R. v. HUANG JIAN RONG

1997, NO. MA 251

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

(On Appeal from WSC No. 18991 of 1995)

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J U D G M E N T

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1. The applicant, HUANG Jian-rong, otherwise known as LI Wong was convicted after trial on the charge of possession of a forged document, and a charge of possession of a false document.

2. He was sentenced to a total of 18 months' imprisonment. Apparently, the learned magistrate imposed the same term of 18 months for each of the two offences to run concurrently.

3. The applicant originally applied for leave to appeal against both the conviction and sentence. At the commencement of the hearing, counsel for the applicant indicated that so far as the application for leave to appeal against the sentence is concerned, having reconsidered the matter, a decision was made to abandon such an appeal and the court need only consider the question of conviction in respect of the two charges.

4. The applicant was arrested originally on 25 November 1995 at the Hong Kong Macau Ferry Pier upon his return from Macau. He was then found to be in possession of a Honduran passport, number 862584, issued on 15 June of 1995.

5. The Crown alleged that this Honduran passport was a forged passport, and the applicant was therefore charged with the first charge of possession of a forged document.

6. The appellant was granted bail in respect of that particular charge, but in breach of one of the conditions of bail, he attempted to go to Macau on 5 September 1996, and he was re-arrested. He was then found to be in possession of a Hong Kong Identity Card, a Hong Kong certificate of identity, and a multiple home entry permit issued by the People's Republic of China. All these documents bore the photographs of the applicant, and in all these documents, his name was stated to be LI Wong. All these documents, on the face of them, namely the identity card, the certificate of identity and the multiple re-entry permit issued by the People's Republic of China, were said to be issued in the month of June of 1996, that is, a couple months after his initial arrest on 25 December 1995.

7. Apart from the name, the date of birth of the applicant as set out in the Hong Kong identity card, the certificate of identity, and the PRC multiple entry or re-entry permit, was different from those in the Honduran passport.

8. In the former, the date of birth was 18 September 1966, and in the latter, 29 December 1968. Hence, the applicant was further charged with the 2nd charge of possession of a false document in that it bore a false name and a false date of birth.

9. It appeared at the trial before the learned magistrate that it was not disputed at all that the Honduran passport in question was a forged document. Nevertheless, two witnesses from the Honduran government were called to give evidence at the trial. They are the first two witnesses, PW1 and PW2. PW1 is the officer-in-charge or responsible for actually signing all Honduran passports. Is was positively suggested that the signature on the passport in question, purported to be her signature was in fact a forged signature.

10. She also mentioned a scheme devised by her government in the year 1991 and 1992, whereby investors who invested a sum of US$25,000 can become or could become a Honduran citizen by naturalisation. She said the scheme actually stopped after a short lifespan. It stopped in the middle of 1992, but her evidence was that those who had earlier been naturalised and obtained passports under the scheme, were entitled in certain circumstances to have their passports renewed.

11. She also described in detail how one could be naturalised to become a Honduran citizen by means of this investment scheme, as well as the procedure whereby one could obtain a Honduran passport pursuant to such investment scheme.

12. In the course of her evidence, she actually said that she had checked certain records of the Honduran government to say that the passport in question could not have been issued on 15 June 1995 as the passport itself seems to suggest. She also said there was in fact no renewal of passport issued to naturalised Chinese in the year of 1995.

13. The second witness, also an Honduran government official, Mr Juan Ochoa was actually an expert in the forensic analysis of travelling documents and identity cards, including technical analysis with various instruments. This officer also confirmed that the passport in question was indeed a forged one. He also said from the record that he was able to have access to, that is, the immigration records and the files of naturalisation, the name HUANG Jian-rong did not appear at all.

14. There appears to be no dispute that insofar as the 1st charge is concerned, the only issue was whether the appellant, when he was in possession of this forged passport, had knowledge that this passport was in fact a forged one. The fact that the passport is a forged document is a matter that was conceded at the early stage of the proceedings.

15. In his defence, the applicant claimed that towards the end of 1993 or early 1994, he had obtained a China visiting relatives passport to visit a friend of his, someone called Mr TANG who lived in Honduras. He decided to take advantage of this investment scheme offered by the Honduran government, a matter apparently mentioned to him by Mr TANG. A lawyer was introduced to him also by Mr TANG. He said MR TANG was a good friend of his, and that they had business interaction. He also said Mr TANG had actually emigrated to Honduras in about May. I think his evidence is that Mr TANG emigrated to Honduras in the early 90s, and in May 1992, Mr TANG contacted him which prompted him to visit him in Honduras.

16. After the lawyer was introduced to him to handle the matter, he had to pay a total sum of about US$30,000, and he said he was able to obtain a naturalisation certificate together with a temporary passport, and subsequently an Honduran passport from his lawyer.

17. He said he had used the passport to travel to China via Hong Kong. He said he stayed in China for about a month before returning to Hong Kong and during that trip, he used the same Honduran passport that he obtained under this particular investment scheme.

18. His evidence was that in 1995 he found his original Honduran passport had all been stamped, and he then applied for a renewal of this passport. He said the further sum of $3,000 had to be paid, and the passport in question was sent to him.

19. That was the gist of his evidence, and it is also fair to point out that a similar story was mentioned by him to the Independent Commission Against Corruption officers after his arrest.

20. At the end of the trial, the learned magistrate rejected the evidence of the applicant. In a fairly lengthy statement of finding, he came to the conclusion that at all material times, the applicant was in fact fully aware that the passport in question was a forged one.

