THE QUEEN v. LOW KENG SWEE

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. This applicant faced 17 charges, the first 16 were charges of possession of forged dyes and the 17th was a charge of possession of implements for forgery. He was, after trial in the District Court before Judge White, convicted of the first 16 charges and was sentenced on each of those charges to a term of imprisonment of 2 years and 6 months, all sentences being ordered to be served concurrently. He now appeals against those convictions.

3. Charge 1 was possession of a forged Hong Kong Immigration Service arrival stamp. Charge 2 was possession of a forged Malaysian Immigration Service departure stamp. Charges 4, 6, 8, 10, 12, 14 and 16 were charges of possession of forged Malaysian departure impressions, in each of seven passports. Charges 3, 5, 7, 9, 11, 13 and 15 were charges of possession of forged Hong Kong arrival impressions, one in each of the same 7 passports. All charges alleged an intent to defraud or deceive and knowledge of the forgery, and all offences were alleged to have been committed on 10th May 1990. It was the prosecution evidence that the applicant had arrived from Kuala Lumpur or via Bangkok on 9th May 1990. The authorities were alerted to the possibility that the applicant had irregular immigration documents by Mr. CHEN Luen-sing, the manager of the Chung Wah Travel Agency which issues visas for Taiwan. Mr. Chen's suspicions were aroused by the appearance of the Hong Kong impressions in the seven Malaysian passports. He came to examine these passports in the course of his duties after they had been presented to his agency by the applicant in an endeavour to obtain Taiwan visas. In consequence of Mr. Chen's report the applicant was put on the stop list and was intercepted at Kai Tak Airport at 7.40 p.m. on the 10th. After being stopped he was taken to Room D11 and in his luggage were found the 7 Malaysian passports. An Immigration Special Investigation Squad was sent for and this squad arrived at the airport at about 9.15 p.m. It included a Mr. LAU Bong and a Mr. MAK Che-yuen. Mr. Mak at some time after arrival discovered the Hong Kong stamp, which became Exh.28 at trial, and the Malaysian stamp, which became Exh.27. These stamps, the subjects of charges 1 and 2, were found in separate rubbish bins in Room D11. They were wrapped in paper which, it appears, was official paper of the Immigration Department. Mr. Mak having found them gave them to Mr. LAU Bong.

4. At the trial there was evidence from a Mr. LEE Chun-bong, an airport based Immigration Officer, that he took the applicant to Room D11 at 7.41 p.m.. A Mr. LAM Kwok-ching, another airport based Immigration Officer, gave evidence that he guarded the applicant in that room until the arrival of the Special Squad. It is this evidence which gives rise to one of the principal grounds of appeal. The applicant suggests that this evidence shows conclusively that he had no opportunity to discard the two stamps.

5. At trial a Government Chemist Dr. POON Wai-lung stated that the Hong Kong stamp Exh.28 which bore the number "704" was a forgery. He was able so to state because he had been provided with the genuine stamp No.704 and was able to compare it with the stamp which had been seized. He was able to say that the impressions in the 7 passports were produced by it and that therefore they were forgeries. He stated the 7 Malaysian impressions in the passports were produced by Exh.27 but was unable to say whether Exh.27 itself was a forgery as he had not had the opportunity to compare it with any proved genuine stamp.

6. The Crown also relied upon a statement which the applicant made to Mr. LAU Bong. This contained the following passage:

"Mr. Lau: (to Applicant) Can you read what I write in Chinese?"

Applicant: Yes, I can.

Q.	What can you recall concerning this stamp? ( (I) snowed (him) a square rubber stamp bearing the words ' HONG KONG IMMIGRATION SERVICE (704)')
A.	Sir, under present circumstances, I may as well tell you frankly that this stamp was made by me. Just now I intended to depart (from Hong Kong) and was intercepted by officers of the Immigration Department. One officer brought me into this room and I seized the chance to throw this stamp into a dustbin when he was not paying attention."

