HKSAR v. Chan Ping Tong

HCMA000941/2000

HCMA941/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 941 OF 2000

(ON APPEAL FROM WSCC 16717 OF 1999)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 1 February 2001

Date of Judgment: 6 February 2001

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J U D G M E N T

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1. The appellant was convicted after trial at Western Magistracy of an offence of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177 (being the first charged offence); of an offence of using that card, contrary to the same section of that Ordinance (being the second charged offence); and of an offence of making a false representation to an immigration assistant, contrary to section 42(1)(a) of the Immigration Ordinance, Cap.115 (being the third charged offence).

2. The facts of the offences as found by the magistrate were that the appellant had approached the Lo Wu departure control point, and there presented an identity card in the name of Lau Kim Hung for the purpose of departure clearance. That card had been reported lost by its owner some two years previously. The officer to whom the card was presented noted some differences between the appellant's appearance and the photograph appearing on the identity card. The appellant then asked for the card back, but the officer told him to wait. The appellant tried unsuccessfully to snatch back the card. He then turned and ran. The immigration officer alerted his colleagues and the appellant was stopped temporarily by another officer to whom the appellant said when asked what had happened that he had used his friend's identity card. The appellant shortly afterwards then ran off again before being finally apprehended.

3. During the course of the trial, the appellant's case, as presented both in cross-examination of the prosecution witnesses and given in his own evidence, was that he had been given a card by an acquaintance, a Mr Chan, who had asked him to take the card to a travel agent in Shenzhen nearby where the appellant worked in Shenzhen on one of the appellant's frequent trips there as the agent had requested the original card for the purposes of processing a Seychelles passport application for Chan.

4. The appellant's case had been that he had inadvertedly taken the card out of a handbag he carried and presented it to the immigration officer at the control point as his own. When the officer began to examine the appellant's appearance and the card quite closely, the appellant became concerned and thought that he might have handed over the wrong card. He asked for the card back. He said he wanted to check if he had given the wrong card and reached forward, but the officer refused to give it to him. The appellant then decided to walk away quickly to look for Chan. He was then intercepted for the first time. He said he then thought he saw Chan in the distance and again walked away to speak to Chan, but was again intercepted.

5. There were two general grounds of appeal advanced but it is fair to say that those two grounds raised four separate substantial complaints. They are :

(1) that the magistrate failed to give proper consideration as to whether the appellant might have had a reasonable excuse, so far as Charges One and Two are concerned; and as a corollary to this, that the magistrate failed to give proper reasons for his rejection of the appellant's account of his possession and production of Chan's identity card;

(2) that the magistrate's rejection of the appellant's evidence generally was not founded on proper reasons;

(3) that the magistrate wrongly took into account the appellant's excuse for his evasive behaviour at the scene of his interception in determining whether his account as to how he came to possess the identity card might have been true, and that these two matters should have been considered independently of each other; and

(4) the magistrate wrongly rejected the appellant's defence of mistake.

6. It is not doing too much violence to the appellant's arguments to say that matters one, two and four all really revolve around the single question as to whether the magistrate had properly considered and rejected the appellant's version of how he came into possession of the card and how he came to produce that card, and I will deal with that matter first.

7. So far as the appellant's evidence is concerned, the magistrate found the appellant to be a careful but evasive witness, and found that his evidence concerning the person Chan giving him the identity card was not to be believed.

8. The learned magistrate gave a number of reasons for rejecting the evidence of the appellant in this regard. He concluded that the appellant was not to be believed in his version of events to the effect he left the immigration counter where he had presented the charged identity card in hopes as of being able to locate the person Chan. He further disbelieved the appellant's evidence that he again ran away on the second occasion following his interception because he thought he saw Chan in the distance. That evidence was ripe for rejection. The magistrate was wholly entitled to find it unbelievable.

9. The learned magistrate further disbelieved the appellant's version of events on the basis of what transpired after his arrest. He properly made no comment as to the failure of the appellant to attempt to call Chan as a witness, but he did regard the appellant's failure after his arrest to make any real contact with Chan, or to take any steps to have him brought to some sort of justice as being inconsistent with the appellant's version of how he had himself innocently come to be in possession of the charged identity card after being apparently duped by Chan.

