HKSAR v. Lo Wan Hong Hans

HCMA 92/2019

[2020] HKCFI 2737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 92 OF 2019

(ON APPEAL FROM STCC NO 4135 OF 2017)

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Before:  Deputy High Court Judge Tam in Court

Date of Hearing:  6 August 2019

Date of Judgment:  2 November 2020

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JUDGMENT

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1.The appellant was convicted after trial before a magistrate of “Making a false representation to an Immigration Assistant 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. He was sentenced to 160 hours of community service. The appellant appeals against conviction only.

Particulars of offence

2.The particulars of offence were that the appellant on 7 July 2017 in Hong Kong did make a representation, knowing the same to be false or not believing the same to be true, to an Immigration Assistant lawfully acting under or in the execution of Part II (Immigration Arrival Examination) of the Immigration Ordinance, in that, he represented that he was LO, LONG YING MARTIN.

3.Both here and below, the appellant was represented by Mr Khattak (at trial with another counsel).

The prosecution case

4.The prosecution case was neatly summarized by the magistrate in paras 4 to 6 of the Statement of Findings as follows:

“4. The Prosecution called two witnesses, Senior Immigration Assistant Mr Lam (“PW1”) and Immigration Officer Mr Tsoi (“PW2”).

5. The first part of the Prosecution Case, namely, that on 7 July 2017 at the Arrival Hall of the China Ferry Terminal in Hong Kong the Appellant presented a HKID card no. E912112(2) in the name of Lo Long Ying Martin with date of birth 21 December 1961 (“the HKID Card”) was admitted under paragraph 3 of the Admitted Facts [P1] and not in dispute.

6. PW1’s evidence went on that after the Appellant had presented the HKID Card to PW1, the Appellant lowered and turned his head to his right as if he was searching for something from his slung bag. PW1 could only see the side of the Appellant’s face, it was difficult for him to verify the Appellant’s appearance with the photograph on the HKID Card though it appeared that the Appellant was younger than the HKID Card holder. PW1 asked the Appellant what his name was and the Appellant answered “Lo Long Ying”. The answer matched the name on the HKID Card but the appearance differed. PW1 thought the Appellant was younger than the one on the HKID Card, thus said “It seems you were younger” and demanded the Appellant to let him verify his face by saying “Let’s cross check the face first.” The Appellant then looked at PW1. PW1 thought the Appellant was not the one in the HKID Card, held up the HKID Card with photo facing the Appellant and asked “Was that really you?” the Appellant hesitated, then said he had swapped his HKID card with his uncle. PW1 confronted the Appellant’s answer in saying “If you had swapped with your uncle, why you told me the name on the HKID Card when I asked you what your name was?” More or less at the same time the Appellant produced a Mainland Home Visit Permit no H01190866 in the name of Lo Wan Hong Hans with date of birth 4 April 1983. PW1 then referred the case to PW2 for secondary examination. The Appellant was eventually allowed entry into Hong Kong, and later cautioned and arrested.”

The defence case

5.The appellant elected to give evidence and also called his uncle Lo Long Ying Martin (DW2), the true holder of the subject HKID card, to give evidence.

6.The magistrate summarized their evidence in para 9 of the Statement of Findings, thus:

“9. The Appellant said he came back from China on the material day, one day earlier than usual for his personal errands. He was the first person to arrive at the Arrival Hall. He presented the HKID Card to PW1 for clearance and entry into Hong Kong. He was searching for some petty cash from his work bag to pay for the taxi fare as he intended to take a taxi to the shipyard in Lai Chi Kok thereafter. PW1 asked the Appellant his name, the Appellant answered “Lo Wan Hong”. The Appellant was surprised when PW1 said “You are Lo Long Ying? Seem you look much younger”, he suspected there was problem with the HKID card presented upon PW1 mentioned his uncle’s name. The Appellant froze for a second or two, then thought he might have swapped his own HKID card with his uncle. PW1 held up the HKID Card and told the Appellant to keep a close look. The Appellant moved forward, took a look at the HKID Card and confirmed he had swapped his HKID card with his uncle. Having realized his mistake, the Appellant took out to show PW1 his Mainland Home Visit Permit and driving licence. The Appellant called his uncle using his mobile phone with headset in front of PW1 at the counter. The Appellant continued the conversation until he reached a room with PW2. Relying on the call record and the usual journey time of the ferry the Appellant said he presented himself for clearance before PW1 between 1710 and 1712 hours. DW2 gave evidence to support the swapping of HKID cards was unintentional. The Appellant always addresses DW2 in Chinese out of respect to the ancestors that the Appellant is a Chinese.”

