HKSAR v. SHU MAN (舒曼)

FAMC No 17 of 2023

[2023] HKCFA 27

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 17 OF 2023 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO 390 OF 2022)

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REASONS FOR DETERMINATION

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Mr Justice Lam PJ:

1.  The applicant entered Hong Kong on 6 April 2018 by using her HKID Card together with her PRC Passport[1]. Her Capital Investment Entrant Scheme permit was affixed to her PRC Passport. When she departed from Hong Kong on the same date, a Guatemalan Passport with its holder bearing the name Sufeiya Peng (“SP”) with a date of birth of 11 January 1979 was produced to the Immigration Officer. These are not true particulars of the applicant. She was thus charged with a count of making a false representation to an Immigration officer on 6 April 2018 contrary to Section 42(1)(a) of the Immigration Ordinance Cap 115 (“Charge 2”).

2.  A similar charge was preferred against her in respect of the use of the same Guatemalan Passport on 27 February 2018 (“Charge 1”). The evidence against her under Charge 1 was purely circumstantial as the person using the same was not intercepted at the immigration checkpoint.

3.  When she departed from Hong Kong on 6 April 2018 at the Lok Ma Chau Control Point, the applicant was travelling with others in a private vehicle. The Guatemalan Passport was handed to the driver by her personal assistant (“PA”) who was sitting next to him[2]. The driver then handed it to the Immigration Officer.

4.  The defence of the applicant was that it was a mix-up by the PA and the applicant did not know that the Guatemalan Passport had been produced. Thus, when she was asked by the Immigration Officer if she had used that passport to enter Hong Kong, she answered in the affirmative[3]. She said she thought the Immigration Officer was referring to her PRC Passport.

5.  She also said that the Guatemalan Passport did not belong to her. Instead it belonged to her friend SP with whom she had dinner on 5 April 2018 and she had mistakenly taken away that Passport which was contained in a bag similar to her own pouch.

6.  That was her case put forward in her cautioned statement. She did not give evidence at the trial. Nor did she call the PA to testify. The only witness called on her behalf at the trial was the driver. He did not give any evidence about any mix-up.

7.  The applicant was found guilty on both counts after trial before a magistrate. On appeal, Barnes J (“the Judge”) quashed the conviction under Charge 1 but affirmed the conviction under Charge 2.

8.  The applicant applied for certification and the Judge certified the following question:

“In the hearing of an appeal under Section 113 of the Magistrates Ordinance, Cap 227, Laws of Hong Kong, can the Judge in the exercise of rehearing on the evidence before the trial Magistrate affirm the conviction on a basis which had not been canvassed before the trial Magistrate?”

9.  The applicant sought leave to appeal to this Court in respect of the certified question. She also asked for leave on the basis of substantial and grave injustice. After hearing counsel, we dismissed the application on 28 August 2023. The following are our reasons for the determination.

10.  Though the Judge erred in proceeding on the assumption that the applicant entered into Hong Kong by using her Hong Kong Identity Card only, the fact that she also used her PRC Passport could not assist her in her defence of mistaken presentation of the Guatemalan Passport by the PA. It actually begs the question as to how the alleged mistake could have been be made. It is plain to us that the other grounds relied upon by the Judge[4] led to the irresistible inference that it was not a case of proven lack of motive. On the totality of the evidence, we are sure that the courts below were correct in rejecting the applicant’s case contained in her cautioned statement.

11.  We do not accept it is reasonably arguable that the Judge convicted the applicant on a new basis by making reference to the photos on the visas.　 Further, it is not reasonably arguable that the applicant suffered any injustice as a result of such course being taken.

12.  The resolution of the certified question of law does not arise for consideration in the present case. The case of the prosecution has always been that the applicant made false representations to the Immigration Officer as to her identity through her use of the Guatemalan Passport. Though the passport was given to the driver by the PA, the prosecution case has always been that this was done with the applicant’s knowledge and authority. The exhibits presented at the trial included the two passports and thus the evidence regarding the photographs were before the court. The prosecution did not abandon any reliance on the same though counsel left it to the decision of the magistrate[5].

13.  The relevant photographs were included in the appeal bundle[6] and they were referred to in the respondent’s written skeleton submissions lodged on 16 December 2022. The appeal was heard on 27 April 2023. At that hearing, the Judge referred to the comparison of the two photos and heard submissions from the parties. Counsel for the applicant submitted that it was possible someone else used the applicant’s photo in applying for that visa. Thus, the applicant and her lawyers had ample opportunities to address the comparison of the photos.

14.  Since it was an appeal by way of rehearing, it was open to the Judge to examine the evidence already placed before the court in a fresh light. The Judge is not bound by the manner in which the magistrate analysed the evidence though she had to bear in mind that she did not enjoy the advantage of having received the evidence at first-hand, see Chou Shih Bin v HKSAR[7]. Since we are not dealing with the assessment of oral testimony, the applicant’s reliance on Raymond Chen v HKSAR[8]is misplaced.

15.  In light of the explanation offered on behalf of the applicant as to the visa photos and the lack of concrete evidence supporting such explanation, it could not be suggested that the Judge erred in the exercise of her discretion in rejecting Mr Kwok’s request for having a retrial.

16.  Further, the question certified by the Judge does not give rise to any unsettled question of law. This Court had already provided the answer to that question in Hau Tung Ying v HKSAR[9]:

“… in appropriate cases, the judge does have the power to consider the case or direct the jury on the case on a basis different from that presented by the prosecution, provided that this is open on the indictment and the evidence and the parties are given an opportunity to address the judge before he takes that course.”[10]

“… where the trial judge departs from the prosecution’s elected case, whether the appellate court should quash his conviction must depend on the fairness of the case, including in particular any disadvantage or prejudice which might have been caused to the accused.”[11]

17.  The applicant contended that there was substantial and grave injustice based on the following assertions of prejudice:

(a)  In respect of Charge 1 the Judge could not draw the irresistible inference that the person who used the Guatemalan passport on 27 February 2018 was the applicant. Consistent with such conclusion, the same doubt should apply with regard to the person who applied for the Myanmar visa which was affixed to the Guatemalan Passport (“the Consistency Argument”);

(b)  She could have called evidence or cross-examined on immigration clearance practice to establish that she used her PRC passport with her Hong Kong Identity Card to enter Hong Kong (“the PRC passport Argument”);

(c)  She could have elected to give evidence (“the Election Argument”).

18.  As discussed above, the PRC passport Argument could not assist her in her defence.

19.  There is no merit in the Consistency Argument. The strength of the evidence against the applicant in respect of Charge 2 is obviously much stronger than that under Charge 1. The Judge made it crystal clear that she acquitted the applicant on Charge 1 not because she was in doubt that the Guatemalan Passport belonged to the applicant, but because someone else might have used it[12]. There is no inconsistency.

20.  The Election Argument is equally without merit. Apart from the lame excuse of someone else using her photo to apply for the visa (which was rightly dismissed by the Judge), counsel has not explained what evidence the applicant herself would give in respect of the two photos.

21.  The other points which counsel urged us to consider are no more than attempts to invite us to reconsider the evidence as a court hearing an intermediate appeal would do. They are not arguments that this Court, as the final appellate court, would entertain for the reasons given in HKSAR v Ng Chiu Man[13].

22.  In short, the applicant failed to satisfy us that this is one of those rare and exceptional cases where leave should be granted on the ground that a substantial and grave injustice has occurred. There is no real danger of something so seriously wrong that justice demands an enquiry by way of a final criminal appeal[14].

23.  For these reasons, we refused to grant leave to the applicant to appeal against the judgment below.