Cheng Tien-fung v. The Queen
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CACC001168/1977
Coram: Briggs, C.J., Pickering, J.A. and Trainor, J. Date of Judgment: 5th May, 1978. ----------------- JUDGMENT ----------------- Trainor, J.: 1. The appellant was convicted of three offences contrary to section 42 (2) (c) (i) of the Immigration Ordinance. The particulars of the offence in each count were, mutatis mutandis, identical and alleged that the appellant had "in his possession a forged false or unlawfully obtained travel document, namely a Hong Kong Certificate of Identity ..... issued in the name of ..... in that an Entry Visa No. ..... purporting to be issued by the Consul for the United States of America was falsely endorsed thereon". His appeal originally against conviction and sentence now is against conviction only. 2. There were two grounds of appeal:
3. I propose to deal with the second ground of appeal first, and to do so I do not think it necessary to dwell on the facts of the case save to state that it was common case that, initially, the certificates of identity in each count was a valid one, and that the visa endorsed on it was a forgery. 4. The case for the appellant, which was presented by Mr. Litton, Q.C., was, in a nutshell, that the accused was not in possession of forged certificates of identity, whatever might be said about the visae. Mr. Litton pointed out that the accused was charged with being in possession of forged travel documents, namely certificates of identity whereas the certificates were and are by definition travel documents valid in every way. The fact that there is a forged visa endorsed does not affect a travel document as such; a visa is not part of a travel document and may exist independently of such a document be it a passport or a certificate of identity. 5. It might help to remember the definition of a travel document as set out in section 2 of the Immigration Ordinance Cap. 115.
It might also help to remember the section under which the appellant was charged, section 42 (2) (c) (i): "Any person who - (c) has in his possession -
6. It will be noted that the accused was charged with being in possession of "a forged, false or unlawfully obtained travel document"; not with being in possession of an unlawfully "altered travel document." 7. It was conceded by Mr. Dicks, Counsel for the Crown that the Crown did not rely on the allegation that the certificates of identity were unlawfully obtained. The question then is, were the travel documents forged or false? 8. There is no definition of forgery in the Immigration Ordinance therefore recourse may be had to the Crimes Ordinance. There it is stated in section 69 (1) that "forgery is the making of a false document in order that it may be used as genuine ....." and that forgery with intent to deceive is an offence. Subsection (2) of the section then defines a false document:
9. Clearly if the matter ended there the travel documents with which this case is concerned are not forgeries. The subsection continues however,
Has any material alteration been made "therein"? I put the word "therein" in parenthesis to emphasise that that is the word used and not "thereto". I do so because the word "therein" suggests an alteration which materially changes the inherent characteristics of the document concerned. 10. In England the common law offence of forgery was made a statutory offence in 1913, and in Hong Kong the Act, the Forgery Act, 1913, was adopted without change in the Crimes Ordinance. 11. It is a fundamental principle in the interpretation of legislation that it must be interpreted to conform with the pre-existing law except in so far as a departure from it is clearly discernible. In the Privy Council case Murugiah v. Gainudeen (1955) A.C.,145 Lord Morton of Henryton at 152/3 said:
There is no indication in the Forgery Act, 1913 that the legislature intended to depart from the general principles theretofore governing the offence of forgery but rather to establish by legislation what had previously prevailed and incorporate the jurisprudence associated with it. The result is that one is able to derive assistance from many of the old cases. One of the earliest is the case of R. v. Dunn (1765) 1 Leach 57. The facts are irrelevant but in it Aston, J., expressed the view that to constitute a forgery the instrument itself must be false, and subscribing a fictitious name to a promissory note did not constitute a forgery. The other nine judges held that to do so was capital forgery. The point of importance is, however, that the opinion of Aston, J. was approved by the Court for Crown Cases Reserved in R. v. Martin (1879) 5 Q.B.D., 34 which held that in all forgeries the instrument alleged to be false must be a false instrument in itself. The view expressed in Martin was a reflection of what was earlier decided in R. v. Windsor, (1865) 10 Cox 118, described in Russell on Crimes, 12 Edn.,1227, as the leading case on the point: In that case at 123 Blackburn, J., said:
12. The decisions in many of the old cases are not always easy to reconcile but eventually there emerged a common view which is reflected in the aphorism used by Mr. Litton: "the document must not only tell a lie but must tell a lie about itself". 13. In the instant case the travel documents, the certificates of identification, were and still are genuine and valid travel documents. It is true that their pristine appearance has not been enhanced by the impression of spurious visae; there is an alteration to the travel documents, but there is no alteration "therein". Section 69 (2) (a) of the Crimes Ordinance states that, in particular, a document is false if by the addition to it there is a material alteration in it but in this case there is no alteration "in" the documents, they still truly fulfill the requirements of the definition in section 2 of the Ordinance. A visa is an indication by a country that a person has been considered suitable to apply for entry to that country, usually for a limited number of visits. It is usually, and for convenience impressed on a passport or travel document; but it can exist independently of them. The impression of a visa on such documents does not change them in a material, or any way, and it makes no difference to the passport or travel document as such whether the visa is spurious or not. 14. The certificates of identity in this case say that they are travel documents properly issuing from the body authorised to issue them, and that is perfectly true. The documents then say that the holders are entitled to apply for permission to enter the United States of America. That is a lie; but it is not a lie about the certificates of identity. 15. I would allow the appeal but with great reluctance, and at a loss to understand why the prosecution was not brought under the Crimes Ordinance. 16. My decision renders it unnecessary for me to deal with the first ground but if the appeal had turned on it I would have disallowed the appeal. What the accused was charged with in each count was in effect possession of a spurious document in that the document was forged, false or unlawfully obtained. The essence of the charge was possession of such a document and that is a single charge; as to how the document was spurious was a matter of particularisation. Representation:
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----------------- Coram: Briggs, C.J., Pickering, J.A. & Trainor, J. Date of Judgment: 5th May, 1978. ----------------- JUDGMENT ----------------- Pickering, J.A.: 17. At the time of its issue each certificate of identity was a valid travel document. The first two such travel documents subsequently had imprinted upon each a visa which was forged whilst the third received the imprint of a visa which, though not forged, was bogus in that it had never been authorised by the purported issuing authority, the United States Consulate. The question in each case is did the endorsement of the travel document with the visa render the former forged or false as a travel document? A travel document is defined in section 2 of the Immigration Ordinance, Cap. 115 as "a passport furnished with a photograph of the holder, or some other document establishing to the satisfaction of an immigration officer the identity and nationality of the holder" and it is Mr. Litton's contention that in regard to both identity and nationality - or more accurately in these three instances, statelessness - the documents tell the truth and, being issued in the conventional manner by the proper authority are and remain, despite the addition of the unauthorised visas, genuine travel documents. Had the visa, Mr. Litton rightly argues, been in the form of a separate document, such as a letter, intended for use in conjunction with the appropriate certificate of indentity, it could not have been suggested that the certificate of identity was anything but valid. The mere imprinting of the bogus visa upon the valid certificate of identity, the argument continues, does not render the latter forged or false as a travel document; indeed, it is said, if a dozen travel visas valid for entry into different countries were to be imprinted on the pages of the certificate of identity in addition to the spurious visa the certificate would be capable of being used for the purpose of travel to any of those twelve countries and would therefore be a valid travel document. 18. As against these arguments, Mr. Dick, for the Crown, contends that the visas being bogus, the imprinting of them upon the certificates of identity renders those documents forged or false travel documents tainted with the characteristics of the visas. 19. The question is a subtle one and there is no doubt that the appellant should have been charged under the Crimes Ordinance (Cap. 200) when, as Mr. Litton concedes, he must on the evidence, have been convicted no appeal upon the lines now canvassed then being possible. It is however on the basis of the charge as framed that we must deal with this appeal and as it appears to me the restrictive definition of "travel document" set out above lends merit to Mr. Litton's argument. That definition, it is to be noted, is all-embracing the phrase used being not "includes" but "means". Had it been otherwise it might have been possible to come to a different conclusion but on the basis of that definition I do not think it possible to hold that what was here "forged" or "false" (the Crown did not seek to rely on "improperly obtained") was a travel document. 20. For that reason and for the reasons advanced by my learned brother Trainor A.J.A. I would allow the appeal and I thus find it unnecessary to deal with the argument based upon alleged duplicity of the charge. Representation: H. Litton, Q.C. & J. Kwong (K.Y. Woo & Co.) for appellant. J.W. Dick for Crown/respondent.
