HKSAR v. SHAHEEN, MOEEN

HCMA 418/2024 [2025] HKCFI 4612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 418 OF 2024

(ON APPEAL FROM STCC 357 OF 2024)

________________________

BETWEEN

________________________

________________________

JUDGMENT

________________________

1.  The Appellant was charged with one count of possession of a forged travel document, contrary to s. 42(2)(c)(i) of the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong. The particulars of the offence were that, on 23 January 2024, in Hong Kong, he had in his possession a forged travel document, namely, a forged Pakistani passport bearing number GL5167662 in the name of the Appellant. The Appellant pleaded not guilty, was convicted after trial and sentenced to 22 months’ imprisonment. The Appellant now appeals against the conviction.

PROSECUTION CASE

2.  The Prosecution called two prosecution witnesses, Immigration Assistant Lam To-tat (PW1) and an expert, Dr Lee Wai-kit (PW2).

3.  The parties submitted a set of admitted facts (P4) agreeing that:-

(a) On 22 January 2024, the Appellant applied for an extension of stay in Hong Kong. In support of his application, he submitted a copy of a Pakistani passport to the Hong Kong Immigration Department along with supporting documents (P3).

(b) On 23 January 2024, the Appellant attended the Extension Section of the Immigration Department and was questioned.

(c) Upon questioning, the Appellant produced a Pakistani passport bearing number GL5167662 in his name (P1) to PW1 for inspection. PW1 subsequently seized P1.

(d) On 24 January 2024, the Appellant was arrested and charged with the subject offence.

4.  PW1 testified on the chain of the exhibit P1. It was his evidence that he had kept P1 with him after seizure, later took it to the government chemist, retrieved it after examination and eventually produced it in Court. PW1 testified to the effect that P1 had all along been kept in safe custody.

5.  PW2’s witness statement (P10) was admitted as evidence under s. 65B of the Criminal Procedure Ordinance. PW2’s expertise in determining the genuineness of passports was also accepted by the Defence.

6.  PW2 had been attached to the Questioned Documents Section of the Immigration Department for nine years. During his time, he had dealt with authenticity of travel documents on over 100 occasions, including two to three Pakistani passports. He found three anomalies in P1 and concluded that it was forged.

DEFENCE CASE

7.  The Appellant elected not to give evidence or call any witnesses.

MAGISTRATE’S FINDINGS

8.  The Magistrate noted that the key issue of this case was whether the Prosecution could prove beyond reasonable doubt that P1 was a forgery.

9.  It was put to PW1 that someone else had handed P1 to PW1, to which he denied. In fact, the possession of P1 by the Appellant[1] and the production of the same to PW1[2] were agreed by the parties under the admitted facts. There was no suggestion that once P1 was given to the Immigration Department, that it had been switched or damaged. The Magistrate also found no signs of damage under close examination of P1 and, apart from those described by PW2, the Magistrate found no signs of alteration on P1 either.

10.  The Defence disputed the chain of P1 after it had been handed to PW1. After having considered the logical and clear evidence of PW1, which was supported by the relevant records, the Magistrate found the handling of the exhibits by PW1 to be organised. The Magistrate accepted him as a credible and reliable witness and gave full weight to his evidence. The Magistrate was certain that P1 had been under the safekeeping of PW1 and the Immigration Department and that it had never been illegally tampered with.

11.  PW2 found three anomalies on P1 under microscopic examination. The Defence did not contest PW2’s findings on those three anomalies but contended that they could not prove that P1 was a forgery. The Magistrate had considered them one by one.

12.  The “biodata page” of P1 was a page with the Appellant’s photo and personal particulars. The “inner back cover” was the very last page of P1, to the right of page 36. PW2 found scattering ink droplets when he examined this page under a microscope which suggested an “inkjet printing” method, an inferior printing method that was found in household printing. On the other pages, the printing method was a more sophisticated and superior method called “offset printing”. Fine lines, clear edges and decorative patterns could be seen. Offset printing was a common security feature found in passports.

13.  The Defence submitted that there was no control sample of a Pakistani passport for PW2 to compare.

14.  PW2 fairly admitted having a control sample would have further enhanced the certainty of his findings. However, the point of the present exercise was whether alterations were made to P1, not a case of comparing an entirely genuine passport with an entirely forged one. It could be seen in P1 that the Pakistani authority was able and willing to use the superior offset printing method.

15.  The Defence also submitted that PW2 had no training by the Pakistani authority and that he did not rely on any Pakistani literature. As such, it was submitted that PW2 could not tell if such anomaly was a feature of Pakistani passports.

16.  The Magistrate disagreed. PW2 reiterated many times that his training included examining security features of commonly encountered passports as well as common passport security features. It was also noticed that P1 was not an old passport but was issued on 14 July 2023, which was only about half a year from the time of the Appellant’s extension application.

17.  The Magistrate accepted PW2’s expert opinion that, if the Pakistani authority had the resources and ability to use a more sophisticated method of printing the other pages of a passport, it would be illogical that the most important page, i.e. the biodata page, would employ an inferior printing method.

