The Queen v. Tang Boon Piak

HCMA000963/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 963 of 1988

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BETWEEN

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Coram: Hon. Hooper J. in, Court

Date of Hearing: 2 December 1988

Date of Judgment: 2 December 1988

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REASONS FOR JUDGMENT

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1. On the 7th July 1988 the appellant was convicted in Western Magistrates Court of forging a travel document contrary to Section 42(2)(a)(i) of the Immigration Ordinance Cap. 115, Laws of Hong Kong.

2. He appealed to this court Against his conviction. His appeal was heard on 2nd December, 1988 when, on hearing his counse's arguments, Crown Counsel conceded that he could not argue in support of the conviction. I allowed the appeal and indicated that I would give reasons which I now do.

3. The appellant had been originally charged on two charges, Charge A being a charge of transferring to another without reasonable excuse a travel document contrary to Section 42(2)(a)(ii) of the above Ordinance on which charge he was acquitted and Charge B being the offence of forgery upon which he was convicted and which is the subject of this appeal.

4. The appellant pleaded not guilty to both charges before the magistrate on 6th July and the matter was stood down to enable defence counsel Mr Chong to take instructions on certain documents one of which he had received only 10 minutes earlier and the other being a certified translation of a cautioned statement in respect of which there was some dispute. On resumption of the hearing the record reads:

"10.45 a.m.

Mr Chong : It has been agreed with the Crown to proceed with the voire dire first. The Crown case depends totally on the cautioned statements-which are challenged,......"

5. This assertion was not apparently disputed by Mr Tam for the prosecution who is recorded as saying:

"I am agreeable to have a voire dire first before general evidence.''

6. The voire dire then proceeded with three officers from the Immigration Department giving evidence. The appellant elected not to give evidence. but the magistrate ruled the cautioned statements inadmissible in evidence.

7. Mr Tam for the prosecution then sought to proceed on what he called circumstantial evidence and asked that the evidence on the voire dire be adopted in the "Main Trial" This is somewhat surprising to me because a lot of that evidence related to the contents of the cautioned statements which had been ruled nadmissible. However Mr Chong for the defence had no objection.

8. He is then recorded as saying:

"Further I agree that the items in the schedule 'List of Exhibits' can go into evidence and I will not seek to cross-examine on any of those items. I agree they were all found or seized as stated in the 'remarks' thereon."

9. I have been unable to find any 'List of Exhibits' indicating where exhibits were found or seized but Mr Chong has informed me that this was an admission under Section 65C of the Criminal Procedure Ordinance and that the 'remarks' referred to were the captions on the photographs Exh. P3. It appears from the record that Exh. P3 had been 'agreed' during the hearing of the voire dire.

10. PW1 had given evidence in the voire dire that on the morning of 2nd June, 1988 he was in an operation with other team members and they went to the 2/F of No. 4 Cheung Lok Street, Kowloon to look for a person by the name of Tang Boon-piak to ask about where his Singaporean passport was. The reason for this is that on the day before or 1st June, 1988 Imigration Officers had found a forged Singaporean passport in the name of Tang Boon piak on an illegal immigrant by name of Cho Ho-kuen. This of course was hearsay coming from this officer if it was relied upon as the truth of the assertion.

11. The witness said that he saw a person inside. He told a colleague to inspect his ID card. It was a Singaporean ID card, in the name of Tang Boon-piak. He identified the appellant as the person. He gave evidence about the appellant's statements which the magistrate ruled inadmissible. He admitted in cross-examination that before the team went up to the flat he was aware that a report had been made to the police of Tang's passport having been lost but that he was not aware that the appellant had reported that he suspected his passport had been stolen. He also admitted in cross-examination that from what he observed in the room, it appeared that two persons lived there and that he knew the subscriber to the telephone had the surname Lin. The other two officers who gave evidence added nothing in relation to the'"circumstantial evidence" upon which the prosecution relied.

Mr Tam produced with the agreement of Mr Chong a number of exhibits as follows :

At this stage it is recorded:

"Close of Crown Case.''

12. No evidence was called for the appellant and after hearing submissions the magisrte acquitted him on the A Charge and convicted him on the B Charge.

