HKSAR v. BRIGILDO, NIEL BIDREJO

HCMA 357/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 357 OF 2014

(ON APPEAL FROM STCC 418 OF 2014)

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JUDGMENT
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1.  The appellant appeals against his conviction and sentence.

2.  The appellant appeared in the Magistrates Courts charged with two immigration offences.  The first was using a false travel document, contrary to section 42(2)(b) and the second was making a false representation to an immigration assistant, contrary to section 42(1)(a) of the Immigration Ordinance, Cap 115.  

3.  The prosecution offered no evidence in respect to the first offence with the consequences that it was dismissed. 

4.  The Particulars of the second offence read:

“BRIGILDO, NIEL BIDREJO, you are charged that on 31^st of January, 2014 in Hong Kong you did make a representation, knowing the same to be false or not believing the same to be true, to an Immigration Officer lawfully acting under or in the execution of Part II [Immigration Arrival Examination] of the Immigration Ordinance, in that, you represented that you were BRIGILDO, NIEL BEDRIGO and born on 12 February 1986.”

5.  The appellant with legal representation from the Duty Lawyer Service pleaded guilty to the second charge and on 13 May 2015 he was sentenced to 12 months’ imprisonment.  He has since served that term. 

6.  Some two weeks after he was sentenced the appellant applied in person to review his sentence however the magistrate refused his application. 

7.  The appellant initially appealed against his sentence on 4 June 2014.  However on 7 July 2015 the appellant made an application for extension of time to appeal against conviction.  In his application the appellant stated in brief that his name and date of birth mentioned in the charge were in fact genuine and those particulars appear on one of his two birth certificates, therefore he did not make a false representation.

8.  Leave to appeal against conviction out of time was granted by Tong J on 14 October 2014.  His notice of appeal against conviction was filed on 24 October 2014.

Introduction

9.  The facts can be stated simply.  The appellant is a national of the Philippines.  He had entered Hong Kong on separate occasions on two different passports which contained different names and dates of birth.  The difference in the name was the spelling in respect of his surname in one instance being B I D R E J O and the other of B E D R I G O (the difference has been underlined).  The difference in the year of his birth was that one stated 1985 the other, 1986.  For ease of reference I shall hereafter refer to the names and dates of birth as BID85 and BED86. 

10.  When the appellant was asked about the differences in his identity, he stated that his true name was BID85.  He was charged and pleaded guilty to falsely representing to the immigration officer that his name was BED86.

The facts

11.  I now set out more fully the facts as admitted by the appellant upon his plea of guilty which were helpfully summarized by the magistrate[1] in his reasons for sentence. They were as follows:-

“3. On 31 January 2014, the defendant presented for arrival clearance at Lowu Control Point a Philippine Passport numbered EB9597937 bearing the name BRIGILDO, NIEL BEDRIGO and the date of birth 12 February 1986 (“Identity 1”).  He was referred for secondary examination whereupon the defendant represented to an Immigration Officer that his true identity was Identity 1.

4. Upon search on the defendant and his luggage, an extension slip dated 10 October 2013 issued to a person named BRIGILDO, NIEL BIDREJO was found. Preliminary record check revealed that the said extension slip was issued to the defendant who used BRIGILDO, NIEL BIDREJO as his name and 12 February 1985 as his date of birth (“Identity 2”).

5. Record check revealed that in May 2013, the defendant was permitted to remain in Hong Kong as a domestic helper under Identity 2. His contract with his employer was pre-maturely terminated. On 16 September 2013, the defendant was arrested by the police and was on police bail. The defendant was scheduled to report to the police on 15 October 2013. An extension of stay was granted to him on 10 October 2013, hence the issue of the extension slip mentioned in paragraph 4 above. However, the defendant departed Hong Kong on 10 October 2013. The defendant did not report to the police on 15 October 2013 as scheduled.

6. Since December 2013, the defendant had come to Hong Kong using Identity 1. Prior to 31 January 2014, he was last allowed to enter Hong Kong as a visitor on 19 January 2014.

7. A record of interview was taken from the defendant on 31 January 2014. Under caution, the defendant admitted that his true name was BRIGILDO, NIEL BIDREJO and his true date of birth was 12 February 1985, i.e. Identity 2.

8. The defendant admitted that on 31 January 2014, he presented for arrival clearance the Philippine Passport numbered EB9597937 and falsely represented to an Immigration Officer that his name was BRIGILDO, NIEL BEDRIGO and his date of birth was 12 February 1986.”

