HKSAR v. Mak Kin Ming and Another

CACC000302/1999

CACC 302/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 302 OF 1999

(ON APPEAL FROM DCCC 1265/1998)

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Coram: Hon Stuart-Moore VP, Mayo VP and Pang J in Court

Date of Hearing: 17 March 2000

Date of Judgment: 17 March 2000

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicants together with eight other people were charged with a number of offences in relation to what can best be described as an immigration scam. The 1st applicant was D5 and the 2nd applicant was D6. It is convenient to refer to them in a similar manner to the way in which they were referred to in the District Court. At the time of the offences they were charged with D5 and D6 were engaged to be married and at the time of their trial they were married. D5 was a serving police officer and D6 was an auxiliary police officer.

2. D5 was charged with count 23 which read as follows:

"23rd Charge
(against D5 only)
Statement of Offence

Using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200.

Particulars of Offence

MAK Kin-ming, on the 29th day of May 1997, in Consulate-General of Japan, 46/F One Exchange Square, 8 Connaught Place, Central, in Hong Kong, used an instrument which was and which he knew or believed to be false, namely, an employment letter, which purported to have been issued by Techno Asia (Hong Kong) Limited dated the 29th day of May 1997, with the intention of inducing a staff member of the Consulate-General of Japan 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, namely, taking the said employment letter into consideration when assessing whether to approve the visiting visa of MAK Kin-ming."

3. D6 was charged with counts 24 and 25. These read as follows:

"24th Charge
(against D6 only)
Statement of Offence

Using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200.

Particulars of Offence

LEE Tze-yin, on or about the 29th day of May 1997, in Consulate-General of Japan, 46/F One Exchange Square, 8 Connaught Place, Central, in Hong Kong, used an instrument which was and which she knew or believed to be false, namely, an employment letter, which purported to have been issued by Pro-city Company dated the 29th day of May 1997, with the intention of inducing a staff member of the Consulate-General of Japan 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, namely, taking the said employment letter into consideration when assessing whether to approve the visiting visa of LEE Tze-yin.

25th Charge
(against D6 only)
Statement of Offence

Aiding and abetting the making of a false representation to an Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, contrary to section 89 of the Criminal Procedure Ordinance, Cap. 221 and section 42(1)(a) of the Immigration Ordinance, Cap. 115.

Particulars of Offence

LEE Tze-yin, on the 9th day of January 1998, in Hong Kong, aided and abetted KWAN Mei-wun to make a representation, knowing the same to be false or not to believing the same to be true, to an Immigration Assistant lawfully acting under or in the execution of Part II [Immigration Departure Examination] of the Immigration Ordinance, in that, KWAN Mei-wun falsely represented her destination was Fuzhou."

4. After a trial before Judge Longley they were both convicted as charged and in the case of D5 he was sentenced to 2 years imprisonment and D6 was sentenced to a total of 2 years 9 months imprisonment. They both sought leave to appeal against their convictions and sentences. However before us they both abandoned their applications relating to sentences and we dismissed the applications.

5. S. 73 of the Crimes Ordinance reads:

"73. The offence of using a false instrument

A person who uses an instrument which is, and which he knows or believes to be, false, with the intention of inducing 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 an offence and is liable on conviction on indictment to imprisonment for 14 years."

6. It may be helpful to give a very brief summary of what was involved in this case so far as these defendants were concerned.

7. According to the prosecution case D5 and D6 assisted a couple who had arrived legally in Hong Kong from the Mainland to obtain entry to Japan. The way this was done was for both applicants to apply for visitors' visas in their own names to enable them to visit Japan. When making an application for a visa it is necessary to complete an application form. One of the particulars which has to be given on the application form relates to the applicants' current employment. Supporting evidence is required in the form of a letter from the employer verifying the information given.

