HKSAR v. Huynh Bat Muoi (D2)

CACC000028/2000

CACC 28/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 28 OF 2000

(ON APPEAL FROM DCCC 978 OF 1999)

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Coram: Hon Stuart-Moore V-P, Woo and Stock JJA in Court

Date of hearing: 24 May 2001

Date of judgment: 14 June 2001

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

Background

This is an application for leave to appeal against both conviction and sentence. The applicant was the 2nd defendant and one Lau Wo-hing was the 1st defendant tried before Judge Muttrie in the District Court. The 1st defendant faced two charges, both for using a forged travel document for the purpose of Part II of the Immigration Ordinance, Cap 115, contrary to s 42(2)(b) of that Ordinance. The particulars of offence were that the 1st defendant on 26 September 1999, in Hong Kong, used a forged travel document, namely a Kingdom of Belgium Passport No. EB804980 for the purpose of Part II (Immigration Arrival Examination) of the Immigration Ordinance. The second charge he faced had the same particulars except that the date of the offence was on 27 September 1999.

2.The 2nd defendant also faced two charges of aiding, abetting, counselling or procuring the using of a forged travel document for the purpose of Part II of the Immigration Ordinance, contrary to 42(2)(b) of that Ordinance and s 89 of the Criminal Procedure Ordinance, Cap 221. The particulars of the two offences were that the 2nd defendant on 26 September 1999 (27 September 1999 for the other offence), in Hong Kong, aided, abetted, counselled or procured Lau Wo-hing to use a forged travel document, namely, a Kingdom of Belgium Passport No. EB804980 for the purpose of Part II (Immigration Arrival Examination) of the Immigration Ordinance.

3.The 1st defendant pleaded guilty and was sentenced to a term of imprisonment for 18 months in respect of each of the charges that he faced, to run concurrently. On the other hand, the 2nd defendant was convicted on 17 January 2000 of the two charges against her after trial. The Judge sentenced her to two years and nine months' imprisonment for each of the offences, to run concurrently.

4.Against both conviction and sentence, the applicant now seeks leave to appeal.

5.In her notice of application dated 26 January 2000, the grounds of appeal against conviction were that:

"I have not committed any offence. The Immigration Department had set me up. The witnesses from the Immigration Department were lying in the court."

6.The ground of appeal in respect of sentence was:

"The fact that Lau Wo-hing had used the false passport has nothing to do with me. In fact I was kept in the dark. If accompanying someone during the journey in such a situation is an offence, the maximum length of imprisonment should not have exceeded several months. I should not have been given such a severe sentence."

7.On 12 May 2000, when the 2nd defendant appeared before Chan CJHC (as he then was), sitting as a single judge of the Court of the Appeal, she told the court that she had a letter from the Belgian Government saying that the passport was genuine. That was a letter in French apparently issued by the Consulate General of Belgium in Hong Kong. The Chief Judge adjourned the hearing of the application and made an order that translation of the letter be obtained.

8.On 3 August 2000, Wong JA refused the application for leave to appeal against conviction and sentence. The 2nd defendant renewed her application for leave and it was first heard by this Court on 10 January 2001. The 2nd defendant stated that her cautioned statement was fabricated by the Immigration Officer sentence after sentence. She asserted that her counsel at the trial also made up a lot of lies. She did not know that once she signed the cautioned statement, it would become evidence in court. She also emphasised that the passport was issued in Belgium and it was a genuine passport. At the time we were impressed with the contents of the letter from the Consulate General of Belgium which had been translated into English. The letter was dated 29 December 1999. The crux of the information contained in it is in its first paragraph:

"... I have the honour to inform you that the Ministry for Foreign Affairs of Belgium have made some verifications with the townhall of Brussels and with the Group 4 Securitas Co. which makes the passports. The results of this inquiry are the following:

1. the application for a passport at the townhall of Brussels has been made in the name of HUYNH Minh Hoa, but on production of a photograph belonging to someone else - most probably, the person actually being detained. The application was made following the declaration of loss of Mr. HUYNH Minh Hoa's previous passport (number EA918401).

2. passport EB804980 has indeed been made with the photograph I sent you in annex. The date of delivery (15.09.1999) agrees and everything seems to indicate that the intercepted passport did not undergo any tentative of falsification."

9.It appeared to us what the above meant was that the passport used by the 1st defendant was a passport actually issued by the authorities in Brussels upon the application of HUYNH Minh Hoa who had declared that he had lost his previous passport EA918401. Except for the photograph, which is the photograph of the 1st defendant, the contents of the passport EB804980 are true. The issues thus arose were whether the 1st defendant used a "forged" travel documents as charged and whether the 2nd defendant aided, abetted, counselled and procured the use of the same "forged" travel document. As a result, we adjourned the hearing of the application in order to enable legal aid to be provided to the 2nd defendant in her application regarding conviction.

The undisputed facts

10.After hearing evidence, the Judge convicted the 2nd defendant of the two charges. He set out in his Reasons for Verdict the facts which were not in dispute and his findings.

