HKSAR v. GURUNG, DINESH

HCMA 209/2024

[2025] HKCFI 942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 209 OF 2024

(ON APPEAL FROM STCC 766/2024)

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J U D G M E N T

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Appeal against Conviction

1.  The appellant was convicted after trial of two offences and now appeals against those convictions.  He was charged and convicted of making a false statement to an Immigration Officer lawfully acting under or in the execution of Part III of the Immigration Ordinance, contrary to section 42(1)(a) of the Immigration Ordinance, Cap 115, Charge 1.  The particulars are that on or about 6 July 2017 he made a statement, knowing the same to be false or not believing the same to be true, to an Immigration Officer stating that there was no change in his matrimonial relationship with Gurung Basanti.

2.  He was charged and also convicted of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200, Charge 2.  The particulars are that on or about 6 July 2017 he did use an instrument, namely a “Declaration of Sponsor” for “Application for Extension of Stay” form which was, and which he knew or believed to be false.  He used it with the intention of inducing the Director of Immigration and his officers to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

The Prosecution Case

3.  In March 2021, the Immigration Department received a complaint from Ms Gurung Basanti who was the appellant’s ex-wife alleging that the appellant may have made false representations and submitted false documents to the Immigration Department to support an application for an extension of stay as a dependant in Hong Kong in 2017.

4.  On 6 July 2017, the Immigration Department did receive an application for an extension of stay from the appellant which included a “Declaration of Dependant Applicant” (“Form ID481B”) signed by the appellant declaring there was no material change in the matrimonial relationship between the appellant and his then wife Ms Gurung.  On the same day, the Immigration Department also received a “Declaration of Sponsor” (“Form ID481A”) purportedly signed by Ms Gurung stating that she was willing to sponsor the appellant in applying for an extension of stay in Hong Kong.  On the same day, the application was approved and the appellant was permitted to remain in Hong Kong until 27 August 2020.

5.  PW1, the Immigration Officer who dealt with the application for an extension of stay gave evidence and confirmed that the Form ID481A is to be signed by the sponsor, in this case the appellant’s ex-wife whilst the Declaration of Dependant Applicant Form ID481B is to be signed by the applicant seeking an extension of stay.

6.  The Immigration Department’s practice is that application papers are submitted to front desk staff.  In this case, Exhibit P4.  It is normal practice that if the applicant himself or herself does not submit the application, an authorisation letter from that applicant is to be attached.  There was no such authorisation letter attached here.  The prosecution’s case is that therefore, the appellant himself submitted the papers to the Immigration Department in person.

7.  PW1 gave evidence that if the appellant had declared a change in the matrimonial relationship then she would not have approved the application.  In this case, she approved this application dated 6 July 2017 because there were no changes of circumstances when compared to the previous application in 2014, Exhibit P3.

8.  She approved the application on 6 July 2017 and extended the appellant’s visa to 27 August 2020.  Her evidence is that if his application to extend his stay had not been approved, he would have had to leave Hong Kong on or before 27 August 2017.

9.  PW2, Ms Gurung gave evidence that she did not sign that Form ID481A and had refused to sponsor the appellant in applying for an extension of stay therefore, that document was a false instrument and the appellant had made a false statement to an Immigration Officer relating to their marital status at the time of the application.

10.  The appellant and Ms Gurung married in Nepal in 2011.  PW2 is a Hong Kong resident and sponsored the appellant’s application to stay in Hong Kong.  In August 2013, the appellant came to Hong Kong because PW2 agreed to sponsor him.  He was in Hong Kong on a dependant visa.

11.  This visa was extended on 11 July 2014 and the appellant was allowed to remain in Hong Kong on that visa until 27 August 2017.

12.  However, their marriage was an unhappy one from as early as not long after he arrived in Hong Kong.  She nevertheless agreed to sponsor his extension of stay in 2014 hoping that their marriage would improve.  It certainly did not and by 2016, their marriage was at an end.  She asked him to move out of their marital home in April 2016.

13.  On 12 April 2016, the appellant filed a divorce petition as the petitioner citing unreasonable behaviour on the part of his wife.  In it, and a copy of it is at Exhibit P6, he states he resides in one address while she resides in another.  She defended the petition and filed an answer on              3 August 2016.

14.  Therefore, before the application for an extension of stay in Hong Kong as a dependant to be made before the expiration date of 27 August 2017, they were no longer living together as husband and wife.  When the appellant initiated divorce proceedings in April 2016, they were separated, living apart and getting divorced.  There is no doubt there was a change in their matrimonial relationship on or before 6 July 2017, the date of these offences.  Yet, the document submitted and signed by the appellant and dated 6 July 2017 declares “that there is no change in our matrimonial relationship”.

15.  In 2017, after they had separated and he had initiated divorce proceedings, the appellant contacted PW2 to demand she sponsor his application of extension of stay as his visa was set to expire in August 2017.  She refused.  She did not hear from him again.  She even went to Nepal sometime in 2017 to get away from Hong Kong and the appellant in case he put pressure on her to continue to sponsor him.

