HKSAR v. HARJIT SINGH

DCCC 501/2019

[2022] HKDC 659

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 501 OF 2019

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Reasons for Verdict

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1.  The defendant has pleaded not guilty to a total of six charges on the charge sheet. The first four charges allege false statements made to Immigration officers in relation to four separate spousal dependency visa applications between 18 May 2009 and 3 October 2016. Charge 5 alleges possession of three forged identity cards at the premises, the Jagpreet Indian Provision Store in To Kwa Wan. The 6^th charge alleges possession of unlawfully obtained travel documents at the same location, namely, two Philippine passports which had previously been lost by their owner.

2.  The prosecution case arose as a result of a raid on a grocery store on 1 November 2017.  The grocery store was the Jagpreet Indian Provision Store.  I shall call it “the store” from now on.  It is in To Kwa Wan.  The raid was made pursuant to a search warrant.

3.  The defendant was present in the store and admitted being the owner of the store.  During the search, three forged identity cards were found together with the two Philippine passports.  The business registration of the store shows the defendant is the sole proprietor.  The store trades as the Sun Star Trading which had the same registered business address as the store.

4.  The three forged identity cards were found inside a box inside a locker below the cash register in the store.  Two of the cards bore the name and personal particulars of one Doly Sharmin Akther.  The faces on the cards were different.  The third identity card was in the name of Mudassar Habib U Rehman. 

5.  Various copy identity cards were found inside the cash register.  One was found to have the defendant’s fingerprint upon it. There were markings on some of these identity cards.

6.  The two Filipino passports were found together inside a ziplock bag in the locker under the cash register in the store.

7.  A Ms Perez Ma Teresa Simbulan was the holder of the two passports.  She had lost her passports on 18 May 2016 in a taxi in Tsim Sha Tsui.  She had reported their loss to police.  She did not know the defendant.  She did not know the store and had never been there.

8.  In respect of the first four charges, the Immigration records show that the defendant married as Ms Kaur in India on 11 March 2004. He was initially approved to remain as a dependant, her dependant, in Hong Kong from 2006 onwards.

9.  The defendant has applied and been granted extensions of stay on 18 May 2009, 10 July 2012, 16 October 2013, and 3 October 2016.  Each time the defendant made an application for extension, the form contained a declaration that his matrimonial status had not changed throughout.

10.  The prosecution say, or initially said, that the defendant’s marriage to Ms Kaur had been formally dissolved by a decree absolute on 28 August 2008 and, therefore, they had said they have false statements, the defendant had made false statements to Immigration officers when making the applications for all extensions of his dependency visa.

11.  As far as the evidence was concerned, a number of Immigration officers were called to deal with the raid upon the store, the seizure of the items and the defendant’s application for visas.

12.  The first prosecution witness arrested and cautioned the defendant at the store during the raid.  He executed the search warrant, spoke to the defendant in English, which he did say the defendant understood. When the defendant was asked who was the store owner, the defendant replied, “Mr Harjit Singh”, which is his name, and that was written down by the defendant.  There has been no dispute of the defendant status within the store.

13.  The second prosecution witness photographed exhibits when discovered.  The defendant did not at the time make any response about the Filipino passports.  Other witnesses found a wooden box with the forged identity cards when all the items were seized.  A further search of the premises was also conducted by PW3.  He gave evidence of the seizure of the relevant exhibits.

14.  Officers were also called who dealt with the visa extensions.  Ms Perez gave evidence about losing her passport in a taxi. She had reported the matter to the police.  As I said earlier, she did not know the defendant or the store and had never been there.

15.  An issue in the prosecution case was that the defence challenged the validity of the search warrant and the subsequent admissibility of the items seized by the immigration officers as a result of the search of the store, the search of the store being made pursuant to that search warrant.

16.  The defence contended that, firstly, the magistrate used the wrong test to issue the warrant, the wrong statutory test.  Secondly, the application itself was not made upon oath by the Immigration officer attesting.  And, thirdly, that no proper reasons were given for why it was suspected that the defendant was a member of a forged Hong Kong identity card syndicate.

