HKSAR v. Tulachan Sabina

HCMA 49/2020

[2020] HKCFI 677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 49 OF 2020

(ON APPEAL FROM STCC 3541 OF 2019)

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J U D G M E N T

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Background

1.The Appellant was charged with one charge of Using a False Instrument contrary to section 73 of the Crimes Ordinance, Cap 200.  She pleaded not guilty to the charge and was tried before Mr Edward Wong, Permanent Magistrate (“the Magistrate”).  The Magistrate convicted the Appellant and sentenced her to 6 months’ imprisonment.

2.The Appellant now appeals against conviction and sentence.

3.The Appellant was represented at trial.  She acts in person in this appeal.

The Prosecution Case

4.The charge complained that the on 29^th April 2019 in Hong Kong, the Appellant used an instrument, namely a declaration of sponsor for application for extension of stay, purportedly signed by Sherchan Surman (“PW2”), which was and which the Appellant knew to be false, with the intention of inducing the Director of Immigration and his officers to accept it as genuine and, by reasons of accepting it, to do or not to do some act to his own or any other person’s prejudice.

5.The following facts were not in dispute and admitted between the parties at trial:

(1)     PW2 was a Hong Kong permanent resident and he married the Appellant in Nepal in 2017;

(2)     After marriage, he sponsored the Appellant’s application for dependant entry visa to Hong Kong; as a result of which, the Appellant entered Hong Kong on 12^th May 2018 and was allowed to stay as resident until 12^th May 2019.

(3)     On 24^th April 2019, the Appellant submitted in person to the Immigration Department an application for extension of stay under PW2’s sponsorship with the following documents: a copy of the Appellant’s Hong Kong Identity Card, an application form for extension of stay (“the Application Form”), a Declaration of Sponsor purportedly signed by PW2 (“P5”), a declaration of dependant applicant (“the Declaration of Dependant Applicant”), a copy of PW2’s Hong Kong Permanent Identity Card, and the Appellant’s Nepalese passport.  They were collected and processed by PW1.

(4)     The application was approved and the Appellant’s stay was extended to 12^th May 2022.

6.PW2 gave evidence for the Prosecution.  His evidence was mostly covered by the Admitted Facts.  He stated that the marriage with the Appellant was an arranged marriage by their families.  The marital relationship was good in the first one or two months, then it turned bad because they could not understand each other and the Appellant said she did not love PW2.  Hence they consented to have divorce in Nepal, but their parents objected to their divorce and asked them to reconcile.  Before the Appellant made her application with the Immigration Department on the strength of P5, PW2 told the Appellant that he could not extend her visa anymore.  PW2 never signed on P5.

The Defence Case

7.The Appellant elected not to give evidence and did not call any witness.  The case for the appellant, as argued by her counsel at trial, was that as the divorce was still pending due to the objection from their families, there was a reasonable doubt that PW2 might have signed P5.

The Magistrate’s Findings

8.The Magistrate pointed out in paragraph 8 of the Statement of Findings that:

“8. The main issue was whether the Declaration of Sponsor, particularly the signatures thereon purported to be PW2’s, were false.”

9.The Magistrate directed himself on the burden and standard of proof in paragraph 5 of the Statement of Findings.  For the evidence of PW2, the Magistrate said at paragraphs 16 to 17:

“16. The Prosecution relied mainly on PW2’s evidence and I therefore considered it with extra caution. The Defence argued that there was reasonable doubt that PW2 might have signed the Declaration of Sponsor because when D made the application, the parents of both PW2 and D had not agreed with their divorce, so PW2 still had to sponsor D’s application to extend stay in HK at that time.

17.  I disagree because notwithstanding their parents’ objection, it was clear from the messages exchange between PW2 and D that the two of them had consented to divorce, and since they married in Nepal, the divorce would and should be done there without the need for D to stay in HK.”

10.The Magistrate considered the evidence of the Prosecution witnesses.  He found PW1 and PW2 both gave their evidence in a directly and sincere fashion and their evidence reasonable and consistent.  The Magistrate found PW1 and PW2 to be honest and reliable and accepted their evidence.

11.Based on the Prosecution evidence, the Magistrate found the following proved:

(i)     On the date and at the location of the charge, the Appellant used P5, purportedly signed by PW2, with the intention of inducing the Director of Immigration and his officers including PW1 to accept it as genuine and, by reasons of accepting it, to do or not to do some act to his own or any other person’s prejudice.

(ii)     P5 was in fact not signed by PW2 and the Appellant must have known or believed it to be false.

12.The Magistrate found the charge proved and he convicted the Appellant.

Mitigation

13.Counsel for the Appellant relied on HKSAR v K C Dipendra HCMA 734/2014 in which the appellant in that case submitted a letter purportedly signed by his wife in support of his application for extension of stay in Hong Kong when in fact the wife did not sign it.  He was convicted and sentenced to 6 months’ immediate imprisonment.

