HKSAR v. SHI FU YING

[English Translation – 英譯本]

HCMA 202/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 202 OF 2006

(ON APPEAL FROM STCC NO. 7 OF 2006)

-------------------------------------

BETWEEN

-------------------------------------

--------------------------

JUDGMENT

--------------------------

1. The Appellant was convicted after trial on one count of “using an unlawfully obtained travel document” (Charge (1)), contrary to section 42(2)(b) of the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong, and one count of “making a false representation to an immigration assistant” (Charge (2)), contrary to section 42(1)(a) of the same Ordinance. He was sentenced to 9 months’ imprisonment for each offence, with the two sentences to run concurrently. The Appellant now appeals against the convictions.

Particulars of charges

2. The particulars of the two charges against the Appellant were as follows:

(1)     Charge (1)

On 29 December 1996, for the purpose of implementing Part II of the Immigration Ordinance [immigration inspection], Shi Fu Ying used in Hong Kong an unlawfully obtained travel document, namely a ‘People’s Republic of China: Permit to Enter Hong Kong and Macau’, with Permit No. 0469320.

(2)     Charge (2)

On 29 December 1996 and in Hong Kong, Shi Fu Ying made to an immigration assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance [immigration inspection] a representation which he knew to be false or did not believe to be true, namely you said you were Xu Hai Tao (transliteration) (許海濤).

Prosecution case

3. According to the agreed facts, on the day of the offence (29 December 1996) the Appellant entered Hong Kong on a Hong Kong-Macau Permit bearing the name “Xu Hai Tao” and was permitted to stay in Hong Kong until 29 December 2003. This constituted Charge (1).

4. On 2 June 2005, an officer of the Immigration Department (PW1) went to the Appellant’s place of residence and invited him to the Immigration Department for investigation. In a subsequent interview, the Appellant admitted certain facts. To quote from the written verdict of the magistrate:

At answer (11), the Appellant said:

On that day, I queued up for an immigration check, and then I showed your member of staff a One-way Permit of the said Xu Hai Tao for your inspection. Your staff member then put a chop on the Permit and allowed me to go.

5. This refers to what happened when the Appellant entered Hong Kong on 29 December 1996, i.e. Charge (2).

6. As for the background and details, the magistrate gave the following account, which included her analysis of part of the record of interview:

As appears from the record of interview, the Appellant disclosed that, since he was aged 5, he had been living with his father’s sister Shi Li Mei (transliteration) (施麗美) and an ‘identity’ had been arranged for him. He was named ‘Xu Hai Tao’. In other words, the Appellant knew that he was not called Xu Hai Tao before he attained the age of 5. Apart from the difference in the name, the Appellant’s date of birth had not been changed.

The Appellant knew who his natural parents were. His father was Shi Qing He (transliteration) (施清河). When he was aged 12 or 13, he returned to his ancestral home and saw his own family register of identity, and therefore he was sure his real name was ‘Shi Fu Ying’.

And the Appellant’s One-way Permit had been arranged for him by his father’s sister Shi Li Mei. Answer (19) shows that his father’s sister posed as his mother whereas his paternal uncle Xu Liu Sun (transliteration) (許留孫) posed as his father. In fact, the Appellant’s natural parents were still in the village and the Appellant was not eligible for applying to come to Hong Kong, and hence he had his father’s sister and his paternal uncle pose as his natural parents so as to enable him to come to Hong Kong.

The Appellant very well knew the full names of his father’s sister and his paternal uncle. He also knew that his natural father was surnamed Shi and not Xu, but he was prepared to have his name changed in order to come to Hong Kong. Knowing that ‘Xu Hai Tao’ was not his real name, the Appellant, he had his father’s sister and his paternal uncle act as his natural parents and, as such, apply for him to come to Hong Kong. This was an unlawful act. For this reason, the Permit that he held on 29 December 1996 was an unlawfully obtained travel document. By the same token, the name Xu Hai Tao as appeared on the Permit was not the Appellant’s real name and was false, and the Appellant would not have believed that name to be his real name. At answer (25), the Appellant said:

Q:  What do you know about the person called Xu Hai Tao?

A:  As far as I know, there is no such person at all. Nor do I know that person. Everything was arranged by my father’s sister.

Defence case

7. The Appellant neither gave evidence nor called any witness. He simply contended that the record of interview was not voluntarily made.

Magistrate’s verdict

8. In the end, the magistrate ruled that the record of interview was admissible as evidence and, relying on the contents of the record (see paragraphs 5 and 6 above) and the agreed facts (see paragraph 3 above), convicted the Appellant.

Present appeal

9. Three specific grounds of appeal have been put forward on behalf of the Appellant.

10. Ground (1) states as follows:

The magistrate had erroneously admitted as evidence that part of the Appellant’s record of interview which was based on hearsay and had wrongly accorded absolute weight thereto. The crucial admissions as appeared in the Appellant’s record of interview, including his name, his ‘real’ name, the identity of his parents, the relationship between him and each of Shi Li Mei and Xu Liu Sun, etc, must be ‘facts’ which the Appellant came to know from others and not facts which the Appellant personally saw, heard or knew. Such ‘admissions’ which were based on hearsay should not have been admitted as evidence and accorded any weight.

