HKSAR v. FANG SIYUAN

DCCC 467 & 1116/2024 (Consolidated)

[2026] HKDC 631

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS467 & 1116 OF 2024

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REASONS FOR VERDICT

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1.  Defendant was charged with 2 counts of Possession of a false or forged document[1] (Charges 1 and 2)  and 2 counts of Obtaining services by deception[2] (Charges 3 and 4).

2.  The particulars of charges alleges that the Defendant,

(i)  on 29 August 2023, had in his possession, at Flat A, 25^th floor, Tower 2, Starcrest, No. 9 Star Street, Wan Chai, Hong Kong (“Starcrest”)  a false or forged Canadian passport numbered SZ100170 in the name of Fong Tim with the date of birth stated as 6 August 1980 and the place of birth stated as Zhejiang, CHN (“the Questioned Canadian Passport”)  (Charge 1);

(ii)  on 29 August 2023, had in his possession, at Unit 2601, One Hennessy, No. 1 Hennessy Road, Wan Chai, Hong Kong (“Office”)  a false or forged Mexican passport numbered G36932193 in the name of Fong Tim with the date of birth stated as 6 August 1980 and the place of birth stated as Zhejiang, CHN (“the Mexican Passport”)  (Charge 2);

(iii)  between 26 November 2020 and 29 August 2023, both dates inclusive, in Hong Kong, dishonestly obtained services from Shanghai Commercial Bank Limited (“ShaCOM”), namely obtaining banking services through opening 4 accounts at ShaCOM (numbered 357-28-03069-5, 357-33-04258-9, 357-82-07277-3 and 357-88-01646-8)  (collectively referred as “ShaCOM Accounts”)  by deception, namely, by falsely representing that the name of the Defendant was Fong Tim with the Mexican Passport and with date of birth on 6 August 1980 (Charge 3); and

(iv)  between 13 September 2021 and 29 August 2023, both dates inclusive, in Hong Kong, dishonestly obtained services from Bank of Communications (Hong Kong)  Limited (“BoCOM”), namely obtaining banking services through opening 4 accounts at BoCOM (numbered 382577101833401, 382577101833403, 382577101833402 and 382577101833405)  (collectively referred as “BoCOM Accounts”)  by deception, namely, by falsely representing that the name of the Defendant was Fong Tim with the Mexican Passport and with date of birth on 6 August 1980 (Charge 4).

PARTIES CONTENTIONS

2. For Charge 1, Prosecution alleges that Defendant was in possession of the Questioned Canadian Passport at the material times, which was forged; and further, the personal particulars as stated in the said passport, being the name, the date of birth and the place of birth were false.

3.  For Charge 2, Prosecution alleges that Defendant was in a possession of the Mexican Passport at the material times, which the personal particulars as stated in the said passport, being the name, the date of birth and the place of birth were false.

4.  For Charges 3 and 4, it is alleged that the Defendant used the Mexican Passport which contained false personal particulars to open BoCOM Accounts and ShaCOM Accounts. By doing so it is contended that he dishonestly induced both banks to believe that his name, date of birth and place of birth was the same as stated in the Mexican Passport. As a result, Defendant obtained services from BoCOM and ShaCOM by deception.

5.  Defence contends that Prosecution is unable to prove that the Questioned Canadian Passport and Mexican Passport contained false particulars and the former was forged. It is further contended that the Prosecution is not able to prove that the Defendant was in possession of both passports at the time of the offence.

ADMITTED AND UNDISPUTED FACTS

6.  A set of admitted facts[3] and 9 witness statements[4] are admitted pursuant to s.65C and s.65B of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong respectively.

7.  Between 4 March 2014 and 5 March 2024, on various occasionsDefendant had entered into and departed from Hong Kong[5].

8.  Defendant obtained a Hong Kong Identity Card numbered F102315(9)  in October 2021, in the name of Fang Siyuan with date of birth stated as 6 June 1987 (“HKIC”).

9.  There was no arrival or departure records in Hong Kong between 4 March 2014 and 5 March 2024 in the name of Fong Tim with a date of birth on 8 August 1980 kept by the Immigration Department[6].

10.  Pursuant to 2 search warrants, Starcrest and Office were searched on 29 August 2023.

11.  Bankers affirmations complied by staff of ShaCOM[7], BoCOM[8] and Bank of China (Hong Kong)  Limited (“BOC”)  [9] are admitted pursuant to s.20 of the Evidence Ordinance, Cap. 8, Laws of Hong Kong.

12.  Defendant was arrested by ICAC on 29 August 2023.  He was released by ICAC on 31 August 2023.  Defendant was then arrested by Immigration officer Lam To Tat at the lobby of the ICAC headquarters on the same date. Defendant produced his HKIC to prove his identity upon request by Mr Lam[10].

PROSECUTION EVIDENCE

13.  13 prosecution witnesses were called, namely:

PW1 Tsang Chi Ming	Immigration Officer
PW2 Cheng Hoi Ting	Immigration Officer
PW3 Fung Chun Wai	Immigration Officer
PW4 Leung Siu Ying	Immigration Officer
PW5 Tse Hiu Fung	ICAC Senior Investigator
PW6 Woo Hong Ki	ICAC Investigator
PW7 Yeung Ka Wai	ICAC Senior Investigator
PW8 Yiu Chi Chiu	ICAC Investigator
PW9 Cheng Ka Chun, Bendy	Branch Manager of BoCOM
PW10 Law Tsz Jing	Deputy Financial Officer of BoCOM
PW11 Tang Wai Yip	Deputy Branch Manager of BoCOM
PW12 Chu Hung	Branch Manager of ShaCOM
PW13 Chan Ka Man	Government Chemist

SUMMARY OF THE EVIDENCE OF THE PROSECUTION WITNESSES

Defendant’s applications for extension of stay and entry for employments as professionals via the admission scheme for Mainland Talents and Professionals

14.  PW1 and PW2 retrieved various application forms in relation to the Defendant’s applications for extension of stay and entry for employment as professionals in Hong Kong (for admission scheme for mainland talents and professional)  from the records kept in the Next Generation Application and Investigation Easy Systems of the Immigration Department:

(a)  In 6 application forms for extension of stay dated 21 November 2020[11], 18 February 2021[12], 19 April 2021[13], 13 May 2021[14], 6 July 2021[15] and 16 August 2021[16] :

(i)  the name, date of birth and the place of birth of the applicant were stated as Fang Siyuan, 8 June 1987 and Heilongjiang respectively in all 6 application forms;

(ii)  it was stated that the applicant was the holder of a Grenadian Diplomatic passport numbered DA000108 (“the Grenadian Diplomatic Passport”)  in each application form;

(iii)  the address was stated as Starcrest in each application form;

(iv)  with respect to the application forms dated 13 May 2021 and 6 July 2021, a letter from the Embassy of Grenada in Beijing requesting the Government of the HKSAR to grant permission to Fang Siyuan to extend his stay for another month for government affairs and that Fang Siyuan is the Ambassador-at large of the Government of Grenada, a letter from the Embassy of the Russian Federation in Guyana was enclosed to the effect that the Embassy of Grenada in the Russian was ready to issue a single entry diplomatic visa to Mr Fang Siyuan, born on June 8, 1987, citizen of Grenada, would be a member of the diplomatic staff of the Embassy of Grenada in Russia, and owner of the Grenadian Diplomatic Passport;

(v)  Signatures of the applicant were appended on the declaration page of each application form, in which the applicant declared that the information given in each application is correct, complete and true. In page 1 of each application form the following words were printed: a person who knowingly and willfully makes a statement or gives information which he/she knows to be false or does not believe to be true shall be guilty of an offence under the Laws of Hong Kong and any such visa/entry permit issued or permission to enter or remain in Hong Kong granted shall have no effect.

(b)  In 2 application forms for Entry for Employment as Professionals in Hong Kong dated 11 December 2020[17] and 27 January 2021[18]:

(i)  the name, the date of birth and the place of birth of the applicant were stated as Fang Siyuan, 8 June 1987 and Heilongjiang respectively;

(ii)  it was stated in each application that the applicant was the holder of a Peoples’ Republic of China passport numbered E28671172 (“PRC passport”);

(iii)  in support of the application, the applicant’s employer (Goldin)  also submitted an application form and provided a letter of consent for the applicant, in the name of Fang Siyuan to work in Hong Kong. The employer in its application also attached a copy of the applicant’s Peoples’ Republic of China Identity Card (“PRC ID Card”)and a copy of the PRC passport in the name of Fang Siyuan with date of birth 8 June 1987 and place of birth Heilongjiang as stated in the PRC ID Card and PRC passport.

(c)  In an application for extension of stay dated 5 October 2022, the applicant’s name, date of birth and place of birth were stated as Fang Siyuan, 8 June 1987 and Heilongjiang respectively. It was also stated that the applicant is the holder of the HKIC.

15.  PW3 and PW4 were posted to the Quality Migrant’s and Mainland Residents Section of Immigration Department and both were assigned to handle Fang Siyuan’s application for entry as professional at different times.  PW4 recalled that the applicant submitted an application for obtaining dependent visa for his son and provided a copy of his son’s birth certificate.  He noticed that the applicant’s Peoples Republic of China Identity Card number as stated in the birth certificate was different from the PRC ID Card number as stated in the application form[19] .  PW4 then issued a letter dated 3 February 2021 to Goldin seeking clarification and relevant proof[20] .  On 11 February 2021, the Immigration Department received supplementary information including a copy of another People Republic of China Identity Card of the applicant which stated that his date of birth as 8 June 1985.  PW4 then issued another letter to Goldin on the same day requesting the applicant, ie, Fang Siyuan to provide a declaration to clarify the discrepancies as to his date of birth.  The application was later assigned to PW3 for handling. 

16.  PW3 recalled that the Immigration Department received the applicant’s declaration by facsimile on 25 February 2021[21]. He had compared the signature on the declaration with the signatures on the applications form and accepted that the declaration was made by the applicant himself. 

17.  In the declaration, the applicant explained that when he was young, his parents registered his date of birth as 8 June 1985, which was 2 years earlier than his actual birth year, with the local authority in order to meet the age requirement for school enrolment in Heilongjiang.  When he admitted to a university in Shanghai, he needed to return to his birth place to apply for a transfer of the household.  During that time, he applied for a identity card and a identity card with date of birth 8 June 1985 was issued to him.  The Applicant further explained that after graduating from university, he decided to stay in Jinhua, Zhejiang Province, i.e. his father’s hometown and he then applied to transfer his household again. It was in this application that the applicant reported to the local authorities his actual date of birth was 8 June 1987 and subsequently Zhejiang Province issued a new identity document with his actual date of birth.  He had also informed the university the same in order for them to change his academic records.  The applicant also declared that he had been using the identity document with his actual date of birth since 2010 for application for passports and entry permits for Hong Kong and Macao.  Regarding his date of birth that was stated as 8 June 1985 in his son’s birth certificate, the applicant explained that he was working in Russia when his wife gave birth to his son, his wife and the applicant’s mother mistakenly provided a copy of his old identity document (which bore the wrong date of birth)  for his son’s birth registration. 