8. Visas were issued to D5 and D6. They then purchased return tickets to Tokyo. On 9th January 1998 D5 and D6 checked-in at the airport for a flight to Tokyo. D6 passed through immigration and proceeded to the transit lounge. In the transit lounge she met the Mainland couple who had earlier checked-in for a return flight to the Mainland. She then gave the two boarding passes and tickets which had been issued to herself and her fiancé to the Mainland couple and they in due course attempted to board the flight to Tokyo. They were apprehended at the departure gate and they were searched. The boarding passes and tickets were found in their possession. D6 then went down to the arrival hall and went through immigration using her passport. She did not advise the airline she had checked-in to that she would not be travelling to Tokyo.

9. The case was considerably simplified by the agreement of a considerable amount of evidence under s. 65C of the Criminal Procedures Ordinance.

"For the purposes of these proceedings, the Prosecution and the 5th and 6th defendants hereby admit to the following facts:

1. The visa section of the Consulate-General of Japan in Hong Kong is responsible for the processing of applications for visas to enter Japan by applicants and the granting of visas, if the applications are successful. The Hong Kong office of the Consulate-General of Japan is situated at 46 - 47th floors of One Exchange Square, 8 Connaught Place, Central, Hong Kong.

2. There are 2 ways in which a Hong Kong citizen can apply for a temporary visitor visa to enter Japan. The first one is by way of group applications submitted via a recognised travel agency and the second one is by way of individual applications.

3. The procedure for applying an individual temporary visitor visa is as follows. An applicant is required to attend the Visa Section of the Consulate-General of Japan, at 46/F of One Exchange Square, Central, Hong Kong in person. In applying for a visitor's visa, an applicant will have to submit the following documents to the Consulate-General of Japan:-

(a) a duly completed application form for a temporary visitor visa to enter Japan (Form No 1-C). This form contains the personal particulars of the applicant, such as name, address, Hong Kong Identity Card number, occupation, address of the working place and the like;

(b) the applicant's travel document such as British National (Overseas) (BNO) passport, Hong Kong Special Administrative Region (HKSAR) passport or Certificate of Identity (CI);

(c) One passport size of the photograph of the applicant;

(d) a letter from the applicant's employer to support the applicant's version that he/she has a valid employment in Hong Kong;

(e) Copies of financial proof of the applicant such as copies of bank passbook, time deposit, bank statements and the like.

4. As an acknowledgement of the receipt of the application for visa, the staff of the visa section of the Consulate-General of Japan will stamp a number on the top right corner of the application form and issue a receipt to the applicant. The receipt contains the same number as the application form.

5. Staff of the visa section will then consider whether or not a temporary visitor visa will be issued. If the application is successful, the visa will be stuck onto the applicant's travel document which was submitted together with the application. The applicant or his/her authorised representative, on presentation of the receipt, can take back his/her travel document (with the visa stuck on it).

6. D5 is the lawful husband of D6. On 29 May 1997, some time after 2 pm, PC 47138 saw D5 and D6 together with some other persons in Jade Garden Restaurant, Swire House, Central. PW1 saw D5 and D6 filled in some forms. Money, travel documents and forms were passed to D5.

7. Some time after 3 p.m. on that day, WPC 55831 saw D5 and D6, together with 2 other persons, entered the Consulate-General of Japan on 46/F, Exchange Square. PW2 observed that the 4 persons queued at different counters, holding passport, identity card and boarding ticket in their hands.

8. D5 submitted an application for a temporary visitor visa on 29 May 1997 along with some other documents, one of which was an employment letter dated 29 May 1997 issued by Techno Asia (HK) Limited (Techno) and signed by KK Tam to the effect that D5 was a sales representative of Techno. D5's application for Japan visitor visa and the said employment letter are exhibited as P106.

9. On 29 May 1997, the visa section of the Consulate-General of Japan granted a temporary visitor visa to D5 numbered 2-091534. BNO Passport of D5 exhibited as P72.

10. Techno has never employed D5 in any capacity. There was no one in the name of KK Tam working in Techno. The chop on the employment letter filed by D5 was not the chop used by Techno. The format of the said employment letter differed from that of the letters used by Techno. The letterhead used by Techno before February 1996 is exhibited as P80. The letterhead with a sample chop of Techno used by Techno since March 1996 is exhibited as P79.

