HKSAR v. K.C. Dipendra

HCMA 734/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 734 OF 2014

(ON APPEAL FROM STCC 1791 OF 2014)

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JUDGMENT

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1.The appellant was convicted after trial by a magistrate[1] for the offence of Using a False Instrument contrary to section 73 of the Crimes Ordinance, Cap 200. He was sentenced to 6 months’ imprisonment. The appellant appealed against his conviction.

2.The appellant was found to have knowingly submitted a false document namely a letter purportedly signed by his wife in support of his application to the Immigration Department (ID) to extend his stay in Hong Kong when in fact he knew that the wife did not sign or write the letter. 

3.The defence case at trial was that the wife had signed the letter in support of his application. 

4.The main issue before the magistrate was whether the wife of the appellant had signed on the letter exhibited as P6 in support of his application for an extension of stay.  The magistrate found that she had not signed the letter P6.

5.The appellant’s wife Ms Sumi Sabba (PW1) and an immigration officer who was responsible for processing the appellant’s application PW2 gave evidence for the prosecution.  The defendant elected to remain silent.  The credibility of the wife was of significance in proving the case against the appellant.  

The prosecution case

6.I shall set out the detailed background of the case. The appellant and the wife are Nepalese.  The wife came to Hong Kong in 1996 and had become a permanent resident.  As of November 2014 the appellant and the wife had been married for almost 9 years but had already separated and were living apart for almost 2 years. 

7.On 24July 2008, the ID received an application by the appellant for an entry permit as a dependent applicant.  His wife, PW1 was the sponsor of the application.

8.The appellant arrived in Hong Kong on 31 March 2009 and was granted conditional stay in Hong Kong until 31 March 2010. Subsequently, the appellant was granted an extension of conditional stay in Hong Kong until 31 March 2013.  The wife was also the sponsor of that application. 

9.The wife submitted a letter dated 15 September 2011 headed “Cancellation of Sponsorship” to the ID in respect of the appellant [Exhibit P9].  The letter was to inform the ID that she will not sponsor the appellant anymore in his application as they had a dispute and were not staying together. 

10.On 20 September 2011, the ID responded by sending a reply to the wife to confirm that the ID has noted her withdrawal of sponsorship of the appellant [Exhibit P11]. 

11.After the wife had sent the letter P9 to the ID, the appellant begged for her forgiveness.  She gave him a chance and made up however the reconciliation did not last long.

12.On 18 September 2012, the wife sent another letter to the ID [Exhibit P10] by e-mail.  In the letter she stated the following :

(i)  She no longer wanted to sponsor the appellant;

(ii)  The appellant has taken her signature in one of the Immigration forms by force;

(iii)  She was forced to sign the form as he threatened to physically harm her; and

(iv)  She had reported the matter to the police and also filed for divorce.

13.It was the wife’s evidence that the appellant had gone to her home once sometime on or before 18 September 2012 and forced her to sign forms in support of his application for an extension of stay. 

14.About 5 months later on 14 February 2013 the appellant submitted documents in support of his application for his extension of stay in Hong Kong with his wife as his sponsor once again.  The wife’s testimony was that she never supported this application for extension of his stay in Hong Kong. 

15.The documents submitted was a completed application form dated 14 February 2013 for an extension of stay in Hong Kong [Exhibit P3] signed by himself, a completed Declaration of Dependent Applicant dated 14 February 2013 [Exhibit P4] signed by himself.  A completed Declaration of Sponsor (the wife) dated 14 February 2013 purportedly signed by the wife [Exhibit P5].  The wife testified at the trial that she did not sign on Exhibit P5, however this was not the subject of any charge. 

16.PW2 was the immigration officer responsible for processing the appellant’s application for extension of stay and who received the appellant’s application for an extension of stay.  After submission of the documents in February 2013, on 5 March 2013 the appellant enquired with PW2 in person at the ID about the progress of his application of extension of stay.  Having checked the records she saw the wife’s two previous letters of withdrawal of the appellant’s sponsorship. PW2 therefore requested the appellant to ask his wife to write a letter to the ID to confirm she now reverses her position and was willing to continue to sponsor his stay in Hong Kong. 

