HKSAR v. THAMBIRAJAH UTHAYAKUMAR

CACC 83/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 83 OF 1999

(ON APPEAL FROM DCCC NO. 896 OF 1998)

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. The applicant, Thambirajah Uthayakumar, was convicted by His Honour Judge Wright in the District Court on 3 February 1999 on two charges. The first was that on or about 24 June 1998 he was in possession of false instruments contrary to s.75(2) of the Crimes Ordinance (Cap. 200), namely three documents purporting to be Australian visas which were false and which he knew or believed to be false. The second was also of possession of false instruments but contrary to s.75(1) of the Crimes Ordinance which brought in the double intention provided for in that subsection. This charge specifies a large number of documents consisting of 11 cards in the nature of identity cards bearing the words "Government of Canada" and a number of Malaysian passports without photographs of the passport holders, which it charges

"were, and which he knew or believed to be, false, with the intention that he or another shall use them to induce somebody to accept them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person's prejudice".

Both charges particularised the offences having been committed together with one Mohanarajah Agambaram.

2. There was also a third charge. The applicant was convicted on the 1st and 2nd charges and acquitted on the third. He was sentenced to 18 months on the 1st charge, and 3 years and 3 months on the 2nd charge to run concurrently with the sentence on the 1st charge. He now seeks leave to appeal only against his conviction upon the 2nd charge.

3. Before addressing the submissions and his grounds of appeal, it is helpful to set out the gist of the facts. This can be stated very shortly in the following way. The applicant obtained a safety deposit box at the Hongkong Bank on 25 October 1997. He appointed a Mr Mohanarajah Agambaram as his agent in respect of that box. The applicant and his agent had a key to the safety deposit box and could gain access upon signing the appropriate bank record in respect of the box.

4. On 25 June 1998 the applicant sought access to his deposit box but the police were alerted and he was subsequently arrested. From the safety box, the police seized the documents particularised in the two charges and indeed in the third.

5. The applicant originally put in home-made grounds, but these have been superseded by perfected grounds of appeal settled by counsel who unfortunately has not been able to be present at the hearing of this appeal, and instead Mr Jerome Matthews has appeared for the applicant.

6. There are five perfected grounds of appeal. The first three, as will be seen, relate to the double intention specified in the 2nd charge. That charge mirrors the terms of s.75 of the Crimes Ordinance which are as follows:

"(1) A person who has in his custody or under his control an instrument which is, and which he knows or believes to be, false, with the intention that he or another shall use it to induce somebody 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, commits an offence and is liable on conviction on indictment to imprisonment for 14 years.

(2) A person who, without lawful authority or excuse, has in his custody or under his control an instrument which is, and which he knows or believes to be, false, commits an offence and is liable on conviction on indictment to imprisonment for 3 years."

7. Mr Matthews's submissions boil down to this. He submits that the judge satisfied himself that the applicant had both custody and control, and knowledge, but that he gave very little attention to the double intention which accordingly had not been adequately considered. Indeed, he submits that the evidence is insufficient to establish the requisite intention at the material time.

8. It is necessary, therefore, in the context of Mr Matthews's detailed submissions, to see how the judge dealt with that matter. He first of all set out the form of the 2nd charge, spelling out the very terms of s.75(1). Needless to say, this repeated the precise terms of that section and the ingredients of the offence, not only knowledge or belief, but the double intention. So that at the very outset the judge was most unlikely to have overlooked the double intention.

9. But Mr Matthews pointed to the following passage in the judge's reasons for verdict:

"I turn now to the real issue which is the knowledge of the Accused in respect of these items. The evidence either oral or by way of statement or by way of agreement may be summarised thus."

This, he submitted, showed that the judge focused unduly upon knowledge. That cannot be accepted. Knowledge clearly was the first ingredient that had to be established; not mere knowledge, but knowledge that the judge had only the page before referred to as being linked to the double intention, i.e. that the instruments would be used by someone to accept them as genuine, and thus do or refrain from doing an act to his own or another's prejudice. It is difficult to see how the judge could be satisfied that the applicant had such knowledge without being acutely aware of the necessity of the essential intentions.

