HKSAR v. Chung Ka Wai

[English Translation – 英譯本]

CACC 364/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 364 OF 2015

(ON APPEAL FROM DCCC NO. 218 OF 2015)

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REASONS FOR JUDGMENT

Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.The appellant (Chung Ka Wai) and two other defendants (Ng and Tam) faced a charge sheet containing a total of 10 charges. Charges 1 to 9 are all either obtaining or attempting to obtain property by deception (Deception Charges).

2.The charges against the appellant, apart from the Deception Charges 2 and 5 to 8, also included charge 10, namely, possession of an identity card relating to another person without lawful authority or reasonable excuse, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177 (“s.7A(1A)”).

3.The appellant pleaded not guilty to all charges and was tried before Deputy District Judge Marco Li (trial judge).

4.On 8 October 2015, the trial judge, who was not sure that the appellant had knowledge of the online auction scam constituting the subject matter of his Deception Charges, acquitted the appellant of all his Deception Charges by giving him the benefit of the doubt. However, the trial judge convicted the appellant on charge 10, possession of an identity card relating to another person without lawful authority or reasonable excuse, and sentenced him to a Rehabilitation Centre.

5.The appellant sought leave to appeal against the conviction and sentence and his application was granted by a single Justice of Appeal. He now appeals against the conviction and/or sentence. After the hearing, this Court dismissed the appellant’s appeal against conviction and sentence and upheld the original decision. This Court’s reasons for judgment are set out below.

The Facts

6.The facts related to charge 10 were undisputed and they were presented to the court as admitted facts, which are as follows:

(i)   Around 3:30 p.m. on 29 June 2014, Lau Chun Ho (transliteration) discovered his Hong Kong Identity Card and property kept in a locker at Silverstrand Beach, Tseung Kwan O, had been stolen, and thus reported it to the police on the same day.

(ii)   On 26 September 2014, a detective police officer found upon search the identity card belonging to [Lau Chun Ho] in the first drawer from the left of a desk in [the appellant’s] room at his residence. Upon arrest and caution, [the appellant] said, “I picked it up on the street”.

7.DPC13345 stressed when he was giving evidence that the identity card in question (“the identity card”) was in the appellant’s passbook in the drawer, the same way as shown in photos 8 and 9 of the photo album listed as prosecution exhibit 5. The defence position was that the identity card was simply in the drawer, but not in the appellant’s passbook.

8.Information shows that when a police officer was making a post-record of the appellant’s cautioned statement, the appellant said he picked up the identity card on 24 September 2014 on Lai Chi Kok Road, Sham Shui Po. The appellant further alleged that he intended to “hand” it “over to the police station”, but “it was kept there for the time being because (he was) leaving home in a hurry”. When the officer went on to ask him why he did not give such an explanation during the house search, the appellant responded by saying “(I) forgot because (I) was nervous”. The appellant also said he could not remember the time he picked up the identity card on 24 September 2014, but alleged that the identity card was picked up from the ground of Sham Shui Po Sports Ground.

9.In his subsequent video-recorded interview with the police, the appellant reiterated that the identity card was picked up on Lai Chi Kok Road near Sham Shui Po Sports Ground on 24 September 2014. He said he put the identity card in his room the same day, but could not remember the exact time. He also alleged that no one was nearby when he picked up the identity card and that no one knew he put the identity card in his room.

10.When asked by the officer where he was in the afternoon of 29 June 2014 (i.e. when the identity card was stolen) and if he would go to Silverstrand Beach, Tseung Kwan O, the appellant said he could not remember. The appellant maintained that he had never used the identity card for other purposes, nor had he given the particulars of the identity card or shown the identity card to anyone. That said, the above post-record and the video-recorded interview did not form part of the admitted facts.

11.In his evidence, LAU Chun Ho confirmed that the identity card, which had been stolen from him, had not been misused or used illegally by others.

The Appellant’s Position

12.The appellant did not give evidence, nor did he call any witness to give evidence. His position was that he admitted possession of an identity card which related to another person, but the explanation given by him under caution had constituted a “reasonable excuse” for so doing. As a result, he should be acquitted of charge 10 that he faced.