17.On 7 March 2013, the appellant submitted a hand-written letter dated 7 March 2013 to PW2 at the counter of the ID as requested by PW2 purportedly signed by his wife [Exhibit P6.]  This letter P6 was the false document referred to in the charge.  The contents of the letter amongst other things was that although the appellant and the wife had a period of separation in 2011 the wife now supported the appellant’s present application for his extension of stay.  The wife said she did not write nor did she sign the letter.  The handwriting in the letter was not hers. 

18.The immigration officer took the letter purportedly signed by the wife back to her seat behind the counter and checked the records.  She discovered that the signature on the letter was not identical to the signature on one of the other forms signed by the wife.  She therefore asked the appellant to bring his wife to the ID office on 15 March 2013 for an interview.  The appellant agreed to do so and left.

19.On 14 March 2013 PW2 received a phone call from the appellant that his wife was busy and that she could not come for an interview with her.  PW2 then asked the appellant to give her the wife’s telephone number, to which he gave her the number 9680 7925, subsequently known to be his own telephone number. 

20.About a week later on 21 March 2013, PW2 called the number given intending to speak to the wife.  A female answered the phone claiming to be the wife of the appellant.  The female confirmed to PW2 that she wished to sponsor the appellant and that she had written a letter in support on 7 March 2013 as they had reconciled even though they had separated.  PW2 told the female to write another letter to confirm that she was willing to sponsor the appellant as the signature on the letter did not match the signature on the record.  By 21 March 2013 the wife was in Nepal.  She had departed from Hong Kong on 9 March 2013.

21.At the same time PW2 also requested the female to go her office at the ID for an interview.  However the female claimed she was very busy and would leave to Nepal the following day, 22 March 2013 and did not know when she would return.  Shortly after the conversation PW2 received a fax copy of a flight itinerary in the wife’s name.  It was a single journey to Nepal with the departure date of 22 March 2013. 

22.On 25 March 2013, PW2 conducted a movement record check.  She found that the wife had already departed from Hong Kong on 9 March 2013.  The wife confirmed she was in Nepal from 9 March 2013 to 13 April 2013.

23.On 15 April 2013 the ID received an envelope containing a form sponsoring the appellant for his stay in Hong Kong (exhibit D1). This letter was purportedly sent and signed by the wife from Nepal on 8 April 2013.

24.The wife denied she had received a telephone call from the ID when she was in Nepal, that she had faxed her itinerary to the ID and that she sent the letter from Nepal to Hong Kong.

The defence case

25.The appellant’s case at trial was that his wife had signed on the hand-written letter (exhibit P6).  It was unclear from the transcript what the appellant’s case was in respect of the body of the letter.  Was it the case that the appellant wrote the body and forced his wife to sign it or was it that his wife voluntarily signed and wrote the letter. 

26.At the present appeal hearing Mrs Panesar counsel for the appellant accepted that it was not put on the appellant’s behalf at trial who was the author of the letter P6.  She recognized that the defence case at trial was ambiguous (she was not the trial counsel).  She remarked that the cross-examination of the wife was confusing and muddled, however she approached the appeal on the basis that the wife signed the letter but did not write its contents. 

The magistrate’s findings

27.The magistrate found the wife to be a credible and reliable witness.  He believed her evidence that she did not write nor did she sign on the letter P6. He accepted the evidence of the immigration officer.  He was satisfied prior to 5 March 2013 the appellant did not know of the letters written by the wife to the ID cancelling her sponsorship for him.  He accepted that the wife did not tell the appellant about those letters.  He found that it was only on 5 March 2013 the appellant came to know of the wife’s notice of her cancellation of her sponsorship because the immigration officer told the appellant to tell his wife to write a letter to confirm she would reverse her position and retract the cancellation of her sponsorship and now sponsor his stay in Hong Kong. 

