HKSAR v. LAM YUK-FAI, STEVE

CACC 94/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 94 OF 2001

(ON APPEAL FROM HCCC 142 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Background and charges

1. On 18 January 2001, following a trial before Beeson J and a jury, the Applicant was convicted of possessing a false travel document, contrary to section 42(2)(c)(i) of the Immigration Ordinance, Cap. 115 (count 2), and conspiracy to transfer a travel document to another without reasonable excuse, contrary to section 159A of the Crimes Ordinance, Cap. 200, and section 42(2)(a)(ii) of the Immigration Ordinance (count 3).

2. On 16 February 2001, the Applicant, a forty-four-year-old Immigration Officer, who had worked with the Immigration Department since he joined it on 25 September 1978, was sentenced on counts 2 and 3 respectively to concurrent terms of four years and ten years' imprisonment.

3. The Applicant now seeks leave to appeal against conviction. His application relating to sentence was dismissed when we were informed that this was not to be pursued.

4. The particulars of count 2 alleged that on 3 March 1999 the Applicant was in possession of a diplomatic passport, number D000250, purportedly issued by the Republic of Guinea Bissau, which bore false material particulars in that it represented that the Applicant was an "Economist" by profession and that his place of residence was "Solteiro".

5. The third count was particularised as a conspiracy between the Applicant and one Philip Chu Hak-lan, on dates between 1 November1998 and 3 March 1999, to transfer diplomatic passports of the Government of the Republic of Sao Tome and Principe without reasonable excuse to a person known to the Applicant as "Arkadiy".

6. The Applicant was acquitted on the first count of the indictment.

Prosecution's case

7. In the light of the grounds of appeal which have been advanced, it is unnecessary to deal at any length with the factual background to this case.

8. The evidence called by the prosecution on count 1 came exclusively from Philip Chu, allegedly the Applicant's co-conspirator in count 3. The acquittal on count 1, relating to a conspiracy to possess an unlawfully obtained Brazilian passport, strongly suggests that the jury felt unable to accept the evidence of Philip Chu when it was unsupported by any other source.

9. The second count was to a large extent established from evidence of the seizure of the Republic of Guinea Bissau passport at the Applicant's address coupled with his admitted possession of it. There was also a small degree of overlap between the evidence on this count and count 3 where Philip Chu alleged that the Applicant had used this passport during the covert operation which had been instigated by the ICAC to uncover the suspected use of illegally obtained passports. A translator and a professor of geography also gave evidence in relation to the passport in count 2.

10. As to count 3, a variety of evidence was adduced in support of it. Although Philip Chu was amongst the witnesses to give evidence, his evidence stood alongside two ICAC operators known as 'Richard' and 'Arkadiy'. Audio and video tapes were also produced recording a number of conversations with the Applicant.

Grounds of appeal

1. Directions on 'speculation'

11. In the first of five grounds of appeal, Mr Christopher Grounds, on the Applicant's behalf, submitted that the judge had misdirected the jury as to her directions concerning 'speculation'.

12. The judge had given the clearest directions on how the jury should approach circumstantial evidence and the inferences to be drawn from it. She then stated, in the passage which is criticized:

"And you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence and mere speculation. Speculation in a case is simply guessing or making up theories without good evidence to support them, and you cannot do that and nor can the prosecution, nor the defence." (Tr. p. 18)

13. Mr Grounds' contention was that this direction was correct only when a view favourable to the prosecution might otherwise have been adopted on a particular issue. He submitted this direction given by the judge undermined the approach the jury might take to submissions made by the defence in that it required "good evidence" to support the theories advanced by the defence before the jury could consider whether a possibility might have arisen.

14. This argument was misconceived. There was nothing in the words of the judge which prevented the jury from considering possibilities. If there had been, it would have rendered the burden and standard of proof directions meaningless. The jury was simply being told, by means of a time-honoured formula, that speculation and guesswork were not permitted.

