HKSAR v. SINGH AJIT

HCMA 126/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 126 OF 2011

(ON APPEAL FROM STCC 3652 OF 2010)

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BETWEEN

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J U D G M E N T

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1.  The Appellant appeals against his conviction in the Magistrates’ Court on a charge of possession of a false instrument contrary to s. 75(2) of the Crimes Ordinance, Cap. 200. The particulars of offence set out in the charge read:

“SINGH AJIT, you are charged that on 15^th March 1996 in Hong Kong, without lawful authority or excuse, had in your custody or under your control an instrument, namely a Canadian Visitor Visa label no. E006601093 which was, and which you know or believed to be false, with the intention to 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 your own or any other person’s prejudice.”

2.  Five perfected grounds of appeal have been filed.  They read as follows:

“	GROUND 1
The Amended Charge was defective as it fundamentally misdescribed the elements of an offence under Section 75(2) of the Crimes Ordinance. The Particulars of the Offence as described in the Amended Charge do not constitute an offence in law.
GROUND 2
The Learned Magistrate erred in finding certain material elements of an offence under Section 75(1) of the Crimes Ordinance proved when the Charge was brought under Section 75(2) of the Crimes Ordinance.
GROUND 3
The Learned Magistrate erred in concluding that the only irresistible inference he could draw was that the Appellant knew or believed that the instrument described in the Charge was false.
GROUND 4
The Learned Magistrate erred
(a) in finding that the Defendant intended to use the false instrument to induce somebody to accept it as genuine, to the prejudice of other persons when there was no evidence to support this; and
(b) in reaching the conclusion in (a) above that as ‘there is no evidence in the case to suggest other possibilities’ he thereby reversed the burden of proof.
GROUND 5
In all the circumstances the conviction is unsafe and [un]satisfactory.”

3.  As to how the charge was particularised, all that has happened is that the element of “intention to use [the false instrument] or induce somebody to accept it as genuine” was unnecessarily included.  The inclusion is unnecessary because such intention is an element of the offence created by s. 75(1), for which the maximum penalty is 14 years’ imprisonment, but not of the offence created by s. 75(2), for which the maximum penalty is 3 years’ imprisonment.

4.  The Magistrate found such intention on the Appellant’s part.  Like the inclusion of such intention in the particulars of offence, the finding of such intention was unnecessary.

5.  So it was a matter of more than was necessary having been pleaded and found.  What it was necessary to plead was pleaded. What it was necessary to find was found.  Unless an otiose pleading distracted the trial court from giving due consideration to what matters, it is not a ground for quashing a conviction.  The same is true of an otiose finding.  Such a finding might produce a ground of appeal against sentence if the sentence cannot be justified ignoring it.  But that does not arise in this case.

6.  One of the things which the Magistrate said in his Statement of Findings is this:

“On the evidence before me, the only irresistible inference I can draw is that, even though he obtained it innocently, upon seeing the sticker, he knew it could not be a genuine visa.”

It is argued on the Appellant’s behalf that the Magistrate, by saying that the Appellant had obtained the false instrument “innocently”, has found that the Appellant had the false instrument with “lawful authority or excuse”. I do not accept that submission. All that the Magistrate was saying is that the Appellant, having obtained the false instrument innocently, retained it in his custody even after coming to know that it could not have been genuine, in other words, was false.

7.  For the foregoing reasons, Ground 1, Ground 2 and Ground 4(a) fail.

8.  As for Ground 3, it fails on the simple basis that I am of the view that the Magistrate was entitled on the prosecution’s evidence, the Appellant not having given or called evidence, to conclude that the only reasonable inference was that the Appellant had such knowledge or at least belief.

9.  Apart from Ground 5, which is wholly general, all that remains is Ground 4(b).  In my view, the Magistrate was doing no more than noting that there was no defence evidence to take into account and was not reversing the burden of proof.  As it happens, I do not think that the way in which the Magistrate expressed himself is to be criticised.  But even if it was, it is to be remembered that that, as the Court of Final Appeal said in Egan v. HKSAR (2010) 13 HKCFAR 314 at para. 2: “Appellate courts intervene for errors of substance, and not for inadequacies of expression”.  Ground 4(b) fails.

10.  Ground 5 depends on the other grounds.  All of the other grounds failed, Ground 5 also fails.

11.  One of the criticism of the Magistrate’s decision made on the Appellant’s behalf is directed against what was said by the Magistrate about common sense and the suspicion that any one would have about the authenticity of the instrument concerned.  I do not think that that had led the Magistrate astray. 

12.  In the result, the appeal is dismissed.