18.  At the end of the said declaration, the applicant expressed his apologies for causing inconvenience to the department.

19.  Having reviewed the information supplied by the applicant, PW3 accepted the applicant’s explanation and recommended to grant the applicant an entry for employment on 16 March 2021.

House Search and Seizure of Exhibits

20.  PW5, together with PW6, PW8 and Ian Hui arrived at Starcrest at about 6:25 am on 29 August 2023 for an operation to arrest the Defendant for suspected Bribery and Money Laundering offences. PW5 testified that Defendant was the only person present inside the premises when the ICAC officers entered Starcrest. PW5 asked Defendant to produce proof of identity but he claimed that his identity card was left in his driver’s car. As PW5 was provided with Defendant’s photographs before the operation and he could recognize him, he thereby arrested the Defendant and cautioned him. Search warrants were shown to the Defendant and he requested for legal representation to be present.  PW5 recalled Defendant also claimed that he was a business ambassador of Grenada.

21.  PW8 said that while they were waiting for Defendant’s legal representative arrival, he recalled that Defendant’s driver did come to the Starcrest to bring breakfast to Defendant.  He also recalled that PW5 had asked the Defendant if he had traded a particular stock and knew a person named Fong Tim, which the Defendant answered both in the negative.  Defendant also refused to sign on PW5’s notebook when being asked and said he would not sign anything without his legal representative’s presence.

22.  Defendant’s legal representative arrived at Starcrest at around 8:30 am. The search started at around 8:41 am after PW5 confirmed with his superior that Defendant did not enjoy any privilege as business ambassador as he professed. 

23.  The witnesses testified that a black rucksack (“Rucksack”)  was found on the floor of the bedroom[22] .  PW5 asked Defendant whether the rucksack belonged to the him and he replied in the affirmative.  The Rucksack was then taken out to the living room for inspection by PW6 and PW8 of its contents.  The following items were found inside the Rucksack:

(i)  Defendant’s HKIC;

(ii)  Defendant’s Grenada Diplomatic Passport[23] ;

(iii)  Defendant’s PRC Passport[24];

(iv)  4 white cards including 1 white access cards[25] (“Access Card”);

(v)  Defendant’s PRC ID Card with date of birth 8 June 1987 stated therein[26] ;

(vi)  The Exit-entry permit for Travelling to and from Hong Kong and Macao of the Defendant, with date of birth 8 June 1987[27] ;

(vii)  A Singaporean Employment Pass of the Defendant with date of birth 8 June 1987[28] ;

(viii)  An APEC Business Travel Card of the Defendant with date of birth 8 June 1987[29] ;

(ix)  A Turkish identity card bearing Defendant’s photograph with date of birth 8 June 1987[30] ;

(x)  A Russian driver licence bearing Defendant’s photograph with date of birth 8 June 1987[31] ;

(xi)  A Grenada passport of the Defendant numbered GA059823 with date of birth 8 June 1987 and place of birth Nenjiang (a county in Heilongjiang Province)[32] ;

(xii)  A Turkish passport (“Turkish Passport”)  bearing Defendant’s photograph with date of birth 8 June 1987 and place of birth Heilongjiang[33] ; and

(xiii)  2 letters issued by Standard Chartered Bank to Fong Tim and one ATM banks card and one credit card in the name of Fong Tim.

24.  PW5 said that since Defendant was arrested for Bribery and Money Laundering Offences, the abovementioned items (except item xiii )  with the name Fang Siyuan stated were not regarded as evidence and not seized by him immediately upon discovery.  However, it is the practice of the ICAC to keep those items for custody as they are all regarded as Defendant’s personal properties. 

25.  Upon further search, a safe was located inside wardrobe of the master bedroom.  The safe was locked.  A locksmith was then arranged and the safe was opened at around 11:15 am.  The following items were found inside the safe:

(i)  The Questioned Canadian Passport[34];

(ii)  A Canada permanent resident card numbered 9858-7214 bearing Defendant’s photo with the name stated as Fong Tim, with date of birth 6 August 1980[35];

(iii)  A certificate of Canadian Citizenship in the name of Fong Tim, with date of birth stated as 5 January 2022[36] ;

(iv)  A Mexico identity card for voting bearing Defendant’s photo with the name stated as Fong Tim, with date of birth 6 August 1980[37] ; and

(v)  Some documents relevant to Grenadian citizenship of the Defendant and his family member[38] .

26.  PW6 seized items (i)  to (iv)  as he believed that those were related to Defendant’s false identity.  He also seized items (v)  as he had reasonable grounds to believe those were forged documents as they were kept together with items (i)  and (iv).

27.  PW5 said that after the search at Starcrest was concluded and right before they returned to ICAC headquarters with the Defendant, he had asked Defendant’s legal representative if the Defendant would be willing to sign on PW5’s official notebook in respect of the entry concerning Defendant’s admission that the Rucksack belonged to him.  Defendant’s legal representative told PW5 that Defendant refused to sign.  PW5 explained as a result of that he did not make a contemporaneous record of the conversations but he did make a post entry record later at 12:50 pm[39] about the refusal.

28.  A seizure list for eight items seized from the Rucksack and the safe (including exhibit P13, P32 to P35)  was prepared by Ian Hui.  Defendant and his legal representative acknowledged the seizure by signing on the list[40].

29.  Defendant was then escorted back, accompanied by his legal representative, to ICAC headquarters. He was then taken to guarding officers for documentation and search.  The items found in the Rucksack that were not seized, together with the items found during the body search were registered as Defendant’s personal belongings and kept in ICAC custody during Defendant’s detention by ICAC, and a record of such was prepared by guarding officers[41].

30.  PW5 added that as they would conduct further searches in other locations, the HKIC, 4 white cards that were found in Starcrest and also the keys and asthma inhaler found on Defendant were kept in a small bag for use in subsequent searches, whereas the other Defendant’s personal belongings were placed in a big bag which was sealed. 

31.  PW8 added that it was ICAC practice to seal unused items in a large bag and some items which might be needed in subsequent searches in small bags. The guarding officer would explain to the arrested person the reasons for such practice and the entire process would be conducted in front of the arrestee.  When being asked why there existed such a practice, PW8 explained that if the arrested person required medical treatment, he could show the attending doctor what medication the arrested person was taken, however PW8 added that the arrested person was not allowed to take his own medication during detention.

32.  When being asked about the amount of cash that was recorded as the personal belongings of Defendant as stated in the detainee’s property register (“Register”)  had been altered[42] , PW7 explained that the amount was wrongly recorded as $36,100 when the Defendant was first brought to the detention centre.  Such mistake was discovered when Defendant was about to be released from ICAC custody.  The actual amount should be $26,100 and such sum was returned to Defendant and he and his legal representative acknowledged the rectification by countersigning on the amended records without any complaint. 

33.  PW7 and his team members, together with the officers of the Securities Futures and Commission arrived at the Office (the registered office of Tonsin Financial Holdings Limited)  to execute a search warrant in the morning of 29 August 2023. The search was conducted in the presence of Tonsin’s senior staff, and lawyers from Robertsons, Haldanes and DLA Piper. During the search, a locked room at the corner of the Office with a hidden door was located. Tonsin’s staff told PW7 that she could not open the door.  PW7 also tried to use the access cards he found at the Office to open the hidden door but failed.

34.  At around 3:34 pm on the same day, Defendant was taken to the Office for search by PW5 and Ian Hui.  PW5 said he had taken the 4 white cards that were found in the Rucksack with him.  PW5 stated that he had made a record of this event in the detention sheet[43]. Defendant’s legal representative was already present at the Office when Defendant arrived. Search warrant was explained to Defendant and his legal representative. Nothing was seized in the Defendant’s office room.

35.  PW5 said that in the Office, PW7 told him about the hidden locked door. PW5 raised the matter to Defendant.  Defendant denied he had used that room. PW5 then tried to use those 4 white cards which was found inside the Rucksack to open the door in the presence of Defendant  and his legal representative and he was able to open the door with the Access Card.  PW7 then conducted the search inside the room in the presence of Defendant’s legal representative only, as at that time Defendant expressed that he was feeling unwell and he was then accompanied by PW5 to another room inside the Office to take a rest. 

36.  A locked safe was discovered in one of the cabinets inside the room.  Locksmith was then arranged to attend the scene to open the safe.  Inside the safe, a document bag containing 4 passports appeared to be issued by Mexico, one of them being the Mexican Passport[44] was found.  A voided Exit and Entry Permit for Travelling to and From Hong Kong and Macao Card numbered C486614380, with the name and date of birth stated as Fang Siyuan and 8 June 1987, was also found inside the Office.  PW7 seized the Mexican Passport. 

37.  A seizure list containing 4 items seized inside the Office (including the Mexican Passport and the voided exit entry of permit as stated the preceding paragraph)  was prepared and signed by Tonsin’s senior staff in the presence of their legal representative[45] .

38.  Defendant was then escorted back to ICAC headquarters for detention. Defendant’s personal belongings that were taken out for search in the Office (including the Access Card)  were then returned to the guarding officer for safe custody.

39.  PW5 said that he had seized the Defendant’s PRC Passport, PRC ID Card, the exit-entry permit, the Singaporean Employment pass, the APEC Business Travel card, the Turkish identity card, the Russian driver license, the Mexican Passport and the Access Card on 30 August 2023. 

40.  Upon being served with the Notice of Surrender of Travel Document pursuant to s.17A of the Prevention of the Bribery Ordinance, Cap.201 of the Laws of Hong Kong, the Defendant surrendered his Grenadian Passport, Grenadian Diplomatic Passport and his Turkish Passport[46] to the ICAC on 31 August 2023.

Opening of BoCOM Accounts and ShaCOM Accounts

BoCom Accounts

41.  PW9 was the Branch Manager of the Shau Kei Wan Branch of BoCom between December 2020 to early 2023.  One of his duties as branch manager was sourcing new customers.  When he opened a bank account for any new customer, he needed to confirm the identity of the customer, by comparing the face of the customer with the photographs depicted in the identification document that the customer submitted for account opening.  He confirmed that he would not open the account if (i)  the customers did not disclose he had another name, identity or nationality to the bank, (ii)  the customers had two different dates of birth and (iii)  the identification document in support of the application contained false particulars.

42.  On around 13 September 2021, PW9 met a person called Fong Tim together with PW10, the Deputy Financial Officer of BoCOM in a conference room of an office in Wan Chai.  Both recalled that was the office of Mr Fong Tim.  Before the meeting, PW10 had already prepared the account opening form[47] by filling in the date[48] , the account numbers[49] and “Mexico” as the Jurisdiction of Residence of the account holder[50].  PW10 confirmed that she had already received such information for the preparation of the form before the meeting with Fong Tim.

43.  PW10 said that if she knew at that time that Fong Tim had another undisclosed name, nationality, or date of birth, she would not continue to process the account opening for him.

44.  During the meeting, PW9 requested Fong Tim to take off his face mask for verification of identity. Fong Tim had brought along with him the Mexican Passport. Both PW9 and PW10 were satisfied that the person in front of them, ie, Fong Tim was the same person as depicted in the photographs of both the Mexican Passport and a copy of that passport which BoCOM received earlier on in support of the account opening. PW9 endorsed the verification by providing his name chop at the bottom of the copy of the Mexican Passport[51]. PW10 also saw Fong Tim signed at various pages in the account opening form.

