HKSAR v. LO KA FUNG AND ANOTHER

HCMA 350/2018

[2019] HKCFI 151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 350 OF 2018

(ON APPEAL FROM STCC 3029/2017)

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J U D G M E N T

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1.  The first and second appellants were convicted after trial on one count of conspiracy to defraud and was each sentenced to 18 months’ imprisonment.

2.  The amended particulars of the charge were that those appellants conspired together with “Cally and other persons unknown, to defraud the Director of Immigration of the Hong Kong Special Administrative Region and his officers, by Lo Ka Fung and Singh Seema entering into a marriage and by dishonestly and falsely representing to the Director and his officers that Singh Seema’s extension of stay in Hong Kong were for the purpose of remaining with her spouse, namely, Lo Ka Fung, and thereby to induce the said Director and his officers to act contrary to their public duty, namely to grant Singh Seema permission of stay in Hong Kong under circumstances which they would not otherwise have granted.”

3.  Upon conviction, both the first and second appellants were each sentenced to 18 months’ imprisonment.  Originally both appellants appealed against their convictions and sentences; however, the first appellant abandoned his appeal against sentence prior to the appeal hearing, and only the second appellant appealed against both conviction and sentence.

PROSECUTION CASE

4.  It is undisputed that on 5 September 2016, the first and second appellants were married in Hong Kong (see marriage certificate exhibit P2).

5.  The first appellant after arrest was interviewed under caution and admitted that he had received HK$20,000.00 from a person called Cally Chan to contract a bogus marriage with the second appellant with a view to deceiving the Immigration Department into granting a dependent visa.  The first appellant made two records of interview (ROI) and one video recorded interview (VRI).

6.  The second appellant under caution also admitted that she had contracted the marriage through Cally’s arrangement with the first appellant for obtaining a dependent visa in Hong Kong to facilitate her seeking a job in Hong Kong.  The second appellant asserted that she was to pay HK$20,000.00 to Cally on the wedding day and another HK$20,000.00 when her visa was approved.  The second appellant also made a record of interview with the assistance of Nepali interpreter.

7.  The first appellant objected to the admissibility of his records of interview and video recorded interview and the second appellant at the trial objected to the admissibility of her record of interview.

8.  The learned magistrate adopted the alternative procedure and the first appellant testified on the special issue and the second appellant and her witness testified on the special issue.

9.  The learned magistrate ruled that the first appellant’s two records of interview to be admissible but not the video recorded interview and the learned magistrate ruled that the second appellant’s record of interview was admissible.

10.  The reason the learned magistrate did not admit the video recorded interview of the first appellant was because it was based on whatsapp messages which the police officer had obtained from the mobile telephone of the appellant without a search warrant, and therefore the learned magistrate found that although the prosecution did not seek to adduce the content of the phone as evidence, yet the prosecution had relied on the video recorded interview which contained excerpts of the phone messages when those same phone messages had not been adduced before him in its entirety, therefore the learned magistrate found that it was unfair to the appellant to just look at the excerpts without the entire conversation, and therefore the learned magistrate correctly exercised his discretion not to admit the video recorded interview as evidence.

11.  Neither the appellants gave evidence nor called at any evidence on the general issue, the learned magistrate, after considering the submissions of defence counsel and prosecution counsel, then convicted both appellants of the charge.

D1’S APPEAL

Ground one

12.  In Mr Davis’s amended perfected grounds of appeal, he pointed out that the learned magistrate had failed to identify documents which he was relying on as being consistent with the evidence of PW3 and in paragraph 6 of the written submissions of Mr Davis, he pointed out that exhibit P8, P14 & P16 were documents prepared by PW3 and therefore were self‑serving.  As Mr Lai correctly pointed out P8 (Notice to Person in Custody) was a document signed by the first appellant and PW1 prior to the commencement of the first appellant’s first record of interview.  P14 was an agreement by the first appellant to being interviewed on video and that document was signed by the appellant and PW2.  P16 (Form of Loss, Dissatisfaction or Compliant) was signed by the first appellant, so the assertion by Mr Davis that these were self‑serving documents of PW3 were unfounded. I therefore do not see any merit in the first ground of appeal.

Ground two

13.  In relation to ground two of the appeal, it is obvious from a reading of the learned magistrate’s statement of findings that he was referring to the consistency of PW3’s evidence, relating to matters before the interview, with other prosecution witnesses, I do not see any merit in this ground of appeal.

Ground three

14.  As for ground three, Mr Davis asserted that the learned magistrate had failed to adequately explain why he found PW3 to be credible and reliable although he also found that PW3 had misconducted himself subsequently.  The learned magistrate observed, as Mr Lai pointed out at paragraph 29, that PW3’s undesirable behaviour had occurred after the interview.  The learned magistrate said “his evidence regarding the matters before interview was consistent with other documentary and prosecution witnesses’ evidence.  Those parts of evidence was not shaken by cross‑examination and there was no wrongdoing by PW3 prior to those interviews.”

15.  It is trite to point out that the learned magistrate, as a fact finder, is entitled to assess the evidence and is also entitled to point out the parts of the evidence he accepted and the parts he didn’t accept and the parts he found reliable and parts that he found unreliable, and make an overall assessment of a particular witnesses’ credibility and reliability.  In this case, I find no merit in the complaint that the learned magistrate had failed to adequately explain why he found PW3’s evidence credible and reliable, so I do not find any merit at all in the grounds of appeal against conviction in relation to the first appellant.

D2’s appeal

16.  The second appellant’s appeal against conviction was based on the sole ground that the learned magistrate was wrong in convicting her when there was no evidence as to “what the public duty of the Director of Immigration was which was essential to be proved”.

17.  As Mr Lai pointed out the same issue had been raised before the learned magistrate in defence counsel’s closing submissions.

18.  I do not wish to repeat what the learned magistrate said in his Statement of Findings on this issue as it is very clear that the learned magistrate had properly resolved the matter after considering all the relevant cases and the law.  I wish to only point out, as Mr Lai did so in his submission, that in HKSAR v Chong Shue Weng Derek & Others, HCMA 235/2009, Lunn J (as his lordship then was) held that:

“31. Given the undisputed evidence of Ms Tam that she never intended to live with the 1^st appellant ‘as a couple’ and that the purpose of her entry into the marriage for which she was paid was simply so that the 1^st appellant could ‘use the marriage with me to stay here’, clearly the magistrate was correct in describing the marriage as a ‘shell’. Although Ms Tam and the 1^st appellant enjoyed the status of being married there was no substance to the status at all. Although no immigration officer was called to testify on the point, there is no doubt that it was a fundamental pre‑requisite of an application for the grant of a visa entry permit on the basis of the applicant being ‘dependent’ of Ms Tam, as the sponsor, that the relationship be genuine and not merely a façade.”

19.  There is also no merit in this ground of appeal of the second appellant.

20.  In relation to the second appellant’s appeal against her sentence of 18 months after trial as being too severe, it is clear from past cases considered by the learned magistrate, for example, in HKSAR v Chen Wuchang, HCMA 251/2007 and HKSAR v Chan Hung Ho [2013] 2 HKLRD 216, that the sentence of 18 months is within the normal range that had been handed down by the court for offence of this nature, it is therefore neither manifestly excessive or wrong in principle, so the appeal against both conviction and sentence of the second appellant is dismissed.

21.  And as stated above in relation to the appeal of the first applicant, for the reasons already disclosed above, his appeal against conviction is also dismissed.