Sentence

14.The Magistrate said in paragraph 23:

“23. Having considered all the circumstances of this case including D’s clear record, I adopt a starting point of six months’ imprisonment. She was convicted after trial and thus not entitled to reduction for guilty plea. There was no factor which warranted deduction or suspension. I therefore sentenced her to six months immediate imprisonment.”

Grounds of Appeal Against Conviction

15.The Appellant, in her homemade grounds of appeal, stated that she was very unhappy for not able to give her evidence even though she was innocent, and that she had not been “willing to take part in fighting” and therefore she remained silent at trial.

16.In response to the Respondent’s submission that the legal representatives representing the Appellant at trial must have explained to her the applicable principles and she made the decision not to testify by herself, the Appellant said she did not know she had to give evidence, she thought at the time she could remain silence and she would be allowed to give evidence on appeal.  At a later stage, the Appellant said she was told by her counsel that as she was innocent it was not necessary for her to give evidence.

The Respondent’s Submissions (Conviction)

17.Mr Nicholas Wong, Senior Public Prosecutor for the Respondent, opposed the appeal against conviction.  He submitted that the Appellant was convicted on the evidence of PW2, which was challenged by her legal representative at trial and was fully considered by the Magistrate.  The Magistrate made a finding of fact based on direct evidence of a witness which would not be lightly interfered with at the appellate stage.

18.As for the Appellant’s complaint that she felt unhappy, or even had second thoughts, for not giving evidence, Mr Wong submitted that it must have been the case at trial that those representing the Appellant must have explained to her the applicable principles and she made the decision not to testify by herself.  There is no basis for the Appellant now to seek a second bite of the cherry.

Grounds of Appeal Against Sentence

19.The Appellant’s homemade grounds of appeal did not touch upon her sentence.  In court, the Appellant submitted that her appeal against sentence should be allowed as she was innocent.

The Respondent’s Submission (Sentence)

20.Mr Wong submitted that using a false instrument to deceive a public official is a serious offence. The sentence passed by the Magistrate was not manifestly excessive and there were no errors of principle involved.  There is no basis to interfere with the sentence of 6 months’ imprisonment.

A Consideration of the Submissions

Appeal Against Conviction

21.The Appellant was represented by counsel at trial.  It can be seen from the closing submissions and the Statement of Findings that the trial defence counsel had challenged the prosecution case valiantly.  The homemade ground of appeal of the Appellant shows that her decision not to give evidence at trial was one made by her consciously.  In court, the Appellant made a fresh complaint that she erroneously thought that if she did not give evidence at trial, she would be allowed to give evidence on appeal.  Given the fact that the Appellant was represented by counsel at trial, it is inconceivable that the Appellant would harbour such erroneous belief at trial.  In my judgment, the Appellant’s claim that she decided not to give evidence at trial because she thought she would be allowed to give evidence on appeal has no credence at all.  Such claim is also inconsistent with her fresh compliant in court that her counsel advised her there was no need to give evidence as she was innocent; if the Appellant was so advised by her counsel, it is difficult to see how she would harbour the belief at trial that that if she did not give evidence at trial, she would be allowed to give evidence on appeal.

22.In my judgement, the complaint raised by the Appellant against her trial counsel is totally devoid of credence and I would not burden the trial counsel to file an affidavit to answer such unmeritorious complaint.

23.The Appellant exercised her right not to give evidence at trial.  Having lost the case, she regretted her decision not to give evidence and asks that she be allowed to give evidence on appeal.  For the reasons stated above, there is no basis for the Appellant to ask this court to receive fresh evidence on appeal by allowing her to give evidence on appeal. 

24.The Magistrate properly directed himself on the burden and standard of proof.  He gave cogent reasons why he accepted the evidence of PW2, ie the evidence of PW2 that the two consented to divorce was supported by the messages exchange between them; and since they married in Nepal, the divorce should be done there without the need for the Appellant to stay in Hong Kong.

25.In my judgment, the assessment of the evidence made by the Magistrate was detailed and cogent.  He was entitled to accept the evidence of PW2.

26.In my judgment, from the evidence placed before the Magistrate, the Magistrate was entitled, as he did, to find that P5 was a false instrument and the Appellant used P5 knowing the same was a false instrument and that she had the requisite intention.

27.On a rehearing, I am satisfied that the Appellant was properly convicted.  For the reasons stated the appeal against conviction is dismissed.

Appeal Against Sentence

28.Mr Wong fairly pointed out that Dipendra was an appeal against conviction.  I agree with the Respondent’s submissions that this case calls for an immediate custodial sentence as using a false instrument to deceive a public officer is a serious offence.  The 6 months’ imprisonment passed by the Magistrate was not manifestly excessive and I have no reason to interfere with the sentence.

29.For the reasons stated the appeal against sentence is also dismissed.

Disposal of this Appeal

30.For the reasons stated, I dismiss both the appeal against conviction and sentence.

Mr Nicholas Wong, SPP of the Department of Justice, for the Respondent

The Appellant appeared in person