HKSAR v. Fan Man Shing

CACC32/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 32 OF 2000

(ON APPEAL FROM DCCC 565 OF 1999)

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Coram: Hon Stuart-Moore, Ag. CJHC, Mayo VP and Suffiad J in Court

Date of Hearing: 27 July 2001

Date of Judgment: 27 July 2001

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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 applicant was convicted of 5 charges after a trial in the District Court before Deputy Judge Geiser.

2.The charges were as follows:

"1st Charge
Statement of Offence

Assisting unauthorised entrants to remain in Hong Kong, contrary to section 37DA(1) of the Immigration Ordinance, Cap. 115.

Particulars of Offence

Fan Man-shing, on the 7th day of November 1995, at Kowloon Panda Hotel, Tsuen Wan Street, Tsuen Wan, New Territories, in Hong Kong, together with Tse Mong-yuen and other persons unknown, assisted six unauthorised entrants, namely, Lam Sun-shui, Lam Chi-fong, Lau Kin-fai, Cheung Chun-ping, Cheung Chun-ming and Lam Po-sheung, to remain in Hong Kong.

2nd Charge
Statement of Offence

Possession of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177.

Particulars of Offence

Fan Man-shing, between the 7th day of November, 1995 and the 28th day of November 1995, in Hong Kong, without lawful authority or reasonable excuse, had in his possession a forged Hong Kong Identity Card, namely, an identity card bearing number XXXXXXX(X) in the name of Wong Tai-yau and a photograph of Fan Man-shing.

3rd Charge
Statement of Offence

Arranging passage to Hong Kong of unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap.115.

Particulars of Offence

Fan Man-shing, sometime between November 1995 and December 1995, in Hong Kong, together with 'WU Tsz' and Tse Mong-yuen, arranged the passage to Hong Kong of 53 unauthorised entrants.

4th Charge
Statement of Offence

Assisting unauthorised entrants to remain in Hong Kong, contrary to section 37DA(1) of the Immigration Ordinance, Cap.115.

Particulars of Offence

Fan Man-shing, sometime between November 1995 and December 1995, in Hong Kong, together with Tse Mong-yuen and Wong Bong-chin, assisted 53 unauthorised entrants to remain in Hong Kong.

5th Charge
Statement of Offence

Assisting passage within Hong Kong of unauthorised entrants, contrary to section 37D(1)(b) of the Immigration Ordinance, Cap. 115.

Particulars of Offence

Fan Man-shing, on an unknown day in December 1995, together with Tse Mong-yuen and Wong Bong-chin, assisted the passage within Hong Kong of 53 unauthorised entrants."

3.The various offences can conveniently be divided into 2 separate ongoing incidents.

4.The first relates to charges 1 and 2.

5.Police officers during the course of a patrol in Sheung Shui saw 6 persons in 2 groups of 3 people acting in what they considered to be suspicious circumstances. They questioned them and it became apparent that in all probability they were illegal immigrants. As a result of enquiries which were made, it appeared that they had spent the night at the Panda Hotel in Tsuen Wan. Also one of the illegal immigrants had in his possession a notebook which contained particulars of telephone numbers and pager numbers. These numbers related to 2 mobile telephones and 1 pager.

6.One of the mobile telephones had been subscribed to by a Ms Fan Shi-chun and the other by a Mr Wong Nin whose address was given as being the same as Ms Fan's.

7.Enquiries were conducted at the Panda Hotel from which it was evident that a person had registered at the hotel using an identity card in the name of Wong Tai-yau.

8.It was also apparent that a number of telephone calls had been made to and from the hotel in connection with the case. From these it was ascertained that Ms Fan was recorded as living at Flat K, 27th Floor, Block 2, Fu Fai Garden, Ma On Shan.

9.The police visited this address. Before entering the premises they saw a man who it transpired was the applicant, and he was asked some questions. He said that he lived at the flat with his mother Ms Fan and his brother Mr Tse. He accompanied the officers to the flat for the purpose of conducting a search. According to one of the officers who gave evidence as PW4, the applicant said, "No need to search further. I will show you where the mobile telephones are." They were then located. So also was Mr Wong Tai-yau's identity card. The photograph on the identity card bore a resemblance to the applicant, and a subsequent investigation undertaken by the Government Chemist established that the identity card was a forgery. The applicant's photograph had been imprinted on the identity card in lieu of Mr Wong's. The officers also found 2 pieces of paper containing photocopies of various Chinese identity cards. In addition to this, a notebook was found which contained reference to large payments of money, a number of names of Chinese people, information relating to the supply of food and water and particulars how to board a ship going to Japan. This notebook contained information which was relevant to charges 3 to 5. PW4 asked the applicant if these items were his and he answered in the affirmative. After being cautioned, he said that the whole case had been done by him and that it had nothing to do with his family. He was taken back to the Tsuen Wan Police Station where he made a cautioned statement which contained a number of admissions. He made two further cautioned statements which also contained admissions some of which were contradictory to the earlier admissions. The admissibility of these statements was contested at the trial, and after a voire dire the Judge admitted the statements as evidence.

