Yao Too-fat and Another v. The Queen
Read the full judgment text of CACC 416/1978 on BabelCite. This Court of Appeal judgment.
1. At the hearing I dismissed the first appellant's appeals against conviction and sentence and promised to give reasons later and I reserved judgment in respect of the appeals of the second appellant.
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CACC000416/1978
----------------- Coram: Leonard, J. Date of Judgment: 4th July, 1978. ----------------- JUDGMENT ----------------- 1. At the hearing I dismissed the first appellant's appeals against conviction and sentence and promised to give reasons later and I reserved judgment in respect of the appeals of the second appellant. 2. The appellants and two others were charged with conspiring together between the 1st August 1976 and the 9th August 1977 with Ishikawa Susumu, YIP Wing-yan, KOK Ping-on, NG Jit-man and others unknown to produce invalid travel documents and departure cards to Immigration officers and assistants and to make or cause to be made, false representations and/or statements to Immigration officers, Immigration assistants and/or other persons lawfully acting under or in execution of the Immigration Ordinance. 3. The case for the Crown was that there was in existence between the dates I have mentioned a conspiracy to effect the entrance into the United States of parties of Foochow speaking Chinese by means of forged passports and that the two appellants were parties to that conspiracy. The scheme involved the collection of numbers of Japanese passports having endorsed in them American multi-visit visas, the alteration of those passports to enable Foochows unlawfully to use them, the collection of groups of Foochows, the booking of air passages for them, the issuing to them of the passports, of clothes to enable them to sustain the parts they were to play, and of airline tickets and generally the assisting of them to pass through our immigration procedures so that they might board aircraft for the United States and enter the United States illegally. In order to pass through our Immigration the emigrants would have to produce invalid travel documents and departure cards to the Hongkong Immigration Authorities and, if questioned, make false representations to them as to such matters as their origin. It was only by so doing that they could gain access to the relevant aircraft. 4. That such a scheme existed and was worked successfully with three parties of emigrants but unsuccessfully with a fourth group was readily established and the essential question for the learned magistrate and for me was whether it had been adequately shown that the appellants had participated in the conspiracy charged. 5. At the outset of the appeal it was submitted that the charge as drawn was bad for duplicity. The point had never been taken in the court below but on the authority of Reg. v. Wilmot(1) Mr. Jackson-Lipkin contended that it might be taken before me and I heard argument on it. His contention was that what was charged was either a number of conspiracies or a single conspiracy to commit two distinct statutory offences the one under section 5(4) and the other under section 42 of the Immigration Ordinance. He sought to draw a parallel with Dawson's Case(2). That was a case in which the conspiracy charged was not one but a number of conspiracies. The court there observed:
Again in Dawson's Case(2) the court made the following comments:
6. Meyrick's Case(3) appears to be a complete answer to this point. The first count there alleged conspiracy over a period of four years "to contravene the provisions of the Licensing Acts by the unlawful sale of intoxicating liquors and to effect a public mischief by obstructing the police and by corrupting officers of that force ...." Various objections were made which "appear to resolve themselves into one. They are an objection to the conspiracy count and to the made in which it was dealt with and the effects it produced at the trial". There Grose J.'s dictum in Rex v. Brisac(4) that conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them is approved and the judgment continues:
The objection here was made even more "faintly" (although I have no doubt not less vehemently) for not only was no application made at the commencement of the trial but no criticism was made in the course of it. The count was regarded as good in Meyrick(3) and if that count was good there can be no valid objection to the charge in this case where the conspiracy alleged was in substance to get emigrants aboard departing aircraft by means of false papers and in deception of our immigration officers. The false papers were essential to effect that deception. 7. The case against the appellants depended primarily on the evidence of two accomplices whose evidence the learned magistrate assessed with the greatest of care. He concluded that in general outline the accomplices evidence was truthful. He observed:
It is his reasoning in answering this question in the affirmative in the cases of the two appellants that has been the subject of argument. After his arrest the first appellant had held a conversation with an officer of the I.C.A.C., a Mr. Strachan. In the course of this he made statements to Mr. Strachan which were in the learned magistrate's view quite incompatible with innocence. He states:
His attacks on this finding are for three reasons arising from fact and one from law. The first reason was that he wrongly held Mr. Strachan's to be bilingual, despite what the grounds of appeal described as "Mr. Strachan's obvious failure to satisfy the court that he was fluent in Cantonese (page 200)" (sic). Page 200 contains part of the cross-examination of Mr. Strachan by counsel for the first defendant. Essentially this part of the cross-examination related to Mr. Strachan's ability to write Chinese characters. Apparently he got some of these characters wrong but that he was by no mean scholar of the language is quite clear from the fact that he gave a considerable part of his evidence (that relating to the conversation with the appellant which the learned magistrate regarded as fatal) in Cantonese, Cantonese which was translated by the court interpreter to the court apparently without comment as to its fluency or otherwise. The witness himself claimed to be bilingual. Having seen him and heard him give evidence in both languages the learned magistrate was quite entitled to accept that he was bilingual and I could not dream of interfering with this finding of fact. 8. Again the learned magistrate is attacked for