see if Wang was one of the authors of the body of the three questioned documents or not. He claimed that in fact apart from looking at the signatures of Wang, he also had looked at this "xie ming" (寫名) "Wang Teh Huei" on 735 to arrive at his conclusion.

8.18 By looking at this "written name", he found that there were fundamental differences existing between this "written name" and the signatures of Wang.³⁵ If indeed he had ever made any reference to this "written name" when examining the writings in the three questioned documents to see if they were written by Wang, it is quite strange that there was no mention of this comparison at all in the joint report.³⁶ Furthermore in the joint report it was expressly mentioned that the only comparison possible was to compare the three characters "Wang", "Teh" and "Huei" in the questioned documents with the signatures of Wang. Thus I accept the plaintiff's submission that this part of Prof. Jia's evidence was simply made up by him afterwards, after he realised that it was not right to make comparison between characters in signatures and in a context of a piece of writing. In fact Leading Counsel for the defendant had severely criticised GL for doing so. In any event, there was no independant identification evidence that this "written name" was in fact written by Wang himself.

8.19 The other "written name" of "Wang Teh Huei" appeared in the 1968 Will. There was clear evidence from Mr Donald Cheung that he was almost certain that these three characters were written by Wang himself. However, no expert had ever made reference to this "written name". It was notable that the character "Wang" was written, especially the loop in the middle³⁷ was quite similar to the way that the same character was written in all post-1960 samples but different from the character "Wang" in the "written name" in 735 referred to by Prof. Jia. The other two characters however looked quite similar. There is simply no evidence to support the contention that the "written name" in 735 was written by Wang himself.

WHAT SAMPLE SIGNATURES WOULD THE DEFENDANT HAVE?

8.20 There was never any serious challenge to Yih's evidence that on the request of Wang, he gave a photocopy of the two 1958 documents to Wang. Hence by the time in about January 1998 when the envelope containing the disputed 1990 Documents was lodged with the Court, the defendant would have probably been in possession of and have access to the original versions of the two 1958 documents, or at least the photocopy thereof which had been supplied to Wang later in 1969 before Yih left Chinachem, if she could locate them amongst Wang's papers.

8.21 Further, from the nature of the documents, it is unlikely that the defendant would have the original or copies of the application forms to Jockey Club i.e. 735 (or item 3 hereinbefore) and the Real Estate Developer Association i.e. 675 (or item 4). On the other hand in respect of the various original Power of Attorney, they should be held by various Attorneys, and the defendant would have to take time to obtain them back from them. It is not clear as to when these Documents 8, 9, 12 to 18 were available to the defendant.

8.22 However, certainly these documents were not supplied by the defendant to the Police when the Police requested for samples of the signatures and writings of Wang. The only specimen signatures of Wang offered to the Police³⁸ were all in English,³⁹ when the defendant knew full well there and then that the Police was looking for Wang's Chinese signatures.

8.23 In respect of the passport of Wang (i.e. items 10 and 11), the defendant should have access to it at all material times because of her general access to all things in possession of Wang. She had not offered these signatures of Wang in Chinese on the passport to the Police. However in this respect there might be an innocent explanation. It might well be the case that it did not occur to her that this passport contained the signatures of Wang or somehow she could not locate the passport until sometime after February 2000 when they were given to her experts. But the fact remained that she did not give them to the plaintiff nor the police when it was available for signature examination.

8.24 After the establishment of those 18 signatures of Wang as being genuine, I will consider in the next chapter on the comparison of these 18 signatures with the four questioned signatures in more detail. I shall start in the next chapter on the overall view first which the plaintiff's Counsel described as the macro view and in the chapter following that in greater detail, i.e. the micro view.
 
 

¹ p.293, E2
² p.294, E2
³ p.302, E2
⁴ p.299, E2
⁵ p.300, E2
⁶ p.297, E2
⁷ p.296, E2
⁸ p.555, E6
⁹ p.557, E6
¹⁰ p.556, E6
¹¹ p.556, E6
¹² p.562, E6
¹³ p.564, E6
¹⁴ p.563, E6
¹⁵ p.559, E6
¹⁶ p.558, E6
¹⁷ p.560, E6
¹⁸ p.561, E6
¹⁹ p.35A(1)-(6), E1
²⁰ T110:26:9-27:6
²¹ T110:29:21-24
²² T110:31-32
²³ See p.397, D, the Company search record
²⁴ T110:34:20
²⁵ T111:24:1-6
²⁶ T114:54:12
²⁷ T114:57:2
²⁸ T114:42-44:5
²⁹ T114:50:11
³⁰ T114:52:16-20 and 53:6
³¹ T111:24:6
³² T114:43:4
³³ T114:47:15-25
³⁴ T114:49:1-6
³⁵ T94:6:1-4
³⁶ p.530, E6
³⁷ Computer image H-F1 (3-4) 01.w01, all computer images are filed in Bundle H
³⁸ p.1479A, G5
³⁹ pp.1479F-1479I, G5
 
 

THE PLAINTIFF'S ALLEGATION OF SIMULATED FORGERY

9.1 The plaintiff's case is that the signatures of Wang on each of the four questioned 1990 Documents were simulated forgeries. There are basically two main ways of forging a signature. The first one is by way of simulation "臨摹" (the other one is by way of superimposition tracing "套摹" (and the other kind of tracing is projection tracing "描摹") which shall be considered when Tse's signatures are considered later on).

