Cheung Man v. The Queen

CACC000928/1983

Criminal Appeal No.928/83

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

APPELLATE JURISDICTION

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(Case No. W5416 of 1983)

BETWEEN

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Coram: Hooper, J.

Date: 7th September, 1983

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JUDGMENT

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1. The Appellant appeared before the Magistrate at Western Magistracy on the 7th of June 1983 charged with using an unlawfully altered Re-Entry Permit for the purpose of Part II of the Immigration Ordinance, contrary to section 42(2)(b) of the Immigration Ordinance, Cap.115. The Prosecution called three witnesses, all Immigration Officers and the Re-Entry Permit Number J665948 was produced as Exhibit P1. A submission of No Case to answer was rejected and the Appellant elected to give evidence but did not call witnesses. At the completion of the trial the Magistrate convicted the Appellant and fined him $300.

2. The Magistrate made the following findings of fact:-

3. It had been the Appellant's case at the trial that the particulars page of his travel document had been torn out by his girl - friend who did not like him going to Macau. He had said that this happened approximately between the end of 1982 and the start of 1983 and that he had used the Re-Entry Permit in that state on trips to Macau without difficulty. He contended his Re-Entry Permit was damaged and he did not know if that fell within the definition of "alter." In his reasons for decision the Magistrate said

"I found the tearing out of the page was plainly an alteration of P1, as P1 without that page was then totally different in form, content, substance and appearance. The re-attaching of the page did not mean that the alteration had been cured as P1 with the torn out page reattached was still different in form and appearance from its form and appearance at its date of issue as it had not been issued with a torn page attached to it by cellotape. Section 42(2)(b) of Cap.115 refers to the alteration of 'the Re-Entry Permit' and does not refer specifically to the alteration of the content, information or particulars. What had been done to P1 was an alteration to P1 and that alteration was not, and indeed on the wording of section 42(2)(b) of Cap.115 could not be cured by the re-attachment. I could not accept the Appellant's contention that "alteration" was limited to an alteration of the name or particulars in the Re-Entry Permit, in view of the clear reference to "Re-Entry Permit" in section 42(2)(b) of Cap.115."

4. There are a number of grounds of Appeal but the only one on which Mr. Bharwaney for the Appellant has relied is the ground that the Magistrate erred in finding that the Re-Entry Permit had been altered.

5. Mr. Bharwaney argues that section 42 is divided in to a number of subsections which create different offences. Subsection 1 deals. with false statements or representations which the offender knows to be false or does not believe to be true. Subsection 2 creates three categories of offence (a) altering or forging any travel document etc. (b) using for the purposes of parts II, III or IV of this Ordinance any forged false or unlawfully obtained or altered travel document etc. and (c) possession of any forged false or unlawfully obtained or altered travel document etc. Mr. Bharwaney argues that forgery relates to a document which lies about itself. In other words that there is an element of falsity. He further points out that the meaning of unlawfully obtaining documents is further explained in subsection 3 which is a deeming subsection. This provides

"A travel document (etc.) shall be deemed to be unlawfully obtained for the purposes of this section if any person made a false statement or representation for the purposes of or in connexion with an application for the issue or the renewal of the same."

Again he points out there is an element of falsity still required. In this connection he draws attention to subsection 5 which reads

"In this section, "false" means false in a material particular."

6. This, says Mr. Bharwaney, indicates an intention on the part of the legislature that they are not concerned with trivial but rather material particulars. Unfortunately he says there is no definition in the Ordinance as regards the word''alter''or''alteration''. He refers to the definition of the word''alter" in the English dictionary which is in rather wide terms. However it is Mr. Bharwaney's contention that the Ejusdem Generis Rule should be applied so that a person is only guilty of such an offence if he uses a travel document which has been altered so as to make it false in some aspect; there must be an element of falsity before the offence is committed under the section he says. To illustrate his argument he gave a number of examples showing how a travel document could be physically altered both accidentally and by way of human agency without the document telling a lie about itself, such as where the document is dropped into the sea or has ink spilt upon it.

7. Mr. Alderdice for the Crown does not really seek to support the conviction but feels that the Magistrate's finding that the document has been altered cannot be upset. He says that it is almost a De Minimis situation. He thinks the solution to the problem might be found in an examination of the mens rea required for this offence.

8. I agree with Mr. Bharwaney that this appeal must be determined on the construction to be placed upon the word alter as it appears in section 42. The Appellant had knowledge of all the facts which were relevant to this case.

9. The first thing to bear in mind is that section 19 of the Interpretation and General Clauses Ordinance requires that

"An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

10. It would make a complete mockery of the law if every single physical alteration of a travel document were to be held to be an alteration within the meaning of this section. If a travel document falls into the sea and is damaged, but not to the extent that the particulars of the travel document are altered in any way, one wonders what the mischief could possibly be which needs to be remedied by statute. If a travel document is torn either by wear or tear or by some human agency but there is no alteration of the material particulars of the document, again one must wonder what mischief could possibly be required to be remedied.

11. The learned Magistrate in the present case has adopted a very wide interpretation of the meaning of the word 'alter'. With the greatest respect to him that would not seem to be in keeping with the principle set out in section 19 to which I have referred.⁽¹⁾

12. The third prosecution witness was allowed in the Magistrate's Court to give evidence as to what he considered amounted to an alteration. With respect to the Magistrate I do not think that he should have been given the opportunity of expressing an opinion on a matter of law.

13. I do not consider that a torn page in a travel document would constitute an alteration of the travel document unless it interferred in some way with the material particulars of the travel document so as to alter them in some way. Extending the logic of the argument further should the tear extend right across the page so as to render the page loose, then provided that the material particulars of the document are not changed in any way and the loose page is kept with the travel document or is stapled to it or affixed to it, I do not see how there is any mischief which needs to be remedied. The repair of a tear would not appear to me to be conduct requiring a punitive sanction.

14. It is also an offence under subsection 2 for a person to be in possession of an altered travel document. One wonders, if the Magistrate was right, what the unfortunate holder of the travel document was supposed to have done after his girlfriend had torn out the page. If it was an offence to possess an altered travel document in these circumstances was he supposed to throw his hands up in the air and say "I no longer possess that document don't give it to me, take it away. "If the tearing out of the page in the travel document constituted an alteration within the meaning of the ordinance then, unless the holder of the passport had divested himself of the animus possedendi in respect of that document, he was committing an offence.

(1) See Reg. v. LAM Wu-nam 1976 HKLR 423 at P.431 Per Pickering, J.A.

15. I cannot subscribe to such a view. As long as he had the intention to retain or possess a travel document which had not been altered in any way so as to alter the particulars even though it had been damaged,then in my view he was not committing any offence.

16. I hold that "altered" travel document does not mean "damaged" travel document unless the damage alters the material particulars in some way. I hold that the repair of a damaged travel document by the use of cellotape also does not amount to an alteration of a travel document. I hold that or. the facts of this case there was not sufficient evidence to enable the Magistrate to convict the Appellant and I therefore allow this appeal and quash the conviction.

Representation:

Mr. Bharwaney (Robert W.H. Wang & Co.) for Appellant.

Mr. G.W. Alderdice, DPCC for Crown/Respondent.