The Reasons for Verdict of the Trial Judge

13.Regarding “lawful authority or reasonable excuse” as a defence, the trial judge agreed that the prosecution had the legal burden to prove that the appellant’s possession of an identity card relating to another person was without lawful authority or reasonable excuse, failing which the court could not find the appellant guilty of the charge. However, the trial judge had made it clear that the appellant had the evidential burden to raise the defence that he had lawful authority or reasonable excuse. The trial judge did not agree that the appellant had sufficiently discharged his evidential burden by saying under caution that he had picked up the identity card on the street, nor did he agree that the prosecution’s evidence was not sufficient to successfully rebut his allegation. The trial judge ruled that the prosecution’s evidence was sufficient to prove that the appellant did have in his possession such identity card without lawful authority or reasonable excuse. As a result, the trial judge found the appellant guilty of charge 10.

14.The trial judge underlined the following:

“In the first place, given the fact that (the appellant) elected not to give evidence, the weight which could be given to the exculpatory statement under caution almost amounts to nought. More importantly, even if (the appellant) really did pick up the identity card on the street inadvertently, he should not have had it in his possession for as long as two odd months, nor was he allowed to do so. As a result, I do not agree that (the appellant) has adduced sufficient credible evidence to raise the issue of lawful authority or reasonable excuse. I repeat that I have absolute respect for the (appellant’s) legal right to remain silent. However, in respect of a charge involving the evidential burden, the court needs to look for relevant evidence. Since (the appellant) has failed to adduce concrete evidence, the court rules that the prosecution has succeeded in proving charge (10).”

15.The trial judge did not deal with what was said and given in explanation by the appellant in the post-record and the video-recorded interview in detail, in particular his allegation that he only picked up the identity card on 24^th September 2014, for the obvious reason that such a claim lacked supporting evidence at all. The appellant did not give evidence, and the explanation that he gave was not part of the prosecution’s evidence. The trial judge seemed to be convinced that the appellant had had in his possession the identity card for as long as two months, hence rejecting the claim that the appellant only picked up the identity card on 24^th September 2014.

Grounds of Appeal

16.Mr Jackson Poon, counsel for the appellant, submitted that the trial judge was wrong in thinking that the appellant had had in his possession the identity card for as long as two odd months, the reason being the absence of evidence in this regard. Mr Poon emphasized that according to the appellant, he picked up the identity card in the area of Shum Shui Po on 24^th September 2014.

17.Mr Poon pressed the point that the prosecution had no evidence to rebut the claim that the appellant only picked up the identity card two days prior to the incident, and that he intended to hand the identity card to the police. Mr Poon stressed that the identity card had not been abused. In his view, the appellant did have reasonable excuse for possession of an identity card which related to another person.

Further Submission

18.At the invitation of the court, both parties addressed the court further on the issue of burden of proof concerning “without lawful authority or reasonable excuse” as that was specified in the offence.

19.Mr Poon’s position was that the relevant charge contains two elements of offence, namely (i) possession of an identity card relating to another person; and (ii) without lawful authority or reasonable excuse. Mr Poon’s position was that the prosecution has the legal burden to prove the two elements of offence in order for the court to find the appellant guilty. Mr Poon relied on such cases as Lam Yuk Fai v. HKSAR [2006] 2 HKLRD 165and Tong Yiu Wah v. HKSAR [2007] 3 HKLRD 565 in support of his argument.

20.Mr Poon also submitted that the appellant does not have any legal burden or evidential burden to raise an issue on “without lawful authority or reasonable excuse”. It was Mr Poon’s position that the trial judge was wrong in ruling that the appellant had the evidential burden to raise that he had reasonable excuse.

The Respondent’s Position

21.Ms Vinci Lam, Senior Assistant Director of Public Prosecutions, contended on behalf of the respondent that “without lawful authority or reasonable excuse” is not an element of the charge in this case.  She pointed out that the appellant not only has the evidential burden to raise the defence of reasonable excuse, but also has the legal burden to adduce sufficient and credible evidence to support that contention, as well as to bring out reasonable doubt in the prosecution’s allegation before he can successfully be acquitted.

