HKSAR v. FANG SIYUAN

CACC 214/2026

[2026] HKCA 1092

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 214 OF 2026

(ON APPEAL FROM DCCC NOS 467 and 1116 OF 2024)

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J U D G M E N T

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1.  This hearing was originally fixed to deal with an application for bail pending appeal, but, by consent of the parties, it also proceeded by way of an application for leave to appeal against conviction and sentence.  The applicant was tried before Deputy Judge W H Ko (the judge) in the District Court, charged with two offences of possession of a false or forged document (Charges 1 and 2) and two offences of obtaining services by deception (Charges 3 and 4).  On 24 April 2026, after trial, the judge convicted the applicant of all four charges. 

2.  On 15 May 2026, the judge sentenced the applicant to a total term of 32 months’ imprisonment, calculated as follows.  He imposed a sentence of 8 months’ imprisonment on Charge 1; 17 months’ imprisonment on Charge 2; 17 months’ imprisonment on Charge 3; and 14 months’ imprisonment on Charge 4.  He ordered that 3 months of the sentence on Charge 1 be made consecutive to the sentence on Charge 2 and that 6 months of the sentence on Charges 3 and 4 respectively, be made consecutive to the sentence on Charge 2.

3.  On 29 August 2023, officers of the ICAC executed search warrants on the applicant’s residence and at his office.  In the applicant’s residence, they discovered, inside a safe in his master bedroom, a Canadian passport, and in his registered office, inside a locked safe in a locked room, a Mexican passport.  The two passports were in the name of “Fong Tim” with a date of birth of 6 August 1980 and a place of birth in Zhejiang. It was alleged that the passports were false as they were not in the name of the applicant, whose date of birth was 8 June 1987 and whose place of birth was Heilongjiang.  The applicant had in his name and with the relevant particulars, a Hong Kong Identity Card, a PRC passport and a Grenadian Diplomatic passport. He also made six applications for an extension of time to stay in Hong Kong between 21 November 2020 and 16 August 2021.  He also had other travel documents in respect of other countries in his name.[1] Furthermore, there was no immigration record of any person by the name of “Fong Tim”, with a date of birth of 6 August 1980, having arrived in or departed from Hong Kong between 4 March 2014 and 5 March 2024[2].  (Charges 1 and 2) 

4.  Between 2020 and 2023, it was alleged that the applicant used the Mexican passport to obtain banking services from the Shanghai Commercial Bank and the Bank of Communications.  He opened a total of eight bank accounts and dishonestly represented that he was the person named in the passport (Charges 3 and 4).

5.  Charge 1 concerned the alleged forgery or falsity of the Canadian passport.  The prosecution case was that, based on the expert evidence of a Government Chemist (PW13), the passport was a forgery; and in the alternative the passport was a false document in that it contained material false particulars as to the applicant’s place of birth, date of birth, and given name.

6.  Charge 2 concerned the alleged falsity of the Mexican passport.  The prosecution case was that the passport was a false document in that it contained material false particulars as to the applicant’s place of birth, date of birth and given name.

7.  Proving the falsity of the Mexican passport was critical to the prosecution case on Charges 3 and 4.  The prosecution case was that the applicant on divers dates dishonestly obtained services from the Shanghai Commercial Bank and the Bank of Communications, namely by opening bank accounts with those banks and by falsely representing that his name was “Fong Tim” and that his date of birth on 6 August 1980, relying on the Mexican passport.

8.  The applicant elected not to testify but he called his personal assistant to give evidence on his behalf.  The assistant claimed that he had independently engaged overseas agencies to procure the passports for the applicant, without verifying their authenticity or providing copies to the applicant for confirmation.

9.  On 27 May 2026, the applicant filed an application for leave to appeal against the convictions.  On the same day, counsel for the applicant filed perfected grounds of appeal, which, in summary, are as follows.  Ground 1 contended that the judge erred in law, and deprived the applicant of a fair trial, in determining the admissibility of Immigration Department documents (exhibits P1-P10 and P14), for the truth of their contents by reference to section 63B of the Immigration Ordinance (Cap 115), a provision which (i) was not invoked or relied upon by the prosecution; (ii) was relied upon by the judge on his own motion and not referred to the parties; and (iii) was adopted by the judge as the sole basis for ruling the Immigration documents admissible for the truth of their contents.  Ground 2 contended that the judge erred in ruling that section 63B operated as a statutory exception to the rule against hearsay.  Ground 3 alleged that the judge erred in law and in fact in finding that the Canadian passport (exhibit P13) was a forgery.  Ground 4 asserted that as a result of the previous grounds the convictions were unsafe and unsatisfactory.

10.  The essence of the appeal against the convictions is that the judge improperly admitted evidence on which he relied to find that the Canadian and Mexican passports in the applicant’s possession were false.

