HKSAR v. HUNG KONG NAM AND ANOTHER

CACC346/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 346 OF 2006

(ON APPEAL FROM DCCC 1065 OF 2005)

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REASONS FOR JUDGMENT

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McMahon J (giving the reasons for judgment of the Court) :

1. On 31 July 2007, we dismissed these applications.  We now give our reasons.

2. The applicants were convicted after a trial in the District Court before Deputy Judge Anthony Kwok of a number of offences comprising three joint offences of aiding, abetting, counselling or procuring the making of a false representation to an immigration officer, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115 (being Charges 1 to 3); three offences of conspiracy to defraud Cathay Pacific Airlines, contrary to Common Law (being Charges 4 to 6); three joint offences of aiding, abetting, counselling or procuring the possession by another of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177 (being Charges 7 to 9) and three joint offences of aiding, abetting, counselling or procuring the possession by another of false credit cards, contrary to section 75(2) of the Crimes Ordinance, Cap. 200 (being Charges 10 to 12).

3. The judge imposed in respect of both applicants 12 months’ imprisonment for each offence the subject of Charges 1 to 3; 15 months’ imprisonment for each offence the subject of Charges 7 to 9 and 18 months’ imprisonment for each offence the subject of Charges 10 to 12.  For each of the offences the subject of Charges 4 to 6, the 1^st applicant was sentenced to three years’ imprisonment and the 2^nd applicant was sentenced to three years six months’ imprisonment.  All sentences were to be served concurrently to each other, except that in respect of each applicant, 12 months of the sentences imposed in respect of the offences the subject of Charges 10 to 12 were to be served consecutively to all other sentences, arriving at a totality of sentence of four years’ imprisonment for the 1^st applicant and four years six months’ imprisonment for the 2^nd applicant.

4. The 1^st applicant seeks leave to appeal all his convictions and sentences.  The 2^nd applicant seeks leave to appeal his conviction in respect of the offences the subject of Charges 10 to 12 only.  He abandoned his application concerning sentence before us and it was dismissed.

The prosecution case

5. The prosecution case alleged that the applicants had acted together to assist three persons from the Mainland (“the three mainlanders”) who had arrived in Hong Kong on genuine Chinese travel documents to illegally travel onwards to the United Kingdom on passports belonging to other persons.

6. According to the prosecution the applicants had participated in a scheme whereby three tickets in the real names of those three mainlanders using their Chinese travel documents were purchased from Cathay Pacific for a flight to Bangkok departing Hong Kong International Airport in the evening of 13 August 2004 (Charges 4, 5 and 6).  Documentation for that flight was to be used to enable the mainlanders to pass through Hong Kong immigration into the departure area.  Additionally three tickets for a Cathay Pacific flight to London that same evening were purchased on behalf of the three mainlanders in the names of three other individuals whose genuine Hong Kong Special Administration Region passports were subsequently provided to the three mainlanders together with the corresponding flight tickets and boarding passes to London.  The mainlanders were to be given these documents once they passed through immigration.  Both applicants had assisted in organising and participating in this scheme. 

7. The applicants had provided each of the three mainlanders with false Hong Kong identity cards in the same names as the passports (Charges 7, 8 and 9) and with false credit cards in the same names as the passports and the identity cards (Charges 10, 11 and 12).  According to the case against them both applicants had, as part of the scheme, directly or indirectly assisted the three mainlanders to misrepresent to immigration officers at the airport departure point that they were going to Bangkok (Charges 1, 2 and 3).

8. For one reason or another the behaviour of two of the mainlanders attracted the suspicions of immigration officers who kept them under surveillance as they passed through immigration into the departure area of the airport.  The two mainlanders under surveillance were seen then to join up with the third mainlander and the applicants.  When documentation was seen to be transferred amongst the group, all were intercepted and searched.

9. The three mainlanders were each found in possession of a London flight boarding pass, Hong Kong passport, identity card and a credit card, all in a name corresponding to that in the passport.  The 1^st applicant was found to be in possession of a copy document of an internet flight booking to London in the same name as one of the Hong Kong passports.  The 2^nd applicant was found to be in possession inter alia of the three mainlanders’ Chinese travel documents and their tickets and boarding passes for the flight to Bangkok.  The three mainlanders and the two applicants were then arrested.

10. Subsequently the applicants were interviewed. 

11. The 1^st applicant was interviewed during the night of 13 August and again the following day.  He was not cautioned at the time of the interview conducted on 13 August, but was cautioned prior to the commencement of the interview on 14 August.  Both interviews were “mixed” but in their important aspects were exculpatory.  The prosecution sought to produce only the 1^st applicant’s cautioned interview (P4), which was challenged by the defence but which was admitted after a voir dire.  The 2^nd applicant’s cautioned interviews were agreed as voluntary and admitted without challenge.

