HKSAR v. HARJIT SINGH

CACC 91 /2022

[2024] HKCA 350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 91 OF 2022

(ON APPEAL FROM DCCC NO 501 OF 2019)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  On 17 June 2022, the appellant was convicted following a trial before HH Judge Casewell (“the judge”) of one charge of possession of forged identity cards, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap 177 (Charge 5); and one charge of possession of unlawfully obtained travel documents, contrary to section 42(2)(c)(i) and section 42(4) of the Immigration Ordinance, Cap 115 (“the Ordinance”) (Charge 6). He was sentenced to a total of 15 months’ imprisonment.

2.  On 28 June 2022, the appellant filed a notice of application for leave to appeal against conviction on the basis of three grounds of appeal.  On 21 March 2023, the Single Judge was satisfied that Ground 1(b) and Ground 3 involved pure questions of law and, therefore, no leave was required to appeal; and that Grounds 1(c) and Ground 2 involved questions of mixed law and fact and were reasonably arguable.  It was nevertheless observed that Ground 2 would only have substance if Ground 1 was successful^[1]. On that basis, leave to appeal was granted.

3.  It is worth noting that Ground 1(a), on which leave to appeal was refused, was not renewed at this appeal.  The particulars of Ground 1(a) had averred that the magistrate had applied the wrong statutory test in granting the application for a search warrant.

4.  On 5 January 2024, we dismissed the appeal and said we would hand down the reasons for our decision at a later date.  These are our reasons.

The prosecution case

5.  On 1 November 2017, Immigration officers searched a grocery store owned by the appellant in To Kwa Wan, Kowloon (“the store”) pursuant to a search warrant (“the search warrant”).  The appellant was present throughout the search.  The officers discovered and seized three forged identity cards (the subject matter of Charge 5); and two Philippines passports (the subject matter of Charge 6).  The owner of the two passports testified as a witness for the prosecution at trial that she had lost both passports on 18 May 2016, whilst travelling in a taxi somewhere in Tsim Sha Tsui, Kowloon^[2].

6.  The search warrant was issued on 30 October 2017 by a magistrate^[3], based upon information provided by an Immigration assistant (“PW2”) in an unsworn declaration, which recorded the following information^[4]:

“THE INFORMATION OF [PW2] taken this date before me, the undersigned, a magistrate of Hong Kong, who states:-

I am [PW2]. I have reasonable cause to suspect that there is in the premises of place known as [the appellant’s store] and [the appellant’s car], articles, documents, computers and mobile phones which are likely to be value to the investigation of offences in [the relevant statutory provisions].

I therefore apply for a warrant to enter and search the said premises or place and seize, remove and detain any such things which may be seized under the Immigration Service Ordinance, on the following grounds:-

In December 2016 during an anti-illegal worker operation, 7 illegal workers were arrested. 2 forged Hong Kong identity cards and 14 copies of forged Hong Kong identity card were seized. 1 of the illegal worker(s) arrested admitted that he had worked illegally in Hong Kong and confessed that he had provided his clansmen with tailor-made forged Hong Kong identity cards by ordering them from a forged Hong Kong identity card syndicate, which is active across the border.

According to information, [the appellant] is suspected to be a member of a forged Hong Kong identity card syndicate. I therefore respectfully apply for a search warrant with a view to disclosing any forgeries and suspicious articles, documents, computers and mobile phones relating to the abovementioned and other syndicate members involved.

TAKEN and sworn* or declared* before me

Dated this 30^th October 2017” (Deletion/underlining original; italics added)

7.  At the trial, the appellant challenged the validity of the search warrant and, thereby, the admissibility of the subsequently seized items, on three grounds:

(1)  The magistrate had used the wrong statutory test for issuing the search warrant;

(2)  The application for the search warrant was not made on oath as required under law by the Immigration officer attesting to it; and

(3)  No proper reasons were given as to why it was suspected that the appellant was a member of a forged Hong Kong identity card syndicate^[5]. 

8.  The judge ruled against the appellant on all three grounds, holding that the search warrant had been valid and properly issued by the magistrate.  Accordingly, the items seized during the search were admissible.  In his verdict, the judge set out his reasons for ruling as follows^[6]:

“17. I ruled against this application and admitted the exhibits that had been seized pursuant to the search warrant. I found that there was, in fact, no evidence that the magistrate had applied the wrong statutory test, and the wording of the warrant suggests that is not the case. The fact that the applicant said he had reasonable cause does not mean that the magistrate did not apply herself correctly.

18. Likewise, the second submission could not be sustained. An affirmation or declaration can be used instead of an oath. The wording of the application is by way of declaration.

19. As to the third submission, the applicant said that the items and documents of evidential value existed in relation to offences under section 89, Criminal Procedure Ordinance, and section 7A and 7A(1) of Cap 177, and such items were likely to be found.

20. There is, therefore, sufficient information to justify the issue of the warrant.  In fact, such items as alleged were found so there was, in fact, evidence of such offences at the premises.  Clearly, there was sufficient information to issue the warrant and I found the warrant was valid and properly issued.”

The appellant’s submission

9.  Mr Simon Young, who appeared for the appellant both at the trial and in this appeal, has put forward three grounds of appeal.  Grounds 1 and 2 relate to Charges 5 and 6; whilst Ground 3 only concerns Charge 6^[7].