11. Since September 1988, D5 has been working as a full time police officer of the Hong Kong Police Force.

12. On 22 May 1998, a chop of Techno (Exhibit P68) and a chop of Pro-city (Exhibit P69) was found in CHOY Lim-shun's house at Flat A5, 9/F, Lok Sing Centre, No 19 - 31, Yee Wo Street, Causeway Bay, Hong Kong (CHOY's house).

13. D6 submitted an application for a temporary visitor visa on 29 May 1997 along with some other documents, one of which was an employment letter dated 29 May 1997 issued by Pro-City Company (Pro-City) and signed by CHAN Kwok-ming to the effect that D6 was a clerk of Pro-City. D6's application for visa and the employment letter submitted is exhibited as P107.

14. On 29 May 1997, the visa section of the Consulate-General of Japan granted a temporary visitor visa to D6 numbered 2-091509. D6's BNO passport is exhibited as P82.

15. Pro-City has never employed D6 in any capacity. There was no one in the name of Chan Kwok-ming working in Pro-City. The chop on the employment letter filed by D6 was not the chop used by Pro-City. The format of the said employment letter differed from that of the letters used by Pro-City. A sample of the letterhead of Pro-City is exhibited as P95.

16. On examination of the computer found at CHOY's house, letterheads of Techno and Pro-City identical to that of the 2 employment letters of D5 and D6 submitted in their respective applications for Japanese visas were contained in the hard disc of the said computer.

17. Both KWAN Mei-wun (KWAN) and NIM Wan-chung (NIM) came to Hong Kong from the People's Republic of China on a two-way permit. Copies of the two way permits of KWAN and NIM are exhibited as P85 and P86. On 9 January 1998, in the departure card of NIM (a copy of which is exhibited P122), he filled 'Xiamen' as his destination while KWAN filled 'Fuzhou' as her destination in her departure card (Exhibit P63).

18. D6 passed through the immigration counters departing Hong Kong for Japan at the Hong Kong International Airport at 1354 hours on 9 January 1998 and passed through the immigration counters into Hong Kong at the Hong Kong International Airport at 1423 hours on the same day.

19. MAK Kin-ming had no departure or arrival records on 9 January 1998.

20. Whenever a customer contacts Air Nippon Airways (ANA) or through authorised travel agencies to book air tickets, the customer has to give his/her name for reservation. After payment has been made, an air ticket would be issued to the customers. The records of such bookings are kept in the computer system of ANA as the 'Reservation record'.

21. Prior to the boarding of a flight, a passenger must have a valid air ticket in his/her name and his/her valid travel document. A passenger will conduct a 'Check In' procedure at the counter of ANA at the Hong Kong International Airport. After checking the air ticket and the passenger's travel document, the staff of ANA will issue a boarding pass to the passenger, with the name of the passenger printed on it. The name of the passenger would then be put into the computer and kept as a record known as the 'Passenger Manifest'.

22. A passenger must present his/her boarding pass and travel document at the boarding gate of the designated flight for a final check by staff of ANA. If no error is detected, a stub of the boarding pass will be returned to the passenger and the main part of the boarding pass will be kept by ANA. The passenger will then be arranged to board the plane.

23.

(a) The names of D6 and MAK Kin-ming appeared in the Reservation record of ANA of the flight NH910 scheduled on 9 January 1998 from Hong Kong to Japan;

(b) D6 and MAK Kin-ming scheduled to leave Hong Kong for Japan on 9 January 1998 and return to Hong Kong from Japan on 13 January 1998;

(c) D6 and MAK Kin-ming did complete the check-in formalities of flight NH 910 on 9 January 1998 as their names appeared in the Passenger Manifest. However, both of them did not board the plane NH 910.

24. The exhibits tendered at this trial have not been interfered or tampered with subsequent to their seizure by the police officers or immigration officers.