45.  PW10 had also explained the contents of the form to Fong Tim and ensured that he understood the declarations to the effect that all information and the statements as contained in the form were to the best of his knowledge and belief, true, correct and complete, before inviting Fong Tim to sign the form. PW9 added that he also saw Fong Tim read the form before he signed.

46.  PW9 then appended his signatures for the approval of opening of BoCOM accounts held in the name of Fong Tim in his capacity as manager[52].

47.  Copies of the charges of the retail banking services of BoCOM[53] were provided to Fong Tim during the meeting.

48.  PW9 described Fong Tim as Chinese, a little chubby and spoke Putonghua. He also noticed the staff inside the office referred Fong Tim as “房總”(Chief Fong). Later on, PW9 had meet Fong Tim on various occasions. Since PW9 had already known him there was no need to verify his identity again.

49.  PW11 was the Deputy Manager of Shau Kei Wan Branch of BoCOM in 2021. He said he had met Fong Tim in connection with the opening of a corporate account together with PW9. Given PW9 had already known him, PW11 did not need to verify Fong Tim’s identity.

ShaCOM Accounts

50.  PW12 is the Senior Vice President and District Head of the Hennessy Road Branch of ShaCOM since 2014. Her duties included managing the operation of the Hennessy Road Branch and meeting new customers. In respect of opening an account for new customers, in order to follow the internal guidelines of ShaCOM and the requirements of HKMA, she would need to review the identification document provided by the new customers to confirm that such was genuine.

51.  In around November 2020, PW12 recalled that she had met Fong Tim twice. Fong Tim was referred to ShaCOM by a Mr. Poon of Goldin Group. The purpose of the 2^nd meeting was to open BoCOM Accounts for him. PW12 recalled that the 2^nd meeting took place at the Office, which Fong Tim was present most of the time. She confirmed that during the meeting she had verified Fong Tim’s identity by comparing his facial features with the photo on the Mexican Passport that Fong Tim had provided to her for verification in the meeting. She also compared the photo as depicted in the copy of the Mexican Passport that Fong Tim had provided in the first meeting. She was satisfied the person in front of him, ie Fong Tim, was the same person as depicted in the photographs of the Mexican Passport and the copy of that passport.

52.  PW12 also confirmed that in the 2^nd meeting, Fong Tim had signed on various locations in the FATCA form[54] (ie. account opening form), the declaration form (including the applicant declared if he obtained a Hong Kong Identity Card then he must inform ShaCOM), the securities mandate and the consent letter, and that Fong Tim had an opportunity to read the declaration in the application form to the effect that the applicant had to provide correct, complete and up-to-date information, before he signed on the form. 

53.  PW12 said she was not sure whether copies of the retail banking services charges schedule were provided to Fong Tim at or after the meeting[55]. She added that there was also a declaration contained in the account opening form that the account holder acknowledged that he/she had read and understood the ShaCOM’s banking service charges and agreed to the charges listed therein. PW12 confirmed that service charges including finance charges, overdraft interest and trading fees had been debited from the ShaCOM Accounts since they were opened.

54.  After the 2^nd meeting, PW12 had met Fong Tim at the branch from time to time. It was PW12’s evidence that Fong Tim had never informed ShaCOM that he had other nationalities apart from Mexico, that he had a Hong Kong Identify Card and another date of birth. PW12 said she would not open any bank accounts for Fong Tim if she knew that the personal particulars contained in the Mexican Passport, ie, the name, the date of birth and place of birth were false.

55.  Finance and overdraft interest charges had been levied by ShaCOM via the operation of one of the Fong Tim’s ShaCOM Accounts, being the personal accounts:

a. $150 as a “Financial Charge” on 20 January 2021

b. HK$289.44 as “Overdraft Interest” on 21 January 2021

c. HK$150 as “Finance Charge” on 22 May 2023

d. HK$3,653.20 as “Overdraft Interest” on 22 May 2023

e. HK$1,828.20 as “Overdraft Interest” on 21 June 2023 and

f. HK$120 as “semi-annual custody fee” on 24 June 2023

56.  With respect to the securities account of the ShaCOM Accounts, service fee was charged by ShaCOM whenever the account was utilized to trade securities[56].

Chain of evidence of the abovementioned passports after they were seized by the ICAC

57.  The Questioned Canadian Passport was given to ICAC Officer Chan Yin Wa[57] on 29 August 2023, he then passed it to PW5 for conducting a cautioned interview with the Defendant on 30 August 2023. At 9:58 pm on the same day, Chan passed the said passport to Lam To Tat[58] of the Immigration Department and he then brought it to the Government Laboratory for their inspection during the period between 4 September to 25 September 2023, and 1 December 2023 to 3 January 2024. Fung Tsz Wan, another Immigration Assistant[59] brought the said passport to PW13 to carry out another round of examination by the Government Laboratory, and such was returned to Fung on 21^st May 2025.

58.  The Mexican Passport was handed over to Chan Yin Wa after it was seized by PW7 from the locked safe in the Office. Chan then passed the same to PW5 for conducting a cautioned interview with the Defendant on 30 August 2023.  Lam To Tat obtained the passport after the interview from Chan and on various occasions (same the period as referred to in paragraph 57)  he brought the Mexican Passport to Government Laboratory for examination.  Fung Tsz Wan also brought the Mexican Passport to PW13 to carry out another round of examination and such was returned on 21 May 2025.

Forensic Examination of the Questioned Canadian Passport and the Mexican Passport

PW13 Expertise

59.  PW13 is a government chemist posted in the Forensic Science Division since July 2002. Her daily duties including examination of documents. She said that throughout her career as government chemist, around 4 years were relevant in document examinations. 

60.  PW13 had handled over 700 cases relating to forged documents, 180 of them were about forged passports. She had testified as an expert witness in Hong Kong for about 20 times, in which 2 of them related to examination of documents (1 of which was forged passports in 2009)  and her evidence was accepted by the court.

61.  PW13 was cross-examined as to her training in the field of document examination when the Prosecution invited the court to accept her as an expert witness on the authenticity of passports examination.  PW13 explained that during her employment as a government chemist, she needed to receive on-job training offered by her superior who is an expert in examination of documents. She also needed to attend and demonstrate consistency to a satisfactory level during the proficiency tests offered by accredited third parties or overseas experts on the techniques and skills that would be used in examination of documents including passports.

62.  Defence submitted that as PW13 had very limited experience in passport examination, and she was only testified once as expert for forged passport in 2009, she is not qualified as an expert witness in passport examination.

63.  Whether a witness is competent to give evidence as an expert is for the trial judge to decide, bearing in mind (i)  whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witness possessing special knowledge or experience in the area and (ii)  whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized and recognized to be accepted as a reliable body of knowledge or experience, a special acquittance with which by the witness would render his opinion of assistance to the court : see R v Bonython (1984)  38 SASR 45, referred in HKSAR v Tsang Chiu Tik [1999] 3 HKLRD 301 and HKSAR v Tjon Kenneth Lie Sin HCMA 492/2011.

64.  PW13 had acquired extensive training and experience in document examination as a Government Chemist since 2002.  Whether the quality of her examinations of the passports in general will be affected by a lack of specific trainings and examinations as to the authenticity of passports, as the Defence alleges, in my view, goes to the weight of her evidence instead of the issue whether she is competent as an expert in the field of passport examination. 

65.  I am satisfied that PW13 is competent to give evidence as an expert witness in examination of passports.

Forensic Examination

66.  The purpose of PW13’s examination was to determine the authenticity of the Questioned Canadian Passport and the Mexican Passport, by comparing them with the controlled sample of a Canadian passport obtained from the Consulate of Canada (“Controlled Sample”[60])  and the controlled sample of a Mexican passport obtained from the Consulate of Mexico[61], in order to identify similarities and differences between each set of them and to compare the anti-counterfeiting features, if there existed.  Microscope and a Video Spectral Comparator were used during the examination.

67.  PW13 had provided a witness statement[62] which contained details of the examinations and her conclusions as to whether the Questioned Canadian Passport and the Mexican Passport are genuine. A laboratory report was also prepared by PW13[63] as an illustration of her analysis.

68.  Examination of the Questioned Canadian Passport and the Controlled Sample revealed the following anomalies:

(a)  Intaglio printing methods were used in the inner front cover page and inner back cover of the Controlled Sample (for example, the word “CANADA” on p.1 of P20A), whereas the Questioned Canadian Passport was found to be devoid of intaglio printing. PW13 explained that intaglio printing is a special printing method that cannot be done by home-used printer;

(b)  Micro Printing methods were used in inner front cover page, inner back cover, bio-data page and the inner folios (for example the small wordings underneath the word “CANADA” on p.2 of P20A), whereas the Questioned Canadian Passport was found to be devoid of micro-printing methods, and further the printing quality of the Questioned Canadian Passport was rather poor (pp. 7-8 of P20A);

(c)  Major differences in terms of colour and details of the images as contained in the Questioned Canadian Passport and the Controlled Sample were discovered under ultraviolent light (p.9 and p.10 of P20A), and further the Questioned Canadian Passport was devoid of embedded security fibres which were observed in the inner front and back covers, the bio data-page and the inner pages of the Controlled Sample (pp. 9-18 of P20A);

(d)  Major differences of the colours and images around the stitching thread connecting the inner pages (pp.19-21 of P20A);

(e)  Watermarks were observed in the bio-data and inner pages of the Controlled Sample, whereas the Questioned Canadian Passport was devoid of watermarks; (pp. 23-26 of P20A);

(f)  the details and qualities of the holographic images were different between the 2 passports (pp.27-28 of P20A)[64];

(g)  Variable ink was used in printing the word “CANADA” in the bio-data page of the Controlled Sample, no such ink was used in printing the same in the Questioned Canadian Passport (pp. 29-30 of P20A);

(h)  Letterpress printing method was used in printing the English letters and numbers on the bio-data page of the Controlled Sample, and there was an absence of such printing method in the Questioned Canadian Passport (pp. 31-32 of P20A); and

(i)  Perforated passport numbers were observed in the back over of the Controlled Sample, the passport numbers in the back cover of the Questioned Canadian Passport were not perforated (pp. 33-34 of P20A).

69.  PW13 is of the opinion that given the above anomalies between the 2 passports, the Questioned Canadian Passport was forged.

70.  Similar methods were carried out in examining the Mexican Passport and the controlled Mexican passport.  Similar anti-counterfeiting features were observed in both passports, save in except that that printing methods for printing out the personal particulars are different.  Given that was the only discrepancy discovered and based on her experience, there existed a possibility that different issuing places might adopt different printing methods, PW13 was unable to conclude that the Mexican Passport was forged.

71.  Under cross-examination, PW13 accepted that there existed further differences between the Questioned Canadian Passport and the Controlled Sample, namely,

(i)  the font size and the spacing of the fonts of the undulation contained in p.2 of both passports;

(ii)  the vertical serial number of the undulation;

(iii)  images depicted in various inner pages of the 2 passports (for example, the objects, the angle of the portraits etc. as suggested in pp 10 to pp 34 of both passports).