10. In my view, the learned magistrate was entitled to reject the appellant's evidence as to how he came to be in possession of the charged identity card for these reasons. In doing this, the learned magistrate had effectively rejected the statutory defence of reasonable excuse put forward by the appellant in respect of the first charged offence. It is true to say that the magistrate's reasons for rejecting the appellant's evidence in this regard were relatively few, but the evidence was itself relatively simple, and any analysis of it, even though a proper analysis, could not be much more complex than that evidence itself.

11. Further, so far as the second charged offence was concerned, the magistrate effectively went on to separately consider whether, in producing the charged identity card to the immigration officer at the Lo Wu check point, the appellant may have, regardless of how he came to possess the card, mistakenly given it to the officer rather than his own card.

12. The learned magistrate said in this regard :

" In the circumstances and with a foreign identity card (recently) in his possession I did not accept that there was any possibility that the appellant's actions were unintentional even though the evidence established that PW(1) has seen him take out the ID card, which I presumed (in the appellant's favour) occurred when the appellant was close to PW(1)'s desk.

Further the appellant had demonstrated how he had had to insert two fingers into the bag (which action was seen by PW(1)), to withdraw the identity card from a group of similarly shaped objects but I was entirely satisfied that this appellant would not have taken out the identity card in such circumstances, (and delivered it to the responsible authority), without first checking that he had taken out the correct identity card."

In other words, the learned magistrate had considered the possibility of a mistake in production of the card and rejected it. He was entitled to do so for the reasons he gave. This defence of mistake applied also to the third charged offence and the magistrate's reasoning was equally valid in this regard. The magistrate concluded at the end of the day that the appellant had acted intentionally at all times.

13. Mr Mitchell-Heggs quite properly pointed out that at no time during trial had the prosecution been able to assert any motive for the appellant's possession or use of the charged identity card. It was common ground that at all times the appellant was in possession of his own valid identity card. In this regard, the learned magistrate said :

"... Similarly all of the evidence was reviewed with heavy emphasis given by myself to the fact that the prosecutor had not established any motive for the appellant's alleged conduct. The absence of any evidence of motive was indeed an important factor favouring the appellant that I had to consider, ...."

The learned magistrate was aware of the evidential absence of any motive for the appellant to have possessed and, perhaps more particularly, used the card but he took this properly into account. He was entitled to convict in the absence of an evidential basis for a motive, and he did so.

14. Accordingly, the learned magistrate had properly considered the appellant's case as to how he had come into possession of the charged identity card and come to use it and was entitled to reject that evidence for the reasons he gave. He concluded from the evidence, again on the basis of the reasons he gave, that the appellant had intentionally produced the charged identity card and he was entitled to do so.

15. That disposes of the first, second and fourth matters raised in the grounds of appeal.

16. So far as the third matter is concerned, the magistrate took into account the appellant's evidence of his evasive behaviour in assessing the appellant's credibility generally. He said this in that regard :

" Further I didn't believe the appellant as to what he was attempting to do following his interception regarding CHAN and nor did I believe his evidence about his state of mind when he turned away and ran from the immigration desk which was manned by PW(1)."

In other words, the learned magistrate had simply disbelieved the appellant in regard to his evidence as to why he fled from the scene. He then went on to say :

" I was however satisfied that his running from the scene was not an indication of guilt. Nor as I saw it were the lies he told about his state of mind at that time. Instead these matters were seen as consistent with his panic at both the scene and in the court room, and not matters upon which any reliance (indicating guilt) could be placed."

17. He had, accordingly, restricted the use he made of his disbelief of the appellant's evidence in this regard to the assessment he made of the appellant's credibility only. He was entitled to take into account his disbelief of the appellant's version of these specific events in assessing the general credibility of the appellant's evidence. His use of that evidence went no further. It was the sole use he made of that evidence. It cannot be said that he went on to use his disbelief of the appellant's evidence in that regard specifically to determine the issue as to whether the appellant had a reasonable excuse as to his original possession of the charged identity card. That disposes of the final aspect of the grounds of appeal.

18. Accordingly, the appeal against conviction is dismissed.

Representation:

Mr. W.S. Cheung, SADPP, of the Department of Justice, for the Respondent

Mr. A. Mitchell-Heggs, instructed by Messrs Yuen & Partners, for the Appellant