22.Ms Lam set out in detail the record of the legislative proceedings for s.7A(1A) as follows:

“Sir, I move that the Registration of Persons (Amendment) Bill 1989 be read a Second time.

The purpose of the Bill is to deter the deliberate misuse of identity cards. The two main proposed amendments to the Registration of Persons Ordinance are: first, to make it an offence for a person to have in his custody or possession, without lawful authority or reasonable excuse, an identity card relating to another person; and second, to make clear the offence of unlawful transfer of an identity card to another person.

Under existing legislation, the possession, without lawful authority or reasonable excuse, of an identity card relating to another person, is not an offence. Using it, however, is an offence under the Registration of Persons Regulations. A loophole in the existing legislation therefore exists where no prosecution can be instituted against persons who are found with identity cards belonging to others in their possession, and there is no evidence of their having used those cards. This is clearly undesirable and it is therefore proposed in clause 4(b) of the Bill to make possession also an offence. The opportunity is also taken to impose heavy penalties as a deterrent against such activities.

The amendments in this Bill are necessary because an identity card is no longer merely a proof of identity. It can also be used as a travel document into and out of Hong Kong. This is an incentive for racketeers to relentlessly steal and transfer identity cards belonging to others for deliberate misuse by impersonators or illegal immigrants. It is hoped that this new legislation and the heavy penalties proposed — a fine of $20,000 and imprisonment for two years on summary conviction, or a fine of $50,000 and imprisonment for 10 years on conviction on indictment — will act both as an effective deterrent and as a means of prosecuting those who abuse our identity card system.”

23.Ms Lam’s position was that “possession of an identity card relating to another person” and “using an identity card relating to another person” are both inherently culpable acts, whereas the defences of “lawful authority and reasonable excuse” etc. are not elements of the offence, but rather exceptions. Ms Lam emphasized that in order to rely on those defences, the defendant not only has to have the evidential burden to raise that defence, but also has the legal burden to adduce convincing evidence before that defence can be established.

24.Ms Lam emphasized that what was dealt with in Lam Yuk Fai was s.42(2) of the Immigration Ordinance, which distinguishes between (i) forging or altering without lawful authority (a document) and (ii) transferring (a document) to another without reasonable excuse.  Ms Lam pointed out that the former is already an offence in its own right whereas the latter constitutes an offence only with the inclusion of “without reasonable excuse”. Ms Lam was of the view that it was due to the above reason that the Court of Final Appeal held that when dealing with the offence of transferring a travel document to another without reasonable excuse, the prosecution has the legal burden to prove that the defendant does not have reasonable excuse before the court can convict the defendant.

25.Ms Lam emphasized that s.7A(1) and (1A) of the Registration of Persons Ordinance concern the use or the possession of a forged identity card, and the use or the possession of an identity card relating to another person respectively, and that the structures of the two provisions are identical, i.e. the presence of the same introductory phrase of “Any person who without lawful authority or reasonable excuse” before “uses or has in his possession a forged identity card” and “uses or has in his possession an identity card which relates to another person”. Ms Lam asserted that s.7A(1) prohibits the use and the possession of a forged identity card, which are extremely serious and inherently culpable offences. If a defendant uses lawful authority or reasonable excuse to justify his use and possession of a forged identity card, he has the evidential burden to raise that defence and the legal burden to prove that defence. Likewise, if a defendant uses lawful authority or reasonable excuse to justify his use or possession of an identity card relating to another person, he also has the burdens of both raising and proving that defence.

26.Ms Lam reiterated that pursuant to s.7A(1A), using an identity card relating to another person concerns an inherently culpable act.  Thus, if lawful authority or reasonable excuse is to be used as the defence for that offence, the defendant has the burdens of both raising and proving that pleaded defence. Ms Lam pointed out that s.7A(1A) covers both using an identity card relating to another person and being in possession/custody of an identity card relating to another person, and that it is relatively obvious that the using of an identity card relating to another person involves the intention to commit illegal activities.  Thus, it must be an inherently culpable act.