25. On searching KWAN on 9 January 1998, Immigration Officers found (a) One air-line ticket of China Eastern Airlines in the name of KWAN Mei-wun Flight No 506 (Exhibit P64) and (b) One air-line ticket of ANA in the name of D6 Flight No NH 910 (Exhibit P65).

26. On searching NIM on 9 January 1998, Immigration Officers found (a) One air-line ticket of China Eastern Airlines in the name of NIM Wan-chung Flight No 506 (Exhibit P120) and (b) One air-line ticket of ANA in the name of MAK Kin-ming Flight No NH 910 (Exhibit P121)."

10. There was also evidence of surveillance which had been undertaken by immigration officers at the airport.

11. It will be appreciated from the agreed facts that in the absence of a convincing explanation a very strong case had been made out by the prosecution against these applicants.

12. At their trial both applicants gave evidence and D5 called three witnesses and D6 called one.

13. D5 gave a convoluted story that he had intended to go to Tokyo to accompany D6. He had been unable to obtain leave from his superior and had decided to take sick leave to cover the position. At the last minute he had changed his mind and decided that he wouldn't go to the airport to the rendezvu point which he had agreed with D6. One of the difficulties of this version of the evidence is that it is in direct conflict with the agreed fact that he did check-in at the airport. He also gave evidence that he had had an interest in Techno Asia and that it was at his aunt's instigation that he had said that he was an employee of the company. The aunt was D7 at the trial below.

14. D6's evidence was to the effect that when her fiancé had failed to attend at the agreed venue she had decided to change her mind and not to travel to Tokyo. She had then returned to Hong Kong. She surmised that the Mainland couple must have stolen the tickets and boarding passes from her when she left her handbag unattended.

15. The Judge dealt with all of the evidence in meticulous detail. Hardly surprisingly he entirely rejected the evidence of all of the defence witnesses.

16. The first ground of appeal is that:

"Against Convictions on Count No. 23 and Count No. 24

(1) That there was no or no sufficient evidence that at the material time the Appellants had the knowledge that a staff member of the Consulate-General of Japan was duty bound to take into consideration the employment letters from the first and second Appellants when assessing whether to approve their applications for visiting visa to Japan and hence no or no sufficient evidence to come to the conclusion that the necessary double specific intent under Section 73 of the Crimes Ordinance, read together with Section 70 (l)(f) of the same Ordinance was established."

17. This really is a totally unmeritorious ground. The very fact that the Consul-General of Japan requires this information would indicate that the applicant's employment is a matter which is considered when an application is made for a visa. This is also established clearly in the agreed facts which are set out in this judgment. There is no merit whatever in this ground.

18. The second ground of appeal is that:

"Against Conviction on Count No. 25

(2) That there was no or no sufficient evidence that the second Appellant was aiding and abetting the making of a false representation to an Immigration Assistant by Kwan Mei-wun. The handing over by the second Appellant of her boarding pass at the transit lounge of the Kai Tak Airport to Kwan Mei-wun after she had passed the Immigration Control was not capable in law or in fact of constituting aiding and abetting Kwan Mei-wun of making a false representation to an Immigration Assistant."

19. Once the evidence of D6 was rejected there was ample evidence to support the charge even if the identification evidence was disregarded. There was an overwhelmingly strong inference that D6 had given the boarding passes and tickets to the Mainland couple. This clearly amounted to the aiding and abetting charged.

20. The third ground of appeal is that:

"(3) That there was a material irregularity in the trial in that the Learned District Judge allowed a first time dock identification of the second Appellant by PW1, PW7 and PW8."

21. As already indicated there was more than ample evidence even without the dock identification. In any event having regard to the overall circumstances of the case there was no irregularity in conducting a dock identification in the manner that it was conducted.

22. These convictions were in no way unsafe or unsatisfactory and these applications are dismissed.

Representation:

Mr Stanley Chan, SGC of the Department of Justice, for the respondent

Mr Philip Wong, instructed by Messrs Anthony Kwan & Co. for the applicants