2. Comments related to Applicant's contract terms

15. The second ground of appeal was directed at the judge's comments to the jury about the roles played by the Applicant and his alleged co-conspirator, Philip Chu, which were said to have been irrelevant and prejudicial because they made reference to the breach of the Applicant's terms of contract with the Hong Kong Government.

16. Philip Chu testified as an alleged accomplice to the crimes which were alleged against the Applicant. The evidence he gave for the prosecution was set into a background which exposed him as a self-confessed criminal serving a four-year sentence imposed in the District Court.

17. The passages about which complaint is made by Mr Grounds were as follows:

"Now, what you have heard during the days of this trial may have surprised and astonished you, because the evidence, if you accept it from the prosecution, shows that these two men, the accused and Philip Chu, while working in important and responsible roles as Immigration and Customs & Excise officers ran a number of businesses at the same time as they were carrying out their lawful duties." (Tr. p. 2)

A little later the judge said:

"You are aware of course that by the very nature of the businesses that were described by Philip Chu, that these men would not have been given permission by their employer, the Hong Kong Government, to indulge in those businesses; certainly the money-laundering and cigarette businesses described by Philip Chu would have attracted criminal sanctions and as would and did the passport business. Similarly, the business venture of the accused in African passports would not have been tolerated by his employer." (Tr. p. 3)

18. The emphasis in this ground of complaint was particularly aimed at the words "surprised and astonished" in the first passage we have just cited. The judge was spelling out, in the summing up, evidence which effectively spoke for itself. The Applicant, for his part, as he was entitled to do, had put evidence of his long-standing good character before the jury and he was given the benefit of a full 'good character' direction in the summing up. This was a criticism without substance.

3. Directions on the ingredients of count 2

19. In his third ground of appeal, Mr Grounds submitted that the judge had misdirected the jury in four separate ways concerning the ingredients of the offence set out in count 2.

20. Firstly, he argued that the judge had failed to give proper guidance as to what was meant by the expression 'material particulars', to be found in count 2, with reference to the Applicant's profession and his place of residence as shown on the diplomatic passport. Mr Grounds' real and underlying complaint appeared to have been that the prosecution had not called anyone from the Government of Guinea Bissau or from a suitably qualified passport expert to confirm what was or was not a 'material particular' on the passport described in count 2.

21. We disagree with this contention. As Mr McWalters rightly pointed out, this passport contained, like all passports, spaces for the passport holder's description to be given. On this passport, the particulars to be provided were the Applicant's name, sex, place and date of birth, occupation, marital status and place of residence. The false particulars alleged in count 2 related to the place of residence and to occupation and plainly it was a matter for the jury to decide whether the fact that there existed a space for these details to be shown was because they were to be regarded as material. In any event, as Mr McWalters also submitted, there is no universal concept of what might qualify as a 'material' particular in documents of this kind and no general expert of the kind apparently envisaged by Mr Grounds could conceivably provide assistance on a topic such as this.

22. In his second criticism of the judge's directions relating to count 2, Mr Grounds contended that the judge erred in regard to what she had said about the Applicant's knowledge of the falsity of the particulars in the passport. This was a strange complaint in the light of the Applicant's confession to knowing of the falsity regarding what was said to have been his place of residence. The judge, with reference to this, said:

"He said he did discover the error in relation to the residence, that is the word 'Solteiro'. He discovered that some months later, but by that stage, Mr Da Silva was very busy with other matters and Jorge told him not to bother Mr Da Silva about the matter. So from that period on, he said he kept this item as a souvenir. Now, in respect of that passport, that is the one where you have to decide whether or not the particulars are material particulars, and whether those particulars are false." (Tr. p. 38)

23. In regard to the other allegedly false material particular, the Applicant testified that he considered he was entitled to be called an 'economist'. The jury was reminded about this and was properly directed by the judge about the evidence which showed that the Applicant was well aware of the details on the passport which the prosecution were alleging had been falsely stated.

24. Mr Grounds went on to suggest, under this aspect of ground 3, that the alleged misdirection was such as to have affected the conviction on the third count also. However, as there was, in our judgment no misdirection of the kind Mr Grounds suggested, and only a small evidential overlap between counts 2 and 3, this was an argument which lacked any merit.