Coram: Briggs, C.J. Pickering, J.A. and Trainor, J. Date of Judgment: 5th May, 1978. ----------------- JUDGMENT ----------------- 21. The appellant was convicted of three offences of possession of a forged, false or unlawfully obtained travel document contrary to section 42 (2) (c) (i) of the Immigration Ordinance and sentenced to three consecutive terms of imprisonment for nine months. He appeals against his conviction. Originally, there was an appeal against sentence but this has been abandoned. 22. At the material time the appellant was a travel agent. Three persons with the surname Chan approached the appellant between March and July 1976. They wished to travel to the United States. Certificates of Identity were obtained on the instructions of the appellant from the Immigration Department. These were handed to the appellant. When they were returned, they each had been endorsed with a visa for entry to the United States. It is now common ground that these endorsements were forged or false. The appellant also provided an air ticket in each case. It is also agreed that the sums paid for the air tickets to the appellant were well in excess of the proper cost of such tickets. 23. Evidence was given that in order to obtain a visa to enter the United States it is necessary to apply to the American Consulate. A form is provided which must be filled in by the applicant who must supply a photograph of himself. The applicant must also sign the form. 24. Mrs. Chan (P.W. 2) testified that she handed the appellant a photograph of herself with her Certificate of Identity. She did not fill in any application form though such a form, bearing her photograph and filled in with incorrect details, was exhibited in court. That form purported to have been her signature. Similar evidence was given by Mr. Chan (F.W.3). Each witness said that the signature on the application form was a false signature. No application form concerning the other Mr. Chan (P.W. 5) was put in evidence. These three witnesses were rightly, in my opinion, treated as accomplices by the trial judge. 25. There are two grounds of appeal: (1) that the charges are bad for duplicity and (2) that the facts showed that it was not a travel document (as defined in the Immigration Ordinance) which was forged or false but an entry visa which is not by definition a travel document. 26. Each charge contains the words "possessing a forged, false or unlawfully obtained travel document". The argument for the appellant is that this refers to two or possibly three separate offences in one charge. If that were so the charge would be bad for duplicity. But I do not think that it is so. The test seems to be: Does the charge deal with two or more different activities? If it does, it is bad for duplicity. 27. In Ware v. Fox (1) the charge referred to the management of premises which were used for the purpose of smoking cannabis and used for the purpose of dealing in cannabis. Two different acts were involved: use for smoking and use for dealing. This case and the other cases relied on by the appellant clearly show that the distinction is that where the charge states one offence with alternative methods of committing it the charge is not bad for duplicity if it includes all the alternatives. It will be bad for duplicity, however, if two or more offences are charged in one charge. 28. In my view, in the present case, each of the three charges is concerned with one offence, one actus only, i.e. possession. In my view the charges are not bad for duplicity. 29. Mr. Litton, for the appellant, goes further. Not only does he say that the charges are bad for duplicity on their face but also that the evidence adduced by the prosecution showed that the Crown's case was that the Certificates of Identity were both unlawfully obtained and forged. He points to the evidence concerning the application forms for visas. The reason for the introduction of this evidence he suggests is that it was sought to prove that the documents were unlawfully obtained not that they were forged. Evidence as to the forgery was given by other witnesses. With respect, I do not agree with this. The reason for this particular evidence was to associate the appellant with the forged or false documents. For example, Mrs. Chan gave evidence that she handed her Certificate of Identity, her photograph and a large sum of money to the appellant who later returned her Certificate of Identity with a visa endorsed on it and an air ticket. She never filled in any application form for a visa and the visa was a forged visa. She proved that the appellant handed her the Certificate of Identity with its forged visa to her and that it came from his possession. 30. It is clear from the record also that the Crown did not bare their case on 'unlawfully obtaining'. This was specifically stated in Court. And that the trial judge understood this to be so is shown in the final words of his judgment. 31. The second ground of appeal relies on the definition of 'travel document' contained in the Ordinance. This reads as follows: -
A visa is not a 'travel document' within this definition and it was the visa which was forged and not the Certificate of Identity itself. 32. Mention was made of the well-known rule of law that when it is alleged that a document is a forgery it must be shown that the document tells a lie about itself. 33. For my part, I do not think that a visa endorsed on a travel document can be separated from that document. The visa, if it is endorsed on the document becomes an integral part of that document. Further, if it is a forged visa the document is telling a lie on its face about itself. It says the holder may apply to enter the United States when, because of the forgery, the holder has no right to do so. 34. A visa is only endorsed on a travel document for convenience, it is true. But I do not think that that alters the situation. If the visa were contained in a separate document and not endorsed on the travel document its forgery would not affect the genuineness of the travel document. But where, as here, the visa is endorsed on the travel document it forms part of the travel document and I do not see how it can be considered separately from it. 35. I would dismiss this appeal.
Representation: Litton, Q.C. & J. Kwong (K.Y. Woo & Co.) for appellant Dick for crown (1) (1967) 1 All E.R. 100. |
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