72.  PW13 agreed that some of the above differences could be considered as anomalies and she also accepted that she did not include those in her witness statements. However, she disagreed that the differences as referred by the Defence under cross examination far exceeded than those that she had discovered during examination of the 2 passports.  She explained that she was able to reach her conclusion that the Questioned Canadian Passport was forged by comparing the anti-counterfeiting features of the 2 passports and hence there was no need to identify all anomalies. 

73.  PW13 acknowledged that on the face of it the Questioned Canadian Passport was issued 4 years later than the Controlled Sample.  She reiterated that even if that was so, it would not make any sense that all anti-counterfeiting features would be missing in the latest issue and she is of the opinion that there was an attempt in the Questioned Canadian Passport to imitate the securities features as containing in the Controlled Sample. 

74.  PW13 accepted that she was not provided with a list of anti-counterfeiting features that were used or applicable in the issuing of all passports from Canada, nor she had confirmed with the Government of Canada whether the Questioned Canadian Passport was genuine as that was outside her duties.

75.  Prosecution closed its case. Defence has no half-way submission.  I ruled that there is a case to answer on all 4 charges.

DEFENCE CASE

76.  Defendant elected not to testify and called Mr. Hu Xiutong (DW1)  as defence witness.

Summary of DW1’s evidence

77.  DW1 came to know Defendant in 2011-2013 when he was conducting business selling luxury products and Defendant was one of his customers.

78.  DW1 became Defendant’s personal assistant in Beijing since 2014. He described that the scale and magnitude of the Defendant’s business was over 1 billion Renminbi and covered various aspects in different countries. As Defendant’s personal assistant, DW1 was responsible in handling Defendant’s finance, managing his business’ documents, and arranging oversea trips for the Defendant. Defendant’s travel documents were also kept by DW1 and he would bring along those to the airport when Defendant needed to travel overseas.

79.  DW1 knew that the Defendant’s true name is Fang Siyuan and his date of birth is 8 June 1987.

80.  Defendant had another personal assistant in Hong Kong whose name is Ms Lui Man Tsing.

Application of Mexican Passport

81.  DW1 said that in around October 2019, Defendant told him that he would like to apply for a foreign passport with more visa-exempted countries. DW1 then looked for agency that provided such services in the internet. Later a good friend introduced a company called Wei’er in Beijing to him. He had checked the public WeChat account of Wei’er[65] and conducted a credit check of that company. Having satisfied that the company did provide services in passport application by looking at the description of the WeChat Account, that the companies’ finance was solid as revealed in the credit check[66] , and further that his friend had successfully applied for a passport issued by Mexico via Wei’er, DW1 believed that Wei’er was competent and trustworthy. 

82.  DW1’s friend then referred a staff of Wei’er called Wang Haowei Ken (“Ken”)  to him and they met later. Ken recommended DW1 to apply for a Mexican passport for the Defendant. During the meeting, Ken also showed photographs of his clients who had applied for Mexican passports for travelling with no issues. Ken also told DW1 the fees for the application of the Mexican passports. DW1 then reported the matter to Defendant and was informed that Defendant would follow DW1’s instructions to apply for Mexican passport via Wei’er.

83.  Subsequently an agreement for the application of Mexican neutralization was entered between the Defendant and Wei’er[67] .  DW1 said that the Defendant did not sign the agreement and he just pasted Defendant’s electronic version of the signature on the agreement. DW1 also confirmed that he did not pass a copy of the agreement to the Defendant for his comment before he entered the agreement with Wei’er on his behalf. 

84.  Pursuant to the terms of the agreement, DW1 paid 0.5 million RMB to Wei’er upon signing the agreement and a further 0.5 million when he was informed that the certificate of citizenship was ready. A receipt of 1 million RMB was issued by Wei’er after he had fulfilled the 2 instalments[68].

85.  DW1 confirmed that he did not receive a photo of the Mexican Passport as per term 3.2 of the agreement when he paid the 2^nd instalment to Wei’er[69].

86.  Upon Ken’s request, DW1 provided a copy of Defendant’s PRC Passport[70] (with handwritings in Chinese that the copy was used for application for passport only), 2 to 3 photos of the Defendant, Defendant’s fingerprints and his signature on separate sheets of white paper, and Defendant’s signatures in electronic form to Ken.  Ken also requested DW1 to provide Defendant and his parent’s English name. DW1 said that he knew Defendant had an English name “Tim” when they were travelling in Russia.  Ken also gave DW1 an information collection table[71] to fill in.  Since DW1 did not know English, he just told Ken Defendant’s and his parents’ English name and Ken had filled that in for him.

87.  Later DW1 received notification that the application was approved.  He then arranged a meeting with Ken to collect the Mexican Passport, the Mexican Identity Card and the certificate of citizenship of Mexico.  He noticed the Mexican Passport and Mexican Identity Card bore Defendant’s photograph.  DW1 did not check the Defendant’s personal particulars as contained in the Mexican Passport and the Mexican Identity card since he did not understand English.  He also did not notice that the year of registration as stated in the said identity card was 1998 instead of 2019 as he did not know Spanish.  When being asked if he noticed that the name of the Defendant as appeared in the Mexican Passport and the Mexican Identity card was Fong Tim instead of Fang Siyuan, DW1 explained that Tim was Defendant’s English name and Fong was the romanization of Fang. Since Ken had told him that English name would be used for the application of the Mexican Passport, he did not consider that unusual.

88.  After DW1 received the Mexican Passport, the Mexican Identity Card and the certificate of citizenship of Mexico, he kept it in his own safe at his residence in Beijing as there were travel restrictions between Hong Kong and Beijing due to the outbreak of COVID pandemic.  DW1 had provided scanned copies of the Mexican Passport in electronic format to Ms Lui upon request.

89.  After the travel restrictions were lifted, DW1 came to Hong Kong on 9 February 2023 and passed the Mexican Passport, the Mexican Identity Card and the certificate of citizenship of Mexico to Ms Lui.

Application of the Turkish Passport

90.  Between May and June 2021, Defendant told DW1 about his friends’ experiences in obtaining Turkish passport by investing in the real estate of Turkey.  Given the successful application of the Mexican Passport, DW1 then made enquires with Ken.  Ken told DW1 that he had left Wei’er but he referred another company named Qing Dao to DW1.  Ken expressed that he had a referral agreement with that company and they could assist DW1 to apply for Turkish passport.  Ken also asked DW1 if he could use the information that DW1 provided to him in the application for Mexican Passport for such application.  DW1 consulted Defendant and was told that DW1 could proceed with the application.

91.  Ken told DW1 that in order to apply for a Turkish passport, Defendant was required to purchase a property worth over US$400,000, and it was Qing Dao’s requirement that Defendant needed to purchase a property worth at least a certain amount for them to proceed with the application of the Turkish passport. He related the message to Defendant and Defendant subsequently decided to purchase a property in Turkey worth around US$1.8 million. The purchase price would be paid by Defendant alone.  Defendant also decided to add his cousin as one of the purchasers so that his cousin could also apply for Turkish citizenship.

92.  An agreement between the Defendant and Qing Dao was entered on 12 May 2021[72] .  Same as the agreement with Wei’er, Defendant did not sign the agreement with Qing Dao and DW1 just pasted the electronic version of Defendant’s signature on it.  DW1 claimed that he had sent a copy of the agreement to Ms. Lui and had explained the terms to Defendant. 

93.  A sale and purchase agreement was later entered into between the developer of the property, Defendant and Defendant’s cousin[73]. The purchase price of the property was US$1,287,566. Pursuant to the agreement, it was stated that Defendant and his cousin would each contribute part of the purchase price. DW1 said that as he did not understand English, he asked his friend to explain the sale and purchase agreement to him.

94.  In July 2022, DW1 was notified that Defendant had successfully obtained Turkish citizenship and he could collect the Turkish Passport. DW1 also said before that, he had already collected the certificate of ownership of the property[74] and the title deeds[75] .  As travel restrictions between Hong Kong and Beijing still applied, he kept those documents in his safe for custody and eventually passed them all to Ms. Lui when he travelled to Hong Kong on 9 February 2023.

Application of the Questioned Canadian Passport

95.  In around July 2021, Defendant told DW1 that he wanted to apply for passport of a larger country, such as the United States or Canada, so that his children could receive better education.

96.  DW1 made enquiries with Ken and was told that a donation of US$ 1 million to an organization in Canada was necessary in order to apply for a Canadian passport.  DW1 claimed that he had conducted searches in the internet and someone had shared his/her experience that it was feasible to apply for citizenship by making signification contributions.  DW1 reported to Defendant and was told that he could proceed with the application. 

97.  An agreement was then entered between Fong Tim and a company called New Horizon Immigration Consultancy[76] .  New Horizon was referred to DW1 by Ken.  Same as the agreement with Wei’er and Qing Dao, Defendant did not sign the agreement himself and his signature was indeed an electronic version pasted by DW1. 

98.  DW1 was only required to provide Defendant’s updated photos to Ken as all the information had already been provided to Ken in previous applications. DW1 paid Ken US$1 million by cryptocurrency and he received a receipt issued by New Horizon to Fong Tim[77] .  DW1 said Ken had told him that he would convert those cryptocurrency to Canadian Dollars and made the donations for the Defendant. 

99.  Around half a year later DW1 was notified that the application was approved.  He then arranged a meeting with Ken in Beijing to collect the Questioned Canadian Passport, the Canada Permanent Resident card and the certificate of Canadian Citizenship.  He did not notice that the date of birth of the Defendant as stated in the certificate was 5 January 2022, as he did not know English. 

100.  DW1 kept the above documents he received from Ken in his safe.  Due to travel restrictions and Defendant had already acquired the Grenada Passport for travelling, DW1 continued to keep the Questioned Canadian passport in his custody and passed it together with the Canada Permanent Resident card and the certificate to Ms. Lui when he travelled to Hong Kong on 9 February 2023.

101.  DW1 agreed that he had never approached the Mexican and Canadian Embassy in Beijing for Defendant’s applications, nor confirmed with them whether the Mexican Passport or the Questioned Canadian Passport were genuine.

102.  DW1 claimed that he had never provided copies of the agreements with Wei’er, Qing Dao and New Horizon to Defendant for comments or verifications before he entered such agreements for Defendant.  He also confirmed that he did not provide copies of the Mexican Passport and the Questioned Canadian Passport, or any identification documents to the Defendant when he received those from Ken, nor he had asked the Defendant if he would like to have a look of those.

Character witnesses for the Defendant

103.  Mr. Lo Man Tuen and Mr. Shek Lai Him Abraham had provided witness statements regarding Defendant’s characters[78] and those are admitted pursuant to s.65B of the Criminal Procedure Ordinance.  

104.  Mr. Lo was the serving member of the 9^th to 12^th National Committee of the Chinese People’s Political Consultative Conference and the Life Honorary Chairman of the Chinese General Chamber of Commerce in Hong Kong.  He was awarded the Grand Bauhinia Medal and Justice of the Peace by the Government of the HKSAR.