Having been shown the Malaysian stamp and asked what he could recall concerning it, he replied, "This is also a forged Malaysian departure stamp I made. I threw this stamp into a dustbin as well." He went on to say that he had thrown the stamps into the dustbin at about 8 o'clock and that he had done so because he, to use his words, "figured that they might search my luggage and me. I was afraid that if those two forged stamps were found, I would be in trouble. Therefore (I) threw the stamps into the dustbins." Such was the case for the prosecution. The applicant gave no evidence.

7. The trial judge was satisfied that the stamp Exh.27 and Exh.28 were forgeries, that each was used by the applicant or another within his knowledge to print the impressions in the 7 Malaysian passports, and that these acts were done because the applicant wished to obtain Taiwan visas for the 7 passport holders. He was likewise satisfied that the forged dyes were in the applicant's possession on 10th May and were intended to deceive, that he had succeeded in discarding them in Room D11 with the intention to avoid detection, that the passports containing the forged impressions were in his possession on 10th May, that it was his intention that the forged die imprints be used to deceive and that he had undertaken the actions he did in order to obtain Taiwan visa approvals. Having made these findings he was satisfied that the applicant was guilty of the charges 1-16.

8. The applicant in his appeal relies heavily upon the evidence of the two airport-based Immigration Officers which he says should have established to the satisfaction of the trial judge that he could not have deposited the stamps in the rubbish bins. He suggests that there was a failure to give proper consideration to this evidence, to the fact that the stamps were wrapped in official Immigration Department paper to which he would not have had access, to the fact that no finger prints were found thereon, to the fact that he was given a thorough body search and that his suitcase was carefully searched when he was taken into the Room D11.

9. The applicant further submits that Mr. Chen was demonstrably not a witness of truth as he gave evidence which was at variance with his statement. In his evidence that witness said that he had seen the applicant on the afternoon of the 10th whereas in his statement he said he had seen him on the morning of the 11th. He submits that this indicates that all of the evidence given by Mr. Chen was suspect and, indeed, casts doubt upon the Crown evidence generally, which was that a report had been made to the Immigration Department on the afternoon of the 10th. He also submits that the statement should not have been admitted as it was unfairly obtained owing to the fact that he had not been provided with an interpreter who would, we assume, have been required to interpret from Cantonese into mandarin when the statement was being taken.

10. The trial judge resolved the difficulty arising from the evidence of the two Immigration Officers by holding that the evidence of one or both was untrue. What this Court must ask itself is whether this finding was so against the weight of evidence that we must regard the conviction as being unsafe and unsatisfactory. Given the admissions contained in the applicant's statement and the overwhelming inferences against him that arise from the existence of the impressions from the discarded stamps in the passports which were found in his possession, we have no hesitation in holding that the trial judge was entitled to come to the finding which he did in relation to the evidence of the two Immigration Officers.

11. The discrepancy between the evidence of Mr. Chen and his statement was a matter which was fully canvassed in cross-examination at the trial. Mr. Chen gave his explanation saying that he had at first relied upon his memory, but that upon checking his records he was able to be quite positive that it was the 10th and not the 11th when he saw the applicant. When his evidence is read, it reveals a sensible and credible explanation. It was certainly not inherently incredible. It was one of the matters for the assessment of the trial judge when coming to his conclusions about credibility. He clearly did not consider that it in any way shook the credibility or Mr. Chen. He was satisfied that he was a reliable and truthful witness. There is nothing which the applicant urged in this regard which occasions us any doubt as to the propriety of that conclusion. This court is not prepared to hear the suggestions of the applicant that they were matters which were not properly canvassed in the voir dire hearing. He was represented by counsel and has urged nothing that suggests counsel did not properly conduct the defence during that hearing. Nothing has been raised by the applicant which leads us to doubt that the conviction was a proper one. The application for leave to appeal against conviction is therefore dismissed.

12. This application in our view has no merit. We therefore order that three months of the time spent by the applicant in custody pending the hearing of this appeal shall not be reckoned as part of the term of his sentence.