11.The following facts were not in dispute. On 26 September 1999, the 1st and 2nd defendants together entered Hong Kong from the Mainland at Lo Wu. The 1st defendant was in possession of the subject Belgian passport EB804980 bearing the 1st defendant's photograph in the name of HUYNH Minh Hoa of Belgian nationality. The 2nd defendant was in possession of a valid Belgian passport in her own name. Using these passports, they passed through Immigration Arrival inspection. While in Hong Kong the 2nd defendant bought for herself and the 1st defendant air tickets for the USA, departing on 27 September for the USA via Vancouver. On that day at the airport, using the same passports, they passed through Immigration Departure inspection. They were intercepted at the boarding gate.

12.Back on 8 April 1999, as shown in the Immigration Department's computer record, the 2nd defendant entered Hong Kong from the Mainland via Lok Ma Chau and left via the airport in the company of a person holding a Belgian passport EA918401 in the name of HUYNH Minh Hoa.

The evidence

13.Various Immigration Officers gave evidence before the Judge. They dealt with the entry of the defendants through Lo Wu on 26 September 1999 and what happened on 27 September 1999 at the airport. Two airline staff members also gave evidence to the effect that the 2nd defendant came to the airline counter to check-in. The 2nd defendant presented passports and tickets for herself and a male. She was asked to bring the male forward. The 2nd defendant said that the male was her younger brother. The male who came forward failed to produce any document. At the boarding gate the 2nd defendant and a man arrived. The 2nd defendant produced passports and boarding cards for both of them. Eventually, because of suspicions entertained by the airline staff the 2nd defendant and the male were not allowed to board the aircraft.

14.One of the Immigration Officers recorded an interview with the 2nd defendant on the evening of 27 September at the airport. After holding an inquiry using the alternative procedure, the Judge admitted the record of interview in evidence. The gist of the story told by the 2nd defendant in that interview was that in August 1999, she met a man called Ng in Beijing who specialised in producing forged passports for Chinese to go to work abroad. Ng suggested to her that she could have a remuneration of US$1,000 for taking each Chinese holder of forged passport to a foreign country and all her expenses for meals, accommodations and plane tickets would be paid for. However she had to look for her own clients and he would supply the forged passports. That was why she asked the 1st defendant if he would like to go to work in a foreign country when she later met the 1st defendant in Fuzhou. She told the 1st defendant that she had a friend who could arrange a forged passport for him to go to work overseas, that he would not have to pay the fee in advance which would be payable upon arriving in the foreign country successfully, and that she would also accompany him to go all the way. The fee mentioned was US$5,000. After the 1st defendant agreed, the 2nd defendant took him to have 10 photographs taken. She took the photographs and went to Beijing to pass them onto Ng. On 23 September 1999, Ng told the 2nd defendant to go to Beijing to get the 1st defendant's forged passport. When she was handed the passport she found it to be a Belgian passport and discovered that only the photograph was the 1st defendant's whilst the other particulars in the passport did not relate to him. Ng told her that he knew that she was the rightful holder of a Belgian passport, and it so happened that he found a forged Belgian passport for the 1st defendant to use, so that she could take care of the 1st defendant in the journey and that it would not be that easy for other people to know that the 1st defendant was not the holder of the Belgian passport. She also admitted that she took the 2nd defendant to go through Lo Wu to enter Hong Kong. She helped him fill out the arrival card in accordance with the particulars in the Belgian passport and also taught him how to pronounce the name in the Belgian passport. After arriving in Hong Kong, she intended to purchase plane tickets to the USA immediately, but there was a typhoon and that was why she had to stay in Hong Kong overnight and only purchased the air tickets on 27 September. She also helped the 1st defendant fill out the departure card in order to facilitate his exit from Hong Kong. She bought and paid for the air tickets. She also admitted that she had taken a look at the 1st defendant's Mainland identity card and she knew that he was a Fuzhouese and his name was Lau Wo-hing.

15.The 2nd defendant testified before the Judge. She said that she had first met the 1st defendant on 24 September 1999 in Fuzhou at a lunch party. She told him that she had come from Belgium to have fun. When she said that she wanted to go to the United States, he suggested that they travelled there together. Accordingly, they came to Hong Kong together via Lo Wu on 26 September. She had bought the tickets to the USA in Hong Kong and they had gone to catch the aircraft together on 27 September. All along she had never known that there was any problem with the 1st defendant's passport.

16.The Judge took into account that the 2nd defendant was a woman of good character. Notwithstanding, he found her incredible. He rejected her evidence. He accepted the prosecution's evidence and was satisfied beyond reasonable doubt that the 2nd defendant gave the answers recorded in the interview and that they were true.

17.Regarding the issue raised whether the passport that the 2nd defendant had procured for the use of the 1st defendant, ie, the Belgian passport EB804980 that was seized, was a forged passport, the Judge had the following to say:

"It was argued at the close of the prosecution case that since there was no extrinsic evidence from the Belgian authorities or elsewhere that the passport is forged, I could not [be] satisfied that it was. I rejected that argument and reject it now because it is clear from what D2 said in her statement that she not only believed the passport to have been forged, but that it was forged. I refer in particular to what she said about taking photographs of D1, giving them to Ng and later getting from Ng the passport with D1's photograph in it. It is not suggested that Ng was a Belgian consular officer or that any of the normal procedures for obtaining the issue of a genuine passport had been carried out.