28.He was sure beyond reasonable doubt that the letter was not one of the documents the wife was forced to sign on or before 18 September 2012.  He concluded that the letter P6 was created only after the appellant’s meeting with the immigration officer on 5 March 2013, that being between 5 and 7 March 2013.

29.In light of the evidence he found that that the letter P6 was a false document and the appellant knew that it was false.

Grounds of appeal

30.The appellant raised six grounds of appeal. 

31.Ground 1 was that the magistrate failed to consider at all the evidence that the letter P6 may have been one of the documents signed by the wife on or before 18 September 2012, even if it was not written by her and was therefore her genuine signature.  The wife had given contradictory and inconsistent statements in that she said she signed documents given to her by the appellant for his application for an extension of his stay but denied she signed the letter P6.  The appellant submitted that the wife signed the documents voluntarily.  Alternatively even if the wife had signed the letter under duress or fear of the appellant, signing of the letter under duress was not a false document.  In any event the appellant did not know or believe it was a false document as that was the wife’s signature. 

32.Ground 2, 6 and 7 was that the magistrate failed to consider whether the wife had framed up the appellant as she asserted that she hated the appellant and she would take revenge against him.  She had a motive to frame him up.  She had lied when in her letter P10 to the ID she said she had already filed for divorce when she had not.  The magistrate erred in not finding there was a lurking doubt in the wife’s evidence. 

33.Ground 3 was that the magistrate erred in accepting the wife’s assertions that she was neither the author nor signatory of the letter P6 in the absence of expert evidence on handwriting. 

34.Ground 4 was that the magistrate erred in finding that the letter P6 was not created on or before 18 September 2012 but only after 5 March 2013. 

35.Ground 5 was abandoned. 

Analysis

36.Dealing first with ground 3.  There was no merit in this ground as the magistrate properly considered there was no need for a handwriting expert as the issue was the credibility of the wife as to whether it was her signature or not on the letter P6.  He said at paragraph 8 (xi) of his statement of findings:-

“…….

(xi)The defence counsel showed PW1 Exhibit D3 which bore a signature of PW1 who agreed it was her genuine signature. The defence counsel then put it to PW1 that since the signature in Exhibit D3 was identical to that of Exhibit P6, the signature in Exhibit P6 was PW1’s genuine signature. PW1 denied it. PW1 repeated that neither the writing nor the signature in Exhibit P6 was hers. I was of the opinion that it was a non-starter to suggest that since the two signatures in Exhibit P6 and Exhibit D3 looked identical, then the two signatures must come from the same signatory and hence both of them must be genuine. In this connection, I noted that neither party adduced hand-writing expert evidence regarding the signature in Exhibit P6. The court could therefore only rely on PW1’s evidence to decide whether the signature in Exhibit P6 was PW1’s or not. As such, I had warned myself that I had to be very careful and skeptical in considering PW1’s evidence;”

37.I shall deal with the grounds 1, 2, 6 and 7 in the grounds of appeal collectively pertaining to the failure of the magistrate to properly evaluate the evidence of the wife and his finding that she was a witness of truth.

38.In the wife’s evidence she had confessed to an intense hatred of the appellant because of the alleged physical abuse and mental distress caused by the appellant as he fathered a son with another woman.  She said she desired to take revenge on him.  Consequentially the appellant contended that the wife was trying to put the appellant in jail, expel him from Hong Kong and therefore fabricated her account and framed him. 

39.The magistrate carefully took these matters complained of into account when considering the wife’s credibility.  He carefully evaluated and assessed the evidence of the wife before arriving at his conclusion.  He said at paragraph 8 of the statement of findings: -

“8. I had the following observations on PW1’s evidence:

(i) Despite PW1 had separated from the defendant for almost 2 years, PW1 was still very emotional and angry against the defendant when she testified in court. Indeed, during cross-examination, she frankly admitted that she hated the defendant because the defendant had cheated on her and had abused her. She also admitted that she would do whatever she could to revenge against the defendant (but she added that she did the right thing by cancelling his visa). In analyzing PW1’s evidence, I warned myself that I had to scrutinize PW1’s evidence very carefully and skeptically to see if her hatred against the defendant would make her fabricate evidence in this case against the defendant;

