CHAN MING-FAT v. R.

IN THE COURT OF APPEAL

1994, No. 240
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The applicant was convicted after trial before His Honour Judge Hawkes of an offence contrary to section 75(1) of the Crimes Ordinance, Cap 200, namely of having in his custody or control false instruments which he knew to be false, with the intention that he or another would use them to induce somebody to accept them as genuine, and by reason of so accepting them to do some act to his own or any other person's prejudice.

2. He now applies for leave to appeal against that conviction, having abandoned his application for leave to appeal against the sentence of four years imposed upon him.

3. The evidence for the prosecution was that on 17 November 1992 the applicant arrived at Narita Airport in Japan from Hong Kong. He was searched by Japanese Immigration officials and found to have 13 forged visa cards in a wallet in his jacket. On 19 November that year he was deported to Hong Kong. The cards were examined in Hong Kong by the officers of the various banks to which they purported to relate and by the Government Chemist and were found to be false.

4. Under caution the applicant made two statements to the police in which he confessed that he had knowingly taken the false cards from Hong Kong to Japan at the request of a friend for a reward of $5,000 and that he thought that the recipient in Japan to whom he was to hand them would use them for imprinting.

5. Counsel who represented the applicant at the trial objected to the admissibility of the cautioned statement on the grounds that when detained in Japan the applicant was induced and threatened to make an admission that the cards were earlier in his possession in Hong Kong; that when he returned to Hong Kong he was induced by a police officer to agree to a home search; that he gave the first statement as a consequence of various assaults and a fear that he would be returned to Japan to face prosecution, and that he was induced to give the second cautioned statement on the following day.

6. The prosecution evidence relating to the cautioned statements covered the arrest of the applicant in Hong Kong, the taking possession of the false visa cards, the search of his premises and the subsequent taking of the two statements. The applicant declined to testify or to call witnesses on the voir dire.

7. The judge believed the prosecution witnesses and accepted their evidence as truthful and reliable. He rejected the unsubstantiated allegations made in cross-examination of the police officers of assaults and other improprieties.

8. The applicant now submits - as did his counsel at the trial - that the failure of the Crown to call the Japanese officials to rebut allegations of improper conduct by them in Japan constituted a failure to discharge the onus cast upon it to prove that the statements later made in Hong Kong were voluntary. The judge rejected that submission and held that it was not necessary for the Crown to call such evidence. We entirely agree. The Crown sought to introduce into evidence statements which the applicant made to the police after his arrest in Hong Kong, not any statement which the applicant might have made to Japanese officials in Japan. In doing so, it was incumbent on the Crown to satisfy the judge beyond reasonable doubt that, whatever may or may not have happened in Japan, the statements made by the applicant in Hong Kong were given voluntarily. It is a fallacy that the Crown is required to call evidence to cover the entire period during which an accused is in custody up to and including the taking of his statements. Such is not necessary, irrespective of whether the entire period of arrest is in Hong Kong or is partly in another country.

9. The applicant also complains that in admitting the statements into evidence the judge was wrong to resolve certain inconsistencies in the testimony of the statement taking police officers in favour of the prosecution. The evaluation of the credibility of a witness is very much a matter for the trial judge who enjoys the undoubted advantage of hearing and seeing him or her give evidence. Nothing has been said that gives us any reason to think that the judge was wrong to believe the police officers and to attribute the contradictions in their evidence to the long lapse of time between the taking of the statements and the trial.

10. Lastly, the applicant sought to withdraw the admitted facts on the basis that he did not consent to their admission. Whatever truth there may be in that assertion, it is clear that those admitted facts had no bearing on the confessional statements upon which the judge relied in convicting the applicant. The judge was entirely justified on the evidence before him to conclude that the statements had been made voluntarily and that in the circumstances the applicant knew that the false visa cards were to be used for the purpose of inducing someone to accept them as genuine to the prejudice of that person or some other person. The application is therefore refused.