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.

21.  There were sets of Admitted Facts that established, amongst other things, the following.  On 26 August 2008 the defendant’s marriage to Rajwant Kaur was dissolved. 

22.  On 7 November 2008, the defendant solemnised a marriage to a Mohan Jethani Lakhan in Hong Kong.  On 9 February 2009, the defendant applied to divorce that Ms Mohan in India, and the divorce from Ms Mohan was finalised in April 2009 by a petition for dissolution dated 20 April 2009.

23.  On 23 April 2009, the defendant married, or remarried, a Ms Rajwant Kaur.  A marriage certificate was obtained dated 23 April 2009.  It is Exhibit D2.  A register entry for the marriage is dated 27 April 2009.  It is Exhibit D3.

24.  In Hong Kong, a decree absolution of the defendant’s marriage to Ms Mohan was not, in fact, pronounced until 7 February 2018 in Hong Kong, and later, on 6 August 2019, the defendant was formally married in Hong Kong to Ms Rajwant Kaur by a civil celebrant, but it does not appear to be that there was a valid subsisting marriage at the time when the defendant went through this further marriage on 6 August 2019.

25.  As far as the defence case is concerned, the issues raised in the course of the defence case was the defendant’s declaration the visa applications were not known by him to be false or untrue.  And, secondly, the defendant was not in knowing possession of any of the items found in Charges 5 or 6.  These issues, in fact, result from the defendant’s testimony.

26.  The defence evidence was supplied by the defendant’s oral testimony and by sets of Admitted Facts.

27.  The defendant is a man of clear record.  He is from Punjab in India.  He met Ms Rajwant Kaur in India.  They met as long ago as 1994 and they had a child two years later called Jagpreet.  In 1997 Ms Kaur had come to Hong Kong.  The defendant finally married Ms Kaur in March 2004 in Punjab.  She returned to Hong Kong.  The defendant came to Hong Kong in 2006 as Ms Kaur’s spousal dependant.

28.  The defendant agreed the contents of all the applications for the spousal dependency visas that constitute charges 1 to 4. He said a Mr Gill had advised him how to complete the visa applications.  Mr Gill was unable to give evidence as he is apparently deceased.  The defendant’s visas were sponsored by Ms Kaur.

29.  In August 2008 the defendant had divorced Ms Kaur and married Ms Mohan later in November 2008.  Ms Mohan apparently came from the United States.  However, the marriage to Ms Mohan was not a success. It appears to have quickly unravelled due to financial arguments between them and, in fact, in February 2009 in India the divorce was obtained by consent leading to the subsequent remarriage of Ms Kaur and the defendant in April 2009. They both returned to Hong Kong that month, the defendant making an application for extension of his visa about a month later.

30.  All this is evidence by the documented being produced and it does not appear to be disputed and I shall treat it as if it is in agreement.

31.  The defendant said in respect of the four spousal visa applications that followed his remarriage to Ms Kaur that he genuinely believed that Ms Kaur was his wife at the time of those applications.  They lived together.  They had a full married life.  There is evidence of their joint home in Cooke Street, evidence of bills and the like was produced to show they were both living there.

32.  The defendant said that he believed for his part that the declarations made by him in the visa applications were true.  He said at the time he signed it, as far as he is concerned, there is, to use the words of the declarations, no change in his matrimonial relationship.  He was married to Ms Kaur.

33.  As far as the later divorce from Ms Mohan and marriage to Ms Kaur in Hong Kong in 2019 were concerned, he said he did this on the advice of Mr Gill to regularise the position.

34.  In respect of Charges 5 and 6, the defendant did not dispute his status within the store as the owner.  He did not dispute that the three forged identity cards and two Philippine passports were found in the black wooden box underneath the cash register in his store. 

35.  He agreed he was the proprietor of Sun Star Trading, which was trading as Jagpreet Indian Provision Store, and in evidence said he was the owner of the store.  He had operated it from 2013.  He was present in the store when the Immigration Department raided on the date in November.