The only inference that no reasonable person could fail to draw in these circumstances is that the passport which D2 received from Ng and which D1 later used and which she helped him to use was in fact a forged passport."

18.As said before, the letter dated 29 December 1999 from the Consulate General of Belgium in Hong Kong was to the effect that the passport EB804980 was issued by the townhall of Brussels and that the only untruth contained in it was that the photograph in it did not show HUYNH Minh Hoa but instead the 1st defendant.

The perfected grounds of appeal

19.By the perfected grounds of appeal dated 12 February 2001, Mr Eric Kwok, counsel for the applicant assigned by the Legal Aid Department, raised the following grounds of appeal:

(1) The judge erred in rejecting the "no case" submission at the close of the prosecution case as there was no evidence or not sufficient evidence of the element of forgery.

(2) The judge erred in concluding that the passport was a forgery as the only inference that no reasonable person could fail to draw.

(3) Alternatively, the convictions are unsafe and unsatisfactory in view of the additional evidence.

Fresh evidence

20.By the perfected grounds of appeal, notice was given that the 2nd defendant intended to apply to the court to admit the documents from the Consulate General of Belgium, mainly the letter of 29 December 1999, as fresh evidence pursuant to s 83V of the Criminal Procedure Ordinance, Cap 221. Mr Kwok, for the 2nd defendant, submitted that only if he failed on the first two grounds of appeal that he would need to seek introduction of the fresh evidence. However, it is convenient to consider first the effect of the fresh evidence and whether we should receive it.

21.S 83V of the Criminal Procedure Ordinance provides:

(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice -

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection (3), receive the evidence, if tendered, of any witness.

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, will not afford any ground for allowing the appeal, exercise its powers of receiving it if -

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it."

22.We have no doubt that the evidence contained in the letter of 29 December 1999 from the Consulate General of Belgium is likely to be credible, but we wonder whether, without the particular officer in Brussels who made the subject passport giving viva voce evidence in court and in the absence of agreement between the prosecution and defence, the content of the letter would have been admissible before the trial judge, because it would have been hearsay. Further, we do not think that there was a reasonable explanation for the failure to adduce it before the trial judge.

23.At the request of this Court at the hearing on 10 January 2001, Miss Ko, counsel for the HKSAR, made a respondent's submission dated 23 January 2001, in which the history relating to the letter of 29 December 1999 was set out, as follows:

"8. Prior to the trial, enquiry was made by the Hong Kong Immigration Department of the Belgian Consulate General concerning the authenticity of the subject passport. As a result, a reply was received from the Consulate General of Belgium together with enclosures, copies of which I now attach as Appendix A [this was the letter of 29 December 1999 together with enclosures].

9. Appendix A was subsequently forwarded to Counsel-on-fiat, Mr. De Boinville and solicitor acting for the Appellant, Lai & Leung Solicitors on 3rd January 2000 as part of disclosure for the latter.

10. In the course of the trial which commenced on 6th January 2000, the Belgian officials turned down our request from the Prosecution to testify in relation to Appendix A. It was also Counsel-on-fiat's intention to submit Appendix A at trial but was opposed by Counsel for the Appellant. Those documents were never before the trial judge."

24.The passages cited above from Miss Ko's submissions were not objected to by Mr Kwok and we take it that the contents are true. It appears to us that since the so-called fresh evidence was available to the 2nd defendant in early January 2000 before the commencement of the trial on 6 January 2000 there was no reasonable explanation why it was not adduced. Moreover, as counsel for the 2nd defendant at trial opposed to the production of the letter and its enclosures to the trial judge, all the more the 2nd defendant should not justly be allowed to alter her position now.

25.Notwithstanding, we consider that it will be necessary and expedient in the interests of justice for us to exercise our discretion under s 83V(1)(a) to receive the evidence for our consideration of this application. The letter of 29 December 1999 appears to us necessary for the determination of this case and that the information contained in it, albeit hearsay, is very likely to be credible. Counsel for both parties before us asked us to receive the evidence under s 83V(1) and they formally agreed that the letter contained the truth and asked us to accept the contents as true.

26.The letter raises a number of interesting and yet vexing questions of law, namely,

(a) whether the passport EB804980 was a "forged" passport within the meaning of s 42(2)(b) of the Immigration Ordinance, justifying the conviction of the 2nd defendant of aiding, abetting, counselling and procuring the use of that passport by the 1st defendant; and

(b) if it is not such a forged passport, whether we are entitled to substitute offences for those charged or amend the charges or we should apply the proviso under s 83 of the Criminal Procedure Ordinance.