25. In the third of Mr Grounds' criticisms of the judge's summing up on count 2, he submitted that the jury was wrongly directed that an omission on the passport would amount to a false particular. The specific passage criticized was as follows:

"..... the residence cannot be Solteiro because Solteiro is not a place in Guinea Bissau, and effectively the residence was just a blank and in the context of a material particular, an omission can be a particular as well." (Tr. p. 42)

26. We do not know what it was that caused the judge to say this. It did not reflect the prosecution's case and it was not a point which the defence had ever made. Indeed, when defence counsel sought a correction at the end of the summing up, prosecuting counsel was able, unfortunately, to persuade the judge to adhere to the direction she had given. The prosecution had specifically called evidence to show that 'Solteiro', the place of residence shown on the passport, was false. There was no such place in Guinea Bissau but evidence was given that it meant "bachelor" in the Portuguese language. However, whilst we are satisfied that the judge was in error in the particular way she directed the jury on this topic, we are equally satisfied that this could have had no impact whatever on the jury. The evidence clearly established that the Applicant, far from having a place of residence at somewhere called 'Solteiro' was in fact a resident of Hong Kong. Furthermore, the point is of no conceivable practical value to the Applicant since he conceded that the particular was false.

27. In his final complaint under this ground about the directions given to the jury in relation to count 2, Mr Grounds contended that the trial judge failed to say that they should "consider each limb of the particulars separately and that before a conviction could be entered, at least five of them had to be in agreement that the prosecution had proved that particular and specific limb beyond reasonable doubt".

28. In making this submission, reliance was placed on what was stated in R v Brown (1984) 79 Cr App R 115 at 119 which was in these terms:

"In a case such as that with which we are now dealing, the following principles apply: 1. Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction). 2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged."

29. It was conceded by Mr McWalters that this case called for a direction of the kind envisaged in Brown, as applied in HKSAR v Tse Koon-kit, CACC 388/1997 (unreported). The standpoint he adopted was that the judge had in fact properly directed the jury in compliance with Brown. He relied on a passage at the end of the summing up which reads:

"I have a matter that I omitted in respect of Charge 2, and you will recall that Charge 2 is the one where you have to decide the question of material particulars; those are the only matters in dispute, whether these were false and whether these were material particulars. I should point out that there are two items, both the profession and the residence that are in dispute, that are suggested are false and are material.

If you decide that only one of those is false and is a material particular, you can still convict on that one part. You do not have to find both items false in a material particular before you can convict on that charge. Even if you find that one of them was not a material particular or not false, you can still deal with the other one and decide whether or not that was false in a material particular. So it only needs one of those items to make the charge bite, as it were." (Tr. pp. 49-50)

30. We consider that the jury would have understood from these directions that they had at least to be satisfied as to either the profession or the place of residence being a false material particular. However, even if we had thought there had been a material irregularity, because there existed any danger of the jury having misunderstood what they were being told on this aspect of the case, we would unhesitatingly have applied the proviso. The two issues on this aspect of the case which required the jury's consideration were very straightforward. As the judge had correctly stated, it came down to whether the particulars were (1) material and (2) false. The Applicant had admitted knowing about the falsity of the purported place of residence on the passport and the only possible interpretation of the space provided for this particular to be shown was that it had to be regarded as material.

31. This ground fails.

4. Directions on count 3

32. Mr Grounds, in his fourth ground of appeal, submitted that the judge had misdirected the jury on count 3 regarding the Applicant's "beliefs and defence to this charge". In making this criticism, he relied on a passage from the summing up which reads:

"So those are documents that you have to consider in relation to the account that the accused has given you of the investment schemes, and of the reason why he had these various passports. I should point out that he makes it quite clear throughout that he believes that he was not engaged in any illegal activity, that he was effectively authorised by the governments for these countries to act as he did. Whether that is a reasonable thing for him to say is a matter for you to consider." (Tr. p. 43)

33. Mr Grounds submitted that the reasonableness of the Applicant's defence was not at issue. Rather, he suggested, it was whether the Applicant genuinely believed he was authorised to do what he did because it was not impossible for the Applicant to have believed the unreasonable.

