HKSAR v. Wong Kong Yu

CACC 279/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 279 OF 2005

(ON APPEAL FROM DCCC NO. 1293 of 2004)

____________________

BETWEEN

____________________

Before : Hon Stuart-Moore VP, Yeung JA and McMahon J

Date of Hearing : 18 January 2006

Date of Judgment : 16 February 2006

______________________

J U D G M E N T

______________________

Stuart-Moore, VP (giving the judgment of the Court):

1.On 24 May 2005, the applicant was convicted after a trial in the District Court before Judge Chua on a charge of possessing forged travel documents, contrary to section 42(2)(c) and punishable under section 42(4) of the Immigration Ordinance, Cap. 115.  He was sentenced to 2 years and 8 months’ imprisonment and now seeks leave to appeal against conviction.

2.The charge arose from facts which were essentially straightforward.  On 4 September 2003, police went to Flat C on the 12^th floor of Tsang Cheung Building at 446 Nathan Road in Yau Ma Tei.  The flat, consisting of five rooms, was owned by the applicant’s father who, together with the applicant, carried on the business of a travel agency engaged in receiving visitors from the Mainland, arranging their tickets and taking them on daily tours.  In addition, the flat was used as part of a guesthouse to provide accommodation for visitors from the Mainland.

3.“Room 3” was used by the applicant.  This contained a bunk bed above the space where the lower bed had been removed to make way for office equipment including a desk on which police found a computer, a keyboard and a printer.  The bunk bed was fitted with a step-ladder for ease of access.  Immediately above this was a removable panel in a false ceiling.  When this panel was removed, and the area above the ceiling was searched, police found an air ticket holder wrapped, with the aid of an elastic band, around a brown envelope addressed to “Mr Chan c/o Mr Wong Chuk-kei” (the applicant’s father) and on which was also written the address of the flat and the applicant’s mobile telephone number.  These wrappings had no dust on them although the area around them was generally dusty.  Inside the envelope were 7 forged passports the subject of the charge.  These purported to be 2 Korean passports (which had passed their expiry dates), 2 Thai passports (on which there were no issue dates) and 3 Malaysian passports.

4.Police found a further envelope in Room 3 positioned next to the computer equipment under the bunk bed.  This envelope contained 51 genuine PRC identity cards.  None of the names on these identity cards matched the names on the forged passports.  Close by, on the printer, a sheet of paper was found on which two PRC passports had been copied.  As the judge remarked, the names of the passport holders on the copies of their passports had been “crudely cut out”.  The applicant told the police that the copies were made so that they could be used to obtain refunds for unused air tickets.

5.The only real issue at trial focused on the applicant’s assertion that he had no knowledge of the forged passports hidden in the space above the ceiling in his room.  Without knowledge of their existence there, he could not be in possession of them.  The prosecution alleged that there was an irresistible inference, based upon all the circumstances, that the applicant possessed these passports in spite of his assertions at trial and to the police that he had no knowledge of the parcel of forged passports above his bed in Room 3.

6.Against this background, two grounds of appeal were advanced by Mr Duncan SC on the applicant’s behalf.  These effectively amounted to a single submission that the conviction should not be allowed to stand as the evidence, taken as a whole, could not be said to have established a safe inference of guilt.  There was, Mr Duncan argued, another real possibility which had emerged from the evidence.  This was that the applicant’s father in particular, or perhaps even someone else, may have secreted the passports in Room 3 without the applicant’s knowledge.

7.In the course of these proceedings, Mr Duncan went through the evidence in fine detail endeavouring to demonstrate that the applicant, aged 38 and of previous good character, was not the only person who could have hidden the forged passports in Room 3.  In this regard, he particularly laid emphasis on the contents of the applicant’s interview which can properly be described as a mixed statement, containing as it did partly inculpatory and partly exculpatory answers.  The contents of the interview were largely consistent with the evidence given by the applicant at trial and in each instance the applicant described how a number of people, including his father, might have had access to his room.

8.Mr Duncan also made a number of general points about the nature of the case.  We can deal with these briefly as they are non-contentious.  There was, he reminded us, no direct evidence of any kind, including fingerprints and DNA, linking the applicant to the forged passports.  As to the flat itself, this had been used as a guesthouse by PRC nationals for many years and its licensee was the applicant’s father although he mostly lived elsewhere and, it seems, was in semi-retirement.

9.The only evidence about access to Room 3 came from the applicant himself.  According to him, he was not the only key holder for Room 3 as his father also held a key and there were even times, when the applicant was away, that his father had used the room for himself.  The applicant described to the police where a third key to Room 3 was kept.  This was in a box next to the fax machine in the “living room” on the main key chain.  The applicant said that he had moved into Room 3 in about September 2001, about two years before the police raid, and that he slept there about six nights out of seven.  Sometimes, on “rare occasions”, the room might even be used by a customer who had been to stay at the guesthouse before although this had apparently not happened for some time.  The applicant said that when he left the premises on trips to the airport or to the Mainland, he would leave his room locked but if guests needed to use the photocopier in his room, it might be opened for that purpose.  In addition, if the room was not locked, guests could use the facility for drying clothes outside his window and sometimes they would be allowed to use the computer in that room “to access online”.