16.  She had no knowledge of the appellant’s application on or about 6 July 2017 nor did she sign the declaration of a sponsor, which is required.  That form is to confirm the sponsor is willing to sponsor a dependant in applying for an extension of stay previously approved by the Immigration Department.  Without it, there would be no extension for a dependant.

17.  In 2018, most likely as there was no further action relating to the appellants divorce petition filed in April 2016 in Hong Kong, PW2 filed for a divorce in Nepal on 16 March 2018.  That divorce was approved on 23 April 2019.

18.  It was not until 2021 did she, PW2, become aware that not only was her ex-husband still in Hong Kong but also had become a permanent resident.  She suspected that he had made a false statement to the Immigration Department and forged her signature.  She wrote a letter dated 25 March 2021, Exhibit P6, informing the Department of her suspicions.  She attached supporting documents, which were not challenged by the defence.  That included the appellant’s divorce petition filed on 12 April 2016.

The Defence Case

19.  The appellant elected not to give evidence nor call any witnesses.  The defence case was that this application was not submitted by the appellant in person.  It is the defence case that PW2 did sign the required form labelled “Declaration of Sponsor” (Form ID481A) as the sponsor of the appellant.  Her evidence is not credible.  Therefore, he did not use a false instrument nor did he make a false representation to an immigration officer.

The Magistrates Findings

20.  A reading of the magistrate’s findings shows he fully considered the prosecution’s evidence, the prosecution’s burden of proof, the requisite standard of proof, the clear record of the appellant and the elements of the offences.  The magistrate believed both prosecution witnesses and found them credible.  In his opinion, they were not shaken during cross-examination.

21.  The magistrate accepted the evidence from PW2 that she did not sign the sponsor’s form in Exhibit P4.  The magistrate accepted that there was no authorisation letter attached to the application.  He believed this would have been a stringent rule applied by the front desk staff to ensure the integrity of these applications and compliance of Immigration Department rules.

22.  The magistrate therefore, because there was no authorisation letter, drew the irresistible inference that the appellant submitted the application to the Immigration Department in person. If he submitted the application and his ex-wife did not sign the sponsor’s form then he must have known it was a false instrument.  It was an instrument he needed otherwise his application to extend his stay would not have been granted.

23.  A sponsor must agree to continue to sponsor a dependant.  Matrimonial relationships must remain unchanged.  He told the Immigration Department that his matrimonial relationship remained unchanged and made such a declaration in his application form, Form ID481B.  He signed to confirm his declarations.

24.  The magistrate found this claim in that form that there was no change of matrimonial relationship untrue.  Therefore, a false statement to an Immigration Officer.

Grounds of Appeal

25.  In the first ground of appeal against the first charge, the appellant submitted the magistrate erred in finding that the appellant statement regarding his matrimonial relationship made to the Immigration Department was not true therefore; his conviction was unsafe and unsatisfactory.

26.  In the second ground of appeal against the second charge, the appellant submitted the magistrate erred in relying on irrelevant considerations such as the appellant’s motive to make an application for an extension of stay and the consequences of him failing to succeed, to reach the conclusion that the appellant therefore must have committed the 2nd charge, used a false instrument.

27.  In the third ground of appeal against the second charge, the appellant submitted the magistrate erred in finding that the only reasonable and irresistible inference from the circumstantial evidence was that the appellant himself had personally submitted the application to the Immigration Department on 6 July 2017.

28.  In the fourth ground of appeal, the appellant submitted generally the magistrate had failed to properly consider the credibility of the appellant’s ex-wife, PW2 when the entirety of the prosecution’s case exclusively relied on her evidence.

29.  The last ground of appeal was that the appellate court should find the prosecution failed to discharge its burden of proof in relation to both charges.

The Legal Principles

30.  It is clearly established that a magistracy appeal is conducted by way of a rehearing on the evidence before the trial court.  Where findings of fact are based on the oral testimony of witnesses, the appellate court would be subject to limitations and must therefore exercise caution.  After all, the magistrate enjoyed the advantage of having seen and heard witnesses giving evidence.  The appellate court is not in that same position.

31.  Nevertheless, the appellate court must work with those limitations when undertaking its duty to rehear the trial to reach its own conclusion on disputed issues of fact or law.  In this case, the evidence of the prosecution witnesses was materially challenged therefore, credibility was an issue.

32.  For the purposes of this appeal, although I do not have the advantage the magistrate enjoyed of hearing and seeing the witnesses give evidence, I do have the transcripts of their evidence.

33.  If the appellate court is not satisfied on the evidence of the appellant’s guilt beyond reasonable doubt then the appeal must be allowed.  If the appellate court comes to a different view on that evidence, this would justify the decision to allow the appeal.

34.  What this means is that the appellate court is required to consider and weigh all the available evidence, relevant evidence and reach its own conclusion as to whether the elements of all charges are proved to the requisite standard, beyond reasonable doubt.

