Read the full judgment text of CACC 000028/2000 on BabelCite. This Court of Appeal judgment was delivered on 14 June 2001 before Stuart-Moore V-P, Woo JA, Stock JA.
Criminal law – forgery – meaning of 'forged' travel document – Immigration Ordinance, Cap 115, s 42(2)(b) – Crimes Ordinance, Cap 200, Part IX, ss 68, 69, 71 – passport issued by Belgian authorities containing false photograph of holder – whether forgery at common law or under statutory definition – fresh evidence – admissibility under s 83V of the Criminal Procedure Ordinance, Cap 221 – amendment of charges – inherent jurisdiction of appellate court – District Court Ordinance, Cap 336, s 79 – Criminal Procedure Ordinance, Cap 221, s 23 – High Court Ordinance, Cap 4, s 13(4) – whether passport EB804980 a 'forged' travel document – snakehead operation using lost-passport replacement scheme – common law view that document must 'tell a lie about itself' – English authorities on s 9(1)(g) of Forgery and Counterfeiting Act 1981 distinguished – aiding and abetting use of forged/false travel document – sentencing – starting point 3 years – KIM Tae-kuk and PAK Wan-hung – weight given to role of facilitator in illegal migration – whether sentence manifestly excessive. The 1st and 2nd defendants entered Hong Kong on 26 September 1999 using Belgian passports, the 1st defendant's passport bearing his own photograph in the name of HUYNH Minh Hoa. They attempted to depart for the USA on 27 September 1999 and were intercepted. The 1st defendant pleaded guilty to two counts of using a forged travel document contrary to s 42(2)(b) of the Immigration Ordinance and was sentenced to 18 months' imprisonment concurrent. The 2nd defendant was convicted after trial of two counts of aiding, abetting, counselling or procuring the use of a forged travel document and sentenced to 2 years 9 months' imprisonment concurrent. On her application for leave to appeal, the Court of Appeal received fresh evidence from the Belgian Consulate General showing that the passport was in fact issued by the Brussels authorities in the name of HUYNH Minh Hoa (who had declared his previous passport lost), with only the photograph being false. Held, allowing reception of the fresh evidence in the interests of justice under s 83V(1)(a) of the Criminal Procedure Ordinance, that the passport was not a 'forged' travel document within s 42(2)(b) of the Immigration Ordinance or s 69 of the Crimes Ordinance, because it was in fact made in the form, on the date, at the place, and in the circumstances in which it purported to be made, and contained no lie about itself or about the circumstances of its making, distinguishing the English authorities on s 9(1)(g) of the Forgery and Counterfeiting Act 1981 (Donnelly, Jeraj, Warneford, AG's Reference (No 1 of 2000)). Held, further, that the appropriate course was to amend the charges (substituting 'false' for 'forged'), following Chan Chak Fan and the combined effect of s 79 of the District Court Ordinance, s 23 of the Criminal Procedure Ordinance, and s 13(4) of the High Court Ordinance, rather than to substitute a different offence under ss 51(2) or 83A of the Criminal Procedure Ordinance, which were confined to substitution of one offence for another and did not apply to the same offence with different particulars (per Cheng Tien-fung). Held, the 2nd defendant suffered no prejudice warranting a new trial, as her trial counsel had opposed production of the letter, and her reliance on the fresh evidence amounted to an admission of guilt of the amended charge. Held, the sentence of 2 years 9 months' imprisonment was not manifestly excessive; if anything it was lenient given the 2nd defendant's role as both go-between and recruiter for the snakehead, comparing unfavourably with the appellant in KIM Tae-kuk. The Court declined to increase the sentence only because of the spirit of s 83A(2) following the amendment. Outcome: leave to appeal against conviction granted, appeal treated as the appeal and dismissed, with the charges amended; sentence appeal dismissed. Sentence: 2 years 9 months' imprisonment on each of two counts, concurrent (starting point 3 years, less 3 months for clear record).
Legal issues: Admissibility and reception of fresh evidence (Belgian Consulate letter) under s 83V of the Criminal Procedure Ordinance · Whether passport EB804980 was a 'forged' travel document within s 42(2)(b) of the Immigration Ordinance and s 69 of the Crimes Ordinance · Whether the Court of Appeal should amend the charges, substitute offences, or apply the proviso under s 83 of the Criminal Procedure Ordinance · Whether the 2nd defendant would suffer prejudice from amendment of the charges requiring a new trial · Whether the sentence of 2 years 9 months' imprisonment was manifestly excessive
Outcome: Application for leave to appeal against conviction granted but the appeal treated as the appeal hearing was dismissed; the charges were amended to replace 'forged' with 'false'; the 2nd defendant remains convicted of the amended charges. Application in respect of sentence dismissed.
Cited by 4 cases · Cites 2 cases