10. Pursuing his submission Mr Matthews took the Court to four other matters in the reasons for verdict. The next concerned a second safety deposit box to which the applicant and his agent had access. The judge accepted the evidence of the number of times and the dates on which each of them had access to the boxes, which he considered to be of significance, in particular that the applicant accessed the box which contained the instruments specified in the two charges some 21 times, 10 of which were after the last time the agent did so, while the agent accessed it on only four occasions. Moreover, the passports were contained in an open and partly torn envelope (Exhibit P1) which led to the following passage to which Mr Matthews pointed in the reasons for verdict:

"I do not accept that the Accused was unaware of nature of, at the very least the contents of Exhibit P1 and, as a consequence, would have remained ignorant of the other documents in [the box that contained the several instruments]."

11. The judge then addressed some further evidence and on the matter of knowledge concluded:

"I do not see what inference can be drawn, other than that the Accused well knew the nature and falsity of the documents contained in his safety deposit box and that this was a joint venture between him and Mohanarajah. Even if the Accused was only to store the items, it is sufficient."

However, no point is taken on custody or knowledge, the appeal being confined to the double intention. The judge then went on to conclude in the following way also referred to by Mr Matthews:

"For the purposes of the first charge, the remaining elements are satisfied by the physical evidence. For the second charge there is also the requirement of intention to use the documents with the stipulated consequences. In this regard

'It will often be difficult for the prosecution, in the absence of specific evidence to indicate who the intended victim will be. In other words, it may be difficult for the prosecution to show who is to be induced to accept the false instrument 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. There is no obligation on the prosecution to prove precisely who the victim will be or how he will be prejudiced provided the evidence establishes that there is no other reasonable conclusion to be drawn that both intentions have been proved.'

Once it is established, as it has been, that that quantity and nature of documents were in his custody or control and once the inference as to knowledge is drawn there can be no inference other than that they would be used for the purpose and with the consequences set forth in the charge."

As we have said, Mr Matthews had submitted that there was no evidence from which the intention could be inferred. Knowledge, he submitted, does not establish intent. He pointed to the involvement of the agent, who had been arrested at the airport with three passports in which the photographs had been substituted. He was released on bail and left Hong Kong. He, Mr Matthews suggested, might have had the alleged intentions as opposed to the applicant, who might only have been involved to the extent of holding them for the so-called agent.

12. However, the judge had described in detail what the safety box revealed when it was opened by the police. The nature of the contents, the passports in particular, would have been quite apparent to anyone who opened that box. The evidence that it was opened 21 times by the applicant was not disputed. The number of passports exhibited that had obviously been tampered with, the Canadian cards in the nature of identity cards which had been shown to be false by consular officers, and the plastic laminates, letters and passport style photographs also found were powerful evidence, pointing to the intentions the judge ultimately inferred, particularly in the context of the overall circumstances. We are accordingly satisfied that there was ample matter from which the judge could infer, not merely knowledge and possession which were not disputed but also the requisite intention, that he found. We are accordingly satisfied that Mr Matthews's first general submission, in effect that the judge concerned himself only with knowledge and failed to deal adequately with intention, must fail.

13. Turning to the second general submission, pursuing perfected grounds of appeal 4 and 5, which, it has to be said, had not been prepared by him, Mr Matthews submitted that the documents in question were not false instruments in that the identity type of Canadian cards and passports would have had to be completed before they were used. But as we have already said, it was quite clear that the identity cards were false instruments. Likewise, the passports had had their stitching removed, no doubt to facilitate their criminal use and likewise the photographs carefully removed. They were not in the form they had originally been used and plainly fell within the definition of false instrument. Upon that becoming apparent, Mr Matthews did not press that submission further.

14. That disposes of his submissions on grounds 4 and 5.

15. In the result, the application must fail. Against the general background and the evidence, clearly the judge was entitled to reach his conclusion, with which there is no good reason to interfere. We refuse leave to appeal against conviction.