HKSAR v. Yeung Hiu Wing

HCMA989/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 989 OF 2006

(ON APPEAL FROM KCCC 2841 OF 2006)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 25 January 2007

Date of Judgment : 25 January 2007

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J U D G M E N T

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1.The appellant was convicted after trial at Kowloon City Magistracy of an offence of using a false instrument contrary to section 73 of the Crimes Ordinance, Cap. 200 (being Charge 1); an offence of possession of false instruments, contrary to section 42(2)(c)(i) and section 42(4) of the Immigration Ordinance, Cap. 115 (being Charge 2); and an offence of inciting a person to use a false instrument contrary to common law and section 73 of the Crimes Ordinance (being Charge 3).  He was sentenced to two years’ imprisonment for each offence, all sentences to be served concurrently, and that resulted in a totality of two years’ imprisonment.  The appellant appeals both his convictions and sentences. 

2.The prosecution case at trial was that the appellant (who was the 2^nd defendant at trial) had met his co-accused Yang Xixuan (who was the 1^st defendant (“D1”) and who had pleaded guilty to the offence in Charge 1 involving him and given evidence for the prosecution) and another person Wang at Sheung Shui railway station after D1 and Wang had entered into Hong Kong from the Mainland using their re-entry permits.

3.The appellant took D1 and Wang for a cup of coffee.  At the coffee house the appellant took D1 and Wang’s re-entry permits from them and gave them a false Australian passport each with their photographs in them.  These facts supported the 2^nd charge.  D1 received, in addition to the false passport, a driving licence in the name of Huang Fei, which was the same name as used in the passport.  That driving licence also had the 1^st defendant’s photograph upon it.  He was further given bank statements in the name of Huang Fei issued by St George Bank and the Commonwealth Bank, both Australian banks, which contained an address for the person Huang Fei. 

4.Wang received from the appellant a false Australian passport in the name of Li Yi with his photograph in it and a driver’s licence in the same name, also with his photograph upon it, and bank statements in the name of Li Yi issued again by St George Bank and the Commonwealth Bank bearing the address of Li Yi. 

5.The two St George Bank statements given to each (and the Commonwealth Bank statements) were identical.  The transactions dates and balances were the same down to the last day and the last cent.  Both D1 and Wang were provided with SIM cards for their mobile phones, and then the appellant led D1 and Wang to Mong Kok.  

6.At Mong Kok the appellant asked D1 to wait at a shop and led Wang away.  Later Wang arrived at the Bank of China branch in Nathan Road.  He gave a teller the forged Australian passport together with the two bank statements given to him by the appellant but then wrote out a note and also gave that to the teller.  On the note were the words “Processing.  Protect me.  I was cheated”.  The teller showed the note to her supervisor and the police were called.  The facts of Wang’s aborted attempt to open a bank account at Bank of China and the appellant’s role in that founded the 3^rd charge.  

7.The police, after they arrived, spoke to Wang who told them what had happened and the police allowed Wang to wait outside the bank for the return of the appellant while the police waited in ambush. 

8.Meanwhile the appellant had taken D1 to the Standard Chartered Bank in Nathan Road.  D1 went into the bank alone and handed the forged Australian passport, driver’s licence and bank statements he had been given by the appellant to a bank teller and asked to open a bank account.  These facts supported the 1^st charged offence.  The appellant’s request was refused because the teller thought the proof of address was insufficient.  His documents were handed back to him.  D1 left the bank and reported back to the appellant.  They then left to meet Wang.  When they arrived at the Bank of China branch in Nathan Road where Wang was waiting for them they were intercepted by the waiting police. 

9.The appellant was searched.  In the appellant’s shoulder bag was found the two entry permits belonging to D1 and Wang as well as two Chinese identity cards attached to the permits also in the names of D1 and Wang.  In the bag were also found Standard Chartered Bank documents obtained by D1 when he had attempted to open the bank account which had been given by D1 to the appellant.  Subsequently the appellant was arrested and made various statements under caution. 

10.These statements formed the basis of the appellant’s defence.  He did not give evidence.

11.According to what he told the police the appellant met a person “Billy” in a bar in Hong Kong.  Billy had later offered him $4,000 to take two persons to open bank accounts.  On the day of the offences Billy rang him and told him to go to Sheung Shui KCR station and to wait at the 7-11 Store there.  When he got there he saw Billy nearby.  Billy then gave him the two passports, the driving licences and bank statements.  Billy gave him instructions to give the documents to the two persons and take their re-entry permits from them, and then to take the two persons to the Bank of China and Standard Chartered Bank in Mong Kok to open bank accounts.  

Grounds of appeal

12.The grounds of appeal against conviction advanced by Mr Khosa of counsel on behalf of the appellant are :

(1)     that the magistrate erred in not sufficiently and properly considering the appellant’s statements to the police;

(2)     that there was insufficient evidential basis for the magistrate to infer the appellant knew the passports were false; and

(3)     in drawing that inference the magistrate took into account facts which he had found but which were not supported by evidence;

and that, as a result, the conviction of the appellant was unsafe and unsatisfactory.

Ground 1

13.In regard to the appellant’s statements to the police, Mr Khosa argues that those statements provided a coherent and believable defence to the charges in that they explained sufficiently the prosecution case against the appellant so as to raise a doubt, and that they were not inherently unbelievable. 

14.The magistrate said in his Statement of Findings :

“      …The defendant claimed to PW4 that he did not know what he was doing was illegal.

I considered very carefully all the circumstances.  The defendant met D1 and Wang shortly after they had crossed into Hong Kong from the mainland at Lo Wu.  He took from them their two-way permits.  He gave them each passports, both of which proved to be false, showing that they had entered Hong Kong in March, an Australian driving licence and documentation in the names recorded in the passports from Australian banks.  These documents showed that the passport holders lived in Australia.  He gave them each a local SIM card for their mobile phones. 