10.Chief Inspector Gill gave evidence concerning an identification parade which he conducted. The purpose of the parade was to ascertain whether any of the 6 illegal immigrants who had been detained could identify the applicant. After the parade commenced the applicant said there was no point in continuing with the parade as all 6 illegal immigrants had been with him. Chief Inspector Gill then advised the applicant that if he was not willing to continue with the parade, the witnesses would be invited to identify him after a confrontation. Five of the 6 illegal immigrants identified the applicant as having been with them in the hotel.

11.After the applicant had been charged, he was granted bail and absconded.

12.The facts out of which charges 3 to 5 arose were as follows.

13.Following information which was received on 15 December 1995, police officers attended at the Union Terminal at Tsing Yi Island, and found 53 people they suspected were illegal immigrants hiding in 3 containers which were about to be loaded on the Sino Ocean which was going to be bound for Japan.

14.From various enquiries which were made, the police suspected that the applicant might have been involved in this matter.

15.As a result of action taken by the police in conjunction with the Chinese authorities, the applicant was delivered to the police at the Huang Gang Border Post shortly after 3 p.m. on 13 May 1999.

16.After being cautioned, the applicant admitted that he had committed the crimes relating to the 53 illegal immigrants. He said that he had done it with his brother Mr Tse and Wong Bong-chin. Both of these men had been convicted of offences arising out of this incident and had already completed serving sentences of imprisonment.

17.Following this, the applicant made 2 video recorded cautioned statements. These were lengthy and detailed statements. It was said that each of the illegal immigrants had been required to pay $50,000 for being sneaked into Hong Kong and thereafter being transported to Japan.

18.The contents of these statements could in part be reconciled with the information contained in the notebook earlier referred to which was seized when the applicant was first arrested in connection with the first 2 charges. At the trial the admissibility of these statements was contested. After a voire dire the statements were admitted as evidence.

19.The applicant gave evidence at his trial. He denied ever having been at the Panda Hotel and gave evidence that when the search had been conducted at his mother's flat, he had seen Mr Wong secrete something under the sofa. He assumed that this must have been the identity card referred to in the second charge.

20.He denied that he lived with his mother and made a number of grave allegations against police officers who had taken the statements from him. He denied that the statements had been made voluntarily.

21.So far as the notebook was concerned, he said that the information contained in the notebook was information which was of assistance to him when performing his duties as a tourist guide.

22.Perhaps not surprisingly, the Judge did not find the applicant to be a convincing or truthful witness. In fact, he said that he was satisfied that he had told a number of lies.

23.In contrast to this, the Judge found all of the prosecution witnesses to be truthful and reliable witnesses. He gave reasons for the various findings of fact which he made and was satisfied at the appropriate level that all of the charges had been proved.

Grounds of Appeal

Ground 1

24.Complaint is made that the Judge refused the application made at the commencement of the trial for further and better particulars of the charge.

25.The particulars which accompanied the charge are given at the beginning of this judgment. These particulars need to be considered in conjunction with the summary of facts which was delivered to the applicant prior to the trial. This summary was quite detailed and there was ample material for the applicant to prepare his defence. This ground is without merit.

Ground 2

26.In ground two, complaint is made that the Judge relied on identification evidence when it was dangerous to do so. Particulars are then given.

27.There is no substance whatever to these complaints.

28.The Judge was fully justified in accepting the evidence of Chief Inspector Gill, that after the parade commenced the applicant said that there was no point in continuing as he had been with the 6 illegal immigrants. There was no necessity for the prosecution to call the illegal immigrants to give identification at the trial. The prosecution were content to place reliance upon Chief Inspector Gill's evidence and, as it transpired, this was all that was necessary.

29.There is a further point. Mr Spicer draws our attention to what at first sight appears to be an inconsistency in Chief Inspector Gill's evidence. This related to the actual words allegedly spoken by the applicant at the identification parade when he said that the 6 men were "with me". It is apparent from a perusal of the transcript at page 141 that it was Mr Spicer who did not include these words in his question to the officer, and the officer and the prosecutor failed to notice this. This was a trick question which failed to represent the answer alleged to have been given. It is regrettable that it was asked, and it is extremely unfortunate that the answer to such a question is now relied upon to support a ground of appeal.

Grounds 3 to 5

30.Grounds 3 to 5 can conveniently be dealt with together. In ground 3, complaint is made that the findings of fact made by the Judge in his Reasons for Verdict were insufficient to found a conviction. In grounds 4 and 5, complaint is made that the Judge was inconsistent in attaching weight to the admissions in the cautioned statements after he had made a finding that the applicant was a liar. Also there were inconsistencies in the lies which had been told.