105.  Mr. Lo stated that he had known Defendant for many years.  He described Defendant as an industrious, trustworthy, and visionary entrepreneur endowed with a profound sense of social responsibility.  He added that Defendant had made significant financial contributions and emotional support to the taxi drivers and the operators for them to meet the challenges. 

106.  Mr. Shek was an elected member of the Legislative Council of Hong Kong and was appointed as Justice of the Peace and awarded a Silver Bauhinia Star and a Gold Bauhinia Star in 2007 and 2013 respectively.

107.  Mr. Shek had known Defendant for 7 years.  He described Defendant as an honest and trustworthy individual with great integrity.  In addition to being a successful businessman, Defendant is always eager to serve the community.

RELEVANT LEGAL PRINCIPLES

Possession of a false or forged passport

108.  S.42 (2)(c)(i)  of the Immigration Ordinance, states, inter alia:-

“Any person, who has in his possession any forged, false or unlawfully obtained or altered travel document, certificate of identity, document of identity, APEC business travel card, travel pass or Vietnamese refugee card, shall be guilty of an offence.”

109.  “False” means “false in a material particular” and “Forged” has the meaning assigned to that term by Part IX of the Crimes Ordinance” as defined in s. 42(5)  of the same Ordinance.

110.  In HKSAR v Li Qingbin [2025] HKCFA 9, the Court of Appeal held that in relation to s. 42(2)(c)  offence which the prosecution alleges that the document contained false particulars, the prosecution has to prove actual falsity of the particulars. It was further held that a person’s date of birth, along with his name and place of birth, should be regarded as the core identity attribute and a foundational component in the identification process and are material particulars[79], notwithstanding any difficulties that may have been posed by the issuing authorities[80].

111.  Possession can be proved by (i)  actual custody or (ii)  knowingly has it in the actual custody or possession of any other person, or has it in any other place, whether occupied by himself or not.

Obtaining services by deception

112.  Section 18A(1)  of the Theft Ordinance provides, inter alia that:

“A person who by any deception (whether or not such deception was the sole or main inducement)  dishonestly obtain services from another shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 10 years.”

113.  S.18A(2)  of the same ordinance states that “it is an obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for.”

114.  Dishonesty is not the element of the offence in the charge of obtaining services by deception, what the prosecution required is to prove “deceit”, ie to induce a person to believe a thing is true which is false, and which the person practicing the deceit knows or believes to be false: see HKSAR v Chan Kam Ching [2022] HKCFA 7, paras 133-134, 142-150.

115.  Opening a bank account, with an understanding that there would be some payment for the services obtained, constituted obtaining of services as referred to in section 18A(1)  and (2)  of the Theft Ordinance: see R v Sofroniou [2004] 3 WLR 161.

DIRECTIONS

116.  I remind myself that the Prosecution bears the burden of proof and the standard is beyond reasonable doubt. Defendant has no duty to prove anything.

117.  Defendant elected not to give evidence and that is his right.  No adverse inference will be drawn against him. 

118.  Defendant has a clear record.  I have taken into the account the good character directions regarding credibility and propensity. In particular, I have considered the evidence regarding his positive character.   

119.  Prosecution has invited the court to rely upon some circumstantial evidence to draw inference. I remind myself that if inference needed to be drawn, such inference must be an irresistible inference and the only inference to be drawn from proven facts. 

120.  PW9, PW10 and PW12‘s evidence involved issues of identification.  I remind myself the principles established in R v. Turnbull[81], in particular the special need for caution before convicting the defendant in reliance on the evidence of identification.  I also remind myself that there is a possibility that even a honest witness can make mistaken identification. 

121.  I will consider the evidence of each charge against the Defendant separately.  

ANALYSIS

122.  I have considered all the oral, written and supplemental written closing submissions by the Prosecution and the Defence.

123.  For PW1 to PW4, I find that they are honest and reliable witnesses.  In fact, their evidence was not challenged by the Defence. I accepted all their evidence.

124.  For PW5 to PW8, Defence attached a table of consolidated summary of their evidence in the written closing submission[82] and seek to demonstrate their evidence as to the searches conducted at Starcrest and Office and the seizure of exhibits in those premises are incredible and reliable.

125.  Defence submits that PW5 had failed to make contemporaneous records of the various conversations between him and the Defendant. PW5 explained that as the search had already started, he decided to enter such records in his notebook when he went back to office.  PW5 said that Defendant had expressed that he refused to sign anything in the absence of his lawyer. As such, I do not find PW5’s explanation incredible. 

126.  It is submitted that PW5 failed to make any written record that Defendant had told him that he might have left his HKIC in his driver’s car. PW5 said that Defendant had mentioned to him that he forgot the password of his mobile phone and was therefore unable to call his driver to retrieve the HKIC. PW8 said that according to his recollection Defendant said that he might have left his HKIC in his driver’s car. PW8’s evidence to a certain extent is consistent with PW5’s account of the events. 

127.  It is argued that the reason for the delay to start the search as posed by PW5, PW6 and PW8 was different.  PW5 said that there were 2 reasons, one being that Defendant requested for his legal representative to be present, the other being that Defendant claimed he was the business ambassador of Grenada, whereas PW6 and PW8 had only mentioned the former as the reason. PW6 and PW8 were not asked whether they had heard that Defendant claimed he was the business ambassador.  They might consider that was not the reason to delay the search.  I do not find their evidence in this regard inconsistent.

128.  Defence contends that if Defendant was not able to make a phone call due to the fact that he claimed he had forgotten about his password, as PW5 alleged, it would be wholly incredible that his legal representative would be able to call Defendant in his own initiative and attend Starcrest at around 8:30am, given the operation was covert.  There is no dispute that SFC and another team of ICAC went to Office in the morning of the same day. It is very likely that Defendant’s legal representatives were notified of such and made a phone call to Defendant.

129.  It is further contended that the decision to seize only the bank letters and the bank cards in the name of Fong Tim, and treated the other items found inside the Rucksack as unseized items were contrary to the purpose of the investigation. It is argued that as the ICAC already had information that the Defendant might have another identity, a proper investigation would have to seize anything that was in relation to Defendant’s identity. 

130.  PW5 and PW6’s explained that they decided not to seize the identification documents with the name Fang SiYuan immediately after they were found inside the Rucksack at Starcrest, because they were of the view that was irrelevant to the investigation. At that time, they believed that Defendant’s real name is Fang SiYuan and as such, I do not consider that their explanations inherently improbable.

131.  Defence submits that there were discrepancies in the evidence of PW5 and PW8 as to how the items found inside the Rucksack were bought back to ICAC headquarters.  It should be noted that Defendant and his legal representatives had signed on the detainee’s property register (“register”)[83]. A total of 18 items, including those found in the rucksack and not seized at Starcrest, were stated in that register.  Even there were such discrepancies, I do not find that the chain of exhibits in relation to the items found in the Rucksack and subsequently seized by ICAC broken. 

132.  It is then contended that according to the register, those 18 items were sealed in a tamper-proof bag.  However, PW5 said that in fact some of the items, including the 4 white cards found inside the Rucksack, were put inside a smaller bag that was not sealed.  It is submitted that the evidence was in stark contrast with what was stated in the register.  It is further submitted that PW5 had failed to make any contemporaneous record that the locked room was opened by using the Access card. 

133.  I noted that an entry dated 29 August 2023 at 15:34 was entered into the arrest/detention continuation sheet[84] that defendant was taken from the Detention centre in the custody of PW5, PW8 and Ian Hui.  Under that entry there was the signature of the guard officer Chung Yin mui.

134.  Subsequent to that entry, there was another entry with the same date and time and stated as follows “Detainee’s I/D card, Key x 9, card x 4 and “asthma spray (transliteration)  x 1” were handed over to officer Johnny Yiu for escorting detainee out for search”.  Followed the entry there was a signature.

135.  The next entry was dated 29 August 2023 at 19:10. It was stated that detainee was taken over by guarding officer from PW5, PW8 and Ian Hui.   Under that entry there was the signature of the guard officer Surname Cheung.

136.  Followed then is another entry with the same date and time which stated that “Detainee’s ID Card, Keys x 9, Card x 4 and “asthma spray” x1 were received from I/O Rex Tse (PW5)  which were deposited into detainee’s properties locker.  Detainee was escorted back to cell 13 after searched.  Guarding officer Cheung was on guarding duty”.  Followed the entry there was a signature. 

137.  A few entries later there was an entry dated 29 August 2023 at 21:47 that Detainee was escorted to guard room and handed over to Vincent and PW8.  A reference continuation sheet Annex 4 was mentioned in that entry.  In Annex 4, there were 5 entries dated 29 August 2023 at 21:47, 29 August 2023 at 22:00, 30 August 03:25, 30 August 2023 at 05:115 and 29 August 2023 05:29.  In gist, the contents of those entries were that detainee was handed over to Vincent and PW8 because he had request for medical consultation due to high blood pressure. Detainee was then taken to Ruttonjee Hospital for medical consultation.  After medical consultation, Defendant was prescribed with 5 medicine and he was escorted back to ICAC headquarters. Detainee was handed over to guarding officer for detention at 05:29 on 30 August 2023.

138.  There was also an entry dated 29 August 2023 at 21:47 in page 7 of the detention sheet that “Detainee’s properties (1)  HKID card; and (2)  Asthma spray x 1 were also handed to investigating officer”.  Followed the entry there was a signature. 

139.  Another entry dated 30 August 2023 at 05:29 on the detention sheet stated that “detainees’ properties (1)  HKID card and (2)  asthma spray x 1 were returned to detainees’ property locker.”  The medicine that was taken from Vincent Chung after medical consultation from Ruttonjee Hospital were named. It was further stated when being asked, detainee stated he did not want to take any medicine at the moment.  Followed the entry there was a signature with a name “Daniel WONG” chopped.

140.  Regarding the Access Card, there was an entry dated 29 August 2023 at 16:37 that the Card, which was one of detainee’s properties, could unlock a locked room at the office.

141.  I am fully aware that the entries in the detention sheet are inadmissible to prove the truth of what was stated therein, nor it is admissible to prove consistency of the testimony of any witness.   

142.  Apparently the description of the event as to the handling of the Access Card after such was brought back to the ICAC headquarters form Starcrest, as contained in the register and the detention sheet, cannot be reconciled. 

143.  I have considered that whether the entries in the detention sheet were either made contemporaneous or shortly after the event, or a recent invention.

144.  By comparing with the date and time of some of the entries and the events recorded therein, with facts which are not in dispute, and further it appeared that almost no spacing was left between each entry, I am satisfied that the detention sheet and the annexures are either contemporaneous records or recorded shortly after the event.

145.  Defence contends that even if the entry dated 29 August 2023 at 15:34 that the asthma spray was handed over to PW8 for escorting Defendant out for search is correct, that was in direct contradiction with another earlier entry recorded in the detention sheet that the detainee was not allowed to take the medicine unless they were approved or prescribed by medical officer. 