He was in the company of D1 and Wang for some 2 to 3 hours before they arrived at their respective banks.  Both D1 and Wang were educated to primary level 2 and communicated with the defendant in a mixture of Cantonese and Putonghua.  I reminded myself that the exculpatory parts of what D2 told PW4 was evidence of it’s the truth.

I did not believe that D2 became involved in these offences in the manner he told PW4.  I did not believe that he thought there was nothing illegal about what he was doing.  He supplied documentation purporting to show that D1 and Wang were Australian passport holders, driving licence holders and had accounts with two banks in Australia showing they had addresses in Australia.  The passports and driving licences bore pictures of D1 and Wang.  The passports bore Immigration chops indicating that their holders had entered Hong Kong the previous month.  D2 knew that D1 and Wang were two way passport holders from the mainland.  He met them very shortly after they had crossed into Hong Kong from the mainland and he collected from them their two-way permits.  Not only did D2 supply D1 and Wang with all the necessary documentation to open the accounts he had to give them the money to put into the accounts.”

15.In my judgment the magistrate was perfectly entitled to disbelieve the appellant’s exculpatory statements to the police for the reasons he gave.  Those statements of the appellant did not put in issue the facts of the case.  Those facts as to the appellant meeting D1 and Wang, providing them with the forged passports and other documents, leading them to the banks to open bank accounts, providing them with money to open those accounts, were all common ground.  What was in issue was simply whether it was possible the appellant had been tricked, as an innocent dupe, into doing those things.  The magistrate quite rightly decided for the cogent reasons he stated that the appellant’s assertions to the police that he had done these things without knowing the passports he provided to D1 and Wang were forged were not believable.

Grounds 2 and 3

16.These grounds can be dealt with together and they are in any event an extension of Ground 1.  

17.From that part of the magistrate’s findings excerpted above it can be seen that there was a solid factual basis for inferring that the appellant knew the two Australian passports he gave to the 1^st defendant and Wang were false. 

18.It is true there was no direct evidence that the appellant knew the passports were false.  But in the circumstances of the case, where the appellant had been given the passports and other documents by a person “Billy” only a short time before he had met D1 and Wang at that same railway station, and where the appellant took possession of these two persons’ re-entry permits for no good reason consistent with the appellant being an innocent dupe, and then led these two persons to banks to open bank accounts with those documents and with money that he was to provide them, and where the appellant had admitted doing those things for $4,000, then in my view the inference drawn by the magistrate was irresistible. 

19.As the magistrate said :

“      Having considered all the circumstances, I was irresistibly drawn to the conclusion that the defendant did know or believe that the passports were false and were to be used to open bogus accounts.  I was satisfied that no other inference could be reasonably drawn in the circumstances…”

20.I might add that in the present case, where there was sufficient material before the magistrate to allow him to properly draw that inference, the magistrate was entitled to more readily draw that inference in the absence of any evidence from the appellant.  In the present case the facts cried out for the appellant to give evidence in explanation of his role.  His partially exculpatory statements to the police covered only a part of that ground and in any event were of much lesser weight in this regard. 

21.Mr Khosa further says the magistrate found certain facts to have been proven although there was no evidence as to those facts.  There is no substance to those complaints.  One example will suffice. 

22.Mr Kohsa complains that the magistrate’s statement that : “…[The appellant] supplied documentation purporting to show D1 and Wang were Australian…” and that : “…The passports bore Immigration chops indicating that their holders had entered Hong Kong the previous month…” was factually wrong as there was no evidence the appellant knew of the contents of the passports. 

23.Whilst it is true that at no stage did the magistrate specifically state as a finding that the appellant was aware of or knew of any particular detail of the contents of the passports I accept that the magistrate’s findings suggest he took into account that the appellant knew of the general nature of the documents and had ample opportunity to be exposed to their contents.

24.It is quite true that even a cursory examination of the documents would show that the appellant was delivering Australian passports, driving licences and bank statements to D1 and Wang.  There was no evidence as to the appellant’s ability to read or understand English (although during the appeal I was informed he studied computers in Sydney, he did not give evidence and therefore the magistrate was not to know this).  But no knowledge of English is required to understand the general nature of these documents.  And the magistrate was entitled to take into account the appearance and nature of the documents, which the appellant had had under his control for a significant time as one relevant factor in determining the role of the appellant in his dealings with D1 and Wang.

25.Other criticisms of the magistrate’s findings of fact are in the same vein and can be met with the same answer.  The magistrate’s statements of fact were not in error.  There is no merit whatsoever in the grounds concerning conviction, and there is no reason to think that the conviction was unsafe or unsatisfactory.  Accordingly the appeal against conviction is dismissed.

26.So far as the appellant’s appeal against sentence is concerned I have been presented with a series of authorities by Mr Khosa regarding offences concerning the use and possession of false passports (and other documents) in immigration cases.  I do not find those authorities to be particularly helpful.  Cases such as the present involving the presentation of false documents to financial institutions vary greatly on their facts.  The present case involved the use of false documents so as to defraud a bank or banks into opening bank accounts for purposes the appellant must have realized were likely to be unlawful. 

27.The magistrate’s starting point of two years’ imprisonment, in my judgment, was wholly appropriate to the appellant’s role in what the magistrate described as :

“… an organised and serious criminal enterprise that involved the preparation of bogus passports, driving licences, and other banking documentation…”

28.The appeal against sentence is also dismissed. 

Mr Simon Tso, SGC of the Department of Justice, for HKSAR

Mr David Khosa instructed by Messrs Francis Kong & Co., for the Appellant