34. In putting forward this argument, Mr Grounds focused on the word "reasonable" which the judge had used when asking the jury to consider whether the Applicant's belief that he had not engaged in any illegal activity was a "reasonable thing for him to say". Insofar as the judge might have been better advised to have adopted the word 'credible', because the context plainly indicates that this is what was meant, a minor criticism can be made of the judge's phraseology.

35. However, in her directions about the offence alleged in count 3, the judge set out the general allegation and the defence which the Applicant had advanced. She reminded the jury that Philip Chu had said that this diplomatic passport was intended for people from Russia who wanted to launder money in Hong Kong. This was its only purpose. The same evidence was effectively also given by 'Richard' and 'Arkadiy' of the ICAC. In this regard, the judge said:

"Now it is quite correct that this country, Sao Tome and Principe has the right to issue documents to whomsoever they please, and for that reason it is not suggested that the document would be necessarily a false document, or an unlawfully obtained document, but what is the crux of the charge is that the accused conspired or agreed with Philip Chu to transfer without reasonable excuse, and in respect of this charge, he has to establish reasonable excuse.

Although I have told you that the burden of proving these charges remains on the prosecution throughout the trial, the burden shifts slightly here in relation only to the question of reasonable excuse. If you are satisfied that there has been the agreement and the intention to transfer these passports, you then have to consider the question as to whether or not the accused had a reasonable excuse to transfer them in the manner that he was proposing to do.

In doing that, the accused does not have to establish beyond reasonable doubt that this was the case. All he has to do is show that it is more likely than not that this was the reason for his transferring the document, and I will deal with that in more detail when we deal with the accused's evidence itself." (Tr. p. 29)

36. Later when the judge returned to this topic, she reminded the jury of the Applicant's explanation for his involvement with passports from various countries and, turning specifically to count 3, she said in a passage immediately following the one specifically criticized by Mr Grounds to which we referred earlier:

"In relation to the 3rd count, as I have told you, once you have decided whether or not there was an agreement and that he intended to be part of that agreement to transfer the travel documents, you have to consider whether or not the accused has established, so that it is more likely than not, that he did have reasonable excuse for transferring those documents. If you accepted, for instance, that he had been appointed as the agent of the country and was able to deal with passports and deliver them to people, you would have to consider whether or not that meant that he might have had some reasonable excuse in his own mind as to whether or not he could pass the passports to other people.

But you would also have to ...... consider whether or not he had a reasonable excuse to transfer those documents as he said he believed he did, and the reason he believed he had the right to transfer these documents which are not as far as is known, falsely obtained documents, the reason he believed he had this reasonable excuse, was because it was in furtherance of the investment scheme that he considered that he was effectively in charge of in Hong Kong.

Now, the prosecution of course has said that this is complete nonsense ......" (Tr. pp. 43-44)

37. The judge's summary of the law in relation to count 3 was in our judgment not open to valid criticism and her directions put the earlier passage criticized by Mr Grounds into context. This ground fails.

5. Approach to Philip Chu's evidence

38. In his fifth and final ground of appeal, Mr Grounds contended that the judge had "failed to direct the jury that if they disbelieved Philip Chu's evidence on anything material, they should be particularly slow to accept his evidence on anything else material".

39. We do not need to deal in detail with this criticism. The judge was at pains to point out the need for treating Philip Chu's evidence with caution. Indeed, as we have already said, the acquittal on count 1 is really only explicable on the basis that the jury could not be satisfied beyond reasonable doubt about the Applicant's guilt where it was based entirely upon the evidence of Philip Chu.

40. There is no merit in this ground.

Conclusion

41. We are not persuaded that these convictions were unsafe or unsatisfactory. Accordingly, the application is dismissed.