HKSAR v. SUN XIULAN

HCMA1066/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1066 OF 2007

(ON APPEAL FROM STCC 3376 OF 2007)

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BETWEEN

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J U D G M E N T

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1. The appellant was convicted at Shatin Magistracy of two offences of making a false declaration to an immigration officer, being Charges 1 and 2, and of one offence of conspiracy to defraud the government of the People’s Republic of China (“PRC”), being Charge 3.  She appeals those convictions.

2. The prosecution case was that the appellant, a Mainland resident, had in 2000 entered into a bogus marriage on the Mainland with a Hong Kong resident, Mr Kwong.  Immediately prior to this marriage she had divorced her Mainland husband.

3. Following her marriage to Kwong, which had been arranged in the Mainland by a “Mr Chan” at a cost of HK$3,000, the appellant came to Hong Kong on a number of occasions and in doing so represented to Hong Kong immigration officers that she did so to visit Kwong, being the 1^st charged offence and, eventually, to join him, being the 2^nd charged offence.  She had registered the bogus marriage in the PRC and had on that basis sought and obtained from the Mainland authorities permission to come to Hong Kong to join her husband Kwong, being the 3^rd charged offence.

4. The appellant who was unrepresented before me puts forward general grounds of appeal as set out in Form 101 to the Magistrates’ Ordinance to the effect that the evidence was not sufficient to found a conviction.

5. The prosecution case at trial in respect of all three charged offences was contained in a cautioned interview of the appellant conducted by immigration officers.  The appellant particularly claims that the record of that interview was wrongly admitted.  She repeats generally in that regard what she had told the trial magistrate, that is that she had been forced to sign the record of the interview and that its contents were in large part fabricated.

6. The admissibility of that interview was contested in a voir dire.  The magistrate gave extensive reasons in his statement of findings as to why he found it to be voluntary and further concluded that there was no reason to exercise his discretion to exclude it from evidence.

7. The magistrate dealt thoroughly with the issues raised by the appellant during the voir dire.  He accepted the evidence of the prosecution witnesses and rejected that of the appellant.  He concluded that the record of interview was admissible.  In arriving at his decision, he said this :

“(b)	The interview was lengthy and contained the wealth of detail that may be expected from a process that took seven hours.  In her evidence Ms. Sun modified her original position to say that she provided she had provided the information contained in only seven of the answers in the record.  Reading the other answers in the record shows a lot of personal details about Ms. Sun that must have originated from her as they were about matters unknown and unknowable to the interviewing officer.  Ms. Sun’s denial that she was the source of this information is clearly a falsehood.
(c)	The length of the interview can be partly explained by the large amount of detail in the statement it is improbable that the officer would decide to spend seven hours in crafting a fabricated statement and include a vast amount of extraneous and irrelevant detail that could easily be proved to be untrue.
(d)	The question of whether a threat was issued by the interviewing officer can only be determined by a general finding in respect of credibility.  From my earlier consideration of Ms. Sun’s credibility it is clear that I disbelieved her on the other issues.  I did not consider that this question was divisible from my resolution of those other issues.  I accordingly rejected her evidence on this matter.
(e)	I found the interviewing officer PW2 to be generally reliable credible and truthful he denied all of the impropriety put to him by Ms. Sun’s Counsel I believed his evidence.  I formed this view after having heard all the evidence in this case.  I rejected Ms. Sun’s evidence in its entirely.”

8. There is no merit to the appellant’s complaint that the record of interview was improperly admitted.  The magistrate had properly resolved the issues which had arisen.

9. The prosecution case was based on the contents of that record of interview.  The interview was lengthy but the following excerpt gives the flavour of the admissions made by the appellant :

“… I wanted to apply for a one-way exit permit to settle in Hong Kong (very much), and the only way to do so was to marry a Hongkonger, after which I would be able to apply for one-way exit permit to settle in Hong Kong.  So I asked KWONG Koon-yin to enter into a bogus marriage with me.  And before that, I divorced Lin Kaichou first.  Otherwise, I would not have been able to marry KWONG Koon-yin and apply for the one-way exit permit for settlement in Hong Kong.  After I successfully obtained the one-way exit permit, I returned to Fujian alone to apply for a divorce from KWONG Koon-yin.  After the divorce, Lin Kaichou and I re-united, and remarried each other on 1 September 2006.”

10. Additionally the appellant admitted that the wedding was arranged by a “Mr Chan” in Fujian, that she had never lived with Kwong as husband and wife and that, indeed, she had met Kwong only once during her stays in Hong Kong and that was when they had passed by each other in the street.  All the documentation in the Mainland had been arranged by Mr Chan.

Charges 1 and 2

11. The admissions made by the appellant in her record of interview were unequivocal.  She specifically admitted her marriage to Kwong was “bogus”.  As the magistrate said the content of her recorded interview fully proved these offences.  On the occasions she came to Hong Kong she came neither to visit or to join Kwong as she had falsely represented to the Hong Kong immigration officers on the occasion of each charged offence.

12. There is no merit in her appeal against her conviction of the first two charged offences.

Charge 3

13. The concern I did have with the appellant’s conviction in respect of this offence is that the charge alleges the defrauding of the government of the PRC.  It particularises various acts all of which occurred in the PRC :

“(3)    Conspiracy to Defraud

Contrary to Common Law and section 2(3) and section 6 of Criminal Jurisdiction Ordinance, Cap. 461, and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong

SUN, XIULAN, you are charged that sometimes between May 2000 and October 2005 in Hong Kong or elsewhere, you did conspire with ‘Mr. CHAN’, KWONG Koon Yin and other person unknown to defraud the People’s Republic of China Government, by your dishonestly registered a bogus, marriage with KWONG Koon Yin and obtained necessary supporting documents to facilitate you to apply for Tangin exit endorsement and People’s Republic of China permit for proceeding to Hong Kong and Macau so to come to or settle in Hong Kong on the false pretence of visiting or joining husband KWONG Koon-Yin.”

14. There is no reference in the charge to any part of the conspiracy being formed or conducted within the territory of Hong Kong.  I was concerned therefore that the conspiracy having occurred on the Mainland a Hong Kong court may not have had jurisdiction.  Mr Frederick Chung, SGC for the respondent however brought to my attention that the appellant admitted Kwong had obtained a certificate of “an absence of marriage record in Hong Kong” from the Hong Kong department responsible for such records, and on that basis, that certificate being necessary for the furtherance of the conspiracy, I was satisfied section 6(1)(c) of the Criminal Jurisdiction Ordinance applied.  I was satisfied also that section 7(1) and (2) of that Ordinance were also complied with, there being no notice served by the defence at trial pursuant to section 8(1) of the Ordinance.

15. Accordingly, section 6(1) of the Criminal Jurisdiction Ordinance which extends the applicability of Hong Kong Law to certain offences with a substantial extra territorial component, I am satisfied does apply in respect of the 3^rd charged offence and the conviction of the appellant in respect of that offence was proper.  The appeal is dismissed.