……

(iv) PW1 stated in Exhibit P10 that she had already filed a divorce but she testified that she only filed a divorce in Nepal in June 2014. PW1 was not truthful in Exhibit P10 about the divorce. I found that she was exaggerating about their marital status in Exhibit P10 so as to impress the Immigration that she would not want to sponsor the defendant anymore. However, it was obvious from Exhibit P10 that all PW1 wanted to achieve in that letter was that the Immigration should ignore the form to be submitted by the defendant --- the form she signed “as he threatened to physically harm” her. Nothing in Exhibit P10 showed that PW1 was trying to put the defendant to jail. She just wanted to tell the Immigration that she would no longer sponsor the defendant. Looking at the matter in this light, I found that PW1’s lie about her divorce status in Exhibit P10 did not affect her overall credibility or reliability in this case. I found that PW1’s lie about her divorce status in Exhibit P10 did not show that she would fabricate evidence against the defendant in relation to Exhibit P6. Indeed, throughout her testimony in court, PW1 was only adamant that she did not want to have anything to do with the defendant anymore; but what PW1 was adamant about was different from the defence allegation that PW1 wanted the defendant to be sent to jail;

……

(xiv) Likewise, I noted that the defendant had a clear record despite PW1 testified that there were so many police reports against the defendant for domestic violence. There was no need for me to speculate why it was so. It was neither here nor there. The defence counsel’s submission on the absence of police report number was also a non-starter;

……

(xv)  I noted PW1’s hatred against the defendant. PW1 also denied the defendant from access to their daughter. That said, it did not necessarily mean that PW1 would lie about the signature on Exhibit P6. I did not think her hatred against the defendant affect her credibility and reliability regarding the subject matter in the present case. As I said earlier on, PW1 was only adamant that she did not want to have anything to do with the defendant anymore; but what PW1 was adamant about was different from the defence allegation that PW1 wanted the defendant to be sent to jail.”

40.As considered by the magistrate there was no motive or reason for his wife to sign or write the letter P6.  The marriage between the appellant and his wife was in reality over.  They lived apart.  Her detestation towards the appellant had been present for about 2 years beforehand. Her standpoint of cancelling her sponsorship had not changed since shortly after an attempt at reconciliation in 2011.  She re-confirmed her retraction of sponsorship on 18 September 2012 to the ID.  Notably none of these factors were challenged by the appellant.  In consideration of these factors it would have been against her interest and in obvious contradiction to her letter P10 to support the appellant’s application and sign the letter P6. 

41.Had the wife intended to drum up a false account that the letter was a forgery she would have alerted PW2.  It was however not the wife who informed the ID that the letter P6 was forged.  The wife did not even know about the letter until she was asked about it.  It was the alertness of PW2 who spotted the difference in the wife’s signatures in the previous immigration documents and the letter P6 that the offence came to light. Further PW2 noticed the wife’s itinerary faxed regarding the date of intended departure from Hong Kong was incorrect as the movement record showed the wife had already left Hong Kong. 

42.On the application form for an extension of stay exhibit P3 the appellant had written down his own contact number as 96807925.  Upon the immigration officer asking the appellant for the wife’s contact number, the appellant gave this same phone number.  During the closing submissions at the trial the magistrate pointed out that the appellant had given his own telephone number to PW2 to contact the wife.  He observed that the same number was provided despite the fact that the appellant and his wife were physically living apart.  He asked the appellant’s trial counsel if she had any submissions to make on this point raised to which the trial counsel said she did not. 

43.Additionally on the letter P6 it concluded with the words “please feel free to call me” leaving the appellant’s phone number.  If the wife had signed or written the letter it is inconceivable that she would have put down the appellant’s telephone number and not her own.  If the wife wanted to contrive an account against the appellant she would not have put the appellant’s telephone number.  There was a reasonable inference to draw that the appellant’s number was given so that any enquiries from the ID could be answered by the appellant or someone on his behalf.  The appellant could therefore without the knowledge of his wife have answered any queries made by the ID.  It was fitting for the magistrate to find that the appellant had lied to PW2 in giving his phone number to her purporting it to be his wife’s number, noting that it was never put to the wife in cross-examination that she could be reached at that phone number. 