10.Mr Saw SC, responding to the submission that others besides the applicant may have been able to gain access to the hiding place in his room, directed our attention to the other documents in Room 3 which, he suggested, added considerable weight to the inference that the applicant was well aware of the existence of the forged passports above his bed.  Indeed, he submitted that the very fact that the passports were concealed was sufficient to establish knowledge on the part of the person putting them there that they were forgeries.  More importantly in the present context, the 51 PRC identity cards and the photocopy of two PRC passports which the applicant had admitted possessing, gave rise, he submitted, to a suggestion that at the very least the guesthouse was being used as a staging-post for one-way traffic for people travelling from the PRC to places beyond Hong Kong.  In this regard, Mr Saw placed emphasis on the answers given by the applicant in his interview in which the applicant effectively admitted that the 51 identity cards in his room belonged to people who had left Hong Kong for a foreign country with no intention of returning and who, for this reason, had left their identity cards behind.

11.As for the photocopy of the PRC passports with the name section cut out, Mr Saw referred to the applicant’s admission that guests who had left Hong Kong sometimes sent the unused portion of their return air tickets back to him so that a refund could be claimed.  This had to be done, so the applicant had said, by using a photocopy of the ticket holder’s passport.  However, this was not always provided so that he was in the process of devising a way to make false copies of passports by photocopying them and then inserting the names of the ticket holders onto these copies.  The applicant was, in other words, engaged by his own admission in falsifying passport details albeit he remained adamant that he knew nothing about the forged passports in the ceiling above his bed.

12.Taking these considerations into account, Mr Saw submitted that the judge was amply justified in reaching the conclusion that the applicant was in possession of the 7 forged passports.  The applicant had been living for about two years in the room where they were found and they were easily reached from the step-ladder to his bunk-bed.  The relatively dust-free condition in which these passports were found in the ceiling space was perhaps indicative to some small degree that they had not long been hidden there.  However, unlike the forged passports, there had been no need to hide the PRC identity cards because these were genuine, but their presence in the applicant’s room and his explanation about these and the photocopies of passports could only be taken as a demonstration of involvement in some form of criminality where passports in one form or another were a requirement.

13.The judge, in her assessment of the evidence, understandably concluded that the passports had been deliberately hidden in Room 3, dismissing other theories which had been advanced, finding also that whoever had done this knew full well that they were forgeries.

14.At one stage, however, the judge said:

“… I infer from the fact that the packet was hidden in a hiding place easily accessible by standing on the stepladder to the bunk bed (see photos 16 and 17) that it was placed there after the new bed configuration was installed.  In the interview, the defendant admitted after he moved in to live in Room 3 in 2001, he had the bed changed six months before the police came.” (Appeal bundle pp. 12-13)

The judge, by expressing herself in this way, seemed, with respect, to be limiting herself unnecessarily to finding the applicant guilty on this basis alone.  To this extent, Mr Duncan’s criticism of the judge’s approach was not without force.

15.However, the judge did not confine her findings which were adverse to the applicant to this single factor.  Later, she stated that the real question was who had put the forged passports in the ceiling space and, in assessing whether it had been proved that the applicant had done so, she went through the various points which were raised by the defence at trial which have largely been repeated in these proceedings.  The judge then said:

“	14.	Although the defendant accepts that when he was not in the guesthouse he locked Room 3, he was at pains to say, whether he was on duty at the guesthouse or his father was, (his parents lived at another address in Peace Building), guests staying in his guesthouse were given access to his room to dry clothes outside his window as well as to use his computer.
	15.	I do not believe him.  Even if his father had a key, I am satisfied on the evidence access to Room 3 was not given to guests of the guesthouse.  As a matter of common sense, I cannot imagine anyone giving strangers access to one’s bedroom and computer.
	16.	The defendant has, in his interview, made it clear the new bed configuration done six months before the police came, was done to lock up in his room the computer, which previously, along with the fax machine, were kept in the living room.  After the new installation, the computer, and not the fax machine was moved to the desk below his bunk bed to restrict access.” (Appeal bundle pp. 13-14)

16.It is to be noted from these observations that the judge indicated an acceptance of the applicant’s evidence that his father had a second key to Room 3.  Nevertheless, she expressed herself as:

“… satisfied the only reasonable and rational conclusion that can be made is that the defendant who, having been given possession of the package, hid it in the ceiling in his room.” (Appeal bundle p. 14)

17.The judge went on to indicate that while “not necessary to prove the charge”, two other pieces of evidence supported the fact that the applicant knew about the forged passports in the ceiling of his room and that it was the applicant “who hid the package for the person or persons engaged in smuggling mainlanders into foreign countries”.  The judge was referring to the applicant’s admitted possession of the 51 PRC identity cards and to the photocopy of the two PRC passports with the names cut out of them corresponding with the applicant’s excuse about having thought of a way to claim back the fares on the unused portions of air tickets by incorporating the names appearing on the tickets into the passport copies to make them match.

18.We have concluded that the combination of circumstances which were covered in great detail by counsel in their submissions and which were considered by the trial judge produced a most compelling case against the applicant and that the conviction was neither unsafe nor unsatisfactory.

19.Accordingly, the application is dismissed.

Mr D G Saw, SC, DDPP and Ms Sally Yam, GC, of the Department of Justice, for the Respondent.

Mr Peter Duncan, SC, Mr Kenneth K H Lee and Mr Samuel Wong, instructed by Messrs Sit, Fung, Kwong & Shum, for the Applicant.