HKSAR v. Sun Xiulan
|
HCMA1066/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 1066 OF 2007 (ON APPEAL FROM STCC 3376 OF 2007) ---------------------- BETWEEN
---------------------- Before : Hon McMahon J in Court Dates of Hearing : 29 January and 5 March 2008 Date of Judgment : 5 March 2008 ---------------------- J U D G M E N T ---------------------- 1.The appellant was convicted at Shatin Magistracy of two offences of making a false declaration to an immigration officer, being Charges 1 and 2, and of one offence of conspiracy to defraud the government of the People’s Republic of China (“PRC”), being Charge 3. She appeals those convictions. 2.The prosecution case was that the appellant, a Mainland resident, had in 2000 entered into a bogus marriage on the Mainland with a Hong Kong resident, Mr Kwong. Immediately prior to this marriage she had divorced her Mainland husband. 3.Following her marriage to Kwong, which had been arranged in the Mainland by a “Mr Chan” at a cost of HK$3,000, the appellant came to Hong Kong on a number of occasions and in doing so represented to Hong Kong immigration officers that she did so to visit Kwong, being the 1st charged offence and, eventually, to join him, being the 2nd charged offence. She had registered the bogus marriage in the PRC and had on that basis sought and obtained from the Mainland authorities permission to come to Hong Kong to join her husband Kwong, being the 3rd charged offence. 4.The appellant who was unrepresented before me puts forward general grounds of appeal as set out in Form 101 to the Magistrates’ Ordinance to the effect that the evidence was not sufficient to found a conviction. 5.The prosecution case at trial in respect of all three charged offences was contained in a cautioned interview of the appellant conducted by immigration officers. The appellant particularly claims that the record of that interview was wrongly admitted. She repeats generally in that regard what she had told the trial magistrate, that is that she had been forced to sign the record of the interview and that its contents were in large part fabricated. 6.The admissibility of that interview was contested in a voir dire. The magistrate gave extensive reasons in his statement of findings as to why he found it to be voluntary and further concluded that there was no reason to exercise his discretion to exclude it from evidence. 7.The magistrate dealt thoroughly with the issues raised by the appellant during the voir dire. He accepted the evidence of the prosecution witnesses and rejected that of the appellant. He concluded that the record of interview was admissible. In arriving at his decision, he said this :
8.There is no merit to the appellant’s complaint that the record of interview was improperly admitted. The magistrate had properly resolved the issues which had arisen. 9.The prosecution case was based on the contents of that record of interview. The interview was lengthy but the following excerpt gives the flavour of the admissions made by the appellant :
10.Additionally the appellant admitted that the wedding was arranged by a “Mr Chan” in Fujian, that she had never lived with Kwong as husband and wife and that, indeed, she had met Kwong only once during her stays in Hong Kong and that was when they had passed by each other in the street. All the documentation in the Mainland had been arranged by Mr Chan. Charges 1 and 2 11.The admissions made by the appellant in her record of interview were unequivocal. She specifically admitted her marriage to Kwong was “bogus”. As the magistrate said the content of her recorded interview fully proved these offences. On the occasions she came to Hong Kong she came neither to visit or to join Kwong as she had falsely represented to the Hong Kong immigration officers on the occasion of each charged offence. 12.There is no merit in her appeal against her conviction of the first two charged offences. Charge 3 13.The concern I did have with the appellant’s conviction in respect of this offence is that the charge alleges the defrauding of the government of the PRC. It particularises various acts all of which occurred in the PRC :
14.There is no reference in the charge to any part of the conspiracy being formed or conducted within the territory of Hong Kong. I was concerned therefore that the conspiracy having occurred on the Mainland a Hong Kong court may not have had jurisdiction. Mr Frederick Chung, SGC for the respondent however brought to my attention that the appellant admitted Kwong had obtained a certificate of “an absence of marriage record in Hong Kong” from the Hong Kong department responsible for such records, and on that basis, that certificate being necessary for the furtherance of the conspiracy, I was satisfied section 6(1)(c) of the Criminal Jurisdiction Ordinance applied. I was satisfied also that section 7(1) and (2) of that Ordinance were also complied with, there being no notice served by the defence at trial pursuant to section 8(1) of the Ordinance. 15.Accordingly, section 6(1) of the Criminal Jurisdiction Ordinance which extends the applicability of Hong Kong Law to certain offences with a substantial extra territorial component, I am satisfied does apply in respect of the 3rd charged offence and the conviction of the appellant in respect of that offence was proper. The appeal is dismissed.
Mr Frederick Chung, SGC of the Department of Justice,for the Respondent Appellant in person |