finding that there was no allegation of misunderstanding when counsel for the first defendant put that possibility to Mr. Strachan in cross-examination. Clearly what the learned magistrate meant when he said there was no allegation of misunderstanding was that there was no sworn allegation of misunderstanding and there was no evidence that this appellant at any time had said that he had been misunderstood. There was a further attack for admitting and placing undue weight on an oral conversation held "in an informal manner without accurate record". Since Mr. Strachan gave a detailed account of this conversation and gave it in, according to him, the actual words used by the first appellant and since Mr. Strachan was accepted by the learned magistrate as a witness of truth I can find no validity in this criticism. It is said again that the learned magistrate "misdirected himself in fact and law in adopting the wrong approach by requiring an 'explanation or allegation of misunderstanding' from this appellant." I have quoted the paragraph in which the learned magistrate used the quoted expression. It is clear to me from this paragraph that the learned magistrate was fully conscious that the burden of proof remained throughout with the Crown. As I read it the paragraph does not suggest that the magistrate required anything by way of proof from this appellant. The sentence quoted from is to me to do no more than stress the obvious; that is that the learned magistrate had on this point the uncontradicted evidence of Mr. Strachan and that evidence alone. I had therefore no difficulty in dismissing the first appellant's appeal against conviction. 9. The case for the second appellant caused me considerably more difficulty. After his arrest the second appellant had been interviewed and interrogated (but in a manner which was not challenged before me as in proper or oppressive). The interrogation was undoubtedly searching. The second appellant's replies were self-contradictory; the interrogating officer pointed this out to the second appellant and no explanation was forthcoming. Independent witnesses had, as the learned magistrate pointed out and as I have indicated earlier, involved this appellant in meetings with persons were either among the emigrants or concerned with supplying them with accommodation or other services. Much of the interrogation concerned this involvement of this appellant and the learned magistrate who was quite justified in pointing out that his prevarications were not those of an innocent man who happened to know something about the conspiracy. The untruths told by the witness are quite manifest throughout the interrogation. He was told of a series of allegations made by one of the accomplices who gave evidence and denied them but could not explain them. Again, when he was asked about his wife's saving account passbook into which relatively large sums of money had been paid over the period in question, he was asked to explain where the money had come from and the evidence of the witness at this point reads:
This is representative of the atmosphere of the interrogation. Earlier the following passage occurred:
I would remark that David Yao was the first appellant. NG Jit-man was one of the accomplices who gave evidence and "Fatty" was a reference to the other. The interrogation continued:
The learned magistrate clearly attached considerable importance to this appellant's query which I have quoted above namely "If I am going to tell everything what can you offer?". His counsel argued that this question was not unequivocal. It and the surrounding sentences might be taken to indicate that this appellant knew more about the conspiracy than he had been prepared to tell without necessarily being an indication of self-involvement. His reluctance might have been due to fear of self-incrimination on the one hand or to fear of assault by the other members of the conspiracy on the other. The second appellant mentioned in the interrogation that he was frightened of three persons. One of these had been arrested as a conspirator (the first appellant) and the remaining two had already given considerable assistance to the I.C.A.C. as had been explained by the I.C.A.C. officer to this appellant. Read in its context the answer "If I am going to tell everything what can you offer? I want protection. They are triads and they will kill me." was not as equivocal as it would seem at first sight. What is important to appreciate however is that the learned magistrate did not convict on that answer alone. His finding is "on full examination and consideration of the statement however I am satisfied that its contents do go to establishing involvement in the illegal conspiracy.". I have read and re-read the statement and I consider that in its entirety its contents certainly do go to establishing the involvement of which the learned magistrate speaks. 10. It is suggested that the magistrate was wrongly under the impression that the failure of this appellant to give evidence was itself evidence of guilt. He does not say so. Although he does remark that there has been no evidential challenge or explanation of the statement. A careful reading of his findings in their entirety makes it clear that it was on the totality of the evidence given and not of the evidence not given that he convicted him. This appeal against conviction must likewise be dismissed. 11. I turn to the question of sentence. The first appellant was clearly one of the instigators if not the instigator of the entire project. He was the original importer of the Japanese passports that were vital to its success. Notwithstanding his clear record a sentence of two years' imprisonment could by no stretch of the imagination be said to have been inappropriate. Once again the question of the sentence of the second appellant presents a greater difficulty than the first appellant. The second appellant's involvement was considerably less. He was not concerned with the importation into Hong Kong of the Japanese passports but he clearly was concerned with the third occasion on which a band of emigrants left Hong Kong with forged passports and were eventually admitted to the United States. He was responsible for that trip. 12. I should be glad to know, however, if counsel wishes to address me as to this sentence.
Representation: Mr. Jackson-Lipkin, Q.C. and Mr. Jimmy Kwong (K.Y. Woo & Co.) for both appellants. Mr. Dawson, C.C. for Crown/respondent. (1) 24 C.A.R. 63. (2) (1960) 1 W.L.R. 164. (3) (1929) 21 Crim. App. R. 94.. (4) (1803) 4 East 164; 102 E.R. 792. |