R. v. Mark Ayivor

CACC000359/1991

HEADNOTE

Whether or not separate trials of charges should be ordered is generally a matter of discretion. In the particular circumstances of this case, it was within the discretion of the trial judge not to order severance.

Bill of Rights - s.14 of the Bill of Rights Ordinance and Schedule. No application to Crimes Ordinance for a period of 12 months from date of commencement of the Bill.

A sentence of three years imprisonment for four charges of possession and uttering of six forged passports is proper on conviction after trial.

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Coram: The Hon. Sir T.L. Yang, C.J., Rhind and Wong JJ.

Date of Hearing: 30 July 1992

Date of Delivery of Judgment: 30 July 1992

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J U D G M E N T

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Wong J.,

1. The applicant was convicted before Deputy Judge Gill in the District Court of one charge of possession of implements for forgery, contrary to section 76A(1) of the Crimes Ordinance, Cap. 200; one charge of uttering a forged document, contrary to section 74(1) of the same Ordinance and two charges of possession of forged travel document, contrary to section 42(2)(c)(i) of the Immigration Ordinance, Cap. 115. He was sentenced to a total of 3 years imprisonment and now seeks leave to appeal against both conviction and sentence.

2. The facts were that on 25th April 1991, a Senior Inspector of Police laid an ambush near a lobby area in a building comprising guest houses in Kowloon. He arrested the applicant after the latter arrived at the scene and after following him to the staircase landing. The inspector revealed his identity and searched the applicant. He found a wallet which was tucked into the applicant's waistband under a shirt and in a compartment were 5 passports : three of which purported to be passports of the Kingdom of Lesotho and were numbered and contained departure chops and embossing but without any particulars or photographs of the bearers. This is Charge 1.

3. The other 2 passports were purportedly issued by the Government of the Bahamas and were completed with details of the bearers' photographs and arrival and departure control chops. One of these two passports is in the names of Mr. Patrick Acquah and Mrs. Acquah. These 2 passports form the subject matter of Charge 2.

4. All the five passports were placed inside a paper envelope that was commonly used to contain photographs and negatives after processing. It was in a well-used and torn condition and its contents would be visible even when the envelope was closed.

5. The applicant was interviewed and in his cautioned statements which were admitted in evidence without challenge he admitted possession of the wallet and its contents but denied knowledge, saying that he had been handed the wallet to hold by an acquaintance moments before he was arrested.

6. The applicant was asked to surrender and did surrender his own passport which forensic examination revealed to be yet another forgery in that the photograph had been at some stage substituted. The applicant had used this passport to enter Hong Kong on 3 December 1990. This set of facts gave rise to Charges 3 and 4.

7. In his written grounds of appeal, the applicant complained that the trial judge failed to exercise his discretion to order severance of the 1st charge from the other charges because the 1st charge raised a presumption that the forged passports were intended for use as such by the applicant although he did not dispute possession and that the documents were fit for use in the forgery of travel documents. The other three charges do not raise such a presumption. The applicant claimed that he was thereby prejudiced and embarrassed in his defence otherwise he could have pursued his defence to the other charges without giving evidence whereas he would be obliged to give evidence if he was to effectively defend himself on the lst charge. He further complained that the trial judge convicted him on each charge without having satisfied himself beyond reasonable doubt.

8. At the conclusion of the prosecution case, the hearing was adjourned due to the illness of the applicant. Up to that stage no application or even any mention was made about severing Charge 1 from the other charges. When the hearing resumed on the next day, solicitor action for the applicant applied for Charge 1 to be severed on precisely the same grounds that have been put before us in the written grounds of appeal. Having heard and considered arguments from both sides, the trial judge refused the application.

9. Reasons, which we do not consider necessary to repeat here, were given by the trial judge at pages 8 and 9 of the appeal bundle.

10. The applicant then elected not to give evidence or call witness. The trial judge evaluated and accepted the evidence of the prosecution witnesses and convicted the applicant of all four charges.