The Judge's finding of "forged" passport

27.The 2nd defendant had in her interview by the Immigration Officer admitted on several occasions that the passport was "forged". Although her knowledge and belief of the passport being a forgery was derived from what Ng had told her, that was real evidence and as such admissible. On the other hand, Ng did not give evidence at the trial and the statements he made to the 2nd defendant about the passport being a forgery might not by themselves have been sufficient evidence to prove that the passport was in fact a forgery. In the passage cited from the Reasons for Verdict given by the trial judge (para 17 above), it is plain that he based his finding that the passport was forged on inferences drawn from all the evidence before him. We shall deal with the meaning of "forged" later. In our judgment, the inference that he drew was the irresistible inference drawn from the evidence before him and the inference was correct. He did not err in any respect as suggested in the first two perfected grounds of appeal, on a no case to answer or when he concluded to convict. The letter of 29 December 1999 from the Consulate General of Belgium, however, sheds a different light on the matter. The statement that the passport was issued by the authorities in Brussels and that it contained the true particulars of HUYNH Minh Hoa save for the photograph points to what might in common parlance be called a "genuine" passport containing a false particular, namely, the photograph which was not the photograph of the holder to whom the passport was issued. Both parties before us agreed that this statement was true and we have no doubt about this truth. It shows a very clever, albeit unexpected, way used by snakeheads in obtaining false travel documents and the intricate planning and organisation adopted by snakeheads, involving true passport holders claiming to have lost their passports in order to obtain replacement ones for the use of illegal migrants. This tricky device and organisation was, nonetheless, not mentioned to the trial judge, and in the absence of it or any suggestion or evidence of it, it was proper for him to draw the inference that the passport was forged and convict the 2nd defendant accordingly. There was overwhelming evidence before him for him to have drawn the inference that he did on the submission of no case to answer and at the conclusion of the trial. Perfected grounds (1) and (2) fail.

Meaning of forgery

28.We now turn to examine the meaning of "forged" travel document in the Immigration Ordinance. S 42(2)(b) of the Ordinance provides:

(2) Any person who -

(a) ....

(b) uses for the purposes of Part IB, II, III or IV of this Ordinance any forged, false or unlawfully obtained or altered travel document, ....

(c) ....

shall be guilty of an offence.

(2) A travel document, ... shall be deemed to be unlawfully obtained for the purposes of this section if any person made a false statement or representation for the purposes of or in connection with an application for the issue or renewal of the same.

(3) Any person who is guilty of an offence under this section shall be liable-

(a) on conviction on indictment, to a fine of $150,000 and to imprisonment for 14 years; and

(b) on summary conviction, to a fine at level 6 and to imprisonment for 2 years.

(2) In this section, "false" (虚假) means false in a material particular and "forged" (偽造) has the meaning assigned to that term by Part IX of the Crimes Ordinance (Cap 200).

29.It is to be noted that a s 42(2)(b) offence relates to the use of any travel document which is "forged, false or unlawfully obtained or altered". Any one of these four categories will do.

30.Part IX of the Crimes Ordinance which was introduced in 1992 contains ss 68 to 79 inclusive. S 68(2) provides that:

In any Ordinance, unless the context otherwise requires, "forgery" (偽造) shall be construed in accordance with this Part.

31.S 71 of the Crimes Ordinance is the only section under Part IX that deals with the offence of forgery. It provides:

A person who makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice, commits the offence of forgery and is liable on conviction on indictment to imprisonment for 14 years.

32.S 69 of the Crimes Ordinance makes the following provisions:

69. Meaning of "false" (虚假) and "making" (製造)

For the purpose of this Part-

(a) an instrument is false if it purports to have been--

(i) made in the form in which it is made by a person who did not in fact make it in that form;

(ii) made in the form in which it is made on the authority of a person who did not in fact authorize its making in that form;

(iii) made in the terms in which it is made by a person who did not in fact make it in those terms;

(iv) made in the terms in which it is made on the authority of a person who did not in fact authorize its making on those terms;

(v) altered in any respect by a person who did not in fact alter it in that respect;

(vi) altered in any respect on the authority of any person who did not in fact authorize its alteration in that respect;

(vii) made or altered on a date on which or place at which or otherwise in circumstances in which it was not in fact made or altered; or

(viii) made or altered by an existing person but he did not in fact exist;

(b) a person is to be treated as making a false instrument if he alters an instrument so as to make it false in any respect, whether or not it is false in some other respect apart from that alteration.

33.The commonly held belief is that a forged document can only be so called if it in itself is false. This is the view of Blackburn J in R v. Windsor (1865) 10 Cox 118, at 123:

"Forgery is the false making of an instrument purporting to be that which it is not, it is not the making of an instrument which purports to be what really is, but which contains false statements. Telling a lie does not become a forgery because it is reduced to writing."