(Surujpaul (called Dick) v. R [1958] 1 WLR 1050;

R v. Chiu Ming Cheung & Ors. Crim. App. No. 367 of 1984))

11. With respect, I see nothing in this complaint.

12. As can be seen from the relevant record of interview, the Appellant was called “Shi Fu Ying” before he attained the age of 5, whereas the two persons who acted as his father and father’s sister were called “Shi Qing He” and “Shi Li Mei” respectively. These were certainly facts which the Appellant heard and saw personally. They were not facts that the Appellant heard from another source but were real life experiences that the Appellant had, and they did not depend on any relationship by blood or biological relationship between the parties. On the contrary, they were the identities that the parties manifested to the community and were facts that objectively existed.

13. Furthermore, these identities came into existence prior to “Xu Hai Tao” and were evidenced by a social record in the form of the Appellant’s family register. Even if it were said that, before he attained the age of 5, the Appellant was too young to have any valid experience, his experience after he attained 12 or 13 would certainly still suffice to confirm his identity of “Shi Fu Ying”. To use his own words, it would be to “re-use” his original identity and family register. These were all objective facts. This explained why people in the street and at school would call him “Shi Fu Ying” and call the one who claimed to be his father “Shi Qing He”. 

14. On the other hand, as mentioned above, the name “Xu Hai Tao” was added subsequently. According to the record of interview, that name was formed following the surname of the person who claimed to be the Appellant’s paternal uncle. This name and the preceding name were also objective facts which the Appellant experienced in person and which also had nothing to do with any relationship by blood or biological relationship between the parties. As regards “Shi Li Mei” and the paternal uncle “Xu Liu Sun” subsequently posing as the Appellant’s parents, these were once again objective facts because they had never before lived in the community using those identities.

15. It should be noted that the “prior name and subsequent name” that I have emphasized is the only viable standard by which the question of “true” or “false” for the purpose of the Ordinance can be determined. The reason for this is very simple. For example, we think we are of a certain surname but in fact may not be able to ascertain whether this was the case two to three generations ago. We can therefore take our first identity as the standard, and this is the “true” identity. Whatever being added subsequently by informal or improper means is “false”. This is my judgment.

16. Ground (2) states as follows:

The magistrate erred in ruling that the Appellant ‘was prepared to have his name changed in order to come to Hong Kong. Knowing that “Xu Hai Tao” was not his real name, the Appellant, he had his father’s sister and his paternal uncle act as his natural parents and, as such, apply for him to come to Hong Kong. This was an unlawful act.’ In fact, the contents of the Appellant’s record of interview did not necessarily only serve to prove that he obtained his Hong Kong-Macau Permit by unlawful means. It could also be inferred from the contents of his record of interview that the Appellant first obtained, by lawful means (such as adoption), the family register bearing the name Xu Hai Tao for use in the city, and then obtained the said Permit by using the same identity after 13 years.

17. With respect, this ground of appeal must also fail.

18. In the record of interview, the Appellant made it clear that “when I applied for the One-way Permit [i.e. the document forming the subject-matter of Charge (1)] to come to Hong Kong, my father’s sister Shi Li Mei posed as my mother and my paternal uncle Xu Liu Sun posed as my father”.

19. Given it was “posing”, how could it possibly be proper? It is true that the relevant document was arranged by “Shi Li Mei” and collected by the Appellant. However, it appears from the record of interview as a whole that the Appellant posed as her son because he wanted to come to Hong Kong and live with her family. He subsequently got married in Hong Kong, and this was why on the relevant form he filled in the names of his paternal uncle and his father’s sister as his parents (see Question and Answer (19)). It follows that the Appellant was fully aware of the relevant circumstances and accepted the said statement as false. Under the Ordinance, a document obtained by means of a false statement is regarded as a document unlawfully obtained: section 42(3) of the Immigration Ordinance.

20. Ground (3) states as follows:

In convicting the Appellant on Charge (2), the magistrate failed to consider that, while the false representation as particularized in the Charge was that the Appellant claimed to be Xu Hai Tao, in fact the Appellant had used Xu Hai Tao as his name and owned the family register of Xu Hai Tao, and in the absence of evidence showing that there was another person called Xu Hai Tao in the world, Xu Hai Tao could simply be regarded as one of the Appellant’s names. Therefore, the representation that the Appellant allegedly made could not be considered false.

21. With respect, I do not agree.

22. The identity of “Xu Hai Tao” in itself was nothing but a makeshift. Furthermore, after the Appellant returned to the village when he was aged 12 or 13, he resumed his studies and work in his true identity (or his first identity). This went on for 6 years until 19968, when the Appellant was aged 18 and when “Xu Liu Sun” and his wife “posed” as the Appellant’s parents. As a matter of fact, as can be seen from his record of interview, the Appellant had never regarded himself as “Xu Hai Tao” up to the time of his arrest, otherwise there would not have been an abundance of claims such as “in fact” and “true identity”.

Judgment

23. The appeal is dismissed.