7.For my part, I would add, after having had the benefit of reading the short transcript of evidence of DW2, that he came to know by way of a phone call made by the appellant made on “Friday of the next week” (sic) [probably a slip of tongue: that what he meant was 7 July] that the appellant had his (DW2’s) HKID card; the appellant also told him that the appellant was in the piers of Hong Kong having clearance and that their two HKID cards had been swapped with each other; DW2 immediately went to check his wallet and found that the HKID card therein was the appellant’s.  It is important to note that DW2’s evidence has not been challenged.

Perfected Grounds of Appeal

8.There are four grounds of appeal, they are:

(1)  The trial magistrate has applied double standard in the evaluation of the testimony of the prosecution witnesses and the defence witnesses as well as the evidence of the prosecution and the defence.  In doing so, the appellant did not have a fair trial;

(2)  The trial magistrate has failed to consider all the discrepancies, contradictions and inconsistencies of PW1 and PW2 which will directly undermine the credibility and or the reliability of the evidence of both PW1 and PW2.  The Prosecution failed to prove case beyond reasonable doubt if the credibility or the reliability of PW1 and/or PW2 collapsed;

(3)  The trial magistrate disbelieved the evidence of the appellant without basis and/or without supporting evidence adduced in the course of the proceedings.  Further, the trial magistrate cast doubt on the crucial part of evidence of the appellant by applying his own rationale and analyses without evidential basis; and

(4)  The trial magistrate failed to deal with the material issue which seriously undermined the credibility of PW1 and PW2:

PW1 failed to comply with any Rules and Directions for the Questioning of Suspects and the Taking of Statements required from him (“Rules and Directions”).  There was no caution and/or arrest by PW1 and/or PW2 at all material times.

Reasons for disbelieving the evidence of the appellant

9.For the purpose of this appeal, I think it is sufficient to reproduce here the reasons the magistrate gave for rejecting the evidence of the appellant.  They are contained in paras 34 to 46 of the Statement of Findings, as follows:

“Many coincidences to result in the Appellant’s story

34.  The Appellant’s presenting the HKID Card at PW1’s counter was a result of many, if not too many, coincidences:-

(1) He was the first one to arrive at the immigration area (which according to the Appellant was not very often the case), there was no one in line at PW1’s counter;

(2) He did not use e-channel (which requires fingerprint check) because the immigration counter was faster;

(3) He put his own HKID card under his Home Visit Card, so that he did not necessary have a look at the HKID Card when he took it out of his wallet; and

(4) In any event, he had not looked at the HKID Card and realised it was not his before presenting the same to PW1.

The Appellant not showing front face to PW1

35.  I did not accept the Appellant’s lowering and turning his head to a side so that PW1 could not see his front face, does not cast suspicion on him for the below reasons:-

(1)  He was undergoing a formal immigration clearance process and he wanted to be processed quickly;

(2)  He did so to look for petty cash for taxi journey when:

(a)  He could do so later at taxi stand or on taxi;

(b)  It was five o’clock late afternoon on a Friday, there should be cash or people he could ask for cash at the Lai Chi Kok shipyard, or from his car parked at the shipyard;

(c)  The Appellant agreed normal clearance process would take no more than 6 seconds;

There was no urgency for him to do that during the clearance process.

(3)  Moreover, the Appellant sought to justify his act by saying that sufficient time had been given was so natural which brings further suspicion to him, when it should be PW1 to decide what is sufficient time.

No answer given by the Appellant to PW1’s last question

36.  The Defence sought to explain the Appellant’s not answering PW1’s last question as the Appellant was then on the phone with DW2.

37.  It should be noted that the Prosecution case did not simply stop after the Appellant said he was “Lo Long Ying” to PW1.  That answer was followed by some conversation between PW1 and the Appellant, namely, PW1 saying, “It seems you were younger”, “Was that really you?”, the Appellant telling PW1 that he had swapped his HKID card with his uncle and PW1 saying “If you had swapped with uncle, why you told me the name on the HKID Card when I asked you what your name was” were all follow-ups to the Appellant’s saying the name of “Lo Long Ying”.

38.  PW1 was heavily cross examined in relation to the conversation and sequence of events of his encounter with the Appellant. The accuracy, the actual wording of the conversation, had been challenged but it was not put to him that any part of the conversation between he and the Appellant did not actually take place.

39.  According to the Appellant, he dialed the call after giving his Home Visit Permit and driving licence to PW1, and when he was talking on the phone, he noticed PW1 was saying something (emphasis added).  However, while the Defence challenged PW1’s sequence of events and then PW1 confirmed the account in his statement was correct, that all conversations between the Appellant and him had completed before the Appellant showing his Home Visit Permit to him (emphasis added), PW1 was not further challenged in this regard. As such, the Appellant would not have missed PW1’s last question by reason of his making phone call to his uncle when the last question would have been asked by before he made the call.

