HKSAR v. Ma Michael

HCMA 211/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 211 OF 2009

(ON APPEAL FROM STCC 2978/2008)

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BETWEEN

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Before: Hon Mackintosh J in Court

Date of Hearing:  5 January 2010

Date of Judgment:  5 January 2010

Date of Handing Down Reasons for Judgment:  20 January 2010

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REASONS FOR JUDGMENT

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1.This is an appeal against the appellant’s conviction and sentence on four charges of making false representations to an immigration assistant, contrary to section 42(1)(a) of the Immigration Ordinance, Cap 115. The sentence imposed in respect of those convictions was 8 months’ imprisonment, concurrent on each charge. On the 5th January 2010, I dismissed the appeal against conviction but allowed the appeal against sentence. These are my reasons for those decisions.

2.The appellant is a resident of Singapore. He has dual nationality, Australian and Thai; and in April 2009 he was the holder of two passports, one Australian and the other Thai. These were both genuine passports but in different names. The Thai passport was in the name Deajpanyanan Somboon, and gave the appellant’s date and place of birth as 3rd October 1966 in Nong Khai. The Australian passport, in the name Michael Ma, gave the date and place of his birth as the 3rd September 1967 in Vientiane.

3.On 3rd April 2008, the appellant presented the Thai passport to an immigration assistant before departure from Hong Kong at the airport, together with a boarding card in the name of Michael Ma for a Cathay Pacific flight to Singapore. The boarding card must have been obtained by presenting the Australian passport at check-in; but since the appellant had entered Hong Kong using the Thai passport, the corresponding departure chop needed to be in the same passport. The discrepancy between the name in the passport and the name on the boarding card was noticed by the immigration assistant and the appellant was detained for enquiries. He then produced the Australian passport.

4.The appellant’s recent travel movements were examined. He had entered Hong Kong on 29th March 2008 using the Thai passport; he had departed for the Mainland at a land crossing on the 1st April using the Thai passport and had re-entered Hong Kong on 2nd April, also using the Thai passport. Arrival and departure cards were filled out by him using the details in the Thai passport, which also contained a visa for mainland China.

5.The appellant was interviewed in the presence of a solicitor. He wrote the answers to the questions himself. In answer to a question as to his date and place of birth, he said, without equivocation, that he was born in Vientiane, Laos, on the 3rd September 1967. He said he had become an Australian citizen in 1980, having left Laos and Thailand in 1975 as a refugee, because of the Vietnam war. His explained that his father and grandfather were born in Thailand and he was thus entitled to Thai citizenship. After arrival in Australia, he had changed his name by deed poll to Michael Ma. The Thai passport, which he obtained for the first time on 27th November 2007 (i.e., about four months prior to the travel the subject of this case), contained the same erroneous information as to place and date birth as appeared in his Thai identity card. He said that when he realised that the error was repeated in the Thai passport, he had drawn it to the attention of the Thai Consul in Sydney, but no correction had yet been made. He used the Thai passport to travel to mainland China via Hong Kong because he had applied for and been granted the mainland visa which was in that passport. He said he had previously used his Australian passport to travel to Hong Kong.

6.The appellant was charged with the four charges, one relating to each entry or departure, which were identical in terms save the dates and places. The representation allegedly made to the immigration assistant was that the appellant was born on 3rd October 1966 in Nong Khai, Thailand. The prosecution case was put on the basis that he did not believe it to be true.

7.At the appellant’s trial, which did not take place until February 2009, the whole of the prosecution case was admitted under section 65C of the Criminal Procedure Ordinance, and only the appellant himself gave evidence. The verdict was delivered on 3rd March and after a background report had been obtained, the appellant was sentenced to 8 months’ imprisonment, concurrent on each charge. He was, in due course, released on bail pending appeal.

8.The magistrate’s statement of findings described the appellant as evasive, contradictory and unworthy of belief. I have read the transcript of the evidence and it is clear why the magistrate came to such a finding. Although his examination in chief and cross examination was peppered with interruptions from the court and counsel, it is nevertheless clear that the appellant sought to avoid answering many crucial questions about his belief as to his date and place of birth. The gist of his evidence was that when his birthday was discussed within the family, it was by reference to the Chinese calendar, that he was told by his mother that he was born in the year of the horse and in Vientiane in Laos, which was across the river from Nong Khai, in Thailand. He said that he had travelled extensively in Asia using his Australian passport and that he had possessed a series of such passports, all with the same place and date of birth. He said that his father had applied for a Thai passport for him in late 2007. He had noticed the differences as to date and place of birth in the Thai passport, but when he referred in his interview to this having been an “error”, he had used the term loosely because he was tired and stressed at the time. He said that he had no doubt regarding what his family had told him about his place of birth: he believed it to be Vientiane in Laos. He claimed he was using the Thai passport with the other place and date of birth because he wanted to use up the pages quickly.