11. In his written grounds, the applicant also referred to a decision of Barnes J. in The Queen v. Wong Lap Kwong, Magistracy Appeal No. 420 of 1990. In that case, the appellant, a police constable was tried before a magistrate for two offences; one of which was under section 3 and the other under section 4(2) (a) of the Prevention of Bribery Ordinance, Cap, 201. Section 25 of the Ordinance provides that a certain rebuttable presumption arises in proceedings for an offence under section 4 once it is proved that the accused accepted an advantage but there is no presumption of any kind in relation to proceedings brought under section 3.

12. The constable gave evidence and was convicted of both charges.

13. Barnes J. Took the view that the trial magistrate should have exercised his discretion to order separate trials of the two charges and he allowed the appeal.

14. Whether or not separate trials of charges should be ordered is generally a matter of discretion : Ludlow v. Metropolitan Police Commissioner (1970) 54 Cr. App. R 233; R v. McGlinchey (1984) 74 Cr. App. R 282. In the circumstances of the present case, we are of the opinion that it was within the discretion of the trial judge not to sever the charges and to try them together. We are satisfied that there is no injustice or prejudice to the applicant.

15. In addition to his written grounds, the applicant made six points before us to-day and we will answer them very briefly.

(1)    He was handed the wallet just moments before his arrest and had no knowledge that the passports inside the envelope were forgeries. This was adequately dealt with by the trial judge.

(2)     The passport in the 3rd and 4th charges had been validly issued by the Lesotho Government. The forgery here does not

involve whether the passport had been validly issued. It is the substitution of the photograph in the passport.

(3)    The applicant complained that the fingerprints on the envelope had not been shown to him. This complaint has no merit whatsoever because at no time did the applicant dispute that he had the envelope which contained the five passports.

(4)    There is no evidence to show that the envelope was in a torn or tattered condition when it was seized from the applicant. Contrary to this assertion,'there is in fact evidence from the inspector that the envelope was in exactly the same condition when he got it from the applicant.

(5)    The applicant says that PW1 and PW3 had never seen a genuine Lesotho passport before. We do not consider that this is relevant at all in view of what we have already said earlier.

(6)    The judge referred to incriminating matters and left them on the file as a result of oversight. This was dealt with by the judge in his careful Reasons for Verdict and he made it plain that he disregarded them.

16. The applicant has written a number of letters to the Registrar and some members of this Court making serious allegations against the trial judge, the prosecutor and the police. In his opening speech, counsel for the prosecution did made reference to certain matters incriminating to the defence and these matters were not pursued any further during the trial. We have dealt with this already and the judge not only disregarded those matters but also expressed the view that it was unfortunate.

17. The applicant also sought to rely on the Bill of Rights. We are, however, satisfied that the Bill of Rights has no application to the Crimes ordinance under which the 1st charge was brought against the applicant. Section 14 and the Schedule specifically provide that the Bill is not to be applied to a number of ordinances for a period of 12 months from the date of the commencement of the Bill and the Crimes Ordinance is one of those Ordinances.

18. Having considered what has been put before us and carefully examined the record, we find no basis in all the allegations. The applicant was legally represented at the trial and had a fair trial. We see no reason to interfere.

19. Accordingly, the application for leave to appeal against conviction is refused.

20. The applicant also seeks leave to appeal against the sentence of 3 years imprisonment on the ground that it is too severe. Forgery of passports or possession and use of forged passports is an extremely serious offence. It carries a maximum sentence of 14 years imprisonment. The fact that the applicant had five blank passports in his possession suggests that he was a participant in an illegal passport racket and this makes the offence far more serious than a person who possesses one passport for his own use as the trial judge rightly observed. A total sentence of 3 years for the four offences is, in our view, neither wrong in principle nor manifestly excessive.

21. The application for leave to appeal against sentence is also refused.

Representation:

Appellant, Mark Ayivor in person.

Mr. A.E. Schapel S.C.C. for Crown.