Reasons for sentence

12.  The magistrate relied on the case of HKSAR v Mohamed Naseer Ahamed Fazloon, HCMA 827/2010, he adopted a starting point of 18 months’ imprisonment and gave the appellant the usual one third discount and sentenced him to 12 months’ imprisonment. 

13.  In the magistrates reasons for sentence he noted counsel’s mitigation when he said :-

“10. It was submitted that the passport was a genuine one issued by the Philippine government. After the defendant had received the passport from the issuing authority, he found that the spelling of his name was incorrect and the year of birth was wrong. However, he still used that passport to come to Hong Kong because he was in a hurry to accompany his girlfriend back to Hong Kong for some business emergencies.

……

13. I noted the defence counsel’s mitigation that the defendant used the subject passport bearing Identity 1 to come to Hong Kong because he was in a hurry to accompany his girlfriend back to Hong Kong for some business emergencies. However, from the facts the defendant admitted, the defendant had been using that passport to come to Hong Kong since December 2013. I refused to accept that the defendant used that passport on 31 January 2014 out of emergency.”

14.  In regard to the hearing of review the magistrate said:-

“15. The defendant applied for review of his sentence. At the review hearing, he submitted that the subject passport was a genuine one. He asked for leniency. I explained to him that it was never the prosecution’s case that the subject passport was false or forged. The falsities in the subject charge were his name and date of birth only. A starting point of 18 months’ imprisonment was appropriate despite the relevant passport was a genuine one. As such, I refused his application for review and maintained the sentence of 12 months’ imprisonment.”

Appeal against conviction

15.  The appellant who has throughout his appeal been acting in person now appeals against conviction as he says he did not commit any offence as he did not make a false representation to an immigration officer. 

16.  The multiple dates of the hearing were as a result of the appellant producing documents in support of his contention and or either for those documents and their contents to be confirmed by the Philippine Consulate General of Hong Kong (PCG) or for the PCG to answer requisitions raised by the prosecution as a result of the documents produced by the appellant. 

17.  In support of his contention that no false representation was made is the fact that the name of BED86 is his name and date of birth stated in one of his two birth certificates. 

18.  The PCG verifies that the appellant has two birth certificates as his birth was registered twice in the Philippines.  The first registration was, it appears made, on 13 February 1986 whilst the second registration was made on 15 September 1992. 

19.  The first birth certificate is in the name of BED86 and the second is in the name of BID85.  The two birth certificates therefore contain different particulars as to name and date of birth.  It is to be noted that they also contain different places of birth.  The second birth certificate states the place of birth being San Ildefonso, Bulcan, Philippines whilst the first birth certificate contains the place of birth in Baliuag, Bulacan, Philippines.

20.  The PCG authenticates that the appellant’s first passport was issued in accordance to the name of BID85 on his second later registered birth certificate and was the one he used to enter Hong Kong when he was a domestic helper.  The second passport was issued in accordance with the particulars of his first birth certificate. 

21.  The relevant documents in support of his case are attached to the appellant’s affirmation dated 19 May 2015.

Grounds of appeal against conviction

22.  The appellant seeks to vacate his guilty plea.  He submits that his plea of guilty to the offence was a nullity on the basis that he pleaded guilty simply so as to be able to receive a reduced sentence and that he only did so on the advice of his lawyer.

23.  On the face of it, the appellant argues that he did not in the above circumstances commit an offence and if it is accepted he did not commit the offence it is, to say the least, unsafe and unsatisfactory.

Whether the appellant’s plea is a nullity

24.  The appellant’s appeal derives from s113 of the Magistrates Ordinance, Cap 227.  That section says:

“(1) Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge.

(2) Any person who after pleading guilty or admitting the truth of the information or complaint is convicted of any offence by a magistrate may appeal to a judge against his sentence unless the sentence is one fixed by law.”

25.  In the normal course of events an appellant who has pleaded guilty to an offence cannot bring an appeal to this court under the provisions of s113(1) of the Ordinance as it specifically exempts convictions following pleas of guilty from its operation.

26.  Where the plea of guilty is regarded in law as being a nullity, then the proviso to s113(1) preventing appeals following pleas of guilty does not apply.  In other words, there has been, in law, no plea of guilty and so s113(1) continues to operate so as to allow an appeal against conviction.

27.  The question in the present case is whether the appellant has established that his plea before the magistrate should be treated as a nullity.