Discussion

35.  I have the transcripts of the evidence of both prosecution witnesses.  PW1’s evidence as the Immigration Officer who granted the applicant’s extension of stay was not materially challenged.

36.  I have considered PW2’s evidence and agree with the magistrate that she was not shaken in cross-examination.  She was honest and agreed that she hated her ex-husband, the applicant.  She described a miserable marriage and an unfaithful husband.  She describes how shocked she was to find out that the applicant had not returned to Nepal when she refused to continue to sponsor his stay but was still in fact in Hong Kong years later.  She knew that his stay was not possible without her sponsorship.  She agreed she complained to the Immigration Department because she hated her ex-husband.

37.  She explained how he had asked her in 2017 to continue to sponsor him and her evidence was she point blank refused.  I accept her evidence that she refused because of how he treated her and because her marriage had ended.

38.  It was suggested to her in cross-examination that they were still living together until 2018.  She denied this suggestion.  She had asked him to leave in 2016 when she found out he had a girlfriend and was only staying married to her to get his permanent residency.  I believe this is true.

39.  In fact this part of her evidence, that the marriage had come to an end before the appellant’s permission to stay expired in 2017 was supported by the actions of the applicant himself.  He filed a divorce petition dated 12 April 2016 in Hong Kong Family Court.  He petitioned for divorce on grounds of her unreasonable behavior.  In it, he declared he was living at one address and PW2 was living at another, he declared that they were not living together.

40.  PW2 enclosed those divorce petition papers in Exhibit P6 in her letter to the Immigration Department in 2021.  A reading of the transcript shows those papers were not disputed.  I have read her answer to the petition; she had intended to defend it.  What she wrote supports her oral evidence in these proceedings that she did not agree to continue to sponsor his stay in Hong Kong a year later in July 2017.

41.  The divorce petition papers filed by the appellant in April 2016 directly contradict what he declared to the Immigration Department when he applied in July 2017 for an extension of stay.  He declared that there was on 6 July 2017 no change in their matrimonial relationship but the truth was his current marital status was set out in the document as a declaration to make and that is he was “undergoing divorce proceedings”.  I believe the evidence of PW2 when she said that they had separated in 2016.

42.  With respect, the submission put forward on behalf of the appellant that since they had not yet divorced and were still legally married in 2017, the appellant was not wrong to tick and declare that his marital status remained unchanged, cannot be right.  A common sense reading of that form, Form ID481B clearly requires the applicant to declare if the current marital status was unchanged or they were separated or undergoing divorce proceedings or divorced or widowed.  There can be no confusion here; this was a deliberate false statement.

43.  The magistrate did not err in finding that the appellant’s statement to the Immigration Department in Exhibit P5 was not true.  There is no merit in the first ground of appeal.

44.  As for the second ground of appeal, only the appellant stood to gain from using a false instrument to make an application for an extension of stay.  Without it, he would have failed and been unable to remain in Hong Kong.  Since his request to PW2 to continue to sponsor him despite the breakdown of their marriage was rejected, he had the motive to forge her signature in order to remain in Hong Kong.  There is no merit in the second ground of appeal, the magistrate was entitled to take into account the appellant’s motive and benefit.

45.  As far as the third ground of appeal is concerned, the magistrate was entitled to take into account the evidence of PW1 explaining the practice of the Immigration Department.  If the applicant did not personally submit the application form to the Department, an authorisation letter was required.  In this case, there was no authorisation letter and PW2 did not submit papers for him so the magistrate was entitled to draw the only reasonable and irresistible inference that the appellant himself submitted these application papers personally on 6 July 2017. There is no merit in this ground.

46.  The magistrate clearly consider the credibility of both prosecution witnesses but especially PW2’s evidence.  By making the findings he did and drawing the irresistible inferences that meant he found the prosecution had proved its case beyond reasonable doubt for both charges, the magistrate clearly found PW2 credible.  There is no merit in the fourth nor the fifth ground of appeal.

Conclusion

47.  I agree with the Respondent’s submissions and having reviewed the appeal bundle myself with the transcripts, I too agree that the magistrate was entitled to draw an irresistible inference against the appellant and convict him of both charges.

48.  The evidence from the prosecution witnesses is more than sufficient to be able to draw an irresistible inference that the appellant had made a false statement to an Immigration Officer that there was no change in his marital status.

49.  There was also more than sufficient credible evidence to be able to draw an irresistible inference that the appellant had used a false instrument purportedly signed by his sponsor, his then wife to support an application to extend his stay in Hong Kong as a dependant.

50.  I am satisfied that both offences were proved beyond reasonable doubt by the prosecution.  The magistrate’s findings and reasons given are correct.  In the circumstances, the magistrate was justified in convicting the appellant and I find no basis for disturbing those convictions.

51.  There is no merit in this appeal therefore; the appeal against his convictions is dismissed.