18.  The biodata page of P1 had a laminate, the purpose of which was to protect the information from alterations. PW2 was of the view that the edges ought to be straight and should have smooth corners. PW2 however found that P1 did not have straight edges and the corners were angular. The front cover was the green outer part of the passport. The “inner front cover” was the biodata page. It was PW2’s expert opinion that, in a genuine passport, the front cover, the laminate and the inner cover should be a perfect match. No part of the laminate should extend past the inner cover or vice versa. This was not the case of P1 when being examined under a microscope.

19.  The Defence, on the other hand, submitted that there was no evidence as to how the Pakistani authority managed their passports and that the poor trimmings and non-alignment might be a feature of their passports.

20.  The Magistrate again disagreed and accepted PW2’s view that passports were designed to have security features to prevent forgery. It should be counterintuitive for a passport to have its security features to be poorly trimmed and non-aligned deliberately for it to appear to be altered. On the contrary, the Magistrate was sure that this was evidence of subsequent alteration rather than a feature of the original passport.

21.  PW2 found several features on page 2 of P1: under the words “Previous passports”, the words “GL5167661” and about five millimetres immediately to its right, the paper surface had been disturbed by being rubbed by something with force, this caused the paper fibres to protrude outwards; spiral pattern had been partially removed; and a new entry had been printed in the same area. Although PW2 could not be certain as to what the original entry was, he found traces of ink from the original entry remained.

22.  The Defence again submitted that there was no evidence as to how Pakistani authority operated.

23.  The Magistrate disagreed. It was not in dispute that it took some force to erase the original data where the spiral security patterns were also removed. There was no need to have a control sample and that one could simply compare page 2 of P1 with the other pages. There was ample space in the other pages of P1 or even on the same page if any additions or alterations were necessary. The spiral pattern in offset printing on page 2 was precisely to prevent this very same scenario of any alterations being made. The Magistrate found it illogical for the Pakistani authority to make alterations, which mimicked forgery. The Magistrate also noted no evidence of similar disturbances in anywhere else in P1.

24.  In summary, the Magistrate stated that PW2 had drawn to his attention to numerous forgery prevention security features and that PW2 had found three anomalies in P1. The Magistrate said that, if there had been only one anomaly, PW2 might not have persuaded him to come to any definitive conclusion. However, all three anomalies and the cumulative effect being alteration of personal particulars to withhold disclosing the identity of the passport holder were considered to be done with the purpose of deceiving the relevant authorities.

25.  All the Defence submissions were essentially that such anomalies could be features of a genuine Pakistani passport. The Magistrate did not accept. Even in the absence of a control sample and that PW2 did not have any training by Pakistani authority or any literature relating to Pakistani passports, the Magistrate was certain that the present case was an example where security features had taken their intended effect and that a forgery was detected. The Magistrate accepted PW2’s findings and conclusions and was certain that P1 was a forgery within the meaning of section 42(5) of the Immigration Ordinance.

26.  The Magistrate then went on to consider the Appellant’s relevant knowledge. The mental element of the charge is for the Prosecution to prove beyond a reasonable doubt that the Appellant had knowledge that P1 was a forgery.

27.  The Defence submitted that there was no evidence as to how P1 was handled before it was given by the Appellant to PW1, like whether the Appellant had read its content and from whom he obtained P1. It was therefore submitted that there was a possibility that P1 was given to the Appellant by someone else and that the Appellant believed it to be genuine.

28.  The Magistrate observed that the Appellant was an adult born in 1984. The application forms and its supporting documents[3] showed that he was legally represented in his application for extension of stay. This was not the first time he was making such application or similar application to the Immigration Department. The Appellant ought to know or ought to have been advised that passports must be in safekeeping at all times and most importantly, when one applied for an extension of stay, genuine documents must be produced.

29.  The Appellant did not give evidence nor did he call any defence witnesses. There are clear authorities that the Court has no duty or obligation to imagine possible defences for a defendant when there is no such evidence. It was admitted that the Appellant had submitted P1 to the Immigration Department himself. The Magistrate after having considered all the evidence before him came to the only irresistible inference that the Appellant was aware that P1 was a forgery.

30.  The Magistrate was certain that the Prosecution had proved all the elements of the offence beyond a reasonable doubt and that the Appellant was in possession of P1, a forged travel document, which he knew that it was a forgery. He was convicted as charged.

GROUNDS OF APPEAL

31.  The Appellant relied on a total of three grounds of appeal:-

Ground 1 – the Magistrate wrongly assumed that a Pakistani passport would bear the general security features as described by the government chemist PW2.

Ground 2 – the Magistrate wrongly accepted PW2’s evidence in that he did not have a control sample and should not be accepted to be able to distinguish a forged Pakistani passport from a genuine one.

Ground 3 – the Magistrate wrongly disregarded the reasonable doubt in the Appellant’s knowledge in the falsity (if any) of the subject passport P1.

MY ANALYSIS AND DECISION

32.  I have considered all the written and oral submissions by both parties but do not seek to repeat all of them in detail. I shall however refer to those relevant and important parts in my subsequent analysis.