40.  The Appellant did not only fail to respond to PW1’s last question. According to the Appellant, there was no conversation between PW1 and him after PW1 said “You are Lo Long Ying?   Seem you look much younger.” Again, PW1’s evidence as to the conversation which included the Appellant saying he had swapped with his uncle had never been challenged by the Defence as not said or otherwise.

41.  Moreover, in assessing the Appellant’s evidence one cannot fail to notice that he said he only suspected there was problem with the HKID card he presented for clearance when PW1 mentioned the name of “Lo Long Ying”.  But PW1 never gave evidence that he himself spoke out the name of “Lo Long Ying”, nor had it been put to him that he did so. Rejecting this part of the Appellant’s evidence, no explanation is left as to what event alerted the Appellant that HKID cards had been swapped.

42.  Furthermore, the Appellant said he confirmed he had swapped HKID card with his uncle upon looking at the photo when PW1 held up the HKID Card, his intention for making to call was for DW2 to speak to PW1 as soon as possible.  However, the Appellant did never ask or attempt to ask PW1 or PW2 to speak to DW2.

43.  For the reasons stated above, I rejected the evidence of the Appellant.

44.  I had rejected the evidence of the Appellant, there is no evidence as to how the phone call at 17:12:05 took place.  I found that the said phone call cannot undermine PW1 and PW2’s evidence.  More particularly, even accepting the phone call was made during the interview, there is no evidence as to the manner and/or the circumstances which it took place, PW2 having no notice of the same cannot undermine his evidence.

45. By reason of my earlier analysis and assessment of the evidence of PW1 and PW2, I found that they are honest and reliable witnesses.  I accepted their evidence, in particular, PW1’s evidence that the Appellant said he was “Lo Long Ying” to him.

46.  In reaching my verdict, I had carefully considered the submission with the authorities of Mr Khattak [for the Appellant], including that it was inherently improbable for the Appellant to have committed the present offence knowingly, in view of the Appellant’s background, prospect and career, having good relationship with his wife, father and uncles before or at the material time.  I rejected that evidence available supported it was inherently improbable for the Appellant to commit the present crime knowingly.”

My consideration

10.I have considered the submissions on both sides of the appeal.

11.A lot of PW1’s and PW2’s evidence has been challenged.  So has a lot of the evidence of the appellant.  But the evidence of DW2 has not.

12.What this means is that certainly for DW2, the time of warning and later confirmation of the inadvertent switching of the two HKID cards came very late; that before the appellant’s phone call, DW2 had absolutely no idea.

13.So when did the appellant first come to know? Judging from the evidence, it doesn’t seem to be the case that the appellant knew that well in advance of the time of immigration clearance; otherwise the natural thing to do would have been for him to call DW2 for confirmation when the ferry was in Hong Kong waters and the first sign of mobile phone reception began to show up.

14.So the prosecution case must have been that the appellant came to know he had the wrong HKID card seconds before he presented it to PW1 for clearance; that he found it out to his surprise and decided to go ahead with it regardless, pretending he was someone 20 years his senior with a wholly different look.  That inherently is improbable given his clear record, educational and professional backgrounds and his active work visa application to the US to take over the US side of the family business from one of his elderly uncles.  Having said that, it’s not impossible that he would try to play such a trick in order to enter Hong Kong in a rush.  But was he in a rush?  The unchallenged evidence was that he was not in a rush[1].  Wouldn’t it be easier just to explain the situation to the Immigration control given that the appellant was a permanent Hong Kong resident?

15.I realize it’s a difficult task to determine who is telling the truth in a conundrum when different parties are telling opposing stories.  The tribunal of fact has to determine if the prosecution witness(es) is/are telling the truth, beyond a reasonable doubt.

16.Here the single most important issue was what name the appellant uttered to PW1 when he was asked for his name.  Now if the appellant well knew that he was presenting somebody else’s HKID card for entry and it was in the hand of an immigration assistant who suddenly asked for the appellant’s name, would that not raise an alarm that the immigration assistant was on the alert and was trying to confirm the identity of the person in front of him?  In such a situation, would someone in the position of the appellant (especially with his backgrounds) still wish to proceed with the impersonation and risk being found out or would he back down if only for damage control?  The answer would be obvious.  So the inherent probability would have been for the appellant (assuming he was indeed trying to impersonate) to utter “Lo Wan Hong” (his true name) rather than to utter “Lo Long Ying” (DW2’s name and that which was printed on the HKID card presented).  Having said that, again it is not impossible for the appellant to be so foolish and push ahead with the impersonation.

17.So the prosecution case implies that the appellant was not only so bold but also so foolish.  That is at odds with his backgrounds and also with the impression I got about him from the manner in which he gave evidence (I read his full transcript of evidence).  With respect, he is not stupid.

18.But the defence case was not he tried to impersonate.  The defence case was that all along he did not know about the switching until after he presented the HKID card for clearance and PW1 had indicated some problems with it.