146.  I do not find that the contents of those entries are in contradictions as suggested by the defence. If a detainee was having a medicine with him, it would be prudent and proper for the ICAC officers to bring along the medication and presented that to the attending doctor if the detainee requested medical consultation.  Further if the detainee required immediate medical attention when he was taken out for search, it would be better for the medical officer to know what medication that the detainee was receiving so that the medical officer would be able to provide the best treatment plan for the detainee.

147.  Again, I do not find the explanation offered by PW5 and PW8 that it was the ICAC practice that some of the items that were required to carry out further investigation would be put inside a smaller bag that was not sealed improper and contrary to common sense. 

148.  Based on the above analysis, and despite the record as stated in the register which suggested that the Access card, keys and the asthma spray were sealed in the tamperproof bag, I accepted the evidence of PW5 and PW8 that those were actually kept in a small bag which was not sealed.

149.  Regarding the seizure of the Access Card, it is submitted that PW5’s evidence as to when and how the seizure took place was inconsistent with his evidence and contemporaneous record and wholly incredible.

150.  Under cross-examination, PW5 explained that he decided to seize the Access Card and prepared a seizure list, after the conclusion of Defendant’s cautioned interview on 30 August 2023.  As the Defendant refused to sign to the list, and he needed to include other items regarding identification documents found inside the rucksack, he had destroyed that list.  He further added that a full seizure list had been prepared by PW8[85].

151.  I do not accept Defence submission that PW5 had actually seized the Access Card after the conclusion of the cautioned interview.  It is obvious from PW5’s evidence that he had withhold the seizure as Defendant refused to sign on the seizure list that contained the Access Card only, and there were other items from the Defendant’s personal property that the ICAC decided to seize.

152.  Further, Defence contends that according to the register, the Access Card was returned to Defendant on 30 August 2023 at 20:35 and acknowledged by Defendant and his legal representatives. It would be wholly unnecessary and artificial to return some of the items that the ICAC intended to seize, as suggested by PW5 that he seized the Access Card together with some of the items from the Defendant’s personal properties at 20:40 on the same day.

153.  Given Defendant had refused to sign on the seizure list that was subsequently destroyed by PW5, I do not consider that PW5’s decision to return all the personal properties to the Defendant, and witnessed by his legal representative, before he decided to seize some of them, as illogical and incredible. 

154.  It should be noted that in the detention sheet[86] , Defendant acknowledged that he had no complaint by signing on the sheet.  His signature was witnessed by the guarding officer and PW5. 

155.  Further, Tonsin’s legal representative acknowledged the seizure of the Mexican Passport at Office in the seizure list. 

156.  I have considered all the inconsistencies, discrepancies and the shortcomings as referred to by the Defence in relation to the evidence of PW5, PW6, PW7 and PW8. I am satisfied that none of those, either in isolation or the combined effect, would affect the integrity of PW5, PW6, PW7 and PW8 when they were carrying out their duties, nor do I consider the credibility and reliability of their evidence will be hampered by such. 

157.  I find PW5, PW6, PW7 and PW8 to be honest and reliable evidence. I accepted their testimonies as to what had happened on 29 August 2023 at Starcrest and Office, and their evidence as to the seizure of those items found in the 2 premises before the Defendant was released on bail on 31 August 2023. 

158.  I also accepted the contents of the witnesses’ statements[87] regarding chain of evidence after the seizure of the Questioned Canadian Passport and the Mexican Passport as truth. 

159.  Regarding PW9, PW10, PW11 and PW12, most of their evidence was not challenged by the Defence.  They were unshaken under cross-examination.  I find them all honest and reliable witnesses and I accept their evidence.

160.  For PW13, Defence contends that her evidence is plainly incapable of establishing that the Questioned Canadian Passport is forged.  It is submitted that even if discrepancies existed, it does not necessarily come to the only conclusion that the Questioned Canadian Passport is forged.  It is further submitted even if certain anti-counterfeiting features existed in the Controlled Sample, there is no evidence that such security features should remain in a passport which appeared to be issued 4 years later. 

161.  It is obvious that in PW13’s identification of the discrepancies between the 2 passports, her main focus was whether similar anti-counterfeiting features were adopted in both passports and the quality of those anti-counterfeiting features if they co-existed in both passports.  Not only she identified that the Questioned Canadian Passport devoid of certain anti-counterfeiting features, for example, intaglio and micro printings that were used in the Controlled Sample, she was able to demonstrate, with the illustrations in her photo album, that the quality and details of the anti-counterfeiting features that were used in the Questioned Canadian Passport, for example the Holographic Images observed under ultraviolent light, was significantly poor as compared to the Controlled Sample. 

162.  Even though there is an absence of evidence as to what anti-counterfeiting features should have been contained in the passport that was issued by the issuing authority of Canada in 2022, in my view, it would be contrary to common sense that if the issuing country decided to retain certain anti-counterfeiting features when issuing new passports, that the qualities and details of those anti-counterfeiting features as contained in the newer issue would be far more inferior than the previous issue.  

163.  Defence further contends that since PW13 accepted candidly that there existed differences between the Questioned Canadian Passport and the Controlled Sample and could not come to the conclusion whether those differences are anomalies, her evidence is not reliable. 

164.  PW13 explained that while she accepted that some of the differences as pointed out by the Defence could be considered as anomaly, her focus is on the comparison of printing methods that were used in both passport, instead of a comparison of the differences of the graphics (objects and images)  depicted in 2 passports. Hence she did not find it necessarily to contain those in her report.  It is obvious from her answer that she did not consider those differences essential to the determination whether the Questioned Canadian Passport was forged.  I accepted her explanation. 

165.  I have considered all the submission by Defence regarding the quality of PW13’s evidence and I do not find them, whether in isolation or the accumulative effect, would affect the credibility and reliability of her examination and findings.

166.  I find PW13 an honest and credible witness.  I accepted her evidence entirely.

167.  Regarding DW1, he emphasized that he had performed credit checks on Wei’er and was satisfied it was financially sound.  He said his main consideration is the paid-up capital as stated in the report and the description of the business as published in the public WeChat account. However, as can be seen from the credit report, there was no mention that Wei’er scope of business included investment for emigration or overseas citizenship application. The business licenses that Wei’er obtained since 1996 does not include the same.  If one has read the credit report, as DW1 claimed that he did, any reasonable person would question Ken’s assurance that Wei’er could assist him to apply overseas’ passport for Defendant. A check with the local authority whether Wei’er would provide such services would be enough to settle the queries.

168.  Further, as can be seen from the report, even the paid-up capital was listed in the credit report, Wei’er refused to disclose their financial status, for example whether there existed any liability.  Even if a company has paid a substantial amount of money as capital to the local government, it does not necessarily follow that the company was financially sound.  DW1 claimed that Defendant was running business in a substantial magnitude and he was responsible to manage Defendant’s finances, it would be wholly incredible that he would consider paid-up capital as the sole determination whether a company was financially sound.

169.  DW1 admitted that pursuant to the payment terms of the agreement he entered for the Defendant with Wei’er, the 2^nd instalment would be paid upon the receipt of a photo of the passport from Wei’er.  However he admitted that no photo nor copy of the Mexican Passport was provided to him according to the terms of the agreement, before he paid the 2^nd instalment.  DW1 did not offer any explanation why he considered it prudent and safe to pay even if he was just verbally informed that the application was approved.  I find his evidence in this regard illogical.

170.  When being asked why he paid Wei’er 1 million RMB in cash, DW1 replied that it was on Wei’er request as they wanted to evade tax.  When being asked if DW1 suspected Wei’er might be running business illegally, DW1 claimed it had nothing to do with him.  When being asked further how he could trust Wei’er as a result of that, DW1 repeated that he trusted Ken as he had applied passport issued by Mexico from Wei’er before. Any reasonable person would have serious reservation whether Wei’er was a trustworthy company and would definitely seek clarification from other source.  DW1’s assertion that he just accepted Ken’s assurance and did not conduct further checks is wholly incredible and defies logic. 

171.  DW1 confirmed that in the application for the Mexican Passport, other than reporting and seeking approval to proceed with the application, he did not ask or consult with the Defendant further.  In essence, his testimony is to the effect that Defendant had complete trust in him and DW1 had absolute authority in dealing with the application.  When Ken asked for Defendant’s fingerprints and even requested DW1 to provide Defendant’s signatures on a piece of paper, DW1 acceded to the request without raising the matter with Defendant. Fingerprints and signatures of a person are very important and unique, anyone will seek to ensure that such would not be misused.  DW1, as Defendant’s personal assistant and had previous experience in luxury goods trading, should know the danger of passing Defendant’s signature and fingerprints on a piece of white paper to anyone. However, DW1 never asked Defendant whether such could be provided, nor clarified with Ken the purpose of providing such. 

172.  DW1 claimed that he could not read English so he did not notice that the date of birth and the place of birth as stated in the Questioned Canadian Passport and Mexican Passport was not the Defendant’s actual date and place of birth. However, he was able to tell Ken that Defendant’s English name is Tim, he could say that Fong is the romanization of Fang when being asked by prosecution, he could even related Defendant’s father and mother name in English to Ken for him to fill in the form.  It is highly questionable whether his claim that he did not know English is true.

173.  For the application of the Questioned Canadian Passport, when being asked why he transferred Ken 1 million USD in cryptocurrency and not to New Horizon or any of the organization as suggested directly in July 2021, DW1 reiterated that he trusted Ken due to the successful application of the Mexican Passport and the Turkish Passport. 

174.  Other than checking that the Mexican Passport bore Defendant’s photo, DW1 never inquired with the Mexican Consulate in Beijing if that was genuine. 

175.  In respect of the Turkish Passport, it was stated in the sale and purchase agreement that the property would be delivered in Sept 2021[88]. In fact, the Turkish passport was issued in June 2022 and the title deeds was dated 9 November 2022[89]. DW1’s assertion that by July 2021 he trusted Ken because of the successful application of the Turkish nationality and passport, is contrary to the documents submitted by the Defence. 

176.  DW1 was responsible in arranging Defendant’s overseas trips, he even claimed he kept custody of Defendant’s travel documents and brought those to the airport when Defendant was required to travel.  He understood that personal particulars, namely name, date and place of birth contained in the passports are important information for identification and immigration purposes.  DW1 claimed that he could not understand English, yet when he received the Mexican Passport, the Turkish Passport and the Questioned Canadian Passport, even though he could not understand what were stated in those passports, he did not forward a copy of any passport to Defendant to confirm if the personal particulars as stated therein are correct.

177.  I find DW1 not a honest and credible witness.  I reject his evidence as to how he had applied the Mexican Passport, Turkish Passport and the Questioned Canadian Passport for the Defendant, and that he had kept those passports in his sole custody until 9 February 2023.  I reject his evidence that he believed the Mexican Passport and Questioned Canadian Passport were obtained through legitimate means.  I reject his evidence that he believed the name Fong Tim is Defendant’s English name. 

178.  I accept DW1’s evidence that the photographs as depicted in the Mexican Passport, the Mexican Identity card, the Questioned Canadian Passport and the Canada Permanent Identity card are all Defendant’s photographs.