10.  It is averred by Ground 1, as it now stands, that the search warrant was invalid because:

(i)  the information presented to the magistrate, and upon which the magistrate made her decision, was not given “on oath” (Ground 1(b)); and

(ii) the information was insufficient to satisfy the “reason to believe” test required under section 13C(1) of the Immigration Service Ordinance, Cap 331 (“section 13C”)^[8] (Ground 1(c)). 

11.  In respect of Ground 1(b), Mr Young argued that the judge erred in holding that an “affirmation or declaration can be used instead of an oath”^[9]. It was submitted that section 13C requires the information to be made on oath; and while an oath could be replaced by a statutory affirmation, by virtue of section 7 of the Oaths and Declarations Ordinance, Cap 11, it could not be replaced by a statutory declaration under Part III of the same Ordinance, in the absence of express legislative provision to that effect^[10].

12.  It was contended, therefore, that it was a material irregularity for a magistrate to issue a search warrant based, effectively, on unsworn information.  Accordingly, a warrant founded upon an unsworn declaration was without jurisdiction (see Feather v Rogers^[11]); and unsworn information would be regarded as immaterial for the necessary finding of “reason to believe” when issuing a search warrant (see George v Rockett^[12]; andalso Feather v Rogers[13]). Moreover, it was argued that any deliberate lies made in an unsworn declaration would not attract criminal liability for perjury, thus undermining the reliability of the information declared and the safeguard of a person’s right to privacy.

13.  In respect of Ground 1(c), Mr Young submitted that the judge had erred in holding that there was sufficient information to justify the issuance of the search warrant by the magistrate, who did not properly fulfil her ‘gate-keeping role’ in the process.  It was contended that the judge had failed to assess the sufficiency of the information as at the time of the issuing of the warrant, but had then sought to justify it ex post facto by the discovery of the exhibits in the store^[14] (see R v Greffe[15]).  Moreover, since the information was couched in terms of suspicion rather than belief, the magistrate was not entitled to conclude there was reason to believe that the statutory conditions had been met, without calling further evidence (see R v Thames Magistrates’ Court and HM Customs and Excise ex parte Hormoz^[16]).  

14.  It was further argued that the information itself was insufficient to meet the reason to believe standard because the only reference to the appellant and the store was PW2’s suspicion that the appellant was a member of a forged Hong Kong identity card syndicate, which was a bare assertion founded upon an undisclosed source and an incident that took place some 10 months previously.

15.  By Ground 2 it was contended that if the search warrant was judged to be invalid, the ensuing search and seizure would have been unlawful (see Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise^[17]), thus infringing the appellant’s constitutional rights guaranteed under Article 14 of the Hong Kong Bill of Rights^[18] and Article 29 of the Basic Law^[19]. Accordingly, the judge ought not to have received into evidence the items discovered in the search, given the test set out in HKSAR v Muhammad Riaz Khan^[20].

16.  Ground 3 alleged that the judge erred in law by applying too wide an interpretation of the term ‘unlawfully obtained’ in section 42(2)(c)(i) of the Ordinance.  Mr Young argued that by reading the context of section 42 and the deeming provision in section 42(3) of the Ordinance, the term should be interpreted as unlawfully obtained from an issuing authority, which he characterised as ‘the narrow interpretation’, instead of unlawfully obtained from any person at any time, which he termed ‘the wide interpretation’.  Accordingly, if the narrow interpretation were to be adopted, the appellant would have had no case to answer in respect of Charge 6, since the two passports in question were genuine, validly issued passports, and thus not unlawfully obtained from the issuing authority[21]. The judge failed to address the issue in his reasons for verdict, notwithstanding that the matter had been argued before him.

The respondent’s submissions

17.  In respect of Ground 1(b), Mr Raymond Cheng, with him Mr Jonathan Chu, on behalf of the respondent, argued that information not taken on oath did not necessarily invalidate a search warrant (see Dowse v Governor of Pentonville Prison[22]; Daley v the Governor of Prison Brixton & the Principality of Monaco[23]; HKSAR v Ng Se Man Michael[24]; and Fort Crown Investments Ltd v Tam Virginia V trading as Star Light International Agency & Trading Services[25]).  The effect of a declaration was very much the same as an affirmation^[26]. The use of a declaration in the present case, albeit not in the prescribed form under Cap 11, was akin to a minor drafting error, which went to the form rather than the substance of the search warrant (see Y v Commissioner of the ICAC[27]; R v Wineera[28]; and Dotcom v Attorney General^[29]). The question is whether the circumstances as a whole gave rise to a reasonable inference that the “deponents will commit themselves to the truth” of the information laid in support of the application for the search warrant (see R v Sanders^[30]). The respondent submitted that such a reasonable inference could be drawn from PW2’s evidence.  In particular, the magistrate had confirmed with PW2 that the contents of the information were true and accurate; while PW2 himself testified before the judge that he believed his declaration, made by appointment in the formal setting of the magistrate’s chambers, was the same as making an oath or affirmation as to the truth and accuracy of the information he was placing before her^[31].

