THE QUEEN v. WU SIU FAI

IN THE COURT OF APPEAL

1994, No. 643
(Criminal)

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

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

J U D G M E N T

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

Bokhary, J.A.:

1. These are applications for leave to appeal against conviction and, out of time, sentence. We are now dealing with conviction.

2. On November 3 last year before Deputy Judge Jenkins in the District Court, the applicant, a man of previous good character in his early 30's, was convicted on one charge of conspiracy to possess an unlawfully obtained travel document, contrary to Common Law and section 42(2)(c)(i) of Immigration Ordinance, Cap. 115. Section 42(2)(c)(i) provides:

"Any person who has in his possession any forged, false or unlawfully obtained or altered travel document, entry permit, re-entry permit, certificate of identity, document of identity or Vietnamese refugee card shall be guilty of the offence."

3. The particulars of offence are that the applicant:

"between a day in January 1993 and the 8th of September 1993, in Hong Kong and elsewhere, conspired with Sotho Kulikar, Hu Shao-hang also known as Wu Siu Hong, Pan Gui-ying and other persons unknown to possess an unlawfully obtained travel document, namely Kampuchea Passport No.24746."

4. Shortly stated, the background to the case is as follows. The applicant was in the business of helping people, in return for payment, with immigration matters. One of his clients was Madam Pan Gui-ying who is named in the charge as one of the conspirators.

5. Madam Pan came to Hong Kong from China. Her aim was to settle here. She went to the applicant for help to do so. To that end, he advised her to obtain - and helped her in obtaining - a Kampuchea passport.

6. In obtaining that passport, Madam Pan, who had no reason to believe that she had been born in Kampuchea and who believed for good reason that she had been born in China, represented to the Kampuchean authorities that she has been born in Kampuchea.

7. Giving evidence for the prosecution, she said that she had made that representation as a misrepresentation and that she had done so upon the applicant's advice.

8. Giving evidence in his own defence, the applicant did not accept that any misrepresentation had been made. And he denied that he had advised Madam Pan to make any misrepresentation.

9. After Madam Pan's Kampuchea passport had been obtained, it was used by her, with the applicant's assistance, in an unsuccessful attempt to obtain permission for her to remain in Hong Kong. Section 42(3) of the Immigration Ordinance provides:

"A travel document, entry permit, re-entry permit, certificate of identity, document of identity or Vietnamese refugee card shall be deemed to be unlawfully obtained for the purposes of this section if any person made a false statement or representation for the purposes of or in connection with an application for the issue or renewal of the same."

10. The judge accepted Madam Pan's evidence and rejected the applicant's evidence. He accepted her evidence even though she was, on her own admission, an accomplice. That was because he considered her evidence to be corroborated and also because he found her an impressive witness quite apart from any corroboration. He made that perfectly clear. And he rejected the applicant's evidence even after fully taking into account, quite rightly, his good character.

11. As we see it, despite the detailed submissions made by counsel of the applicant, which submissions we have considered with care even though we do not rehearse them , the judge was entitled to accept Madam Pan's evidence even uncorroborated. That being so, it matters not whether or not her evidence was corroborated. We would however mention in passing that in truth her evidence was not uncorroborated: and the prosecution has before us conceded as much.

12. As to the applicant's argument that there was no evidence that Madam Pan had not been born in Kampuchea, there are two answers.

13. First, it seems to us a fanciful notion that this lady, who grew up in China and whose earliest recollection is of life there, had in fact been born in Kampuchea, being the country which just happens to be the one chosen as the country from which she should dishonestly obtain a passport purely for the purpose of the her application for permission to remain in Hong Kong. That would be a coincidence and oddity well beyond any reasonable possibility in the circumstances.

14. Secondly and in any event, the charge here was of conspiracy to possess an unlawfully obtained travel document, namely a Kampuchea passport. The case was that such passport was to be obtained by saying that Madam Pan had been born in Kampuchea even though none of the conspirators had any belief or reason to believe that to be the fact. It would not be a defence if, unknown to any of the conspirators, she had in fact been born in Kampuchea. As far as this point is concerned, counsel for the applicant recognised the difficulty in which he is placed by reason of fact that the charge was one of conspiracy.

15. We have also considered the case in the round for the purpose of seeing if there is anything in the submission that the conviction may be unsafe or unsatisfactory. In that consideration, we have been assisted by detailed arguments by counsel for the applicant who has said everything which can be said on behalf of client and has done so with skill. We are in the end left with the clear impression that the conviction is perfectly safe and satisfactory and that there is no basis on which we can interfere with the same.

16. Accordingly, the application for leave to appeal against conviction is dismissed.