9.This appeal has been focused on a point taken at trial as to the meaning of section 42(1) and what it is that the prosecution has to prove.

10.Section 42(1), so far as is material provides:

“Any person who makes or causes to be made –

a.  to an … immigration assistant …;

b.  in any document furnished to an … immigration assistant …; or

c.  for the purpose of obtaining … any …entry permit,

any statement or representation which he knows to be false or does not believe to be true shall be guilty of an offence.”

11.The grounds of appeal are in the form of a skeleton argument so I am not going to rehearse them in full here. It is first submitted that the wording of section 42(1) is ambiguous and that, relying on the authority of Pepper v Hart [1993] AC 593, HL, this court should look to extraneous materials to establish its meaning. The alleged ambiguity arises from a comparison with section 42(2) of the Ordinance which creates a number of offences, some of which require the prosecution to prove the falsity of a travel document presented by an accused person. It is argued that the law draughtsman must have intended the same element of falsity to be present in section 42(1) but inadvertently omitted the word “false” in the penultimate line of the sub-section as set out above, which should read “any false statement or representation …”

12.It is suggested that the court should interpret section 42(1) by reference to the proceedings before the Legislative Council in 1971 and to an explanatory memorandum to what was at that time the Immigration Bill, which said that the proposed section “introduces new offences in relation to false statements made to immigration officers … or in documents furnished for the purposes of the legislation”.

13.It was held in Pepper v Hart that the rule excluding references to such extraneous materials should be relaxed where legislation is ambiguous or obscure or leads to an absurdity; but such conditions must be strictly insisted upon: R v Secretary of State for Environment, Transport and the Regions ex p Spath Holme Ltd [2001] 2 AC 349, HL.

14.Next it is submitted for the appellant that on a proper reading of section 42(1), the prosecution must prove three elements for an offence to be established:

(a)  that a statement or representation was made to an immigration assistant;

(b)  that the statement or representation was in fact false; and

(c)  that the appellant knew it was false or, in the alternative, did not believe it to be true.

15.It is submitted that the prosecution must prove, in the circumstances of this case, that the operative representations in the Thai passport, that is to say, the place and date of birth as represented in the arrival and departure cards and the passport presented to the immigration assistant, were in fact false; and thereafter that the defendant knew they were false when he made them or that he did not believe to be true. The appellant goes on to submit that, as the allegedly false information is what the appellant was told by his family, it was hearsay and his admission as to its inaccuracy cannot be relied upon by the court to find that it was in fact false and that there is no other evidence of falsity. Thus it is submitted that whilst the two passports in this case contain different dates and places of birth, there is no admissible evidence to establish which, if either, is correct and which is false. Therefore, if the prosecution carries the burden of proving the falsity of the representation, it has failed to do so in this case and the convictions should be quashed.

16.The respondents submit that the interpretation of section 42(1) for which the appellant contends is simply not open on the plain meaning of the words and that it is not necessary for the prosecution to prove that the representation was false. The operative words are as to making any representation which he knows to be false or which he does not believe to be true, not making any false representation; and if the law draughtsman had wanted to include the word “false” in relation to the statement or representation, it would have been done.

17.The appellant says that if the prosecution are not required to prove the falsity of the representation, then it is conceivable that a person could be guilty of an offence under section 42(1) if he makes a representation which he does not believe to be true but which is in fact true. No specific example is given of such possibility but it is contended that if such an event were to arise, it would be absurd and therefore unjust for a person to be convicted of an offence on that basis and that accordingly, the legislature cannot have intended such an absurdity to arise.

18.I am in no doubt that the suggested ambiguity does not exist in this section of the Immigration Ordinance and its proper interpretation does not lead to any absurdity or injustice. The words of the section can be interpreted without the need to refer to other materials. Accordingly I decline to refer to them. Sub-section (1) is aimed at different conduct to the activities referred to in section 42(2) and that is why it is expressed in different terms.

19.There are, as the respondent has pointed out, other enactments where similar wording has been used and this shows that, contrary to the claim of the appellant, the formulation of this section is not the consequence of some drafting error or oversight. For example, section 31 of the Crimes Ordinance, creates the offence of perjury which may be committed if a sworn witness wilfully makes a statement in judicial proceedings which he knows to be false or does not believe to be true.

20.As to whether this sub-section requires proof of the falsity of any statement or representation, the words of section 42(1) are clear and plain. The actus reus of the offence created by the sub-section is the making or causing to be made of any statement or representation to, amongst others, an immigration assistant. The mens rea, aside from intentionally making the representation, is expressed in the alternative: knowing that any such statement or representation is false or not believing it to be true. The offence is aimed at those who tell lies to an immigration assistant, stating or representing what they know to be false or do not believe to be true: if someone knows that such a representation is false, it follows that the representation is in fact false; and if the prosecution can prove such knowledge, it would inevitably prove that it was false. On the other hand, if someone believes a representation he makes to be false, whether or not it is false is immaterial: he has told a lie about it by representing to be true that which he did not believe to be true; and in those circumstances, the actual falsity of the representation is not an element of the charge which the prosecution has to prove. Any assertion to the contrary in Archbold Hong Kong 2010 at paragraph 27-81 is, in my judgment, incorrect.