34.The common view of the English common law decisions used to be that "the document must not only tell a lie but must tell a lie about itself" (see Cheng Tien-fung v The Queen [1978] HKLR 152, at 155). If this common law meaning of forgery is accepted, then the passport would be considered as a genuine passport containing a falsehood in the form of a photograph not of the legitimate holder. However, Mr Cheung, for the respondent, argues that s 69 of the Crimes Ordinance has extended the meaning of "forgery" to "false" as therein defined. As s 71 of the Crimes Ordinance is the only provision in Part IX of the Crimes Ordinance dealing with forgery, and s 71 specifically refers to the making of a false instrument being a forgery, it expressly incorporates the meaning of "making" a "false" instrument provided in s 69 of the same Ordinance. Mr Cheung argues that if any of the circumstances in s 69(a) is established, the related instrument is a forged instrument under s 42(2)(b) of the Immigration Ordinance. Part IX of the Crimes Ordinance was derived from the Forgery and Counterfeiting Act 1981 of England. S 71 of the Crimes Ordinance is identical in terms to s 1 of the Act and s 69 of the Crimes Ordinance is in identical terms as s 9 of the Act save that the enumeration of the provisions is different. More specifically, s 69(a)(vii) of the Crimes Ordinance is identical in terms to s 9(1)(g) of the Act. Attorney General's Reference (No. 1 of 2000) [2001] 1 WLR 331 is a decision of the English Court of Appeal dealing with the meaning of forgery under s 9(1)(g) of the Act. The court there was considering the interpretation of "other circumstances" in s 9(1)(g) of the Act. The court dealt with the authorities, some in disagreement, in detail and came to the conclusion that "an instrument will be false for the purposes of s 9(1)(g) if it is a document which requires, before it can be made or altered that there should exist or should have existed a set of circumstances and those circumstances do not or did not exist" (p 339F). The court held that the circumstances of an instrument's making which did not exist included the following, and it considered that the subject instruments were forgeries:

(a) a valuation of jewellery where the valuer made such a valuation without having seen the jewellery which he purported to have valued, as in R v Donnelly (Ian) [1984] 1 WLR 1017;

(b) a note written by a bank officer on the bank's notepaper in which he said that he had received a letter of credit and that he had endorsed it but in fact he had neither seen nor endorsed the letter of credit, as in R v Jeraj [1994] Crim L R 595; and

(c) a letter purporting to be from the employer of the mortgage applicant confirming that he was employed by the employer but in fact the employer-employee relationship did not exist, the facts in R v Warneford [1994] Crim L R 753.

35.In AG's Reference (No. 1 of 2000) itself, the court ruled that the tachograph record sheet made by the defendant coach driver was a forgery under the 1981 Act because that record was a document which required, before it could be made, that there should exist or should have existed a set of circumstances and those circumstances did not in fact exist or had not existed. The reason was that in order to make that part of the tachograph record sheet which purported to show that a second driver had been driving, there had to have been a second driver, and that, since there had not been a second driver during the relevant period, the record sheet was a false instrument in that it was purporting to have been made in circumstances in which it was not in fact made.

36.Mr Cheung argues these recent English authorities show that the previously held view of the meaning of forgery has been expanded by the provisions of s 9 of the 1981 Act and that as s 69 of the Crimes Ordinance is identical in terms to s 9 of the 1981 Act, there is no reason why we in Hong Kong should not adopt the same interpretation as pronounced by the English courts. Applying the same meaning of forgery to the facts of the present case, especially the provisions of s 69(a)(vii) of the Crimes Ordinance, it is submitted that when HUYNH Minh Hoa made an application to the townhall of Brussels for the issue of a new passport to him on his declaration that he had lost his old passport, submitting photographs of the 1st defendant Lau Wo-hing for the purpose, the passport issuing officer at the townhall of Brussels would not have issued the passport with the photograph of the 1st defendant had he known that those photographs were not the photographs of HUYNH Minh Hoa. The circumstances in which a genuine passport would have been made and issued by the authorities in Brussels were that the photographs submitted were those of HUYNH Minh Hoa, but these were not the actual circumstances in which the passport was issued. Based on this interpretation of forgery, relying on s 69(a)(vii) of the Crimes Ordinance, Mr Cheung maintains that the passport is a forgery and the 2nd defendant was properly and correctly convicted as charged.

37.We are unable to agree. The part of s 69(a)(vii) relevant for our consideration is that "an instrument is false if it purports to have been made in circumstances in which it was not in fact made". The significant words are "the circumstances in which" the instrument was "in fact made". What is it that the passport purports to say about itself and about the circumstances in which it was made? Only that it has been issued by an official on such and such a date, and at such and such a place, pursuant to the authority which that officer had to issue it. The passport was in fact made in the form and upon the terms in which the maker made it. It has not since been altered, and was made on the date and place and in the circumstances in which it purports to have been made. If it also purports to represent that it was made after an application for a passport, then that too is an accurate representation about itself. The subject passport contains no lie about itself, although it contains a lie. It also contains no lie about the circumstances in which it was made, whether as to time, or place, or authority. Although it is an instrument containing a falsehood in the photograph in it not being that of the true holder and is a false travel document (containing a falsity in a material particular under s 42(5) of the Immigration Ordinance) or an unlawfully obtained one under s 42(2)(b) of the same Ordinance, we are not persuaded that it qualifies as a forgery under s 69(a)(vii) of the Crimes Ordinance or any of the categories of false instrument within the ambit of any other category under s 69. The factual situation here is very different from those in the English authorities cited above.

Substitution, amendment or proviso

38.We now turn to consider the possibility of substitution of offences for the offences charged, amendment of the charge sheet and the application of the proviso.

39.Mr Cheung suggests that we are entitled to substitute offences pursuant to s 83A of the Criminal Procedure Ordinance. That section provides as follows:

(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

(2) The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorized by law for the other offence, not being a sentence of greater severity.