9.2 Simulation will involve the forger studying one or more genuine signatures of the person whose signature he wants to forge. He may then practise writing out the signature free hand until he is confident enough to produce the signature on the forged document. The forgery is produced by the forger writing out the signature free hand. At the time of writing, he may or may not have the model or reference signature(s) besides him for his easy reference.¹ Further he may or may not have a model underneath the paper to help him and guide him through the simulations.²

9.3 The line quality of the forgery would depend on the skill of the forger and the degree of his familiarity with the genuine signatures. There are bound to be a number of pictorial similarities between the forgery and the samples he uses but the degree would normally not be as great as forgery produced by superimposition tracing. Since this kind of forgery is produced by free hand writing, it may not contain a lot of features associated with slow writing or drawing, such as tremors, retouching or unnatural stoppages. Further since the forgery would not be the natural writing of the forger, the writing quality of the forgery would not be as natural as the genuine writing.³

9.4 The pictorial similarity between the various forgeries produced by the forgers using simulation may not be very high and it is expected that there are bound to be some differences or variations amongst the signatures produced by simulation. I shall consider hereinbelow whether the plaintiff has discharged its legal burden of proof that these four questioned signatures of Wang are forgeries produced by simulation.

9.5 Counsel for the plaintiff submitted that the model(s) for the signatures was one or more signatures of Wang in or around the period of late 1950s with features similar to 668 and 669. It was also submitted that the models were probably either the signatures on the originals of the two 1958 Documents, and/or the photocopy of the carbon copy of these two documents produced by Yih as D-377 and 378, which were supplied by Yih to Wang in 1969 as described in the previous chapter.

9.6 The plaintiff's aforesaid submission is supported by all three experts called by the plaintiff. The two experts GL and Tsui were retained by the plaintiff. The Government Chemist, Cheng, was an independant expert who was not acting for any of the two parties. He had examined the signatures and had independently come to a view with varying degree of conviction that the four questioned signatures of Wang were forged. In fact the three of them had not had any discussion amongst themselves before producing their reports and giving evidence.

THE OPINION OF THE THREE EXPERTS CALLED BY THE PLAINTIFF

9.7 GL took a positive and definite view that the questioned signatures were forged in his report.⁴ He based his reasoning mainly on the quality of writing of the writer and the change in the writing ability of Wang as evidenced by his sample signatures over the years. His view was unchanged after he had examined those further 11 sample signatures of Wang made in 1984 and 1985,⁵ i.e. Documents Nos. 8 to 18 in the previous chapter.

9.8 Cheng, the Government Chemist, also supported the view that the four questioned signatures were forged signatures of Wang. However, his view was a qualified one. Initially when he only had seven samples, his view was that the four questioned signatures "might not have been written by Wang".⁶ The reasons for his qualified opinion are :
 

(a) insufficient control samples;

(b) absence of contemporaneous control samples;

(c) different writing instruments being involved;

(d) some of the controls were not originals;

(e) different orientation of signatures, i.e. some horizontal and some vertical;

(f) different designs of the control samples; and

(g) variation of the control samples.

9.9 However, after he had the opportunity of studying the further 11 samples, he came to a more positive view about the forgery. His view was that the four questioned signatures were probably not written by Wang according to his further report at E1-35A(6). He came to this view mainly by relying on a detailed examination and analysis of the composition of the signatures and the way the various strokes were written in the questioned and in all the control signatures.

9.10 Tsui also supported the conclusion of forgery. His initial view was that it was likely that the four questioned signatures were not written by Wang and he produced a report to that effect at E3-317. In terms of his scale of minus ten to ten, with negative ten being a definite positive view of forgery and zero being neutral, he would say it was negative five or six in the scale. After he had examined the further 11 samples, his view on forgery had not changed.⁷ His methodology was somewhat similar to that of Cheng probably because he was previously trained in and was employed by the Government Laboratory as well.

THE DEFENDANT'S EXPERTS

9.11 The defendant had no less than six experts studying the questioned signatures. However, in the end the defendant only produced one joint appraisal report by three experts in the Mainland : Xu, Zhan and Prof. Jia at E6 with a brief report on only the further signatures of Tse in the three travel documents. Only Prof. Jia gave evidence. The report and Prof. Jia's evidence were to the effect that the four questioned signatures of Wang were genuine signatures of him although in his evidence, it appears that most of the points of similarity set out in the report had not been relied on. In fact, Counsel for the plaintiff submitted that none of these points of similarity set out in his report had been relied on. Prof. Jia gave me the impression that he was actually trying to alienate himself from that report of which he is one of the three authors. He kept on apologizing under cross-examination that the report was not accurate in choosing the sample signatures for comparison. It gave me the impression that the report was produced in haste which was filed and served at the last possible moment. That partly explains why it took Mr Lee, Leading Counsel for the defence, 17 days in the examination-in-chief of Prof. Jia instead of producing the two reports for the defence and tendering him for cross-examination. I shall say something about the length of this trial at the end of my judgment.

THE MACRO ANALYSIS

9.12 The four questioned signatures look more similar to 668 and 669 than all other sample signatures of Wang made after 1960. The overall proportion of the various characters, orientation, outlook and alignment of characters forming the signatures were certainly quite different from those samples made by Wang after 1960. A simple way to demonstrate this point is to refer to E6-654(37B) as mentioned in the previous chapter which contained the four questioned signatures and the 18 sample signatures in one spreadsheet.

9.13 In resp