27.Ms Lam was of the view that same as using an identity card relating to another person, in dealing with the charge of being in possession/custody of an identity card relating to another person, if a defendant uses lawful authority or reasonable excuse as his defence, he also has the burdens of both raising and proving that pleaded defence; otherwise, in dealing with offences under the same provision, the court has to adopt different burdens of proof, which is not a reasonable approach.

28.Ms Lam also emphasized that identity card is an extremely important proof of a person’s identity.  Every adult has the duty to duly keep his own identity card safely and should not have in his possession an identity card relating to another person or more than one identity card.  Thus, it is reasonable to legally require a person having in his possession an identity card relating to another person to bear the evidential burden and even the legal burden to prove that he has the defence of lawful authority or reasonable excuse before he can be exonerated.

Discussion

29.We are of the view that in considering the proper interpretation of a particular ordinance, we have to take a reasonable approach in accordance with the wording used in and the mischief to be tackled by that ordinance.  Approaches adopted in dealing with different ordinances in other cases may not necessarily be applicable.

30.S.7A(1) and (1A) of the Registration of Persons Ordinance provide as follows:

“(1) Any person who without lawful authority or reasonable excuse uses or has in his custody or possession a forged identity card or other document issued under this Ordinance commits an offence and is liable—

(a) on conviction on indictment to a fine at level 6 and to imprisonment for 10 years; and

(b) on summary conviction to a fine at level 5 and to imprisonment for 2 years.

(1A) Any person who without lawful authority or reasonable excuse uses or has in his custody or possession an identity card or other document issued under this Ordinance which relates to another person commits an offence and is liable—

(a) on conviction on indictment to a fine at level 6 and to imprisonment for 10 years; and

(b) on summary conviction to a fine at level 5 and to imprisonment for 2 years.”

31.In general, using an identity card relating to another person is of the same nature as altering without lawful authority or forging a travel document. Offence like using an identity card relating to another person or altering a travel document etc., which is obviously a serious and unusual act, amounts to an inherently culpable offence.  A defendant accused of using an identity card relating to another person or altering a travel document has to prove that he has the defence of “lawful authority or reasonable excuse” if he is to be absolved, a matter to which Mr Poon did not oppose.

32.Upon the amendment of s.7A(1A), “using an identity card relating to another person” and “possession of an identity card relating to another person” appear under the same provision as offences of the same category with both “lawful authority” and “reasonable excuse” being the defences to those two types of offences under the same provision, so it would be unusual to regard the burden of proof of the two as different.  Ms Lam’s argument is a strong and cogent one.

33.However, where the same ordinance deals with two types of contravention of different nature, with one involving inherently culpable conduct and the other one not, it would not be unreasonable for the court to adopt a different approach when considering the burden of proof for the defence of “lawful authority” and “reasonable excuse”.  This court cannot ignore the fact that possession of an identity card relating to another person was not an offence originally.  It was not until the amendment in 1989 that it was made an offence like using an identity card belonging to another person.  Possession of an identity card relating to another person and using an identity card relating to another person are different in nature; also, the gravity of the two offences are not the same.

34.This court should point out that in daily life, it happens quite often that people have in their possession/custody an identity card relating to another person, which may not necessarily involve inherently culpable conduct.  For example, parents may have in their possession their children’s identity cards for safety reasons; spouses may, for some reasons, have in their possession the identity card of one another; the same is true for family members too.  In some commercial transactions, staff members may also need to keep the customers’ identity cards for a short while.  Under the above circumstances, if those parents, spouses, family and staff members must discharge their legal burden by establishing the defence of “lawful authority” or “reasonable excuse” before they can absolve themselves from liability, it will bring huge trouble to these people who are in possession of an identity card relating to another person.  Yet, this court also needs to point out that, under the above circumstances, there shall not be any difficulty for those charged with possession of an identity card relating to another person to raise the defence of “reasonable excuse”.

35.In HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281, the Court of Final Appeal dealt with a case involving s.42(2)(a)(ii) of the Immigration Ordinance, namely the transfer of a travel document to another without reasonable excuse, and transfer includes “take or convey from one place or person or situation or time of occurrence to another, and it can mean transmit, transport or hand over from one to another”.  The Court of Final Appeal ruled that there are two elements to the offence: the first involving the transfer of a travel document and the second being the requirement that the transfer should be without reasonable excuse.  The Court of Final Appeal ruled that for charges of conspiracy to transfer a travel document to another person without reasonable excuse, the burden is on the prosecution to negative the reasonable excuse of the defendant while the defendant does not have the duty to prove anything.