40.S 51(2) of the Criminal Procedure Ordinance provides:

If on the trial of any information, charge or indictment for any offence other than treason it is proved that the accused is not guilty of the offence but the allegation in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence.

41.It is, we think, difficult to envisage a circumstance in which a forged document is not also false in a material particular, but it is not necessary for the purpose of this case to consider whether there might just be some circumstances in which the first does not also include the second. That is because it has been suggested, and there appears to be some force in the suggestion, that we could not in any event utilise ss 51(2) and 83A of the Criminal Procedure Ordinance to substitute for possession of a forged passport a charge of possession of a false passport, for those sections envisage substitution of one offence by "another offence", whereas in this case, we are talking of the same offence but with different particulars. In Cheng Tien-fung, referred to in para 34 above, where the appellant was convicted of having "in his possession a forged, false or an unlawfully obtained travel document" it was held by this Court, differently constituted, that "The essence of the charge was possession of such a document and that is a single charge; as to how the document was spurious was a matter of particularisation" (per Trainor J at p156). Briggs CJ also held that the charge was not bad for duplicity because it dealt with one activity.

42.The course which, in the particular circumstances of this case, appeals to us is that of amendment. There is no question about our power to do so, and in the light of the history of this case and the manner in which the new evidence was excluded before the court below, an amendment without the need to send the matter back to the District Court will occasion the applicant no injustice whatsoever. We shall revert to this later.

43.It has been suggested that our power to amend is to be found in a decision of this Court in HKSAR v Li Ting Kit [2000] 2 HKLRD 129, where an amendment was made in a case in which s 83A was said to apply. Examination of that case would involve some consideration of the question how an amendment can ever come into play where there is a power to substitute. For this case, such a debate is again unnecessary. The power can be found elsewhere.

44.In The Queen v Chan Chak Fan, CA328/93 (17 March 1994, unreported), after citing ss 51(2) and 83A of the Criminal Procedure Ordinance, this Court, differently constituted, stated at p 16 of its judgment:

"Where, as here, the appeal is from the District Court, then there comes into play section 83 of the District Court Ordinance, Cap. 336, which provides that:

'Sections 80 to 83Y inclusive of the Criminal Procedure Ordinance shall apply to criminal proceedings in the Court with such verbal alterations and modifications not affecting the substance thereof as may be necessary to render the same conveniently applicable, and, in particular, any reference to "indictment" shall be understood to refer to a charge sheet, and any reference to "jury" shall be understood to refer to a judge as a judge of fact.'

Also, there is section 13(4)(a) of the Supreme Court Ordinance, Cap. 4. It is thereby expressly provided that for the purposes of and incidental to the hearing and determination of any appeal to this Court, we have all the authority and jurisdiction of the court or tribunal from which the appeal was brought. There is nothing radical in that. It is of the essence of the appellate court's function. And, even in the absence of express provision, such a power would be an implication of this Court's inherent jurisdiction.

This Court is here to do what the court below ought to have done but wrongly failed to do.

If the court of trial ought to have convicted under section 37D(1)(a) rather than section 37C(1)(a), then this Court, hearing an appeal against the section 37C(1)(a) conviction, ought to substitute for that conviction one under section 37D(1)(a)."

45.We have decided to follow the course suggested in Chan Chak Fan. The power of amendment of the charge sheet can be found in reading the following provisions together. S 79(1) of the District Court Ordinance, Cap 336 provides:

(1) Subject to the provisions of this Ordinance and as may be prescribed the procedure and practice for the time being in force in the Court of First Instance in relation to criminal proceedings therein shall, so far as the same may be applicable, be followed as nearly as may be in criminal proceedings in the [District] Court; and where it is necessary for the purpose of rendering such procedure and practice conveniently applicable, "indictment" and "count" shall be understood to refer to "charge sheet" and "charge" respectively.

...

(4) Where any provision of the Criminal Procedure Ordinance (Cap. 221) is applicable to criminal proceedings in the Court, such provision shall be read with such verbal alterations and modifications not affecting its substance as are necessary to render it conveniently applicable; and in particular, and without prejudice to the generality of the aforesaid, any such provision relating to a "jury" or a "verdict of a jury" shall be understood to refer to a judge and the functions of a judge as a judge of fact.

46.S 23 of the Criminal Procedure Ordinance provides:

(1) Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.

47.Under sub-s (4) of s 23, the court may order a postponement of the trial or a separate trial of a count where the amendment makes such a course necessary.

48.S 13(4) of the High Court Ordinance, Cap 4 provides as follows:

(4) For the purposes of and incidental to --

(a) the hearing and determination of any appeal to the Court of Appeal; and

(b) ...

the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought.

49.Indeed, s 13(4) was expressly referred to in Chan Chak Fan where the Court of Appeal stated that it could also rely on its inherent jurisdiction to substitute offences on appeal.

50.It is therefore clear that the District Court has the power, pursuant to s 23 of the Criminal Procedure Ordinance, to amend the charge sheet and this Court has, by virtue of s 13(4) of the High Court Ordinance, similar power to that conferred on the District Court whose conviction of the 2nd defendant is now being challenged. We therefore exercise our power to amend the two charges to replace the word "forged" with the word "false" wherever "forged" appears on the charge sheet. This is to reflect the true state of facts as revealed by the fresh evidence. No injustice or unfairness would be caused to the 2nd defendant who relies on the fresh evidence. If the fresh evidence had been admitted by the Judge as an admitted fact, there is little doubt that he would have amended the charges in the same manner and convicted the 2nd defendant accordingly.

