THE QUEEN v. POON PO LIN

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. These are applications for leave to appeal against two convictions out of time. In as far as the extension of time was not dealt with at the last hearing, as well it may have been, we grant that leave.

2. The two convictions were for using an unlawfully obtained travel document, contrary to Section 42(2)(b) of the Immigration Ordinance Cap. 115. They formed part of a series of 10 charges brought before His Honour Judge Leonard in the Kowloon District Court and based on a somewhat complicated set of manoeuvres involving the Defendant and seven others. We need not to go into the full details.

3. The first offence took place on the 23rd October 1984. It was Charge A in the court below. The Judge was satisfied that on that day the Defendant travelled from Manila to Hong Kong, using a travel permit issued by the People's Republic of China through their embassy in Manila, in the name of Pua Cheng Bon, giving her place of birth as the Philippines but bearing the photograph of the Defendant. There is no challenge to his finding in these respects.

4. The question then is whether that travel document had been unlawfully obtained. The Judge concluded that it had. His line of reasoning, as we extract it from his Reasons for Verdict was fourfold: Firstly, he was satisfied from evidence derived from the Defendant herself in 1981 that her name was Poon Po Lin and that she had been born in Kwangchow. That finding is not challenged in this appeal. Secondly, he accepted that to obtain a travel permit of any kind requires representation to be made to some authority. Therefore the obtaining of a permit in relation to the Defendant, but with her name and place of birth incorrectly stated therein, must have involved false representation at some stage. Thirdly, he assumed, in our view correctly, that the truth of the name and place of birth would be material factors to any issuing authority. And fourthly, that therefore the permit in this particular incident must have been unlawfully obtained.

5. The Judge relied on Section 42(3) of the Immigration Ordinance -

"42(3)         A travel document, entry permit, re-entry permit, certificate of identity, document of identity or Vietnamese refugee card 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 renewal of the same."

In the circumstances it was not rebutted. The Defendant gave no evidence.

6. The Judge further apparently relied on documents which had been obtained from the British and Chinese Embassies in Manila. The greater part of argument in this appeal has been taken up with the question of whether that reliance was proper. The Judge had admitted those documents after objection by the defence. He gave no reason for doing so but merely said -

"The documents (he gave the actual numbers) will be admitted to the extent that there is evidence that those documents were obtained by Mr. Campbell as he described. But the documents cannot be evidence of the truth of the statements contained therein."

The last sentence was taken by counsel for the Defendant as meaning that no notice of any kind would be taken by the Judge of what was to be found in those documents, although it is clear from the Judge's Reasons for Verdict that he did in fact have some regard to their contents.

7. As presently advised, that is without calling on counsel for the Crown, we tend to think that the documents should not have been admitted at all. But we express no concluded opinion, for disregarding entirely all those documents, we are satisfied that the Judge is reasoning, as we have set it out earlier, is unassailable and that his conclusion was inevitable.

8. Counsel for the Defendant has argued that there was no direct evidence linking the contents of the permit with the representation that must have been made. But in the absence of evidence or any suggestion of other reason to explain their presence, we think the inference inescapable.

9. We should also mention another ground, not taken below or mentioned in the Grounds of Appeal but raised here for the first time, namely that in the circumstances it was incumbent on the Crown to prove affirmatively that the name Pua Cheng Bon was not an alias of the Defendant or a name by which she was commonly known. We are not persuaded that any such burden did lie on the Crown. We might add, that in any event, this argument would not have disposed of the falsity relating to the place of birth.

10. For these reasons, the application for leave to appeal in respect of Charge 8 is dismissed. Charge 9 arose from a journey taken by the Defendant, again from Manila to Hong Kong, on the 7th March 1985. The document she then used was a passport issued by the People's Republic of China, but apart from that fact the position is identical to that in relation to Charge 8. For the same reasons therefore, that application also fails.