ISSUES TO BE DETERMINED

179.  The issues that I have to determine in the present case are as follows:

(i)  Whether the Questioned Canadian Passport was forged;

(ii)  Whether the Mexican and Questioned Canadian Passport contained false material particulars;

(iii)  Whether Defendant was in possession of the above-stated passports; and

(iv)  Whether Defendant obtained banking services from ShaCOM and BoCOM by deception;

Whether the Questioned Canadian Passport was forged

180.  I accepted PW13’s findings that the Questioned Canadian Passport was forged.

Whether the Questioned Canadian Passport and Mexican Passport contained false material particulars

181.  It is the prosecution case that Defendant had on numerous occasions declared to the Immigration Department that his name is Fang Siyuan, 6 August 1987 is his date of birth and Heilongjiang is his place of birth.  He also used travel documents (his PRC ID card, PRC Passport, Grenada Diplomatic Passport and HKIC)  which bore the above personal particulars to enter into and depart from Hong Kong via the immigration checkpoints as supported by the movement records.  As such, the personal particulars contained in the Questioned Canadian Passport and Mexican Passports, namely the holder’s name being Fong Tim, with date of birth 8 June 1980 and place of birth Zhejiang must be false.

182.  Defence argues that a person’s declarations as to his or her own name, date of birth and place of birth are all hearsay and inadmissible for the purpose to prove the truth of matters. In the absence of any confession by the Defendant as to his true name, date and place of birth, it is submitted that the prosecution has not established an affirmative case, ie, which of the claims as to name, date of birth and place of birth were correct and which were false. Defence relies on the case of R v Hussain Sahrif[90] and Li QingBin to support the contention.

183.  It is true that where a person testifies as to his/her own age, he/she offends the rule against hearsay. The reason for that is although a person was present at the birth, he/she has no independent memory of it. He/She learns of his/her age from others who may or may not have been at the birth.[91]

184.  Strictly speaking, the same principle applies to a person’s place of birth and name (excepted he/she had changed his/her name), that he/she had no independent memory but were informed by others.

185.  In Hussain Sahrif, the appellant was convicted by a magistrate after trial on 4 charges of making a false representation to an immigration assistant contrary to s.42(1)(a)  of the Immigration Ordinance. There was evidence before the magistrate that the Appellant had made declarations as to his date and place of birth to the immigration officers but in an interview under caution he said that he was born on another date and in another place, and that when he applied for his first passport he had forgotten his date and place of birth, so he arbitrarily selected a date and place.  The appellant also testified that his mother had told him of his year and place of birth. The magistrate found that the appellant statements as to his date and place of birth under caution was true and when he made the declarations he believed them to be untrue.

186.  On appeal, it was argued that in the absence of documentary proof a person’s knowledge and belief as to his date and place of birth is hearsay. Leonard J agreed with the proposition and stated further that even a birth certificate only recites what someone has told the Registrar of Birth. However, his Lordship added that the appellant, having been told by his mother where and when he was born and he believed that, and by telling an Immigration Officer that he was born on another date in another place, he is clearly saying something he does not believe to be true.  Further, the appellant made specific statement as to what his true date and place of birth under caution and that was a confession and exception to the hearsay rule.  The appeal was dismissed and conviction upheld.

187.  In Li QingBin, Li was convicted of 2 counts of using a false travel documents and 2 counts of making a false statement or representation to an Immigration Officers.  The appellant used a Mainland passport which stated his date of birth as 10 September 1978 when he was trying to enter in Hong Kong at Lok Ma Chau Control Point.  He was refused entry as he failed to dispel the doubts of the Immigration Officers as to his purpose of visit.  A few months later, Li sought to entry into Hong Kong via the automated immigration clearance facilities at the West Kowloon Express Rail Link Station, using his Mainland exit-entry permit which stated his date of birth as 4 July 1973.  His entry was refused again as the system detected an irregularity by facial image comparison of his previous refusal of entry using the Mainland passport.

188.  Li was then subjected to a secondary examination by Immigration Officers and in a cautioned interview, he admitted that both the dates of birth as stated in the passport and the entry permit were false and he was actually born in 9 November 1978.  He further explained that those wrong dates of birth as appeared in his travel documents were the results of a serious of errors by various mainland officials and attempts to rectify such errors by his mother and himself were unsuccessful. 

189.  In the Court of Final Appeal, prosecution conceded the appeal on the using offences on the basis that a person would not have independent memory of his true date of birth, and Li’s admission would be regarded as hearsay and inadmissible. Nonetheless, the Court of Final Appeal held that the prosecution is not required to prove that Li avowed date of birth is true.  The evidence of falsity was proved by Li’s own statements that the date of birth as stated in the passport and entry permit was false, such statements were admission against interest and admissible as an exception against the hearsay rule.  The appeal was thereby dismissed.

190.  Defence further contends that the prosecution cannot say that because the Defendant had stated that his name was Fang SiYuan with a date of birth 8^th June 1987 and place of birth Heilongjiang, that the name, date of birth as appeared on the Questioned Canadian Passport and the Mexican Passport must be false.  The Prosecution is required to prove an affirmative case.  In the absence of any proof that that personal particulars as referred to in the application forms or declarations relied on by the prosecution are true, the prosecution has failed to discharge the burden.

191.  In Tsang Ping Nam v R [1981] HKLR 652, the appellant had been convicted on 3 counts of attempting to pervert the course of justice.  He had been a police sergeant and had made statements to the ICAC which implicated three other police officers in a corruption case.  He then made a witness statement based on his earlier statements in return for an undertaking by the Crown that it would not have been used in proceedings against him.  The three officers were charged with corruption and the appellant was called to testify for the Crown.  He wholly resiled from all the allegations he had made against the officers in the earlier statements and the officers were acquitted.  The appellant was then charged with attempting to pervert the course of justice. The Crown conceded that they could not prove perjury for there was no affirmative evidence that the appellant lied in court.  The Crown also conceded they could not prove affirmatively that the appellant had given false information to the ICAC investigating team.  The Crown averred that it was clear that the appellant had either committed perjury or had given false information to the investigating officers and that whichever was the case, he was guilty of attempt to pervert the course of justice by his conduct.  Privy Council allowed the appeal because of the absence of the requisite affirmative proof of either charge. 

192.  Should the matter be ended here, I would have accepted Defence submission that there is no admissible evidence as to Defendant’s true name, and his actual date and place of birth. 

193.  However, it is trite law that hearsay rule can be exempted by statute. 

194.  Section 63B of the Immigration Ordinance states:

“A document purporting to be a copy of the records or part of the records kept by the Director and purporting to be certified as a true copy thereof by the officer having custody of the records shall be admissible in evidence in criminal or civil proceedings before any court on its production without further proof and –

(a)  Until the contrary is proved, the court before which such document is produced shall presume –

(i)  that the document is certified by such officer; and

(ii)  that the document is a true copy of the records or part of the records to which it refers; and

(b)  such document shall be prima facie evidence of all matters contained therein.”

195.  It is clear that s.63B of the Immigration Ordinance is an exception to the hearsay rule.

196.  In all the applications of extension of stay and applications for entry for employment as professionals in Hong Kong, being the certified true copies of records kept by the Director of Immigration, Defendant declared that his name is Fang Siyuan, 8 August 1987 is his date of birth and Heilongjiang is his place of birth.  He even declared in his application for entry for employment as professionals in Hong Kong dated 11 December 2020 that he had not changed his name before[92].

197.  Defence argues that there is no evidence that the Defendant had submitted the application himself.  None of the immigration officers that Prosecution had called as witnesses had personally verified the information provided in all the applications and the letter purportedly written by Defendant with the Defendant personally.  In essence, the Defence contends that it might be possible that the applications were submitted by someone on Defendant’s behalf and Defendant had no knowledge of all the contents of those application forms that had been submitted to the Immigration Department.

198.  I accept that the Immigration Department proceeded to deal with the Defendant’s application for extension of stay and entry for employment as Professionals in Hong Kong on paper.  Even discrepancies existed regarding Defendant‘s date of birth in the identifications documents submitted to the Department, instead of inviting the Defendant for an interview, PW4 saw it fit to issue a letter to the correspondence address as stated in the application form for explanation of the discrepancies. The Department received a declaration purportedly written by the Defendant in the form of a facsimile to explain why the discrepancies existed and asserted that his true date of birth is 6 August 1987. Without verifying whether Defendant had personally provided the declaration PW3 accepted the explanation offered in the facsimile.

199.  The letter provided a detailed explanation as to the reason why Defendant’s date of birth was stated as 6 June 1985 in his son’s birth certificate and his void PRC ID card.  It would be inherently improbable that someone, other than the Defendant, would have access to such information.  It would also be inherently improbable that someone could fabricate those information, which is very personal, and submitted the declaration without Defendant’s instruction or knowledge.

200.  Even if there is a possibility that the Defendant was not aware of any of the information as contained in all the applications forms and the declaration, it is admitted that Defendant was issued the HKIC in 2021.  As can be seen from the copy of the HKIC that the Defendant had submitted to Bank of China for contact information amendment, the name and the date of birth of the HKID card is stated as Fang Siyuan and 8 June 1987 respectively[93] .  Defendant had also used his HKIC as travel document for enter into and depart from Hong Kong[94] .  When he was arrested by Immigration Officer Lam on 31 August 2023, Defendant presented his HKIC when being asked to provide proof of his identity.

201.  All of the above clearly shows that Defendant all along knew that he obtained the HKIC with the name Fang Siyuan with date of birth 8 June 1987 and since receiving the HKIC, he had been using this identity to travel. 

202.  Based on the above analysis, in the absence of any contrary evidence, I find that the Defendant’s true name is Fang Siyuan, his true date of birth 8 August 1987 and his true place of birth Heilongjiang.

203.  A person can only have one set of true name, date of birth and place. The personal particulars as stated in the Questioned Canadian Passport and the Mexican Passport (which I find both bore the Defendant’s photographs), i.e. his name is Fong Tim, with a date of birth being 6 June 1980 and place of birth Zhejiang, CHN, must be false.

204.  I am satisfied that the Questioned Canadian Passport and the Mexican Passport contains particulars which are false in a material particular.

Whether the Defendant was in possession of the Questioned Canadian Passport and the Mexican Passport

205.  I accepted that the Questioned Canadian Passport was found in a locked safe which was placed inside a room at Starcrest.

206.  Defence did not dispute that the Questioned Canadian Passport was located inside that locked safe.  It is submitted by the Defence that given Starcrest is a staff dormitory, there is insufficient evidence to prove that Defendant was in possession of the Questioned Canadian Passport. 

207.  Given I had rejected DW1’s evidence, there is no evidence that Starcrest is a staff dormitory.  I do not lose sight of PW5’s evidence that some personal belongings other than the Defendant were found in the room where the Rucksack was discovered.  Even so, that does not necessarily mean that the Defendant could not reside at Starcrest.

208.  Apart from the Questioned Canadian Passport, the certificates of registration as a citizen of Grenada of the Defendant, his wife, his parents and his son were also found inside the safe at Starcrest.  A letter dated 11 April 2022 issued to Kerry Lui at the Office Address by ASB was also found inside that safe.  The contents of the letter addressed the receipt that certain documents, including the Defendant’s Grenada Passport were enclosed with the letter. In the Grenada Passport there existed certain immigration chops which indicated that the said passport had been used for travelling.