28.  Circumstances where an unequivocal guilty plea can be rendered a nullity were summarized and made clear in HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125 based on the cited decisions:

“(1) The facts admitted by the defendant do not amount to the offence with which he is charged - as in Chan Wai Lam & Others v R [1981] HKLR 139 and R v Li Tung Hing [1992] 2 HKC 427;

(2) The admitted facts are equivocal as to guilt - Chan Ching Chi v R [1965] HKLR 598;

(3) The plea was tendered to a charge which was defective on its face or invalid or unclear - as in Chao Tse Yuen v R (No 2) [1963] HKLR 121, Cheung Kwok Cheung v R [1982] HKLR 126 and Lui Yiu Shing v R (unrep, Crim App No 888 of 1980, 21 November 1980);

(4) The plea was tendered involuntarily, e.g., induced by duress or misrepresentation or was not an exercise of free choice - as in Ma Kam Wing v R [1975] HKLR 612 and HKSAR v Au Yeung Boon Fai [1999] 3 HKC 605;

(5) The plea was induced by fraud or made under a fundamental mistake - per R v Peters (1974) 58 Cr App R 328 as referred to in HKSAR v Li Wa San (unrep, HCMA No 379 of 1999, [2000] 1 HKLRD A7); or

(6) The plea did not result from a deliberate and informed decision - per R v Wong Wai Leung [1990] 1 HKC 144 as cited in HKSAR v Li Wa San (unrep, HCMA No 379 of 1999, [2000] 1 HKLRD A7). ”

29.  In a more recent case of HKSAR v To-kit-yan CACC43 of 2014 McCrae JA referred to a previously decided Court of Appeal decision and stated[2]

“The threshold for a change of plea made out of time is a high one. The relevant principles have been recently restated in HKSAR v Chan Siu Kuen (Unrep) CACC 300 of 2013:

The circumstances in which a defendant can recant his unequivocal plea of guilty are equally well settled: HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125.  Such a plea becomes null if it can be shown that (i) the facts admitted by the defendant do not amount to the offence with which he is charged; (ii) the admitted facts are equivocal as to guilt; (iii) the plea was tendered to a charge which was defective on its face or invalid or unclear; (iv) the plea was tendered involuntarily by duress or misrepresentation or was not an exercise of free choice; (v) the plea was induced by fraud or made under a fundamental mistake; or (vi) the plea did not result from a deliberate and informed decision.”

30.  In the present case in his affirmation filed on 19 May 2015, the appellant gives his reasons for pleading guilty to the offence.  He says:

“I appeal against my conviction, because according to the duty Lawyer she instructed me to feel guilty, because she said to make less for my sentence. I was in remand for 4 months in Lai Chi Kok that because I believe in her she will help me to ill be release in 4 months, but she did not. Until I have my sentence for one year.

I have agreed with her because I believe she is know what the best for me and that’s why I followed what she said to me that I have to admitted the case they given to me false representation. Also my English is not good and poor understanding about this matter.

When I was in jailed is suffering too much depression and pained no communication to my family in the Philippines. Also I sacrifice my future and my ambition in life to help and support my family in the Philippines.

I am not committing any offence in Hong Kong law and or making a false representation to an immigration officer.  I have documents to prove that I am innocent.  Attached all necessary documents to support my appeal against my conviction.”

31.  In the proceedings before the magistrate, the charge and the facts of the case were both put to the appellant.  He pleaded guilty to the charge and admitted the facts.  The appellant was not under any fundamental mistake or misapprehension as to the underlying facts of his case. 

32.  In mitigation his counsel accepted on his behalf that there was an incorrect spelling of his name and the date of birth was wrong.  Below is part of the transcript of the mitigation by the appellant’s counsel Ms Joyce NY Wong and her exchange with the magistrate :-

“Ms Wong: … He has a clear record in Hong Kong and the defendant is very remorseful and he committed the offence out of stupidity.

He went back to the Philippines ...

COURT: He was trying to conceal his identity, wasn’t he?

MS WONG: Your Worship, it is my instructions that when he returned to the Philippines, the case against him had already been dismissed, the blackmail case, and, in fact, the blackmail case in question involved ...

COURT: And yet he was trying to conceal his identity by using another identity, wasn’t he?

MS WONG: Your Worship, the passport was issued by the Foreign Affairs Department and it was a genuine passport.

COURT: But the identity was different, wasn’t it?

MS WONG: Yes, your Worship. The defendant was not aware of the very, very serious legal consequences that came with the mistakes of the passport and now he understands that he must accept a punishment for what he has done.