Prejudice

51.Mr Kwok urges us not to amend the charges on the ground of prejudice suffered by the 2nd defendant. He starts with saying that the fresh evidence now agreed by her amounts to an admission that the passport is false. Without this admission, the trial judge could not have amended the charges, and we in this Court cannot amend the charges. The 2nd defendant is now prejudiced because she has made the admission. She cannot go back on the letter from the Belgian Consulate General if the charges are amended. Mr Kwok therefore applies for an order for a new trial, for otherwise the 2nd defendant might be further prejudiced by her admission. At the new trial, she could consider pleading guilty, or she might get evidence to contradict the contents of the letter.

52.We must say that the alleged prejudice is nebulous and has little merit. The 2nd defendant's counsel at trial opposed to the production of the letter to the Judge but before us she insisted on the letter being received in evidence. When addressing us on sentence, she even said she did not understand why and was dissatisfied that her counsel at trial did not submit the letter to the Judge. That might be the reason why she complained to us on 10 January 2001 about her counsel, as referred to in para 8 above. We have already received the fresh evidence in the interests of justice and in all fairness to her despite her blowing hot and cold at the different times, and now she tries to use the fresh evidence as a peg to hang her alleged prejudice caused by the admission. We will not allow ourselves to countenance this purely tactical move which is demonstrative of audacious cunning. In the light of all the circumstances of the trial and the hearing before us, it is audacious to say that she might get evidence to contradict the letter. It is cunning because she tries to blow hot and cold whenever it suits her. At the trial, she was faced with the admissions she made about the passport being forged in the record of interview, and she chose, which she was fully entitled to do, to oppose to the production of the letter to the Judge. She faced the consequence of that which was the conviction. She now complains that her trial counsel did not produce the letter, and if the letter had been produced, there is little doubt that the Judge would have amended the charges and convicted her of aiding and abetting the use of a false travel document. She has suffered no prejudice from her trial counsel opposing the production. Before us, it is her doing to urge us to receive the fresh evidence which amounts to her admission that the passport was false, though not forged. She cannot now be heard to say that she is prejudiced by her admission. Indeed, before the Judge, she testified to say that she did not know that the 1st defendant's passport had any problem when she was travelling with him to Hong Kong and when she attempted to leave Hong Kong with him. Her defence was an entire lack of knowledge about the offences that the 1st defendant was facing and she was absolutely innocent of the offences with which she was charged. Her present admission that the passport was false together with the evidence before the trial judge amount to an overwhelming case against her. She cannot be heard that she is prejudiced because of her present admission: it is her own doing.

53.If we order a new trial, she would similarly be convicted at the trial of aiding and abetting the use of a false passport. Even if she pleads guilty now, we do not see that after so much water has gone under the bridge, she will be entitled to any discount in sentence, bearing in mind her defence and testimony of absolute innocence which she must disavow as being false, and from the contents of her grounds of appeal written by herself and her behaviour before us we do not trust that she is at all remorseful.

54.We are fully satisfied that she has suffered and will suffer no prejudice, unfairness or injustice if we amend the charges. In HKSAR v Chan Pun-chung & Anr, HCMA 364/1999 (CA, 3 February 2000, unreported), in the judgment of the Court delivered by Keith JA, he said at p 19K-Q:

"We recognise without reservation the need for persons who are facing amended informations to enjoy fully the protection afforded to them by section 27(3) and to be properly tried on the amended informations. Thus, the course suggested by the court in Fai Ma [ie, Fai Ma Trading Co Ltd v L s Lai [1989] 1 HKLR 582] should apply to all those cases in which the amendment of an information by the appellate court would have had an impact on the trial before the magistrate if the amendment had been made at the trial. That would occur, for example, where the amendment changes what the prosecution would have had to prove or what would have amounted to a defence, or where the amendment might have resulted in additional evidence being called or evidence which might have been called not being called, or where the amendment might have affected tactical decisions which were made in the trial. That is not an exhaustive list of the ways in which amendments might have had an impact on the trial, but it illustrates why in most cases justice would not be done if an amendment could be made on appeal without at the same time a new trial being ordered."

We have considered these matters that may require the ordering of a new trial and can find nothing which would justify our making an order for a retrial in the circumstances of this case. No benefit would be gained by the 2nd defendant from a new trial which will be an exercise in futility, only wasting time and resources for all concerned. We therefore order the amendment of the charges in the manner set out in para 50 above.

55.In all the circumstances, there is nothing which leads this Court to think that any of the requirements for allowing an appeal set out in s 83 of the Criminal Procedure Ordinance has been satisfied. It is unnecessary for us to consider whether we should apply the proviso under s 83.

