HKSAR v. Dhillon, Sukhjinder Singh

HCMA 657/2017

[2018] HKCFI 330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 657 OF 2017

(ON APPEAL FROM STCC 3207/2017)

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BETWEEN

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REASONS FOR JUDGMENT

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1.The appellant (the 1^st defendant at trial) was convicted after trial of the charge of making a false representation to an Immigration Officer lawfully acting under or in the execution of Part II of the Immigration Ordinance, contrary to section 42(1)(a) of the Immigration Ordinance (Cap 115). His appeal against conviction was dismissed. I now give my reasons.

Prosecution Case

2.The prosecution case is that the appellant, on arrival at the Hong Kong International Airport, upon presentation of his passport, made a false representation to PW1 that he would stay at Singh Harjit’s (original D2) address at Tsing Yi as there was absolutely no intention of him to do so. The representation was material in PW1’s determination of the appellant’s immigration clearance.

3.PW1 was the Immigration Officer who conducted secondary examination of the appellant.  She had no independent recollection of this incident, and could only base her evidence on the computer record that an address in Tsing Yi was given.  PW1 was not sure whether it was given the appellant himself, recorded in his arrival card or given by D2 upon her verification.

4.The appellant attended two cautioned interviews on 17 February 2017 (Exhibit P8) and 27 March 2017 (Exhibit P3) respectively.  Only the first interview was the subject of challenge by way of an alternative procedure.  In gist, with the assistance of PW4, a Punjabi interpreter, the appellant admitted that he told the immigration officer during secondary examination that he came to Hong Kong to visit D2 and would stay with him at his house (Answer 17), but in fact he had no intention to stay with him.  He would instead stay with his uncle (Answer 20).

5.There was allegation of impropriety before and during the interview.  Having heard the appellant’s evidence on the admissibility issue, the interview was ruled voluntary and was admitted into evidence: paragraphs 11 to 20, Statement of Findings.

Defence case

6.The appellant elected to give evidence.  He denied making the subject representation to PW1.  He said it was D2 who filled in the arrival card, presumably with the subject address. He could not understand the questions posed by PW1 in the secondary examination. All he could say was his name and his date of birth.  He replied “yes”, “no” and “okay” randomly to the other questions.

7.During the first interview, he said he was not feeling well, and the answers were not accurately recorded by PW4 and were not read over to him.  He simply signed on it without knowing the contents.

Grounds of appeal

8.The appellant stressed his innocence and attempted to adduce parts of the contents of D2’s record of interview to show that they lent support to his defence.

Respondent’s reply

9.Ms Kam, on behalf of the respondent, drew to my attention that it was only after the evidence of PW1 and PW2 that the Prosecution decided to offer no evidence against D2.  That accounted for why D2’s two records of interview were made exhibits at the trial.  Ms Kam submitted that at no time did the Prosecution rely on the contents therein as evidence against the appellant.  She further submitted that the magistrate had fully assessed and evaluated all the evidence before him. He was entitled to reject the evidence of the appellant and found that the appellant made the admissions he did in P8.

Discussion

10.Magistracies appeals are rehearings in the sense that they are to be decided on the evidence as the magistrate had seen and heard with the assistance of the transcript and the Statement of Findings.

11.The crux of the matter really is, did the appellant represent to PW1 that he was going to stay at D2’s Tsing Yi address.  PW1’s evidence on this issue was neutral.  However, the appellant made admissions in the first interview P8 that it was he who told PW1 that he came to Hong Kong for sightseeing and he would stay with D2 because he came to Hong Kong to visit him (Answer 17).

12.The appellant’s challenge to the admissibility of the first interview was futile.  The magistrate had analyzed the evidence on the special issue carefully and made the ruling that the answers were provided by the appellant voluntarily.  In my view, the magistrate, after detailed assessment of the evidence before him, rightly had properly rejected the evidence of the appellant both on the special and general issue.  He had seen and heard the witnesses and was entitled to form the view as he did.  Once that interview was admitted, a conviction is simply inevitable.

13.The appellant has raised the issue of D2’s interview.  At first, I failed to comprehend why D2’s cautioned interviews were exhibited at the appellant’s trial.  I accepted explanation by counsel for the respondent at the appeal hearing that those interviews were left as exhibits after D2’s case was withdrawn on completion of the evidence of two prosecution witnesses.  She conceded that the better practice was to apply to withdraw D2’s two cautioned interviews immediately upon D2’s discharge since D2 was no longer on trial and there was no basis for the admission of such as exhibits in the appellant’s trial.  In fact, to the contrary of the appellant’s submission, answers 14 and 27 in the first of those interviews simply lent no support to the Defence case.  Instead, they are prejudicial and could implicate the appellant.  The magistrate was correct in paying no heed to the contents of those interviews in reaching his findings, and had clearly demonstrated such in his Statement of Findings.

14.I would not have come to a different conclusion had I been the trial magistrate.  There is ample evidence to find that the appellant did make the representation which was false in a material particular and that the appellant knew the statement to be false.

Ms Teresa Kam, SPP of Department of Justice, for the respondent

The appellant appeared in person