33.  According to the Court of Final Appeal’s decision in HKSAR v Hui Lai Ki (2024) 27 HKCFAR 265, magistracy appeals are to be conducted by way of rehearing. The judge must be satisfied that the Appellant’s guilt has been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. An appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Yet, despite those limitations, it remains the duty of the appellate court to conduct an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

34.  As pointed out by the Appellant, the key issue at the trial were (1) whether P1 could be proved to be forged and (2) whether the Appellant had knowledge of the forgery of P1[4]. Now the Appellant is basically relying on all the Defence arguments put forward before the Magistrate at the trial.

35.  As submitted in both parties’ written submissions, Ground 1 and Ground 2, which both centre on PW2’s evidence regarding the falsity of P1, can be conveniently dealt with together.

36.  The gist of the complaint of the Appellant in those two grounds was that the Magistrate should not have accepted PW2’s evidence as the latter did not have a control sample of the relevant passport when conducting his examination on P1 and that it was a big and improper assumption that a Pakistani passport would contain those security features commonly found in passports.

37.  First and foremost, it is important to note that the Defence at the trial accepted that first, PW2 was an expert in determining the genuineness of passports and second, that PW2 had found after microscopic examination that there were three anomalies in P1. In fact, as a matter of evidence, PW2 had examined travel documents to decide on the issue of authenticity on over 100 occasions, including two to three Pakistani passports. As I have summarised in detail in the preceding paragraphs, the Magistrate had clearly explained as to why he accepted PW2’s evidence and rejected all the Defence arguments, in particular, the Defence criticism of the absence of a control sample of a Pakistani passport for the comparison exercise done by PW2 on P1.

38.  The two case authorities cited by the Appellant[5] are not useful for the present purpose as each case is to be decided on its own facts. It is a matter of common sense, that it would have been better if the expert is armed with a control sample for conducting a travel document examination. Similarly, the evidence would have been stronger in proving the falsity of a travel document when there is/are clear or obvious sign(s) of tampering. But the absence of those does not necessarily mean an expert could never come to a conclusion on the genuineness or falsity of the subject travel document. All depends on the individual circumstances of a particular case.

39.  Here in this case PW2 was able to discover a total of three anomalies on P1 and concluded that it was a forgery, to which the Magistrate accepted. Those three anomalies, as I have summarised above, are about (1) different printing methods on different pages, (2) poor trimming and non-alignment on laminate, biodata page and inner back cover, and (3) fibre disturbances and loss of background printing on entry page and its original data having been erased or altered. In those circumstances, PW2 was wholly reasonable in finding and the Magistrate was entirely correct in accepting that P1 was a forgery, even in the absence of a relevant control sample for comparison.

40.  Both Ground 1 and Ground 2 fail.

41.  I now proceed to deal with Ground 3 relating to the relevant knowledge of the Appellant of the forgery.

42.  The Appellant exercised his right not to give or call any defence evidence. This of course by itself should not and would not lead to any adverse inference to be drawn against the Appellant, but at the same time it means there was no evidence to dispute, challenge or rebut the Prosecution case or the inferences to be drawn for those facts found proven. As rightly accepted by the Appellant, the Court has no duty to consider all the possible defences for the Appellant[6].

43.  I have also considered the authority relied upon by the Respondent, Lam Yuk Fai v HKSAR[7] about the general observations on the Immigration Ordinance: -

“19. In interpreting the Ordinance, it is important to bear in mind the part played by travel documents in the contemporary world. They play an essential role in facilitating travel from one country to another. They identify the holder and enable a decision to be made expeditiously as to whether the person using the travel document should be or should not be allowed admission or to remain in a country that the holder is visiting or seeking to visit. In addition, travel documents can be used in a multitude of different circumstances to verify the identity of the holder and in this way facilitate trade and commerce.

20. In this situation it would not be unreasonable for the responsibility to be placed on the person in possession of a passport to exercise care to ensure that a travel document is not misused while he is responsible for it. The responsibility could exist because he is the holder, or because it is in his possession, or because he has a role in its official distribution. …”

44.  As remarked by the Magistrate, the Appellant is an adult and was legally represented in his application for extension of stay in this case. Also, it was not his first time to make such application to the Immigration Department on the date of offence on 23 January 2024. The Appellant ought to know or ought to have been advised that passports must be in safekeeping at all times and genuine documents must be produced when applying for extension of stay. It was agreed that the Appellant had submitted P1 to the Immigration Department himself. One should not lose sight of the fact that P1 was issued on 14 July 2023 which was about 6 months before the Appellant made his stay extension application. With no evidence to the contrary, the Appellant must have ample opportunity to check his own passport P1 before producing it to the Immigration Department. Under the overall circumstances of the case, the Magistrate was entitled to and in fact correct to conclude that the irresistible or the only reasonable inference was that the Appellant was aware that P1 was a forgery.

45.  Ground 3 fails as well.

46.  I have carefully reconsidered all the evidence by way of “rehearing” and come to the same conclusion as the Magistrate did. I am sure that the evidence is sufficient to prove the subject charge beyond a reasonable doubt. The appeal against the conviction is dismissed and the conviction should stand.