Conclusion on conviction

56.The Judge had considered all the evidence before him very carefully. He admitted the record of interview and accepted the prosecution's evidence while rejecting the 2nd defendant's. We do not find any error in his doing so. There was overwhelming evidence justifying his findings of fact and the conviction. The application for leave to appeal against conviction is granted and treating the hearing of the application as the appeal, we dismiss the appeal. She remains convicted, but of the charges as amended.

Sentence

57.The Judge passed a sentence of imprisonment for 2 years and 9 months for each of the two offences of which the 2nd defendant was convicted. This was after the Judge had referred to The Queen v YU Wing-wut, Cr App 346 of 1984 (CA, 6 September 1984, unreported), HKSAR v KIM Tae-kuk, Cr App 449 of 1998 (CA, 13 January 1999, unreported) and HKSAR v PAK Wan-hung, CACC 573 of 1998 (CA, 20 April 1999, unreported). In PAK Wan-hung, the applicant pleaded guilty to a charge of using a forged travel document and one charge for coming in and another for going out of Hong Kong a few days later. The Court of Appeal, having dealt with several decisions on sentence for using a forged travel document, ranging from a starting point of 18 months to 27 months, selected the starting point of 27 months. The Court there followed the decision in YU Wing-wut, where a starting point of 27 months' imprisonment for possession of a forged travel document was adopted. In KIM Tae-kuk, the appellant pleaded guilty to two counts of aiding and abetting the use of a forged travel document and two counts of aiding and abetting the making of a false representation to an immigration officer. He was sentenced to 21 months' imprisonment on each of the four counts to run concurrently. The trial judge adopted a starting point of 3 years, and discounted it for the appellant's plea of guilty as well as the particular mitigating circumstances, namely, that the appellant's assistance to two persons in obtaining the forged passports was not for profit, that the two persons were his wife's relatives and that he was not recruited to escort the two persons. The Court of Appeal dismissed the appeal against sentence.

58.The Judge in the present case adopted a starting point of 3 years for the 2nd defendant. However, he adopted a starting point of 27 months in respect of the 1st defendant, following PAK Wan-hung, and passed concurrent sentences of 18 months on the 1st defendant for each of the two charges to which the 1st defendant had pleaded guilty after giving him the usual one-third discount. He stated his reasons for this different treatment as follows:

"I indicated earlier when I sentenced D1 that one might feel some sympathy for him as a poor man from China who paid over what was for him a lot of money for a forged passport which he can use to go to the USA, there to work and make money for his family. One cannot feel the same degree of sympathy for anyone in the criminal organisation that makes such illegal migration possible, even one so low in the hierarchy as D2."

59.The Judge then referred to the three cases on sentence cited above and continued:

"I adopted 27 months as the starting point in sentencing the 1st defendant. Counsel for D2 argues that I should not sentence an aider and abettor more severely than the principal offender. One should not normally do so but it seems to me that in this case the criminality of D2 in assisting an illegal migrant, D1, to migrate must be taken as greater than that of the illegal migrant himself, especially bearing in mind that her statement shows that she actually put the proposition of migration to him in the first place.

I think that this case constitutes an exception to the general rule. I will apply a higher starting point for D2. That starting point will be 3 years. D2 has a clear record and I will allow a discount of 3 months for that. There are no other grounds for leniency. She is sentenced to 2 years and 9 months."

60.If anything could be said about the sentence, it is on the lenient side. In her statement to the Immigration Department, the 2nd defendant admitted that she was promised a sum of US$1,000 by Ng who would provide her with a forged passport for each transaction. She had to accompany the illegal migrant to go abroad with the forged passport. All her expenses for such a trip would be paid for. She approached the 1st defendant to offer him the services for US$5,000. She was acting not only as a go-between for the snakehead and the intended illegal migrant, but she was also operating as a "salesman" to recruit people to use the service as well as to assist in the production of the false passport by taking the 1st defendant to have photographs taken and transferring them to Ng. The part she played was much more serious than the involvement of the appellant in KIM Tae-kuk and she also compares unfavourably in mitigating circumstances with that appellant. It is the kind of persons in the role played by the 2nd defendant that assist the snakeheads in the internationally denounced illegal migration trade. She urges us to release her earlier because of her personal circumstances that she is divorced with two daughters and an aged mother who do not have anyone to look after. These circumstances are not uncommon amongst any other convicted person. They do not qualify as mitigating factors. She should have thought of the consequences to her family members before she engaged in this heinous crime.

61.The trial judge in KIM Tae-kuk accepted that the defendant, who pleaded guilty before him, provided 2 forged passports to 2 relatives of his wife not for making any personal gain. The Court of Appeal there could find no fault with the trial judge adopting a starting point of 3 years' imprisonment. If Kim Tae-kuk were followed faithfully as a guide, a starting point of no less than 3 1/2 to 4 years would not be inappropriate for the 2nd defendant here. But for the fact that we have amended the charges and do not consider that we should act against the spirit of s 83A(2) that the sentence should not be of a greater severity, we would have added another year to her sentence.

62.The application in respect of sentence is entirely without merit and must be dismissed.

Representation:

Mr Cheung Wai-Sun DPGC and Ms Catherine Ko SGC, of the Department of Justice, for HKSAR.

Mr Eric Kwok, instructed by the Director of Legal Aid, for the 2nd defendant (applicant).