13. He stated in his findings :-

"First : I find that the defendant's passport was altered or forged before being used by an illegal immigrant to try to depart at Kai Tak Airport. I find insufficient evidence that he did the transferring so I acquit him of Charge 'A'.

Second : That there is an irresistable inference to be drawn from the evidence that such forging took place at the flat in which the defendant was sleeping on the 2nd of June 1988. I make this finding because not only was the roll of adhesive tape (Exhibit No. 17) found on the premises used in this forgery but also the defendant's photograph (p.21) originally on the passport, was found on the premises at a separate location.

The thought of this work being carried out elsewhere and then these two exhibits being brought to be left separately on the premises where the defendant was sleeping is too fanciful to be entertained

Third : The evidence linking the defendant to this tape and this photograph is entirely circumstantial. If the passport was not his to begin with, then there would not even be a case to answer. However, he is found sleeping in a room which contains several items used in forging his passport. This evidence links him to the crime.

However, is it the only reasonable inference to be drawn from these facts?

In my view the evidence is such as to call for an explanation and 'if the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends'? see CHAN Kwai-kam v. R. Criminal Appeal No. 88 6C.

In my view, the facts of this case are inconsistent with any other rational conclusion than that the defendant was the guilty person who forged his passport on these premises.

I therefore convict the defendant of Charge 'B'."

14. The general ground of appeal was that "there was insufficient evidence to convict the appellant".

Additional grounds of appeal were :-

"1. The learned magistrate erred in his following finding :-

(i) That the roll of adhesive tape (exhibit No. P17) found inside one of the rooms within the flat in which the Appellant was found had been used for the purpose of forgery;

(ii) That the photograph of Appellant (exhibit, No. P17) found inside another room.of the said flat was connected with the roll of adhesive which was found inside another room of the said flat;

(iii) That the act of forgery was performed inside the aforesaid flat;

(iv) That the passport of the Appellant with the photograph therein replaced were forged by the Appellant;

in that there was insufficiert evidence from which the learned magistrate could draw the same as the only and irresistable conclusion.

2. That learned magistrate, when considering the available evidence for the purpose of drawing such a conclusion erred in his failure to consider the following uncontroversial evidence:-

(i) That there was no evidence to prove that the Appellant resided or lived at the said flat on 31st May, 1988;

(ii) That there was no evidence that any of the exhbits seized on 2nd June, 1988 were inside the said flat on 31st May 1988;

(iii) That there was evidence of another person also living in the same flat;

(iv) That it was very probable that the other person who also lived there was a person in the name of Lin;

(v) That it was possible that the exhibits found inside the said flat were connected with the other person who was not in at the time of the visit of the Immigration Officers.

3. The learned magistrate misdirected himself as to the burden of proof.

4. In all circumstances of the case, the conviction was unsafe and unsatisfactory."

15. With respect to the magistrate there simply was not sufficient evidence against the appellant.

16. There was no admissible evidence to establish a forged passport had been used by an illegal immigrant to try and depart at Kai Tak Airport. The officers who arrested the illegal immigrant and seized the passport did not give evidence.

17. There was no admissible evidence to show in which room in the flat the appellant had been sleeping when the raid took place. Even if it had been established that the appellant had been in the same room as exhibits used in the forgery, this would not in itself have been enough. No presumptions operate as in the Dangerous Drugs Ordinance.

18. There would have to be compelling evidence that the appellant was the person who forged the passport or was an accessory to that forgery.

19. With respect to the magistrate in this case, once the caution statements were ignored, there was always the possibility that the forgery had been done by somebody else. Indeed the magistrate had acquitted the appellant on the A Charge which meant he had been found not guilty of transferring his passport to any one clse. There was therefore the possibility that his passport had been stolen or transferred by somebody else.

20. Where circumstantial evdience is relied upon the inference of guilt must be the only reasonable inference which can be drawn before a person can be properly convicted.

21. In this case the inference of guilt was not the only reasonable inference on the facts.

22. I would like to add that where a magistrate convicts a person on circumstantial evidence, it would be helpful to this court if he were to set out what were his primary findings of fact, from which he drew the inference of guilt.

Representation:

Mr K. M. Chong, (J. Pang S Co.) for Appellant

Mr Maxwell, C.C., for Crown