18.  Mr Cheng argued, by analogy with section 17(1A) of the Prevention of Bribery Ordinance, Cap 201, that a search warrant may be issued without an information on oath and it did not weaken the judicial gate-keeping role, since the issuing magistrate would still need to satisfy himself/herself that there was reason to believe there was in any premises any thing, which was or contained evidence of an offence in the context of that case.  In light of the guiding principles in determining the validity of search warrants laid down by the Court of Appeal in Apple Daily Ltd v Commissioner of the ICAC (No 2)[32], the respondent submitted that, in the present case, the execution of the search warrant did not constitute any abuse of process, the appellant did not suffer any prejudice and there was no miscarriage of justice.  Mr Cheng noted that another search warrant in respect of the appellant’s residence had been obtained in May 2017 on identical information, although it had not been executed.

19.  As for Ground 1(c), the respondent submitted that under section 13C the magistrate only had to have reason to believe that there was in the store and the appellant’s car any thing, which was likely to be of value to the investigation, and not that the appellant was a member of a forged Identity Card syndicate.  The threshold for having reason to believe was not that high, although it was higher than having reason to suspect^[33]. In evidence, PW2 explained that, as far as he understood, the two terms were close in meaning^[34], while his supervising Immigration officer (“PW5”), who checked the information, said it was her perception that having reason to suspect was a higher standard than reason to believe, even though she may have been wrong in law^[35]. In any event, in the absence of proof that PW2 could not have believed the matters stated in the information, the fact that the term reasonable cause to suspect was used did not preclude the magistrate from having reason to believe by way of inference from the stated information that there were, in the store and car, articles which were likely to be of value to the investigation.  

20.  The respondent further submitted that the matters stated in the information were more than sufficient for the magistrate to draw the necessary inference to justify the issuing of the search warrant. The test was an objective one (see A Company v Commissioner of ICAC^[36]). Furthermore, there was a presumption that a magistrate had acted lawfully in issuing the search warrant (see Inland Revenue Commissioners and Another v Rossminster Ltd[37]; Attorney General of Jamaica v Williams & Ors[38]; Murphy v The Queen[39]; and Gould v DPP[40]); and there was no evidence to suggest that this particular magistrate had misunderstood the statutory requirements under section 13C; or misapplied them when issuing the search warrant.  However the information was drafted, it did not logically follow that the magistrate did not have reason to believe that the appellant’s store contained evidence, which may be required in proceedings for an offence under the Immigration Service Ordinance or a scheduled offence. 

21.  As for Ground 2, the respondent submitted that if the search warrant was found to be invalid, the court could still exercise its discretion in favour of the prosecution by admitting the relevant evidence, including the three forged identity cards and the two passports, because their reception was conducive to a fair trial, reconcilable with the respect due to the right(s) concerned, and unlikely to encourage any future breaches (see Muhammad Riaz Khan^[41]). The respondent stressed that the validity of the search warrant was only challenged on technical grounds; the execution of the search warrant did not unduly infringe the appellant’s right of privacy; the discovery of the exhibits were not in fact in dispute; the offences in question were serious and hard to detect without search warrants; and the technical issues complained of could easily be remedied and were unlikely to be repeated.

22.  As for Ground 3, the respondent argued that Mr Young’s narrow interpretation of the term ‘unlawfully obtained’ was unduly restrictive and, in fact, misconceived.  Relying on the decision of the Court of Final Appeal in Lam Yuk Fai v HKSAR^[42], the respondent contended that the legislative intent of section 42 of the Ordinance was to prevent travel documents coming into the possession of individuals who intended to use them for an unlawful or dishonest purpose, regardless of whether the documents were obtained from the issuing authority or elsewhere.  To give effect of the legislative intent and the ejusdem generis rule, the term should be construed to cover situations where the travel document was obtained from another without lawful jurisdiction or reasonable excuse, whether or not it was obtained from the authority or otherwise.

Discussion

23.  We should make these general observations in respect of applications for a search warrant at the outset.  First, the time at which any law enforcement authority makes an application for a search warrant is invariably during the early stages of an investigation when the authority, in this case the Immigration authority, is looking for evidence to support a complaint, information or, perhaps, intelligence that a criminal offence has been committed.  At such early stages of an investigation, often before an arrest has even been made, it is not practical or realistic to subject the state of mind of the officer applying for the search warrant to the full rigour of the criminal standard of proof when examining the cogency of the complaint, information or intelligence.  Nor is that what the law demands.  What is required under the statute is that, before issuing the search warrant, it is the magistrate who must himself/herself have

“reason to believe that there is in any place any thing which is or contains evidence which may be required in proceedings for an offence under this Ordinance or for a scheduled offence, or wholly or partly by means of which or in relation to which any such offence has been or is about to be committed, or which is likely to be of value (whether by itself or together with anything else) to any investigation into any such offence…”[43].

24.  Obviously, no magistrate will endorse an application for a search warrant, which is effectively a ‘fishing expedition’ arising out of a whim, rumour, gossip, a “gut feeling” or a mere, unfounded suspicion on the part of the authority concerned: the magistrate must have proper reason to believe that the terms of section 13C are made out.  And even if, as in this case, the information for the search warrant is put on the basis that the officer has “reasonable cause to suspect”, that does not relieve the magistrate of being satisfied that he/she has reason to believe that the necessary conditions have been met before issuing the search warrant. 