Your Worship, he applied for the passport and found that there was one incorrect letter in the spelling of his name and the year of his date of birth was wrong, but he still used the passport in question to come to Hong Kong because he was in a hurry to accompany his girlfriend back to Hong Kong for some business emergencies and, therefore, he knew that he did commit the offence out of stupidity (my emphasis in bold) and is very remorseful now about this act.

And the ...

COURT: The price to pay is very serious.

MS WONG: I understand, your Worship. The defendant just hopes that your Worship could consider a sentence as lenient as possible.

Unless I can be of further assistance, ...”

33.  At the review of sentence hearing when the appellant acted in person the appellant reiterated what Ms Wong had said.  The following exchange took place:

“DEFENDANT: Because my passport is genuine, so, perhaps, my -- if you could kindly be more lenient to me, please.

COURT: Is that all?

DEFENDANT: (In English) Mercy on me.

ILONGGO INTERPRETER:  “Have mercy on me, your Worship.” 

(Lengthy pause)

COURT: The devil in this offence is your false name and the date of birth, ...

….

COURT: ... not whether your passport was false or not.

DEFENDANT: But it came from the government.

COURT:  As I said, the devil in this offence is your false name and date of birth.  It is not whether your passport was false or not.  When I imposed sentence of 12 months, I bore in mind that the passport was a genuine one.  I never lost sight of the fact that the passport was genuine, neither did I lose sight of the fact that your name and the date of birth were false.”

34.  It is apparent from the facts as admitted by the appellant that they amount to the offence with which he was charged.  The charge was not defective on its face or invalid or unclear. 

35.  There is no suggestion, in the appellant’s reasons for his pleading guilty to the offence, that he did so as a result of any force or fraud perpetrated on him or was not an exercise of free choice or from any mistake as to the nature of the offence charged.

36.  His reasons for pleading guilty were a combination of convenience, that is, he wished to be released from remand as soon as possible and belief that his lawyer’s advice was correct in that he would not be able to mount a sustainable defence.

37.  What the appellant is saying now is that he knew he was not guilty of the charged offence and pleaded guilty anyway as a matter of expedience and legal advice.

38.  In my view, the appellant cannot pass either of these tests.  The appellant’s unequivocal and unambiguous plea of guilty to the offence was not a nullity. For these reasons the appeal against conviction is dismissed. 

Whether the fact that the representations were not false amount to the offence with which he was charged

39.  For the sake of completeness although the appeal against conviction is dismissed I turn to consider whether the fact that the name and date of the appellant’s birth is now shown to be true, establishes that no offence has been committed by the appellant. 

40.  In so far as whether an offence has been committed by the appellant, the decision in HKSAR v Ma Michael [2010] 3 HKC 461 supports the conviction of the appellant in this case. 

41.  The appeal in Michael Ma focused on what the prosecution had to prove in s42(1) of the Immigration Ordinance, Cap 115.

Section 42(1), so far as is material provides:

“Any person who makes or causes to be made -

(a) to an ... immigration assistant ... ;

(b) in any document furnished to an ... immigration assistant ... ; or

(c) for the purpose of obtaining ... any ... entry permit, any statement or representation which he knows to be false or does not believe to be true shall be guilty of an offence.”

42.  The court considered whether it was necessary to prove the falsity of the representation made to an immigration officer under s42(1)(a).  The late Mackintosh J held at paragraph 20:

“The actus reus of the offence created by the sub-section is the making or causing to be made of any statement or representation to, amongst others, an immigration assistant. The mens rea, aside from intentionally making the representation, is expressed in the alternative: knowing that any such statement or representation is false or not believing it to be true. The offence is aimed at those who tell lies to an immigration assistant, stating or representing what they know to be false or do not believe to be true: if someone knows that such a representation is false, it follows that the representation is in fact false; and if the prosecution can prove such knowledge, it would inevitably prove that it was false. On the other hand, if someone believes a representation he makes to be false, whether or not it is false is immaterial: he has told a lie about it by representing to be true that which he did not believe to be true; and in those circumstances, the actual falsity of the representation is not an element of the charge which the prosecution has to prove.”

43.  In the circumstances even though, as appears, the representations were true, at the date of the appellant’s plea of guilty the appellant did not believe they were true. 

Appeal against sentence

44.  There is only one ground of appeal and it is that the sentence was wrong in principle and/or manifestly excessive.

45.  I agree that on the facts as were before the magistrate he was correct in sentencing the appellant to 12 months’ imprisonment. 

46.  The question is whether the length of the immediate custodial sentence is correct or whether it should be reduced in light of the facts as is now shown. In answering this question it requires a consideration of the culpability involved in the appellant’s conduct. 