12. The 1^st applicant’s grounds of appeal against conviction are concisely set out by Mr Kenneth Lee as follows :

(1)	The judge erred in admitting P4 as the 1st applicant had been interviewed without caution prior to the making of P4.
(2)	The judge erred in drawing inferences of guilt against the 1st applicant in respect of the offences the subject of Charges 10 to 12 when there was no sufficient factual basis for those inferences to be drawn.

13. The 2^nd applicant’s two grounds of appeal against conviction are similar to the 2^nd ground of the 1^st applicant and can be condensed as follows :

The judge erred in drawing an inference that the 2^nd applicant had aided, abetted, counselled or procured the three mainlanders’ possession of the false credit cards as such an inference was not the only reasonable inference to be drawn from the proven facts.

Ground 1 (the 1^st applicant)

14. The complaint of Mr Lee is that when first interviewed by an immigration officer, PW7, in the evening of 13 August at 5:35 p.m., some two hours after his arrest, the 1^st applicant was not cautioned.  That 1^st interview took place in a room in the airport used by immigration officers in the course of their investigations and concluded prior to 6:25 p.m.  The interview, which really consisted of two separate interviews, was not formally recorded but was the basis of a “case report” which was a compilation of information concerning the 1^st applicant’s personal particulars and his involvement in the case.  It goes without saying that the prosecution did not seek to adduce any part of this interview in evidence.

15. The 2^nd interview of the 1^st applicant commenced at 2:31 a.m. on 14 August, more than eight hours after the conclusion of the 1^st interview.  The interview was conducted by another immigration officer, PW8, and the 1^st applicant was properly cautioned at the commencement of the interview.

16. At trial the prosecution successfully had the 2^nd cautioned interview admitted into evidence after a voir dire.  It became P4.

17. The complaint of the 1^st applicant at trial, as it was before us, was that the failure to caution him so far as his 1^st interview was concerned was wrong and tainted P4 to an extent that it became the fruit of a poisoned tree, so that P4 either should have been excluded as involuntary in the sense that the 1^st applicant felt compelled to participate in it having already told PW7 his version of events, or excluded by way of the exercise of the judge’s discretion to exclude otherwise admissible evidence on the basis of fairness : see Secretary for Justice v. Lam Tat Ming [2000] 2 HKC 693.

18. Mr Lee relied to a significant extent in his argument upon the recent Privy Council decision in R. v. Peart [2006] 1 WLR 970.  In that case the appellant was charged with murder and was then interrogated by police concerning the offence with which he had been charged in plain breach of the Jamaican equivalent of our Rule III of the Rules and Directions for the Questioning of Suspects issued by the Secretary for Security.  That interview was admitted into evidence against the objections of the appellants’ counsel.

19. This passage from the judgment was advanced on behalf of the 1^st applicant (per Lord Carswell) :

“

Once the suspect has been charged, the efforts of the police interviewers are directed to establishing his guilt.  He is under a greater disadvantage at that stage, in that he may feel under greater compulsion to answer questions, notwithstanding a caution.  These factors may tend to produce a feeling of pressure upon the accused to speak where he might otherwise have remained silent and to result in unreliable statements from him when seeking to tell exculpatory lies to get himself out of trouble…”

In our view this has little to do with the present case and is directed towards protecting the rights of a person who has in fact been charged with a criminal offence.  Lord Carswell’s comments in that regard accord with the reasoning underlying the law of Hong Kong regarding the questioning of a charged person. 

20. In the present case we are concerned however with an alleged breach of Rule II of the Rules and Directions.  That rule is in the following terms :

“

II.

As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions or further questions, relating to that offence.”

We should point out in the present case the alleged breach of Rule II is one which relates to an interview which was not adduced in evidence and which concluded at least eight hours prior to the commencement of P4, the challenged interview.

21. The issues dealt with during the course of the voir dire, as we have said, concerned firstly the voluntariness of P4 and, secondly, if it was voluntary, the fairness of admitting it into evidence. 

22. The difficulty Mr Lee faces is that essentially both these issues are largely factual and were dealt with by the judge who, though it was not necessary for him to do so, properly and briefly addressed both matters as well as the threshold issue as to whether Rule II had in fact been breached by the failure of PW7 to caution the 1^st applicant at the time of his 1^st interview.  In his Reasons for Verdict, the judge said :

“

72.