25.  Mr Young’s theme throughout his submissions was that the material identified in the information for the search warrant (the terms of which information we shall examine shortly) was not sufficient for the magistrate to have had reason to believe in its substance and cogency for the purpose of issuing the search warrant.  At one point, he went so far as to suggest that there should have been some explanation on the part of the officer applying for the search warrant, and/or enquiry from the magistrate, as to whether and why the officer believed the complaint, information or intelligence, which would entail to some extent an examination and disclosure of its source and provenance.

26.  One of the problems with this proposition is that the law enforcement authority may not wish to identify with particularity, either at such an early stage or by way of disclosure at a later stage, its source(s) of information, or perhaps even the detail or extent of such information.  Whilst public interest immunity will usually protect such information, the law enforcement authority may be concerned about the inclusion of sensitive information, such as the identity of the informant, for operational or other reasons.  Indeed, the authority may be under a legal duty to protect an informant’s identity.  The critical requirement, however, is that the material in support of the application for a search warrant satisfies the magistrate to the requisite standard for the search warrant to be issued.

27.  It must be remembered that an application for a search warrant is not a trial.  Although we conceive that there could be circumstances where a magistrate may properly wish to ask for further information before being satisfied of the required legal threshold for issuing a search warrant, we consider it would unnecessarily impede the ends of justice if, every time a magistrate was confronted with an application for a search warrant, he/she was required to conduct ex parte some form of voir dire in Chambers in order to establish the cogency and credibility of the information on which the application was based.

28.  That is not to say that the authority can dispense with setting out the information on which it relies: it must do so in order to enable the magistrate to discharge his/her duty under the law.  If the information is couched in vague, unclear or oblique terms, the magistrate can and should make enquiries from the applicant before issuing the search warrant. If the information is still insufficient, the magistrate should not issue the search warrant.

29.  Secondly, notwithstanding that Ground 1(a) was not renewed, leave having been refused by the Single Judge, Mr Young has nevertheless sought to imply in his written submissions that because PW2 had merely declared in the information for the application that he had reasonable cause to suspect, there must be some concern as to whether the magistrate herself had acted on that test and, a fortiori, the wrong test, when issuing the search warrant.  As he contended, the references to reasonable cause to suspect in the information “makes it unknown if the magistrate herself held the requisite ‘reason to believe’”[44]. However, with respect, the proposition does not follow.  Magistrates are very experienced in issuing search warrants as part of their weekly diet of administrative and judicial work.  Unless one can show that he/she has adopted the wrong test, one must proceed on the basis that the magistrate knows the law and has applied it correctly in issuing the search warrant. 

30.  This observation gives rise to a third consideration.  It is what the magistrate believes, not what the applicant or authority applying for the warrant thinks or suspects, or for that matter believes. Suspicion is the language of law enforcement officers and investigators: it is not normally the language of judicial officers, whose function is to make determinations of fact or decisions on law.  During the cross-examination of PW5, the judge intervened to remind Mr Young of this fact[45]:

“…whatever the immigration assistant believed or suspected is not really here nor there on the issue of a warrant. It’s what the – it’s the information he provides. Does the information provide ... a reason for the magistrate to believe that the warrant should be issued. If it does then whatever the immigration assistant’s state of mind is that he declares in his form seems to me to have no relevance at all. In fact, the immigration (assistant) could leave off the fact that they have reasonable cause to suspect. They could leave that out of the information. They could simply say, ‘I am the assistant. I know of this place and I’m applying for a warrant on the basis of this information,’ and leave it to the magistrate to decide whether that’s sufficient.”

31.  The point the judge was making, which seems to us correct, is that whatever the applicant for the search warrant says of his own state of mind, the essential issue is whether the magistrate has reason to believe, on the information put before him/her, that the terms of the section are satisfied.

32.  It so happens that in this case, PW5, who oversaw the application for the search warrant, testified before the judge that she thought “reasonable cause to suspect (was) a higher bar than reason to believe”[46]. However, for the reasons we have just stated, it really did not ultimately matter how PW5, or PW2, perceived and characterised the information: what mattered was how the magistrate considered it.  PW5 went on to make this very point when cross-examined by Mr Young[47]:

“Q. So in your practice and your understanding it doesn’t matter when obtaining section 13C of Cap 331 search warrants, it doesn’t matter whether one uses the words, ‘Reason to believe’ or ‘Reasonable cause to suspect’, correct?

A. Yes, because those information were the information disclosed – were the information given to the magistrate by our colleagues, and eventually the magistrate would decide if his reason is sufficient.”

33.  We accept that reasonable cause to suspect is in law a lower test than reason to believe, although in practice and in common parlance the distinction may not always be so obvious or rigorously exact.  There can often be a large measure of overlap.  What is critical, however, is how the magistrate considers the information upon which the application for a search warrant is based; and whether he/she has reason to believe that the information is such as to justify the issuing of a search warrant in accordance with section 13C.