44.The matching of the appellant’s telephone number on exhibit P3, the number he told PW2 to call the wife and the number on the letter P6 is strong circumstantial evidence that his wife did not write or sign the letter P6 and that the appellant knew or believed the letter P6 to be false.  The appellant had made a fatal error in giving his telephone number as the wife’s contact number. 

45.Having reviewed the evidence I can find no error in the magistrate’s approach.  The magistrate was fully justified in finding the wife to be a credible and reliable witness. 

46.I turn now to deal with the fourth ground that the magistrate erred in finding that the letter P6 was created after 5 March 2013.  The appellant’s case was that the letter P6 was obtained from the wife on or before 18 September 2012 when she signed a batch of documents in support of his application for an extension of his stay.  The appellant relies on the wife’s evidence that she had admitted that she did sign documents related to the appellant’s extension of stay application before she sent the letter P10 to the ID cancelling her sponsorship.  The letter P6 was one of those documents and therefore the letter P6 was not a forgery or false document.

47.Mrs Panesar stressed that the only documents the appellant would have needed to process his application were the documents to be signed by the sponsor who was his wife that is the letter P6 and the exhibits P5 an immigration form as without these documents he was not able to extend his visa.  The letter P6 was essential to his application.  It was inconceivable that the appellant would not have asked her to sign the letter P6.  He would not have compelled or pressurised his wife to sign them as these were material to his application.  Later because of her loathing of him she took revenge on him by writing exhibit P10 to the ID cancelling her sponsorship.

48.The letter P6 is not a standard form necessary for an application for an extension of visa unlike the forms exhibited as P4 and P5.  P6 is a personal handwritten letter. 

49.PW2’s evidence was that the letter P6 was submitted to her by the appellant in person on 7 March 2013. It was as a result of her request made to the appellant on 5 March 2013 to ask the wife to write a letter confirming her sponsorship in view of her earlier stance of withdrawing her sponsorship.  PW2 was an impartial witness whom the magistrate found credible.  Plainly the letter P6 did not accompany the documents submitted in the appellant’s application in February 2013. 

50.On review of the letter P6, there is a date on the heading of the letter, the day is unclear as it could be either the 1 or 7 but it is clearly dated March 2013, therefore it could not have been one of the documents signed by the wife on or before 18 September 2012. I find no error in the magistrate’s finding that the letter P6 was created after 5 March 2013 and not one of the documents that the wife was forced to sign.  

51.One of the arguments raised by Mrs Panesar was a very brief statement that if the wife had signed the letter P6 because she was in fear or that she was forced by the appellant to do so the letter was not a false document as the wife had signed it.  She did not support her contention with any authorities or reasons.  I therefore adjourned for Ms Panesar to file further detailed written submissions in support of her.  Her supplemental submissions were of no further assistance on the point.  Mr Daryanani senior public prosecutor for the respondent however gave a more comprehensive submission against the contention.  Despite the helpful submissions of Mr Daryanani, consideration of this point for the purposes of this appeal is unnecessary as I have not disturbed the magistrate’s finding that the wife had not signed nor written the letter P6.

Conclusion

52.There was no merit in any of the grounds of appeal.

53.The magistrate made a careful assessment of all the evidence and submissions.  His reasons were detailed and cogent.  He accepted the wife’s testimony and consistency throughout her evidence that she did not sign nor write the contents of the letter P6.  He was entitled to do so. 

54.I was satisfied that the conviction was properly reached.  For the reasons stated the appeal against conviction is accordingly dismissed. 

Mr Prakash L Daryanani, SPP, of the Department of Justice, for the respondent

Mrs. Mahinder PANESAR instructed by Jal N Karbhari & Co., for the appellant