I accept the evidence of PW7, the Immigration officer HO that during his preliminary interview with D1 [the 1st applicant], at that time, he had little information about the case in hands.  All he knew was that D1 was suspected of assisting the mainlanders to depart the territory with false information.  The purpose of his interview with D1 was only to compile a control case report (P89) so that they would have a better understanding of the case situation so as to decide for the purpose of investigation what to do next.  He explained that he did not cautioned D1 as he was of the view that he has no reasonable grounds for suspecting that D1 has committed an offence.  In my judgment, the question of what amounted to reasonable grounds would vary from case to case and what PW7 had concluded about the reasonable suspicion at that stage could not be faulted.  Even if, contrary to my finding, there is a breach of Rule 2, that of itself did not render any admission or statement made subsequent that breach inadmissible.  The fundamental tests of voluntariness and fairness remained.  I ruled that D1 was plainly making use of the fact that he was not immediately cautioned to say that he was so prejudiced.  His explanation that he continued to give answers in P4 because he had given answers earlier before was but an attempt on his part to impress upon the court that he was unfairly treated.  D1’s statements were in my view voluntary and there was no need to exercise the residual discretion to exclude P4.”

23. The evidence against the 1^st applicant at the time of the 1^st interview was that he had been found in the presence of the three mainlanders who each had passports, identity cards and credit cards in the names of other persons and flight documentation in the names of those other persons on the Cathay Pacific flight to London, and that the 1^st applicant possessed a copy of the internet booking confirmation for that flight in the names of one of those persons.

24. PW7’s evidence, which the judge accepted, was that though this created suspicion that the 1^st applicant had been involved in some illegal activity, his role in any such activity was still something of a mystery and the purpose of the 1^st interview was to discover, if possible, more information about that.

25. There is no doubt that an investigating officer in many cases, very likely due to his own years of experience, will have an “educated suspicion” that an individual has committed an offence.  But he has no obligation to caution that individual until there exists evidence which establishes reasonable grounds to support that suspicion. 

26. In the present case, at the time PW7 interviewed the 1^st applicant, there was evidence involving the 1^st applicant with the activities of the mainlanders.  The question was whether that evidence afforded reasonable grounds to suspect the 1^st applicant was acting together with the mainlanders in what must have been obvious was their unlawful possession of documents.  The judge, not without difficulty, found that there was insufficient evidence so as to require PW7 to caution the 1^st applicant for the purpose of that 1^st interview.

27. We have reservations concerning this finding of fact.  On the basis of the evidence known to the immigration officers, by the time PW7, some three hours after the arrest of the applicants and the three mainlanders, commenced to interview the 1^st applicant, there was considerable circumstantial evidence available to him and his colleagues implicating the 1^st applicant in an attempt to transport the mainlanders to the United Kingdom. 

28. But as the judge said, even if the 1^st applicant should have been cautioned before the 1^st interview and was not, that error did not necessarily mean that P4 was inadmissible.  The judge went on to separately consider the admissibility of P4 in terms of its voluntariness and ultimately whether he should exercise his discretion to exclude it.

29. He concluded that it was voluntary and concluded also that its admission into evidence would not result in unfairness to the 1^st applicant.

30. Those findings of fact seem to us to be both reasonable and firmly grounded on the evidence before the judge.  Firstly, the argument against the voluntariness of P4 is based upon the lingering effect of the 1^st uncautioned statement causing the 1^st applicant to participate in the later cautioned statement P4.  That was the effect of the 1^st applicant’s evidence on the special issue.  That evidence was rejected by the judge and nothing has been advanced before us to suggest the judge’s decision in that regard was flawed.  Indeed it is very common for defendants to make uncautioned admissions to investigation officers when first spoken to.  It would be quite wrong to suggest that because of that any later cautioned interview was necessarily the fruit of a poisoned tree and involuntary.

31. In the present case, some eight hours elapsed between the conclusion of the 1^st uncautioned statement and the later cautioned statement P4.  The judge was entitled to conclude, as he did, that the earlier statement in the circumstances of its making had not impinged upon the voluntariness of P4.  We cannot accept Mr Lee’s argument that the “momentum” of the 1^st applicant’s participating in and answering questions in the 1^st uncautioned interview must have caused him to believe he had to continue to answer questions in the course of P4.  This version of events given in evidence by the 1^st applicant during the course of the voir dire was, as we say, rejected by the judge and was essentially a finding of fact. 

32. The same analysis must apply to the court’s refusal to exercise its discretion to exclude P4.  If the earlier statement had no effect upon the voluntariness of P4, then the production of P4 in the circumstances of this case cannot have been unfair.  There were no other circumstances involved in the making of P4 or in the treatment of the 1^st applicant over the period between his arrest and the commencement of P4 which were so exceptional as to warrant its exclusion.  Such exceptional circumstances usually, though not exclusively, involve something in the nature of a deception of a defendant by some means so that he volunteers a statement to the investigating authority, or some other form of mala fides on the part of the investigators.  That is not alleged in the present case.

33. The judge was entitled to admit P4 on the basis which he stated.  Accordingly the 1^st ground fails.

Ground 2 (the 1^st applicant) and Grounds 1 & 2 (the 2^nd applicant)

34. Because of the similarity of these grounds, and their central arguments, we can deal with them together.  The grounds are restricted to the applicants’ convictions on Charges 10 to 12.