34.  With these observations, we come to the case in issue.  We will begin by dealing with Ground 1(c), since some of our reasoning and the evidence to which we refer will be relevant also to Ground 1(b).  We must start with the written information itself, which we have set out in full at [6] supra.  The document begins by identifying the places in which various articles likely to be of value to the investigation of offences involving various forged Identity Card offences are reasonably suspected to be found.  The grounds for such suspicion are stated to be these:

(i)    In December 2016, during an operation against illegal employment, 7 illegal workers were arrested and 2 forged Identity Cards and 14 copies of forged Identity Cards were seized;

(ii)   One of the arrested illegal workers subsequently confessed to working illegally and admitted providing his clansmen with tailor-made forged Identity Cards;

(iii)  He had ordered these forged Identity Cards from a syndicate, which was active across the border;

(iv)  According to information, the appellant, who is the owner of the place identified in the search warrant, was suspected to be a member of this syndicate.

35.  We should say two things about this written information thus far.  Firstly, whilst we accept that the source of the information at (iv) of [34] supra was not specifically identified or named, it may be reasonably and readily inferred that the information must have come from the same arrested illegal worker cited at (ii) and (iii).  However, as we have said, there may be very good reason not to directly identify such informant or the source of the information, particularly at such an early stage.  As Lord Mance DPSC put the matter on behalf of the Supreme Court of the United Kingdom in R (Haralambous) v Crown Court at St Albans[48], in respect of similar provisions pertaining to the issuing of search warrants in that jurisdiction:

“27. In my opinion the statutory scheme of sections 8 and 15 of PACE does so permit. Read in terms, it involves, as indicated in paras 12 and 15 above, a purely ex parte process, directed to premises, rather than any particular person. It is a process designed to be operated speedily and simply, on the basis of information provided by a constable satisfying a magistrate that there are reasonable grounds for believing the matters stated in section 8(1). There is nothing in the statutory scheme which expressly restricts the information on which the magistrate may act. Parliament made no express provision for the information on which the warrant was sought to take any particular form or to be disclosed, even after the issue of the warrant, to any person affected. It would in many cases clearly be impracticable to expect such disclosure, for example where the information came from an informer, and in particular where it came from an informer whose identity could readily be identified from the nature of the information. I note, in parenthesis, that the police may well be under a duty, for example under articles 2 and 3 of the Human Rights Convention, to protect the safety of such an informer. Another area where disclosure to a person affected would clearly be impracticable would be where it would reveal the particular lines or methods of investigation being or proposed to be followed, in a way which would or could undermine their continuing usefulness in relation to other aspects of, or other persons potentially involved in, the investigation.” (Emphasis supplied)

36.  Secondly, although the Immigration assistant applying for the search warrant spoke in terms of reasonable cause to suspect, he was actually reciting established facts, which had given rise to the investigation in the first place.  Based on such facts, he could equally have used the words reason to believe and, indeed, he testified that “[a]lthough I am not a professional, I didn’t study law, but according to my understanding these words are close”[49]. He also gave evidence that he believed the information in the document to be “true and accurate”[50], as well as “sufficient”[51]; and thought that if it was not sufficient, the magistrate “would ask me right on the spot”[52]; or not sign on the search warrant and “request us to go back and do it again”[53].  However, he said the magistrate did not reject the application or request further information[54].

37.  In identifying the facts which formed the basis of the information for the application of the search warrant, the Immigration assistant was complying with what the High Court of Australia had said in George v Rockett, namely that[55]:

“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.”

In our assessment, such facts were plainly sufficient to induce the respective states of mind in both PW2 and the magistrate.

38.  As it turned out, Immigration officers did seize three forged Identity Cards and two Philippines passports belonging to a person unrelated to the appellant, together with copies of various other Identity Cards.  Mr Young did not challenge the actual finding of these articles.  Although the fact that these articles were found and seized did not by itself render the search warrant unobjectionable if it should not have been issued in the first place, it did, as Mr Cheng contended, support the genuineness of the state of mind of the applicant applying for the search warrant.  In simple terms, PW2 declared he had reasonable cause to suspect there were forged Identity Cards in the premises: he was right.

39.  In our judgment, the plain terms of the information in the application for the search warrant were sufficient to justify the magistrate issuing the search warrant.  No further information or enquiries were necessary.  In Ch’ng Poh v Commissioner of the ICAC[56], Litton VP (later Litton PJ), giving the judgment of the majority of the Court of Appeal, held:

“A magistrate, in reading the information, is required to give it an ordinary straight-forward interpretation. He is not required to undergo mental gymnastics in order to justify the issue of the warrant. If, on a plain reading of the information, the magistrate finds no reason to believe that the premises might contain evidence of the commission of the relevant offence, he must decline to issue the warrant.”

The adjuration not to undergo mental gymnastics in order to justify the issuing of a search warrant applies equally to not undergoing the same mental contortions in order to avoid issuing a search warrant.  With respect to Mr Young’s submissions and the copious Hong Kong, United Kingdom, Commonwealth and United States authorities to which he referred us, the argument foundered and was rendered otiose on a plain reading of the information for the application for the search warrant in question, which entirely justified the issuing of the search warrant.  To paraphrase Litton VP’s description of the appellant’s argument in Ch’ng Poh, Mr Young’s submissions were “intellectually teasing, but remote from reality”[57].  For the reasons we have given, we reject them.