21. As far as the 2nd charge is concerned, it is fair to say that the only issue involved in this 2nd charge is whether the applicant's name is in fact not HUANG Jian-rong. If his name is not HUANG Jian-rong, then the passport in question which carries what purports to be his photograph, will be a false document.

22. The learned magistrate took into account that when the applicant was re-arrested, he wrote on an arrest and detention record on 5 September 1996, that he was in fact LI Wong and not HUANG Jian-rong. He claimed himself to be LI Wong and actually signed in the document in the name of LI Wong. There was also indication that in the course of the proceeding and through his counsel an admission was made to the effect that his name was LI Wong. There was also an indication that LI Wong was the name that was used in connection with his purchase of certain properties.

23. It was also the evidence that so far as this further documents of identity that were seized from his person upon his re-arrest when he was attempting to leave Hong Kong to go to Macau, that in all these documents which bore his photographs, the name of the holder was stated to be LI Wong.

24. When he was being cross-examined on certain documents that he had exhibited in connection with his application for bail, documents including a school record of his young son who was born in 1991, as to whether the son's name was LI Bun, he elected not to answer the question on the basis that an answer to that question would incriminate him.

25. There were also indications that insofar as a company over which he had control, there was a time after he was charged in connection with this matter that the name of HUANG Jian-rong was changed to that of LI Wong in certain company records.

26. In this appeal on behalf of the applicant, it is alleged that the learned magistrate had wrongfully admitted the evidence of the two Honduran officials as to the absence of the name HUANG Jian-rong in various Honduran records, pertaining to the application for naturalisation and application for a passport. The suggestion that that evidence ought not to be admitted as the conditions whereby that evidence can be admitted under section 17(a)(1) of the Evidence Ordinance has not been fulfilled.

27. It is fair to point out, this particular point was, in fact, never raised before the learned magistrate. It was not raised when the evidence was being tendered. It was not argued at any stage of the proceeding. It was not mentioned in counsel's final address to the court.

28. It is clear from reading the record of the proceedings, the case proceeded on the basis that there was no dispute that the passport in question was a forged one. The forgery of it was, as I said, never an issue.

29. Indeed much of the matters pertaining to the Hondurans' record arose under cross-examination by counsel for the applicant at the trial. If the matter pertaining to the admissibility of such evidence was raised, whether the prosecution could have satisfactorily answered such objections, whether the prosecution could have produced the complete records to comply with the requisite requirement under the Evidence Ordinance or not, is not a matter that I can or need to speculate at this stage.

30. I am firmly of the view that in the light of the background of this matter, it is not open now to the applicant to raise this particular issue in this appeal.

31. In any event, I agree with Mr Zervos's observation that the fact that the passport in question is a forged document was never an issue. The matter pertaining to the admissibility of the evidence, in my view, is not significant at all.

32. Indeed, the learned magistrate did not appear in his statement of finding to have placed any reliance on such evidence. Looking at the statement of finding, it was quite clear that learned magistrate took the view that the evidence of these two officers were only relevant on the issue of whether the passport was a forged document or not, there being no dispute on this issue, and understandably, he had not even bothered to mention such matters in his statement of finding.

33. It is perhaps fair to point out that on the evidence before the learned magistrate, he was quite right in concluding that there was in fact ample evidence to justify his conclusion that the passport in question was a forged one.

34. Counsel for the applicant also attacked the learned magistrate on his reasoning for rejecting the applicant's evidence.

35. I have considered the various matters advanced on behalf of the applicant by his counsel. It is, in my view, not correct to have a microscopic examination of the reasons of the learned magistrate that he set out in his statement of finding. It is fair to say, in my view, that what he did was simply to set out the general impression that he had of the applicant's evidence. At the same time, he tried to highlight some aspect of it that he considered to be unsatisfactory. In my view, it is also wrong to assume that just because the learned magistrate had not specifically mentioned some aspect of the case in his statement of finding, that he must not have taken those matters into consideration.

36. Counsel for the prosecution is clearly right in his suggestion that the learned magistrate is indeed in the best position to examine the evidence, and to determine the credibility of the appellant.

37. I have consider counsel's submissions carefully. I have also looked at the various aspects of the evidence that have been relied on by counsel, both for the prosecution and for the defence.

38. I am satisfied that there was ample justification for the learned magistrate to reject the evidence of the applicant, and conclude that at the material time, he was in fact fully aware of the forgery of the Honduran passport in question.

39. On the evidence, on matters that I have already indicated, and I do not think it is necessary to repeat them, I am also satisfied that the learned magistrate correctly concluded that HUANG Jian-rong was not the applicant's real name at all. It would indeed be very surprising if HUANG Jian-rong was his real name, that he would behave in the manner as he did pertaining to the various personal affairs of his.

40. It would indeed be most surprising that when he was questioned about his son's name, that he would elect not to answer it for fear that it might incriminate him.

41. In my view, the inescapable conclusion and the logical and reasonable inference in the light of the background and evidence, must necessarily mean that HUANG Jian-rong was a name that he only used to obtain the forged passport in question.

42. The magistrate needed not find, as a matter of fact, what his real name was, although he seemed to suggest in some parts of his statement of findings that his real name was in fact LI Wong, a finding, in my view, fully justified and supported by evidence. Such finding would of course support the suggestion that he was aware that the passport in question was a forged one.

43. I have considered the various aspects of this case. None of the matters raised by counsel for the applicant in relation to the convictions of the applicant in respect of both charges has given rise to any doubt in my mind. There is nothing, in my view, unsafe or unsatisfactory about the convictions in respect of both charges that the applicant had been found guilty of.

44. That being the case, the application for leave to appeal against conviction in respect of both charges must be refused.

I/we certify that to the best of my/our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

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Date: 5 May, 1997