35. Mr Lee and Mr Bruce Tse (for the 2^nd applicant) argued that there was no proper factual basis for the conclusion that the possession of the false credit cards by the three mainlanders was a fact known to the applicants. 

36. The relevant part of the judge’s findings is as follows :

“

… Although there is no direct evidence as to when, where or how the three mainlanders came into the possession of the forged identity cards or the credit cards, those documents all bore the names of the false identities which they assumed and they were all found in the custody of each of the mainlanders when they were heading to the gate departing for London.  I agree with Mr. Chung’s analysis that it could be inferred that these identity cards were part and parcel of the identification documents in support of the false identities they had assumed.  The forged credit cards were also part and parcel of the false documents created for the scheme.  Although the credit cards, unlike identity cards, are not instruments for proof of identity by its very nature, the existence of those credit cards alongside with the HKSAR passports and the HKID cards which bore the same names assumed by the mainlanders suggested that they must have been originated from the same source of supply which was in possession of the information of the false names well in advance before they were created for the use of the mainlanders. ...” (emphasis added)

37. While there was no direct evidence before the court as to who provided any of the documentation to the mainlanders, the judge further found the circumstantial evidence compelling that these documents had been supplied to the mainlanders by one or both of the applicants.

38. In that regard we highlight that there was evidence that the 2^nd applicant was involved in arranging the bookings for both flights, i.e. to London and Bangkok, and that he had assisted the three mainlanders in entering into Hong Kong.  He had entries in his telephone notebook which could only have referred to the three mainlanders.  There were frequent telephone contacts between the applicants in the two-week period prior to the arrests.  Both applicants were present at the hotel in Wanchai where the three mainlanders had stayed prior to leaving for the airport.

39. The 1^st applicant had initially gone alone to the Cathay Pacific check-in counter with his own travel documents and the Hong Kong passports and internet tickets to be used by the three mainlanders in an attempt to check-in not only himself but also the absent mainlanders for the flight to London.  He was told he could not do so and that they also had to be present when they were checked-in.  At about that time they were with the 2^nd applicant checking in for the flight to Bangkok.  The 1^st applicant later returned to the Cathay Pacific counter with the three mainlanders.  He provided their bogus travel documentation at the counter and all four then checked-in for the flight to London.  Subsequently when all of them had successfully negotiated the airport’s immigration checkpoint and were in the departure section, all five of them gathered together and documents were transferred amongst them.  

40. It was not challenged that the mainlanders, when they had gone through immigration, used their own Chinese travel documents and boarding passes for the Bangkok flight.  They must therefore have received their London flight documents and identity cards from either or both of the applicants once they had passed through immigration.

41. This, together with the documents found upon the applicants when arrested, is compelling evidence that both the 1^st and 2^nd applicants were complicit in organizing and arranging the fraudulent travel scheme for the three mainlanders.  All of this is clearly in our judgment sufficient to support the judge’s conclusion that :

“

… It could be inferred that those who were behind the scheme had considerable planning and involved the obtaining of HKSAR passports, forged HKID cards and credit cards, all in the same names for the use of the three mainlanders.  Two sets of air-tickets in their real as well as false names have to be purchased.  The irresistible inference is that both defendants have knowingly participated in the enterprise and supplied to these Mainlanders those false instruments so that they could pretend to be HKSAR citizens in the names of TUNG, TAM and Chan to obtain boarding passes to board CX 253 to UK…”

42. In the circumstances of the scheme it is unrealistic to suggest that the credit cards may have been separately provided to the three mainlanders outside of the knowledge of the applicants.  It is plain that all of the documentation was provided to the mainlanders as a “package”.  The judge was entitled to draw the inference that he did.

43. That is sufficient to dispose of the 1^st applicant’s remaining ground of appeal and both of the grounds advanced by the 2^nd applicant.  The applications for leave to appeal against conviction are dismissed.

The 1^st applicant’s appeal against sentence

44. The 1^st applicant, who was unrepresented for the purposes of sentence, complained that the sentences imposed upon him for the individual offences and in totality are manifestly excessive.

45. We disagree.  Each of the different categories of offences had sentences imposed, bearing in mind the role of the applicant, which were well within the parameters of the applicant’s culpability.  Indeed it should be said that so far as the immigration offences the subject of Charges 1 to 3 were concerned, the sentences were unduly lenient.  The operation of the scheme the applicant was involved in required the practicing of a quite large scale and sophisticated deception of immigration officers.  In our view, in regard to those offences, starting points considerably higher and approaching those imposed in respect of the offences contained in Charges 4 to 6 should have been adopted.

46. However, we do not propose to interfere with the individual sentences as in our judgment the totality of sentence properly reflects the criminality of the 1^st applicant.

47. There is no merit to the application concerning sentence and it is dismissed.