36.The Court of Final Appeal emphasized that transferring (including transporting) a travel document is different in nature from possession of a weapon in a public place. The policy of the legislator is that it is an offence to possess a weapon in a public place; however, transferring a travel document by itself is not an inherently culpable act unless the transfer is for some other unlawful purposes such as to facilitate the use of that travel document for an unlawful or dishonest purpose by others.  Therefore, the prosecution needs to prove that an accused transferred a travel document without reasonable excuse before a conviction can be made.  The Court of Final Appeal referred to Tse Mui Chun v HKSAR (2003) 6 HKCFAR 601 and compared it with R v Matthews [2003] EWCA Crim 813 so as to highlight the point that there could only be a prosecution if there was the evidence that the transfer was taking place to assist in the passport being used for an unlawful or dishonest purpose by others.

37.This court believes that possession of an identity card relating to another person is more serious than transporting a passport belonging to another person.  Even if there is no evidence from the prosecution to prove that an accused possessed someone else’s identity card so as to use it for an unlawful or dishonest purpose, a prosecution can still be undertaken. However, the prosecution has the duty to prove that the accused is without legal authority or reasonable excuse. Otherwise the accused must not be convicted.

38.The fact that the burden of proof lies upon the prosecution does not mean such a burden is to be discharged blindly with no basis.  Before this burden is triggered, the accused must first raise that defence as well as his version in support thereof. Otherwise, the prosecution will have no way of discharging its burden.  The court cannot expect the prosecution to conduct cases like a blind man feeling around for clues.

39.In the case of Lam Yuk Fai, Lord Woolf NPJ stated in paragraph 32 of the judgment:

“Many, if not most offences, that create an offence and then provide that there will be no offence if the defendant has a reasonable excuse for his offending conduct no doubt place at least an evidential burden on the defendant to raise the defence if not a persuasive or legal burden (see for example Tse Mui Chun v. HKSAR (2003) 6 HKCFAR 601).”

40.The above views were agreed to by the Court of Final Appeal in the case of Tong Yiu Wah v HKSAR (2007) 10 HKCFAR 324.

41.It is highly unusual for someone to have in his possession an identity card relating to another person.  The trial judge was of the opinion that the appellant had the evidential burden to raise the issue of “reasonable excuse” and adduce sufficient credible evidence in support of such, whereas the prosecution needed to discharge its burden of proof by adducing evidence in rebuttal, so as to prove that the appellant possessed Lau Chun Ho’s identity card without lawful authority or reasonable excuse, and only then could the court convict him.  The trial judge’s decision is both correct and reasonable.

42.The undisputed fact is that the appellant had Lau Chun Ho’s identity card in his possession.  Therefore, the only issue of this case is whether the appellant had any lawful authority or reasonable excuse to possess Lau’s identity card.  In dealing with the above issue, the appellant has the evidential burden to raise the defence of reasonable excuse and the prosecution has the persuasive or legal burden to rebut the “reasonable excuse” defence raised by the appellant before it can convince the court to convict the appellant.

43.How should the prosecution prove that the appellant possessed Lau Chun Ho’s identity card without lawful authority or reasonable excuse?  This court believes that in order to discharge such a burden of proof, the prosecution must prove that the appellant’s version given in support of lawful authority or reasonable excuse is not true.

44.Since the appellant was a stranger to Lau Chun Ho, it is therefore not possible that he would have lawful authority to possess Lau’s identity card.  In this case, the only thing that can lend support to the appellant’s reasonable excuse for possessing Lau’s identity card was his own version of the matter, namely that he picked up the identity card and he intended to hand it over to the police station.

45.We agree that if the appellant’s account is true or may be true, there will be doubt in respect of the charge against him, then he should be given the benefit of the doubt and acquitted.