31.The first point which has to be made is that the findings of fact have to be read in conjunction with the fairly lengthy commentary on the evidence of witnesses which is summarised in the Reasons for Verdict.

32.Taken overall, the case against the applicant was overwhelming. He had been identified by a number of the illegal immigrants and 1 of them had on him a telephone number which was connected to the applicant. There was also the evidence of the forged identity card which was the subject matter of the second charge. This, according to the evidence of the officers, was found in the flat which the Judge was satisfied was occupied by the applicant.

33.It is necessary to turn to the cautioned statements. Clearly it was open to the Judge to accept parts of these statements and reject other parts. It is apparent that the Judge in particular placed reliance upon admissions contained in statements P6, P9, P13 and P14.

34.In this connection, it is relevant to have regard to the extent of the duty of a judge who is sitting as a judge and jury giving reasons for any determination made by him. This was referred to by the Court of Appeal in HKSAR v Choi Gin-ngon and Others [1998] HKLRD 902 when considering the judgment of Blair-Kerr J in R v RE Low.

"... But it must be remembered that the District judge is himself the jury. He has heard the whole of the evidence and is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.

Of course, to the extent to which he chooses to discuss the evidence, to that extent does he disclose how 'the mind of the jury' was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict. But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District judge draws inferences of fact, which inferences depend not only on an examination of documents and fact which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District judge's findings if, having regard to the whole of the evidence, such findings appear reasonable."

35.There is no merit whatever in these grounds.

Ground 6

36.Here complaint is made that the Judge omitted to make essential findings of fact in relation to charge 2.

37.It is necessary to again refer to the Judge's summary of the prosecution case. According to the prosecution evidence, the applicant did inform the officers when he was first approached that he resided in his mother's flat which he identified. There was evidence of the identity card being found and that the photograph on the identity card resembled the applicant. When all of this is taken in conjunction with the applicant's damaging admissions to police, there can be no doubt that this ground is devoid of merit.

Grounds 7 to 9

39.These grounds can conveniently be dealt with together.

40.There is no reason whatever to suppose that the Judge did not consider all of the matters referred to in HKSAR v Mo Shiu-shing [1999] 2 HKLRD at 155.

41.Having regard to the nature of the obvious lies which had been told by the applicant and all of the other available evidence, it did not seem likely that there was any innocent explanation for the lies.

42.The Judge clearly weighed and considered all of the evidence before him and this was manifest from the Reasons for Verdict.

43.These grounds have no substance.

Grounds 10 to 14

45.This is how the Judge dealt with the evidence:

"Insofar as the remaining charges 3, 4 and 5 are concerned, Exhibit P25A, the transcription of the second video interview, contains admissions made by the defendant to each of these specific charges. I have already dealt exhaustively earlier on in this ruling with the specific acts that the defendant admitted to in the course of this recorded interview. Each of these acts are clearly consistent with arranging the passage to Hong Kong of 53 illegal immigrants, charge 3, assisting them to remain in Hong Kong, charge 4 and assisting their passage within Hong Kong, charge 5.

It can clearly be seen on a viewing of the videotape that the answers that the defendant gave were detailed and spontaneous. I have no doubts whatsoever as to the truthfulness of those answers and I give full weight to them. In addition, after the defendant was arrested and cautioned by DPC 14398 in relation to these three charges at Lok Ma Chau Police Station, the defendant wrote himself in the officer's notebook that he frankly confessed that the offences were committed by him with Wong Bong-chin and his elder brother, and that while they were committing the crime the police exposed this. Once again I have no doubts about the truth of this statement and I give full weight to it."

46.When this is considered in conjunction with other parts of the Reasons for Verdict, there was no inconsistency in the approach adopted by the Judge. It was undoubtedly open to the Judge to accept parts of the cautioned statements and reject other parts. The Judge has given more than adequate reasons why he was satisfied that these charges had been proved at the appropriate level.

Ground 13

47.Complaint is made that the evidence of the notebook exhibit P8 did not allow sufficient grounds for holding that the confessions were true.

48.As already indicated, the Judge was fully justified in being satisfied that the confessions were true. It has to be added that the evidence contained in the notebook was also highly incriminating. The explanations profferred by the applicant could not withstand any serious scrutiny and that of itself provided further support for these convictions.

49.These convictions were in no way unsafe or unsatisfactory and this application is dismissed.

50.This application is devoid of merit. Although there were numerous grounds of appeal, none of them were in any way meritorious. We order that 3 months of the time that he has spent in custody will not count towards the sentence he is serving.

Representation:

Mr P.S. Chapman, SADPP & Mr Raymond Cheng, GC of the Department of Justice for the respondent

Mr Rupert Spicer, instructed by Messrs Paul W. Tse for the applicant