40.  The complaint, under Ground 1(b), that because PW2 did not take an oath when declaring that the contents of the information were true and accurate, whilst technically correct, is also remote from reality.  One must remember that PW2, who prepared the information for the purposes of applying for the search warrant, made a formal declaration in front of a magistrate in her chambers that the information contained in the document was all true and accurate.  PW2 was alone with the magistrate when he was called into her chambers[58], and the solemnity of the occasion was not lost on him.  He explained in evidence that he “would be asked if the information were true and accurate, and I would answer yes.  This is equivalent to an oath”[59].  The witness was extensively tackled in cross-examination by Mr Young on what was said to be a standard procedure of making a declaration, as distinct from swearing an oath or affirmation, before a magistrate in respect of the truth and accuracy of the information contained in the application for a search warrant, but the witness considered they were the same as far as he was concerned[60]:

“Q. The question was, you did not provide an oath or affirmation to the magistrate.

A. I did not affirm before the magistrate, but, as I have said right from the start, the magistrate would ask if the information is true and accurate, and I think it’s already equivalent to an oath and a declaration.”

41.  It seems to us that while PW2 may not technically have sworn an oath (or affirmation) when making a declaration, that did not diminish the solemnity of PW2’s pledge or vow before the magistrate that the information in the document before her was true and accurate.  Nor did it affect the foundation of the magistrate’s reason to believe that the conditions were met for the issuance of the search warrant.  It is clear that PW2 had “committed himself to the truth” of the information he was placing before her.

42.  In Dowse v Governor of Pentonville Prison, which concerned an appeal in respect of an application for a writ of habeas corpus by the appellant during extradition proceedings taken out against him in the United Kingdom, it was suggested that the magistrate at Bow Street in London should not have admitted unsworn written statements made in Sweden by an accomplice who had implicated the appellant, since the relevant provisions of the Extradition Act 1870 required that such evidence be taken on oath (or affirmation) and certified before a judge or magistrate or officer of the foreign state where they were taken, before being admissible in extradition proceedings in the United Kingdom.  However, in Sweden, to which country it was sought to extradite the appellant, and where the accomplice had made the statements, such witnesses were not by law permitted to give evidence before a court on oath.  Lord Diplock, giving the judgment of the House of Lords, held[61]:

“The only question in this appeal is whether the confirmation that was given by Michalski before the District Court at Huddinge of statements inculpating Dowse that he had previously made at the police interrogation, constitutes an ‘affirmation’ within the meaning of section 14 of the Act and article 13 of the Treaty so as to render admissible as evidence of the facts contained in the statements the duly authenticated record of the proceedings of the court which incorporated copies of the statements and recorded Michalski’s confirmation of them before the judge.

It is rightly conceded that the expression ‘affirmation’ appearing in an Act of Parliament which provides for the entry by the United Kingdom into extradition treaties which make reciprocal arrangements for the surrender of fugitive criminals to and by foreign countries whose legal procedures in criminal cases may differ widely from one another and in particular from those of England, cannot be confined to the narrow technical meaning of a statement made after reciting the form of words that was permitted as a substitute for an oath in 1873 and is now set out in section 6 of the Oaths Act 1978.  Since it is to be applied to procedures which take place in a country other than England, in casu Sweden, where certain categories of witnesses of fact are not permitted to give evidence before a court on oath, it must be understood in some wider sense.  The primary and natural meaning of an ‘affirmation’ in an ordinary speech is a confirmation or declaration that something is true; and I see no reason for not giving to the word, where it appears in section 14 of the Act and article 13 of the Treaty, its primary and natural meaning.”

43.  We respectfully agree as a matter of construction and common sense with this approach.  Applying it to the case before us, it is quite clear from PW2’s evidence and the circumstances prevailing before the magistrate that he was solemnly and genuinely confirming and declaring in front of the magistrate that the contents of the information in the application were accurate and true.  There is no merit in Ground 1(b).

44.  However, we suggest that in future the form of words used in the draft Information for a Search Warrant, made under section 13C(1) of the Immigration Service Ordinance, should be amended from “Taken and sworn or declared before me” to “Taken and sworn or affirmed before me”.  Such an amendment will not alter the good faith and genuineness of the informant or his state of mind, but it will prevent unrealistic and highly technical arguments, which detract from the substance and merits of the application for a search warrant and seek to derail subsequent trials.

45.  Since Grounds 1(b) and (c) must fail, we do not accept that the exhibits seized pursuant to the search warrant should have been excluded by the judge; and Ground 2 must correspondingly fall away.

46.  Ground 3 relates only to Charge 6, concerning the two Philippines passports belonging to a witness known as Ms Perez (“PW9”).  She explained that she had lost her two passports in a taxi in Tsim Sha Tsui on 18 May 2016, almost 18 months before they were seized from the appellant’s premises, and reported the loss to the police.  PW9 did not know the appellant and had never been to the store before[62].

47.  The proposition that although the appellant was not entitled to be in possession of two passports lawfully belonging to someone else, he was not in unlawful possession of them because they were genuine, and the term ‘unlawfully obtained’ should be restricted to an obtaining from the issuing authority, is a startling one.

