Cheung Yeuk-man v. The Queen
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CACC000981/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 981 OF 1974 -----------------
----------------- Coram: Trainor, J. Date of Judgment: 22nd January, 1975. ----------------- JUDGMENT ----------------- 1. Cheung Yeuk-man was charged in the Magistrate's Court with receiving money by means of a forged instrument contrary to Section 75(A) of the Crimes Ordinance, Cap.200. 2. The particulars of the offence were that he, on the 24th day of September, 1973 at Kai Tak Airport in this Colony, with intent to defraud did receive from Tse Tze-kwok a sum of $9,000 Hong Kong currency by virtue of a forged instrument, to wit a travel document purporting to be a Malaysian Passport bearing a forged Hong Kong immigration stamp knowing the same to be forged. He was convicted of that offence and was sent to 9 months' imprisonment. Against that decision he now appeals. 3. In the notice of appeal that was filed no grounds were set out, but a notice of intention to apply at the hearing of the appeal for leave to amend the notice by the addition of a number of grounds, that were set out in the notice, was filed. 4. Mr. Litton of the Inner Bar appeared for the appellant and with him was Mr. Cheung. 5. Mr. Litton took as his first argument what was in fact the sixth ground of appeal. That ground is as follows:
Before dealing with his argument it might, perhaps, be useful to examine the evidence that was given in the Court below. 6. The Madam Yeung referred to in the ground of appeal to which I have just referred came to Hong Kong in August, 1971. Her husband, Tse Tze-kwok, also mentioned in the ground of appeal, followed her in November, 1972. Whether they were born in China or not is not indicated although they were married in August, 1968 in Peking, Madam Yeung's parents live in Indonesia and in September 1973 she intended to go to Indonesia to have a child. She said she approached the appellant who is a travel agent and told him that she was in a hurry to go to Indonesia. At this time Madam Yeung had not applied for a Certificate of Identity, although she was in possession of an Identity Card. Madam Yeung said that the appellant told her that it would cost HK$8,000 for the necessary documents to enable her to go to Indonesia at an early date. She said there was some discussions between them and that the appellant said that it would cost HK$9,000 including the air ticket. It was not established when this interview took place but Madam Yeung said she was accompanied by her husband. 7. On the 18th of September 1973 Madam Yeung obtained a Certificate of Identity which the appellant told her to bring to him. This she did. She had already given him four photographs and he returned two of them. Madam Yeung told the Court that the appellant told her to go to the Airport on the 24th of September when it would be arranged for her to depart to Indonesia. She said she went to the Airport with her husband and some friends, and there met the appellant. She said that before she went to the departure lounge she received from the appellant a booklet containing air ticket, medical certificate and some other documents which she could not remember. These she handed to the Immigration Officer at the departure lounge. 8. When she was giving evidence, a Malaysia Passport purported to be in her name was shown to her. She said that was the first time she had ever seen the Passport. She said that she gave HK$9,000 to her husband to give to the appellant. 9. The cross-examination of Madam Yeung as shown on the record does not include any of the questions that were asked, and it is not clear if what is recorded is in fact the witness's full answer as it is written in what appears to be narrative form. However, it would seem that it was put to the witness that she had only seen the appellant on one occasion and that was on the 24th of September at the Airport. It would appear that she denied this saying that she had seen him about three time before she went to get her Certificate of Identity. It would also to seem that it was put to the witness that the appellant did not receive HK$9,000 from her husband; that only HK$9,000 for the air fare and for assisting her to check in was paid. She insisted that the appellant had received HK$9,000 from her husband. She also said that in addition to the HK$9,000 she, herself, paid to the appellant HK$350 to cover her excess baggage. 10. Tse Tze-kwok, the husband of Madam Yeung gave evidence. He said he went to see the appellant and asked him, as his wife was pregnant, if it were possible for her to go to Indonesia and told him that she had an Identity Card. He said that the appellant told him she could go but that would cost HK$9,000. He said that the appellant brought him and his wife to the Immigration Department to get a Certificate of Identity for his wife; something which his wife never mentioned. He said that the appellant said the HK$9,000 would include the cost of the air ticket. He said that at the Airport he handed over the HK$9,000 to the appellant, which he believed was the cost of the trip. 11. His cross-examination as in the record is very brief and is as follows:
12. The witness was shown by the Court the Passport that had been produced. He said that the photograph on it was that of his wife but he had never seen the passport before and that his wife was not a Malaysian citizen as stated in the passport. 13. An immigration officer, Mak Sui-keung, said that on the 24th of September, 1973 he was on duty at the Airport. He said he saw two passengers "trying to slip through the counter"; one was Madam Yeung. What he meant by "trying to slip through the counter" was not explained nor were any questions asked as to what he meant. 14. However, he said that Madam Yeung handed him the Malaysian Passport that was produced in Court, with an Immigration Arrival Stamp on it. He said he examined the passport and was satisfied with it and let her pass through. However, after checking another case he decided to re-check Madam Yeung's passport. He said he examined it and found that an Immigration Arrival Stamp was unusual, and he decided to report it. 15. Evidence was then called to show that an Immigration Arrival Stamp dated the 26th August, 1973, indicating the date at which the bearer of the passport had entered Hong Kong, was forged. 16. At the close of the prosecution case, it was submitted that there was no case to answer. The Magistrate over-ruled this submission and Mr. Shuen who appeared for the appellant announced that the appellant elected not to give evidence. 17. In his Statement of Findings, the learned Magistrate said that he accepted the evidence that Immigration Stamp on the passport was a forgery. He accepted that the HK$9,000 was received at the Airport on the 24th of September, 1973 in return for a passport, which Madam Yeung had never applied for, and which contained a forged stamp. He said that he believed that the defendant must have been aware of the forged stamp in the passport and received HK$9,000 in return for it and this was intended to defraud the Immigration Department. 18. In his judgment before convicting the appellant, the learned Magistrate stated that the amount involved could not possibly have been for the airline ticket to Jakarta only, as was suggested in the cross-examination. In his Statement of Findings he said:
It is difficult to see this suggestion in the cross-examination as is recorded. 19. It would appear to me that the suggestion was that the defendant only received HK$900 for the air fare. 20. It was Mr. Litton's contention that there was ample evidence before the learned Magistrate to suggest that Madam Yeung and her husband were accomplices in the effort to deceive the Immigration Authority at the Airport. Why, he asked, should the immigration officer use the words "slip through" if it did not suggest something furtive. If such was the case did it not indicate guilty knowledge; and, he suggested, it would be unrealistic to assume innocence on her part. He argued that if Madam Yeung were the guilty party then it would be very easy for her to try to escape responsibility by placing it on the appellant. 21. Mr. Litton argued that Madam Yeung must have been trying to deceive the Hong Kong authorities and this is established in that:
22. Mr. Litton referred to the observation made by the magistrate in his judgment about the air fare to Indonesia: "The amount involved could not possibly be the cost of the airline ticket"; and in his Statement of Findings: "It was suggested in cross-examination that the HK$9,000 was the cost of an airline ticket to Jakarta which I rejected". That Madam Yeung paid, as the Magistrate seemed to find, considerably in excess of the air fare suggested that she was a party to the forgery. That she knowingly made use of it was established by her pleading guilty to the offence of using a forged instrument. 23. All of these elements want to establish that Madam Yeung was, at the least, an accomplice of the appellant; and there was evidence to show her husband's complicity also, it was he handed over the money. 24. Counsel referred to the well established principle of the danger of convicting on the uncorroborated evidence of an accomplice. He argued that although the learned Magistrate might have convicted if he believed the evidence of Madam Yeung and her husband without independent corroboration, but he could only do so if he adverted to their position and decided to convict despite the lack of corroboration. He maintained that in this case there was an obligation on him to consider if there was evidence on which it could be held that the witnesses were accomplices and if there were to decide, as a jury would have to decide, if they were in fact accomplices (although not cited the House of Lords case Davies v. D.P.P. 1954 A.C. 378 is in point). If he held they were accomplices then he must expressly direct himself on the danger of convicting without corroboration and, moreover, say so in his judgment or Statement of Findings. 25. Counsel pointed out that nowhere in the report had the Magistrate referred to the possibility of the two principal witnesses being accomplices, and suggested that this was due to the fact that he had not considered it. He said that had the Magistrate done so he should have expressed a finding on the point as to whether or not he had considered them as accomplices when availing of their evidence to convict the accused. 26. Mr. Litton, referred me to a decision of the Full Court: R. v. Chan Siu-wong 1970 H.K.L.R. 61, the head note to which reads:
27. It is not necessary to refer to the facts of the case as the point of relevance is abundantly clear from the part of the Court's judgment read by Sir Ivo Rigby C.J. which was cited: (p.67)
28. In the judgment reference was made to Chiu Man Hong v. Public Prosecutor (1964) 1 W.L.R. 1279, a Privy Council case. In the report of the Council it was said (1285):
29. Mr. Harte for the Crown conceded that if there was evidence that would tend to show that Madam Yeung and her husband were accomplices then the conviction must be quashed. He argued, however, that there was no such evidence. He maintained that the evidence was that Madam Yeung or her husband handed over HK$9,000 and were given the Malaysian passport. The evidence he maintained was that up to that moment they were innocently unaware that anything improper had been perpetrated. So far as the appellant was concerned the offence was complete. He argued that it was an offence for her to act on the passport but what she did was ex post facto and neither she nor her husband could be deemed to be accomplices. 30. Attractive though Mr. Harte's argument may be there was her evidence that she never saw the passport until she saw it in the Court below. But there was also her, conceded, plea of guilty to using it knowing it to be forged. There was in addition evidence of the payment of a very considerable sum of money which the learned Magistrate concluded could not possibly have been the cost of the air fare. 31. On reading the record of the case in the Court below an aura of suspicion surrounds the evidence of the two principal witnesses. That there were very strong grounds for suspecting them of being accomplices is inescapable. Whether the learned Magistrate adverted to that or not is not indicated in the record. If he did advert to it he should have expressed his finding on it. If he concluded they were accomplices but decided nevertheless to act on their evidence he should have stated so either in his judgment or his Statement of Findings. 32. Having heard the argument of Counsel I treated the application to file grounds of appeal as the appeal, and as there is nothing whatever on the record to suggest that the learned Magistrate ever considered the possibility of the two witnesses being accomplices I allowed the appeal. 33. I now give my reasons for doing so. Representation: H. Litton, Q.C. and K-John Cheung (S.C. Mok & Co.) for Appellant. Harte, C.C. for Respondent. |