36.  As far as the work in the store was concerned, he worked during the day.  He also employed a man called Vicky and his son would also work in the store as well.

37.  The defendant explained the presence of the items in the black box, the subject of both Charges 5 and 6 in the following way.  He said that the store provided fax and photocopy facilities for Indian, Pakistani and Filipino customers, as well as general provisions.  The store was busy.  There could be hundreds of customers a day.

38.  On occasions, the customers would leave their original documentation in the store.  They would forget them and then possibly collect or pick these items up later.  It was the practice of the store to keep these items in the black box and retain them and then return them to the customers when they asked for these items back.

39.  The defendant said he was unable to recall who of the people working in the store, including himself, had put the identity cards and passports in the box.  It could have been himself, Vicky or his son, he said.  But the items found in the box were unclaimed items from customers.

40.  He had no idea that the identity cards were forged or that the Perez Philippine passports had previously been lost.

41.  The defendant said that after the police raid in November 2017, he instituted a different practice, and had since then taken all unclaimed items to the police station’s lost property.  The defendant produced documentation to support this evidence and the documentation showed the kind of evidence, the kind of items that had been left in the store as lost property.

42.  As far as the legal issues are concerned, the prosecution bring the charges.  The burden of proof clearly remains on them at all times and the prosecution must prove the case beyond reasonable doubt in respect of each charge separately.  The court must necessarily find the facts proved to that criminal standard.  The court can, however, infer a fact from proven primary facts.  In order to do so, that conclusion of fact must be drawn itself to a criminal standard, that is beyond reasonable doubt.  Sometimes this is also expressed as being the only reasonable conclusion that can be drawn from the primary facts.

43.  The defendant initially faces four counts of making a false statement or representation to an immigration officer contrary to section 42(1)(a)  of Cap 115.  The prosecution in this case seek to prove that the defendant made a representation of no change of matrimonial relationship, and that he knew that to be false or did not believe it to be true.

44.  Under Charge 5, under section 7A(1)  of Cap 177, the prosecution needs to prove the defendant was in possession of the three forged identity cards, but also he knew them to be in his possession.

45.  In respect of Charge 6, the prosecution must prove the defendant’s possession of the two Philippine passports, and also that they were unlawfully obtained, and he knew that he was in possession of unlawfully obtained passports.

46.  The defendant is of clear record, which is clearly relevant to the way in which the credibility of his evidence should be assessed, and also the propensity to commit offences of this nature.

47.  A resolution of the issues raised is as follows. On Charges 1 to 4, it is common ground on these charges there is no dispute as to the timeline and the facts of the defendant’s marital status.  The four charges relate to the period of the defendant’s divorce from Ms Kaur in Hong Kong in August 2008, his marriage to Ms Mohan in November 2008, the short marriage which terminated in India in February 2009 by consent, and then his subsequent remarriage to Ms Kaur in April 2009.

48.  When the store was raided in 2017, the divorce certificate from Ms Kaur was discovered.  This would be the 2008 divorce. There was no remarriage in Hong Kong until 2019.  The Immigration Department was satisfied on that basis that the statements in the spousal visa applications must have been false and untrue.  Clearly, one can understand their position.

49.  The evidence of the subsequent remarriage has come out during the course of trial, has taken a long time to surface and prove due to the restrictions imposed by the COVID-19 lockdowns both in Hong Kong and India.  But the position is now settled.

50.  The prosecution now submits the defendant took part in a scheme to evade the effect of his 2008 divorce from Ms Kaur, and his marriage to Ms Mohan.  As the defendant could not divorce Ms Mohan in Hong Kong within the first year of being married, this would take him beyond the expiry of his Hong Kong visa.

51.  The defendant needed, in order to maintain his spousal visa status, to divorce Ms Mohan and marry Ms Kaur in India before the next application.  They say this is clearly a manipulation and dishonest, and they point to certain mistakes made in the application.