209.  ICAC officers arrived StarCrest at 6:30 am on 29 August 2023.  Defendant was the only person inside the premises at that time.  The Rucksack, which contained HKIC and Defendant’s other identification documents, was found in one of the room at Starcrest.  Movement records of the Defendant showed that he used HKIC to enter Hong Kong on 27 August 2023 at 9:47 pm[95].

210.  Having considered all the facts as stated hereinabove, the only irresistible inference that can be drawn is that Defendant was in possession of the Questioned Canadian Passport at the material time.

211.  In so far as the Mexican Passport, I am satisfied that it was found inside the safe located in a cabinet inside a locked room in the Office.  The door of the room could be unlocked using the Access Card found inside the Rucksack. Apart from the Access Card, various Defendant’s identification documents including his HKIC was also found inside the Rucksack.  Movement records of the Defendant showed that the Defendant had used HKIC to enter Hong Kong on 27 August 2023 at 9:47 pm. 

212.  A voided Exit and Entry Permit for Travelling to and From Hong Kong and Macao Card numbered C486614380, with the name and date of birth stated as Fang Siyuan and 8 June 1987 was also found inside the Office.  According to the movement records, Defendant had used that permit to travel into and outside Hong Kong during the period from 2014 to February 2020[96].

213.  I find that PW9, PW10 and PW12 had compared the photograph as depicted in the Mexican Passport, with Fong Tim himself when they met him for the opening of ShaCOM Accounts and BoCoM Accounts.  I am satisfied that the quality of photograph as depicted in the Mexican Passport is sufficiently good enough for visual comparison.  I accepted their identification evidence that Fong Tim, who attended the meetings for the opening of ShaCOM Accounts and BoCOM Accounts, and also signed the account openings from for those bank accounts, was the same person depicted in the Mexican Passport.

214.  Given the finding that the photograph depicted in the Mexican Passport is the Defendant, I find that Defendant is the person who PW9, PW10 and PW12 met during the meeting of the opening of ShaCOM Accounts and BoCOM Accounts. 

215.  As a result, I find that Defendant had presented the Mexican Passport to PW9, PW10 and PW12 for the opening of BoCOM Accounts and ShaCOM Accounts, the purpose of which was to show that he personally was the holder of the Mexican Passport.

216.  ICAC officers arrived Starcrest at 6:30 am on 29 August 2023.  Defendant was the only person inside the premises. 

217.  Having considered all the facts as stated hereinabove, the only irresistible inference that can be drawn is that Defendant was in possession of the Mexican Passport at the material times. 

218.  Even if my finding that the Access Card was used to open a locked room at the Office was wrong, and the Mexican Passport was only discovered by the ICAC officers somewhere inside the Office, which the exact location is unknown, I would have reached the same conclusion that the Defendant was in possession of the Mexican Passport at the material times.

Whether Defendant knew that the Questioned Canadian Passport was forged and false personal particulars were contained in the Questioned Canadian Passport and the Mexican Passport

219.  In HKSAR v Shaheen Moeen, HCMA 418/2024, [2025] HKCFI 4612, Deputy Judge Wong J referred to the case of Lam Yuk Fai v HKSAR (2006)  9 HKCFAR 281:

“19. In interpreting the (Immigration)  Ordinance, it is important to bear in mind the part played by the travel documents in the contemporary world. They play an essential role in facilitating travel from one country to another. They identify the holder and enable a decision to be made expeditiously as to whether a person using the travel document should or should not be allowed admission or to remain in a country that the holder is visiting or seeking to visit. In addition, travel documents can be used in a multitude of different circumstances to verify the identity of the holder and in this way facilitate trade and commerce.

20. In this situation it would not be unreasonably for the responsibility to be placed on the person in possession of a passport to exercise care to ensure that a travel document is not misused while he is responsible for it. The responsibility could exist because he is the holder, or because it is in his possession, or because he has a role in its official distribution ….”

220.  The Questioned Canadian Passport appeared to be issued on 5 January 2022.  There was a certificate of Canadian citizenship which stated that the Fong Tim, with a date of birth of 5 January 2022 was granted Canadian citizenship on the same date.  Even if the defendant claimed that he had another name, it was impossible that his date of birth would be in 2022.  Any reasonable person would raise the issue whether the Questioned Canadian Passport together with the certificate of Canadian citizenship and Canadian identity card were genuine or not. Defendant, being the holder of the Questioned Canadian Passport, must have ample opportunity to check the authenticity of such.  Should he perform such checks, he should discover that the date and place of birth as stated in the Questioned Canadian Passport was untrue.

221.  There is no evidence that any attempt was made to verify the authenticity of the Questioned Canadian Passport. The Questioned Canadian Passport was found inside Starcrest on 29 August 2023, which was about 1 year and 7 months after the Questioned Canadian Passport appeared to be issued. 

222.  The only irresistible inference is that the Defendant knew that the Canadian Passport was forged and contained false personal particulars which were material.

223.  The Mexican Passport appeared to be issued on 13 December 2019.  Defendant must have ample opportunity to check if the personal particulars stated in the Mexican Passport are true.  Defendant even presented the Mexican Passport to PW9, PW10 and PW12 to verify his identity when he opened the ShaCOM Accounts and BoCOM Accounts. He should have realized that the name, date and place of birth as stated in the Mexican Passport was not true.

224.  The only irresistible inference is that the Defendant knew that the Mexican Passport contained false personal particulars which were material.

Whether Defendant obtained banking services from ShaCOM and BOM by deception

225.  Defence does not dispute that Defendant did meet the staff of ShaCOM and BoCOM and signed on the account opening forms for the ShaCOM and BoCOM accounts.

226.  It is submitted that it would not be possible for Defendant to produce the Mexican Passport to the staff of ShaCOM and BoCOM for verification because the Mexican Passport was in the custody of DW1 since it was issued and until 9 February 2023 when he passed the same to Ms Lui.

227.  I had already rejected DW1’s evidence in this regard.

228.  It is then put forward that there is no evidence that Defendant had personally submitted the application forms or provided the copy of the Mexican Passport to ShaCOM and BoCOM for accounts opening. It might be possible someone had done that on Defendant’s behalf and he had no knowledge of the contents of the documents that he was required to sign for account opening.

229.  It was PW9, PW10 and PW12 evidence that the contents of the account opening forms, including the declarations contained therein, were explained to the Defendant before he signed on the forms. There is not a shred of evidence that Defendant did not read or had no knowledge as to the contents of what he had signed. Even if the account opening forms were submitted to ShaCOM and BoCOM not according to Defendant’s instructions, by endorsing his signatures on those forms he represented to ShaCOM and BoCOM that the personal details as contained in the account opening form, ie, the name, date of birth and the place of birth were correct and true.

230.  It is further argued that there is no incentive on the part of Defendant to use another identity to open accounts in ShaCOM and BoCOM.  It is submitted that there is no evidence but for the deception, Defendant could not have opened any bank accounts with ShaCOM and BoCOM.

231.  Prosecution does not require to prove motive.  Further I noted that Defendant had opened bank accounts in BOC in around March 2019. In the application form for the opening of the BOC bank accounts, he stated his name as Fang Siyuan and provided his PRC ID card and the void exit and entry permit as identity[97]. According to the records kept by BOC, an application form to amend contact information was submitted on 5^th Nov 2021.  The account holder applied to change the identification document to HKIC.  A copy of Defendant’s HKIC was attached in the application.

232.  Prosecution contends that if the Defendant did not intend to conceal his identity, he could use his PRC ID card to open ShaCOM Accounts and BoCOM Accounts, and applied to change the contact information of ShaCOM and BoCOM as in the case when he opened and operated the BOC accounts. It has to be emphasized that I have not drawn any inference as to the opening and operation of the BOC bank accounts, nor I have attached any weight as to the reason why Defendant used his PRC passport and HKIC as identification document for the opening and operating of the BOC accounts.  It is set out as a fact only that the Defendant had used the name Fang Siyuan with date of birth 8^th June 1987 to open a bank account in Hong Kong.

233.  I find that the Defendant knew that the name and the date of birth of the account holder as stated in the account opening forms for the opening of the ShaCOM Accounts and BoCOM Accounts is Fong Tim and 6 June 1980.

234.  I have already found that Defendant had presented the Mexican Passport to PW9, PW10 and PW12 during the meeting of the opening of ShaCOM Accounts and BoCOM Accounts. 

235.  I also find that when Defendant presented the Mexican Passport to the staff of ShaCOM and BoCOM for verification, he knew that the personal particulars as stated in the Mexican Passport, ie the name Fong Tim, with date of birth 6 June 1980 and place of birth Zhejiang were false. 

236.  By supplying ShaCOM and BoCOM with a copy of the Mexican Passport, presenting the Mexican Passport to PW9, PW10 and PW12 for verification of his identity, and declaring that the information contained in the account opening forms for the opening of the ShaCOM Accounts and BoCOM Accounts was true and correct by signing on those forms, the only irresistible inference is that Defendant falsely represented to ShaCOM and BoCOM that his name is Fong Tim, the date of birth 6 June 1980 with place of birth Zhejiang.

237.  If ShaCOM and BoCOM knew that defendant’s true name, true date and place of birth was not those as stated in the account opening forms, they would not open the ShaCOM Accounts and BoCOM Accounts for Defendant.  By falsely representing to ShaCOM and BoCOM that his name is Fong Tim with 6 August 1980 as date of birth, ShaCOM and BoCOM were induced to open ShaCOM Accounts and BoCOM Accounts.

238.  Defendant was supplied with the copies of documents which contained schedules of banking charges of BoCOM when he signed the account openings forms for the opening of BoCOM Accounts. He also signed on the application for the opening of ShaCOM Accounts which contained the term that he understood banking and services charges would be charged for the operation of ShaCOM Accounts. There must be an understanding between Defendant and ShaCOM and Defendant and BoCOM that bank charges would be applied when he used the services of ShaCOM Accounts and BoCOM Accounts. Further, charges were applied in the operation of ShaCOM Accounts when Defendant used the overdraft facilities and trading accounts.

239.  I am satisfied that Defendant did obtain services from ShaCOM and BoCOM by deception during the period as stated in Charge 3 and Charge 4. 

VERDICT

240.  For Charge 1, I found that on 29 August 2023, Defendant was in possession of the Questioned Canadian Passport which was forged and contained false material particulars, and he knew that the said passport was forged and contained false material particulars.  I am satisfied that the prosecution has proved all the elements of the charge beyond reasonable doubt and the Defendant is convicted of Charge 1.

241.  For Charge 2, I found that on 29 August 2023, Defendant was in possession of the Mexican Passport which contained false material particulars, and he knew that the said passport contained false material particulars. I am satisfied that the prosecution has proved all the elements of the charge beyond reasonable doubt and the Defendant is convicted of the Charge 2.

242.  For Charges 3 and 4, I found that during the period as referred to in both charges, Defendant did obtain banking services from ShaCOM (for Charge 3)  and BoCOM (for Charge 4)  by deception. I am satisfied that the prosecution has proved all the elements of the charge beyond reasonable doubt and the Defendant is convicted of the Charges 3 and 4.