46.Mr Poon contended that when rejecting the appellant’s account, the trial judge only considered the appellant’s statement at the time of the arrest that the identity card was picked up on the street, and did not consider his further explanations in the post-record and the video-recorded interview.

47.However, we should point out that the appellant neither gave evidence nor called any witness. Hence, the defence did not adduce any evidence during the trial to support the appellant’s account in the video-recorded interview that the identity card was picked up on 24 September 2014. The trial judge based his verdict on the admitted facts between the prosecution and the defence, and according to the admitted facts, the appellant’s response to the incident was “I picked it up on the street” only without including his further explanations made in the post-record and the video-recorded interview. This explains why the trial judge did not deal with the further explanations given by the appellant.

48.We cannot ignore the fact that the appellant was found in possession of the identity card almost 3 months from the time it was stolen. There was no evidence to support the appellant’s account that he picked up the identity card only 2 days before the arrest. It was reasonable that the trial judge did not give any weight to this account. It was also not incorrect for the trial judge to say that the appellant should not have possessed the identity card for as long as 2 months odd.    

49.It was not probable for Lau Chun Ho to abandon his identity card, and the appellant must have known that it was not probable for the holder of an identity card to abandon his identity card. Furthermore, the identity card was found from a drawer in the appellant’s room during a search by a police officer, and it was even put inside the appellant’s passbook. This fact did not conform to the appellant’s claim that he intended to hand over the identity card to the police station. If the appellant had really intended to hand it over to the police station, he should have immediately offered that explanation when it was found upon search.

50.As the Court of Appeal said in HKSAR v Li Chang Li [2005] 1 HKLRD 864:  

“Generally speaking, a document of identity cannot possibly be a plaything or collector’s item.”

51.According to the laws of Hong Kong, the holder of an identity card has a duty to carry with him his identity card and produce it for inspection upon request by a police officer or an officer of the Immigration Department. He also has a duty to report the loss, destruction, damage or defacement of his identity card to the authority and apply for a replacement within 14 days. It is an unusual act to possess an identity card relating to another person. 

52.In our view, the appellant concealed the identity card relating to another person in the passbook in the drawer inside his room, which indicated that he intended to possess it for a long period of time and use it when necessary. 

53.In the light of the background of this case, we are of the view that the prosecution’s evidence was sufficient to prove that the appellant was in possession of Lau Chun Ho’s identity card without lawful authority or reasonable excuse. The decision of the trial judge to find the appellant guilty of the charge of possessing an identity card relating to another person without lawful authority or reasonable excuse was correct and safe. Accordingly, we dismiss the appellant’s appeal against conviction. 

Sentence

54.The possession of an identity card relating to another person is surely not a minor offence because the purpose of the person possessing it is very likely to be illegal. Using it to commit a crime not only will enhance the difficulty of solving the case, but it may also cause inconvenience to its genuine holder. 

55.If there is evidence to show that a defendant possesses an identity card relating to another person for the purpose of committing other offences, a sentence of immediate imprisonment should be imposed for the charge of possessing an identity card relating to another person. 

56.In this case, there was no evidence to show that the appellant possessed Lau Chun Ho’s identity card for the purpose of committing other particular offences, but the possession of an identity card relating to another person is itself a serious offence.

57.At the time of the offence, the appellant was under 18 years of age and had a clear record. He was not married but had a girlfriend who bore him a son. He also shared the responsibility of raising the son. However, according to the probation officer report and the community service order report obtained by us, the appellant’s background and living habits reveal that he is going astray. If not timely corrected, he is very likely to go down the criminal path where there is no turning back.

58.In view of the background of the case and that of the appellant, the sentence of a rehabilitation centre order imposed by the trial judge was well-founded and appropriate, and we should not alter it. Accordingly, we dismiss the appellant’s appeal against sentence.

Jackson Poon, instructed by Messrs Keith Lam Lau & Chan, assigned by the Director of Legal Aid, for the appellant

Vinci Lam, Senior Assistant Director of Public Prosecutions, and Noelle Chit, Public Prosecutor, of the Department of Justice (on 25 October 2017) and Vinci Lam, Senior Assistant Director of Public Prosecutions of the Department of Justice (on 6 November 2017), for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.