21.This approach is consistent with the dictum of Leonard J in R v Hussein Sharif HCMA 61/1994, which related to the same section of the Immigration Ordinance. The facts are not wholly dissimilar to the present case: the appellant there said he had been told by his mother that he was born in Lahore in 1953. When he applied for his first passport in 1989, he arbitrarily inserted Gujarat in 1951; and having obtained a passport with such false particulars, “he was obliged, for convenience, to stick with them”. As a result, he made representations in question, not believing them to be true. The grounds of appeal included the claim that, absent documentary proof, a person’s knowledge and belief as to his date of birth is hearsay. Leonard J held that, “If … a person is told by his mother where and when he was born and he believes it, and if he tells an immigration officer that he was born on another date in another place, he is clearly saying something he did not believe to be true.” He went on to say that when interviewed, the defendant in that case made a specific statement as to what his true date and place of birth were, and that was an admission against his interest.

22.It should be emphasised that the issue here is as to the appellant’s belief, not his knowledge. The prosecution was not seeking to prove when or where the accused was in fact born, only that he did not believe that he had been born in Nong Khai on 3rd October 1966. They were able to do so by reference to his clear admission in interview that he was born in Vientiane, Laos on 3rd September 1967, as well as aspects of his evidence, which established what his belief was.

23.The source of a person’s knowledge or belief as to his date and place of birth, if not from an official record, may well be what he has been told; but the fact is that most people, including this appellant, grow up “knowing” their birthday, and their place of birth, from what they have been told; and they act upon that information in the innumerable official or semi-official documents or activities with which most people deal in the course of everyday life, particularly businessmen like this appellant. That is the foundation for the belief and it is the belief which is in issue here in this case: for if he believed what he agreed he had been told, he cannot have believed that what he represented to the immigration assistant was true.

24.There was ample evidence upon which the magistrate could conclude that the appellant did not believe that the date and place of birth, which he represented to the immigration assistant by presenting his Thai passport and the arrival/departure cards, was true; and that he therefore committed the alleged offences. The appellant’s answers in interview and his admission in evidence, that he believed he was born in Vientiane, and thus that he did not believe that what he represented to the immigration assistant was true, are sufficient to found these convictions. The appeal against the convictions must therefore be dismissed.

25.As to the appeal against sentence, the magistrate demonstrated, by a review of various appeal cases, that the usual sentence imposed for this offence is in the range of 12 to 15 months’ imprisonment upon a plea of guilty. Most of the cases involve the use of a false travel documents or the use of genuine travel documents relating to another person with, for example, the photograph of the offender inserted. On occasions, the travel document, for example a PRC two-way permit, is obtained with a false date of birth to evade a prohibition on the offender entering Hong Kong. There, 18 months’ imprisonment after trial is the norm: see for example, Yim Lee Kuen (HCMA 1187/2002), which involved the use of a false two-way permit to enter Hong Kong.

26.The magistrate recognised that the circumstances of this case put it into a different category, hence the 8 month sentence after trial. It was pointed out, as has been said in many cases, that a person’s date of birth is an important element of the cross check of identity performed by all immigration authorities. The sentences were ordered to run concurrently for obvious reasons.

27.I take a different view from the magistrate. This being a rehearing, I must apply what I consider to be just without the need to judge the magistrate’s approach. I regard this case as being wholly exceptional. It was significant that this appellant had dual nationality and had two genuine passports, properly issued by each of the states in question. There was no evidence that the details on those passports, although different, had been obtained by any misrepresentation by him to the issuing state. Furthermore, there was no restriction on his entry to Hong Kong which he was seeking to evade and he would have been permitted to enter Hong Kong on his Australian passport. He chose to use the recently obtained Thai passport which he knew contained details about him which he did not believe to be true. It was difficult to discern any reason why he had obtained that passport, the reason he gave his evidence was unbelievable; but the respondent could not point to any sinister motive behind the appellant’s conduct. He had presented a boarding card to the immigration assistant in a different name to the passport, thus inviting the enquiry which followed.

28.Looking at the case in the round, including the fact that the appellant spent 43 days in custody prior to being granted bail pending appeal, and expressly without setting any precedent, I judge that whilst a sentence of imprisonment is appropriate in principle, it can be short and the circumstances are sufficiently exceptional to justify its suspension. Therefore I allow the appeal against sentence and vary the length of the sentence from 8 months to 3 months’ imprisonment, concurrent on each charge, which I suspend for 18 months from the 5th January 2010. The appellant has fully understood the effect of the suspended sentence.

Mr Ned Lai, Senior Public Prosecutor, for the Respondent

Mr Kevin Barry Egan, instructed by Messrs Lam & Co, for the Appellant