47.  On the facts as admitted by the appellant it was not surprising that the magistrate inferred that the appellant had used another identity to come to Hong Kong after he jumped bail to conceal his identity. 

48.  The appellant explained in this appeal how came to be issued with this second passport in the name BED86.  Whilst on police bail in Hong Kong, he had lost his passport with his name BID85.  On 25 September 2013 he reported the loss of his passport to the Hong Kong Police.  The PCG issued him with a temporary passport and he returned to the Philippines on 10 October 2013 via the Hong Kong International Airport.  He left Hong Kong as he believed he was no longer on bail. 

49.  Ms Audrey Parwani for the respondent states that the appellant was never released from his reporting to police bail.  In fact he failed to report to the police on 15 October 2013. 

50.  Having returned to the Philippines he wanted to return to Hong Kong for personal reasons.  He thus applied for a new passport in November 2013 in the Philippines.  In applying for his second passport he used his second registered birth certificate containing the names BID85 in his application however the passport was unilaterally issued by the Philippine Government with the name BED86. 

51.  He then returned to Hong Kong with the second passport in the name of BED86 in December 2013.  With this same passport he again entered Hong Kong on 19 January 2014 and left on 31 January 2014.  On the same day at the Lo Wu Control Point on 31 January 2014 he returned to Hong Kong and presented for clearance the second passport (the subject matter of the charge).

52.  The appellant claims that he never used his first birth certificate (the particulars containing BED86) to apply for his second passport however a passport was issued in that name. 

53.  The PCG explains that BED86 instead of BID85 were the particulars used to issue the second passport as the issuing office had used the particulars in his first registered birth certificate. 

54.  The appellant states that the second passport was issued with BED86 as the Philippine authority did not recognise the particulars of his second birth certificate.  In support of his claim the appellant had produced a screen shot of a text message taken from his mobile phone he received from the relevant Philippine authority on 9 March 2015 that stated the name BED86 “positive” and BID85 “locked w/previous reg/n”.

55.  In a letter from the PCG’s dated 15 June 2015 to the Immigration Department of Hong Kong it explains that the word “positive” means the Philippine Statistics Authority confirms the birth certificate in the name of BED86 born in Baliuag appears in their records.  “Locked w/previous reg/n or locked with previous registration” can be construed to mean that the first registration being the BED86 was considered as the appellant’s permanent record by the Philippine authority.  But it went on to state “however as the text message originated from another Philippine agency, the Consulate has to inquire from the said agency to ascertain its meaning.”

56.  It is somewhat surprising that this appellant was able to have two different names, dates of births and places of births registered with the Philippine government at the same time. 

57.  The PCG in its letter dated 15 June 2015 offers an explanation for this as follows:-

“however, it was possible and it had in fact happened, that the fact of birth was registered twice. This was especially true in the past when records of live birth were only manually filed and not automated/digitized by the Philippine civil registration authorities. Moreover, there was a time when the submission of a birth certificate issued and authenticated by the Philippine Statistic Authority (then called the National Statistics Office) was not required for passport application.”

58.  It is nevertheless clear that on the date of the appellant’s plea of guilty the appellant believed that BED86 was not his name, nor his date of birth and it was false.  It is unclear when the appellant came to know the particulars of BED86 were registered in an earlier birth certificate and were thus genuine.  Significantly he had confirmed at the hearing of appeal that all along he knew and believed his name to be BID85 and to my understanding, he still continues to do so.

59.  Ms Parwani confirms that the prosecution offered no evidence at the magistracy on the 1^st charge of using a false travel document (the second passport) as the prosecution had evidence from the PCG submitted by the appellant’s then private legal representatives that the second passport was genuine. 

60.  The only change to the appellant’s background from the time when he was sentenced by the magistrate, is that the appellant now remains in Hong Kong holding a form 8 recognisance as a torture claimant. 

61.  I consider the below factors which were not known to the magistrate at the time of sentence, distinguish this appellant from others who have been convicted of similar offences and which justify treating him more leniently.  These are as follows: -

(i) the particulars in the genuine passport as to the name, year of birth and place were not false; and

(ii) there was no evidence of any misrepresentation by the appellant to the Philippine Government in issuing the passport with these particulars.

62.  In the circumstances of this case and without setting any precedent I am of the view that whilst a sentence of imprisonment is appropriate, the sentence in this case should be one of 6 months’ imprisonment. 

63.  The appeal against sentence is allowed and the sentence of 12 months is reduced to one of 6 months’ imprisonment.