48.  It is well to remember the general observations concerning the Ordinance made by Lord Woolf NPJ, on behalf of the Court of Final Appeal in Lam Yuk Fai v HKSAR[63]:

“19. In interpreting the Ordinance, it is important to bear in mind the part played by travel documents in the contemporary world. They play an essential role in facilitating travel from one country to another. They identify the holder and enable a decision to be made expeditiously as to whether the person using the travel document should be or should not be allowed admission or to remain in a country that the holder is visiting or seeking to visit. In addition, travel documents can be used in a multitude of different circumstances to verify the identity of the holder and in this way facilitate trade and commerce.

20. In this situation it would not be unreasonable for the responsibility to be placed on the person in possession of a passport to exercise care to ensure that a travel document is not misused while he is responsible for it. The responsibility could exist because he is the holder, or because it is in his possession, or because he has a role in its official distribution. However, the subsection with which we are concerned is clearly intended to create a serious offence since it is punishable with up to 14 years’ imprisonment. As [Leading Counsel], who appears on behalf of the prosecution accepted, in the course of his helpful and realistic submissions, this offence was not intended to address mere want of care on the part of a member of the public. If this was the purpose, the offence would be a disproportionate response for carelessness in looking after a travel document. The legislature’s intention in adding the subsection by amendment to the Ordinance was to address more serious wrongdoing than mere carelessness of the sort that any member of the public can be guilty. However, subject to this proviso there is nothing objectionable in principle to the creation of an offence which is intended to prevent travel documents coming into the possession of an individual who intends either to use it himself for an unlawful or dishonest purpose or who intends that it should be altered in a way that facilitates its use for such a purpose by others.” (Emphasis supplied)

49.  There are several ways in which a valid, genuine passport might come into the possession of an individual, who intends either to use it himself for an unlawful or dishonest purpose, or who intends that it should be altered in a way that facilitates its use for such a purpose by others.  He might deliberately steal it; he might find it innocently in a public place but resolve to keep it; he might borrow it without (or, indeed, with) permission; he might detain it against the wishes of the person to whom it was issued; or he might buy it.  These are examples, which are not intended to be exhaustive.  It would be extraordinary if a person’s possession in such circumstances was not rendered unlawful because it was a genuine passport as opposed to a forged one.  Indeed, it would be a serious lacuna in the law if, in respect of the related offence of transferring a genuine passport without reasonable excuse under section 42(2)(a)(ii) of the Ordinance, the transferor were to be guilty of a breach of the section but the transferee were to have committed no offence, even though he obtained it for the purpose of impersonating someone in order to carry out a fraud or collect a parcel of illicit articles or dangerous drugs from the post office.

50.  Mr Young has, with respect, engineered an esoteric debate with himself by giving what he has devised as a ‘narrow’ and a ‘wide’ meaning to the element of ‘unlawfully obtained’ in section 42(2)(c)(i) of the Ordinance.  Yet, it is a commonly used term and does not have the meanings he has attributed to it, even in the context of the section.

51.  Section 42 (2)(c)(i) of the Ordinance reads:

“42. False statements, forgery of documents and use and possession of forged documents

……

(2) Any person who –

……

(c) has in his possession –

(i) any forged, false or unlawfully obtained or altered travel document, certificate of entitlement, entry permit, re-entry permit, certificate of identity, document of identity, APEC business travel card, travel pass or Vietnamese refugee card; …

…

shall be guilty of an offence.”

Clearly, in the context of the section, which has in mind, inter alia, forged and false documents, ‘unlawfully obtained’ is not restricted, as is now suggested by Mr Young, to such an item as defined that is unlawfully obtained from an authorised issuing authority.

52.  In our judgment, one has to give a purposive and intelligent interpretation to the section consistent with its overall objectives. With respect, section 42(3) of the Ordinance does not assist the appellant’s argument: the section is concerned to make clear that if someone makes a false statement or representation for the purposes of or in connection with an application for the issue or renewal of a genuine passport (among other similar documents), the passport (or other document) will in such circumstances be deemed to be unlawfully obtained.

53.  More pertinently, Mr Cheng drew to our attention the authority of HKSAR v Lam Hei Kit[64], whose facts involved the finding in a wardrobe at the applicant’s home of, inter alia, 25 Japanese passports, which “had either been lost by their owners or had been stolen from them”[65]. The applicant was charged with possession of unlawfully obtained travel documents, contrary to section 42(2)(c)(i) of the Immigration Ordinance (the same offence with which we are concerned).  There was no suggestion that the applicant had stolen the passports in question.  In dismissing the appeal, the Court of Appeal, presided over by Ma CJHC (as he then was), was evidently not troubled by the fact that the Japanese passports were genuine travel documents.

54.  The judge in the present case did not accept the appellant’s explanation for his possession of the two passports, which was that they had been accidentally left behind by a visitor to the store.  As the judge put it in respect of the three forged Identity Cards found in the appellant’s premises, “the odds that the three forged Identity Cards would be left in the [appellant’s] shop by customers is to be so remote as to be wholly unbelievable”[66]. If we add the two passports that were also supposed to have been accidentally left behind in the store in To Kwa Wan, although they were in fact lost in a taxi in Tsim Sha Tsui by someone who had never visited the store, the explanation becomes even more fanciful and absurd.