11.  Mr Selwyn Yu, SC, submits that the judge’s invocation of section 63B to admit the immigration documents for the purpose of relying on the truth of their contents was a denial of natural justice, as he did not give the parties prior notice or an opportunity to address the court on the matter.  He points out that the judge, having accepted the defence submission that there was no admissible evidence as to the applicant’s true name and his actual date and place of birth, relied on section 63B to find that the immigration documents contained this information, so that he could make a comparison with the particulars in the Canadian and Mexican passports (which were in a different name and a different date and place of birth).  This ground is a question of fact and law, which I accept is reasonably arguable, and leave to appeal is therefore granted.  It has to be said that the judge gave a very comprehensive and careful analysis of the issues at trial in his reasons for verdict running to nearly 80 pages.  An important consideration when addressing this ground will be that the immigration documents were before the court by way of a certification from the Director of Immigration.  Although there was no reference to section 63B, it is arguable that it was apparent that the immigration documents were produced under the relevant statutory provision.

12.  By Ground 2, Mr Yu argues that the judge erred in law in invoking section 63B for the truth of the particulars recited or asserted in the immigration documents.  He notes that under section 63B, a document certified by the Director of Immigration to be a true copy is “prima facie evidence of all matters contained therein” and submits that this does not admit the truth of the contents.  He compares section 63B with section 63A, which permits proof of evidence by certificate and provides that such a certificate is “prima facie evidence of the facts contained therein”. He contends that in section 63A the statute uses the word “facts” and therefore permits reliance on the truth of what is recited or asserted in the document, whereas in section 63B it uses the word “matters”, which is not the same and cannot be treated as proving the truth of the contents.  This ground is a question of law that does not require leave to appeal.  The focus on appeal will be whether there is any difference between the expressions of “facts” and “matters” in the context of the statutory provisions and whether “matters” has a restrictive application, as submitted by Mr Yu.

13.  By Ground 3, Mr Yu submits that the judge erred in law and in fact in finding that the Canadian passport was a forgery.  The judge relied on the immigration documents, which are the subject of the other two grounds, but he also relied on the expert evidence of a Government Chemist, who was able to identify anti-counterfeiting features indicating that the Canadian passport was a forgery.  She was unable to carry out the same exercise with the Mexican passport.  The judge accepted the expert’s evidence and, on that evidence alone, was satisfied that the Canadian passport was a forgery.  

14.  Whilst I have come to the conclusion that the grounds of appeal are reasonably arguable, there is no doubt that the applicant entered into and departed from Hong Kong on PRC and Grenada passports and a Hong Kong identity card in his name, “Fang Siyuan”.  His photograph is in those travel documents, as it is in the Canadian and Mexican passports, which are in another name, “Fong Tim”.  Mr Yu rests his case on the basis that it cannot be established which is the applicant’s true identity and therefore it cannot be proved that the Canadian and Mexican passports are false.  He argues that the name and particulars in the immigration and travel documents are hearsay and cannot be relied upon for their truth.

15.  The applicant also applies for leave to appeal against his sentence, principally on the basis that it was manifestly excessive.  The sentence on Charge 2 for possession of the false Mexican passport of 17 months’ imprisonment is arguably high, and has a bearing on the overall sentence imposed by the judge.  A similar argument is advanced in relation to Charges 3 and 4.  I therefore grant the applicant leave to appeal against his sentence.

16.  As stated by the Court of Final Appeal in HKSAR v Chan Kam Ching[3], the essential feature of a forged document is that it tells a lie about itself (the automendacity principle).  It is not sufficient that the document contains a lie; for it to be false or a forgery it must purport to be something it is not.  This will depend upon the wording of the offence provision, as explained by the Court of Final Appeal in HKSAR v Li Qingbin[4].  The Court examined the phrase “forged, false or unlawfully obtained or altered” travel document under section 42 of the Immigration Ordinance, noting that the automendacity principle applied only to the document offence where a person was charged with using a forged travel document but not where he was charged with using a false travel document.  In that case, the Court was concerned with the use of a false travel document, whereas in the present case, in respect of Charge 2, the applicant is charged with possession of such a document.  The Court stated that a false particular must be material to immigration officers in carrying out their duties or exercising their powers and functions, and that materiality is case-specific, depending on what the false particular consisted of, the nature of the falsity, and how it related to the relevant statutory function. 

17.  The judge addressed the relevant authorities and particularly made reference to Li Qingbin and directed himself 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, notwithstanding any difficulties that may have been posed by the issuing authorities”.[5]

18.  It follows from what I have said that I grant the applicant leave to appeal against his convictions on the grounds advanced, and leave to appeal against his sentence.

19.  The application for bail pending appeal is made under both the merit limb and the time served limb.  Having considered the parties’ submissions, I am not persuaded that bail should be granted under the merit limb, and any issue in relation to the time served limb has been appropriately addressed by directing that the hearing of this appeal be expedited and fixed for 3 September 2026.

[1] See Reasons for Verdict, at [14]-[40].  

[2] Reasons for Verdict, at [9]. The date of birth was recorded as 8 August 1980, but it should be 6 August 1980.

[3] HKSAR v Chan Kam Ching (2022) 25 HKCFAR 48, at [38]-[89].

[4] HKSAR v Li Qingbin (2025) 28 HKCFAR 270.

[5] Reasons for Verdict, at [110].