52.  All this may well be so.  The defendant clearly was banking on some arrangement happening with Ms Mohan that never took place, and it was necessary for him to regularise his position in order for the upcoming Hong Kong visa application to be made.

53.  The issue I have to decide is whether the defendant’s representation in each of the visa applications is false or what he didn’t believe to be true.  The actual representation in each application that is charged, the actual representation is the following:

“I, as the spouse of Rajwant Kaur, declare there is no change in our matrimonial relationship.”

54.  On each occasion that is dated.  So I assume that the “is” relates to the date on which the application is made.  It is a representation as to the existing position, the present moment.

55.  It is possible to take a narrow or wide interpretation of this wording.  The prosecution naturally would prefer the wider interpretation be taken, and that wider interpretation would be that when the defendant made the representation that there had been no change at all in his matrimonial status since the last application.  I know the defence say this could only actually apply to the 1^st charge.  However, that is a representation being made as to not only the present state of affairs but the affairs since the last application.

56.  The stricter interpretation is the literal one, that the defendant represented his matrimonial status was the same, there being no change to that status.

57.  This, of course, is a criminal offence that is being charged, and it is trite law that the interpretation of criminal liability should be construed narrowly.  The defendant’s representation is as to his status in the present tense on the day of the application.  That is what is required by the visa application form.

58.  On that basis, the defendant’s representation cannot be false as his matrimonial status with Ms Kaur is unchanged in that they are still married and still in a spousal relationship.  It is undoubtedly economical with the truth; however, no wider provision of information is required by the declaration.

59.  I find that on this somewhat technical basis the first four charges will have to be dismissed.

60.  I now turn to the last two charges.  As I have already outlined, there is no factual dispute as to discovery of the forged identity cards, the Philippine passports inside the black box under the cashier counter in the store.  The defendant admits to being the proprietor.  It is clear that the inference can be drawn to a criminal standard that the defendant is in possession of these items and, in fact, the essential facts on which that inference can be drawn are not disputed.

61.  It is necessary for the prosecution to establish beyond reasonable doubt the defendant possessed these items with the requisite knowledge of their status as being either forged identity cards or unlawfully obtained passports.

62.  The prosecution seek to establish this by way of drawing an inference from the primary facts of their discovery.  They say that if no proper explanation is offered for their possession or, if the explanation offered is rejected, then those primary undisputed facts allow the court to draw the inference necessary for a criminal conviction beyond reasonable doubt.

63.  The defendant has provided an explanation which if accepted would show he did not have knowing possession and his belief could create a reasonable doubt as to this issue.  However, I find that the defendant’s explanation cannot be accepted.  It appears to me to have the clear form of a concocted story, devised to explain away his possession of the items. 

64.  The fact is, the undeniable fact is, there are three forged identity cards here, two with the same name and different photographs.  Two bore the personal portraits, personal particulars of Doly Sharmin Akther but different facial images.   The third is in the name of Mr Mudassar.

65.  Furthermore, within the cash register were further copy Hong Kong identity cards in different names, one containing a similar photograph, and these contained the defendant’s fingerprints upon them, so there is no doubt the defendant had access to all these items.

66.  If I may put it this way, the odds that the three forged identity cards would be left in the defendant’s shop by customers is to be so remote as to be wholly unbelievable, and I reject this application.

67.  I find in respect of Charge 5 the only available inference I can draw from these primary facts is that the defendant possessed these cards with full knowledge of their status.  He is, accordingly, convicted on Charge 5.

68.  Furthermore, the defendant was in possession of the two Philippine passports in the same location.  I have already rejected the defendant’s explanation that these passports were left behind and acquired, as it were, lawfully, i.e. left in his store as lost property.  I find it simply unbelievable and extraordinary.

69.  We know from the evidence that Ms Perez lost her passport in a taxi about a year before their discovery.  I find in the circumstances the fact that these were found in the defendant’s store together with the forged identity cards leads to the only available inference that they were unlawfully obtained.  This conclusion I draw beyond reasonable doubt and the defendant is accordingly convicted on Charge 6 as well.