55.  We are quite satisfied from the evidence and circumstances that, once any innocent explanation had been rejected, the appellant was clearly in possession of two genuine passports that had been unlawfully obtained.  We reject Ground 3 of the appeal.

56.  Accordingly, it was for these reasons that the appeal against conviction was dismissed.

[1]  HKSAR v Harjit Singh [2023] HKCA 443, 21 March 2023, per Zervos JA at [20] and [22].

[2]  Appeal Bundle, p 18, at [2]-[7].

[3]  Magistrate, Ms June Cheung Tin Ngan; AB, p 46.

[4]  AB, p 44.

[5]  AB, p 20, at [16].

[6]  AB, pp 20-21, at [17]-[20].

[7]  Amended Perfected Grounds of Appeal filed on 17 April 2023.

[8]  The relevant part of section 13C(1) provides that:

        “Where it appears to a magistrate upon the oath of a member of the Service that there is reason to believe that there is in any place any thing … which is likely to be of value (whether by itself or together with anything else) to any investigation into any such offence, the magistrate may, by warrant delivered to a member of the Service, authorize such member, with such assistance as may be reasonably necessary, to enter the place specified in the warrant and to search for, examine and inspect, and seize, remove and detain any such thing.”.

[9]  AB, p 20N-O.

[10]  The appellant’s written submission, at [11].

[11]  Feather v Rogers (1909) 9 SR (NSW) 192, at 196 and 200.

[12]  George v Rockett (1990) 170 CLR 104, at 113-114.

[13]  Feather v Rogers, at 196.

[14]  AB, pp 20S-21B.

[15]  R v Greffe [1990] 1 SCR 755, 775f-i.

[16]  R v Thames Magistrates’ Court and Customs and Excise ex parte Hormoz (1999) 163 JP 19, at 30.

[17]   Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372, at [45]-[46].

[18]  Article 14(1) provides: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”

[19]  Article 29 provides: “The homes and other premises of Hong Kong residents shall be inviolable.  Arbitrary or unlawful search of, or intrusion into, a resident's home or other premises shall be prohibited.”

[20]  HKSAR v Muhammad Riaz Khan (2012) 15 HKCFAR 232, at [20].

[21]  The appellant’s written submission, at [24].

[22]  Dowse v Governor of Pentonville Prison [1983] 2 AC 464.

[23]  Daley v The Governor of HM Prison Brixton & the Principality of Monaco [2004] EWHC 326 Admin.

[24]  HKSAR v Ng Se Man Michael [1997] 2 HKC 570.

[25]  Fort Crown Investments Ltd v Tam Virginia V trading as Star Light International Agency & Trading Services (Unrep., CACV 173/2005 & 174/2005, 5 January 2006).

[26]  Ibid., at [3]

[27]  Y v Commissioner of the ICAC [2020] 4 HKC 206, at [16]-[18].

[28]  R v Wineera [2005] 2NZLR 657.

[29]  Dotcom v Attorney General [2015] 1 NZLR 745, at [129].

[30]  See R v Sanders [1994] 3 NZLR 450, at 460, lines 3-12; and 462, lines 5-14.

[31]  AB, p 218 C-R.

[32]  Apple Daily Ltd v Commissioner of the ICAC (No 2) [2000] 1 HKLRD 647.

[33]  George v Rockett, at 116.

[34]  AB, pp 213E-Q and 216L-P.

[35]  AB, p 258B-259M.

[36]  A Company v Commissioner of ICAC, (Unrep., HCMP 544/1996, 15 March 1996), at [9].

[37]  Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952, at 1009C-D.

[38]  Attorney General of Jamaica v Williams [1998] AC 351, at 361G-362A.

[39]  Murphy v The Queen [1988-1989] 167 CLR 94, at 105-106.

[40]  Gould v Director of Public Prosecutions [2018] NSWCCA 109, at [42], [52] & [55]-[59].

[41]  Muhammad Riaz Khan, at [20].

[42]  Lam Yuk Fai v HKSAR (2006) 9 HKCFAR 281, at [19]-[20], [28]-[29].

[43]  Section 13C(1) Immigration Service Ordinance, Cap 331.

[44]  The appellant’s written submissions, at [14(3)].

[45]  AB, pp 260Q-261A.

[46]  AB, p 258S-T.

[47]  AB, p 259G-J.

[48]  R (Haralambous) v Crown Court at St Albans [2018] 2 WLR 357, at [27].

[49]  AB, p 213D-E.

[50]  AB, p 220G-H.

[51]  AB, p 220E.

[52]  AB, p 220I.

[53]  AB, p 207Q-R.

[54]  AB, p 211I-J.

[55]  George v Rockett, at 112.

[56]  Ch’ng Poh v Commissioner of the ICAC [1996] 2 HKLR 460, at 467D-E.

[57]  Ibid., at 466F.

[58]  AB, p 211M.

[59]  AB, p 218C-D.

[60]  AB, p 218P-R.

[61]  Dowse v Governor of Pentonville Prison, at 470D-F.

[62]  AB, p 18O-R.

[63]  Lam Yuk Fai, at [19]-[20].

[64]  HKSAR v Lam Hei Kit (Unrep., CACC 84/2003, 9 January 2004).

[65]  Ibid., at [5].

[66]  AB, p 28L-M.