19.Very few offences the commission of which depend on the correct hearing of two Chinese words as here (Long Ying vs Wan Hong) which makes it extremely important to examine the case against the appellant and the possibility of explanations offered by the defence.

20.However, especially where the issue falls on so narrow a compass which depends on one person’s word against another’s, it would be helpful to examine the surrounding circumstances especially when they are supported by objective evidence such as documentary records eg the work-flow record (P9) and the call record (D15) because they do not lie.

21.P9 (AB202) shows that PW1 dealt with 29 travellers at his counter between 1655 and 1715 hours.  It is important to note that none of the travellers there was the appellant because his attempted entry was never processed through the computer system.

22.The significance of the record lies not so much in the number of travellers as in the intervals between each pair of travellers. For the vast majority of them, the intervals are less than 1 minute.  There are only two exceptions.  They are (a) the one between 17:07:40 and 17:10:00 and (b) the one between 17:10:00 and 17:12:24.

23.Since the encounter with the appellant was an unusual one, one would have expected it to occupy more time.  It is therefore more likely than not that that encounter happened within one of the two aforesaid timeslots in the absence of clear counter-evidence.

24.Although PW1 said that the appellant came to his counter at about 1705 hours, he emphasized that it was only an approximate time.  PW2 said that it was after 1705 hours that PW1 referred the appellant’s case to him.  But how long after PW2 never said.  PW2’s evidence was that somehow the time was referable to some computer timestamp but no computer record has been produced and it seems the matter was not well resolved save that the referral time was ultimately sourced from PW1 who himself did not say anything about referring the case to PW2 by way of a computer message.  The cumulative effect of the evidence seems to be there is no clear prosecution evidence as to when it was that the appellant approached PW1’s counter.

25.On the contrary, there is evidence from the appellant that he could not have arrived at PW1’s counter before 1710 hours because in his vast experience, the ferry ride could not have been shorter than 70 minutes and he departed that day at 1600 hours.  This brings us to the second significant documentary record which is the call record D15 (AB306).

26.According to D15, the first call made by the appellant’s phone on that day was to a mainland number with 11 digits starting with “137”.  The appellant’s evidence was that it belonged to DW2.  This has not been challenged.  The call was made at 17:12:05 lasting almost 1 min.  The next call was made to a local mobile phone number at 17:25:56 again lasting almost 1 min.  The appellant said the number belonged to his driver and this has not been challenged.  These two are the significant calls: the second call signifying the end-time of the interview with PW2.

27.The next call at 18:10:31 was an incoming call originating from the same mainland “137” number lasting almost 2 min and which is followed by an outward call to the same number at 19:06:42 lasting almost 3 min.  These two calls are less significant.

28.According to the appellant’s evidence, he placed the 17:12 call to DW2 at the counter in front of PW1 with the intention to confirm whether there was indeed a switching of HKID cards and, if necessary, for DW2 to explain to PW1 the situation (that necessity never came); that some time into the telephone conversation, the appellant was signalled to follow PW2 to another place for further enquiry which he did, whilst still speaking on the phone all along using a Bluetooth headset/device.  The significance of this call was that according to the appellant, his attention was divided which might have caused him to miss some of the things said by PW1 to him rendering his failure to respond.  So whether the appellant might or might not have been engaged in this phone call was of utmost importance to the case of the appellant.  What did PW1 say about this phone call?  The totality of PW1’s evidence, on my reading of the full transcript of his evidence, was that he could not rule out the possibility that the appellant might have been using the phone.  This is sufficient to raise a reasonable doubt, in my judgment.

29.Remembering always that there never was any challenge to DW2 that he did receive a phone call from the appellant informing him of the possibility of switch of HKID cards, this doubt was reinforced.

30.The surrounding circumstances therefore provided a solid base to the appellant’s case that he was caught by surprise when PW1 indicated there was some problem with the HKID card presented; that there was a plausible explanation for the appellant’s failure to respond to a question asked by PW1 on which the magistrate placed some weight.

31.To convict on a criminal charge based on the correct hearing of two characters in the Chinese language itself carries a risk of wrongful conviction.  To do so in the light of such discomforting surrounding circumstances (supported by objective documentary evidence) creates an unsettling feeling in my mind that justice might not have been done.

32.I would for my part adjudge that there is a lurking doubt in the case against the appellant; that, with due respect to the magistrate, insufficient regard has been paid by him to the documentary evidence and the fact that DW2’s evidence has not been challenged.

33.The conviction is therefore unsafe and unsatisfactory.

Conclusion

34.For the above reasons, the conviction is quashed and the sentence set aside.

Mr Franco KUAN, SADPP (Ag.) of Department of Justice, for the Respondent

Mr Shahmin K Khattak (Kelly Lam), instructed by Howell & Co., for the Appellant