HKSAR v. AHMED, JUNAD

HCMA 209/2023

[2024] HKCFI 2917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 209 OF 2023

(ON APPEAL FROM STCC 2579/2022)

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J U D G M E N T

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1.  The appellant was convicted after trial of three offences and now appeals against those convictions. He was charged and convicted of making a false statement to an immigration assistant lawfully acting under or in the execution of part 3 of the Immigration Ordinance, contrary to section 42 (1)  (a)  of the Immigration Ordinance, Cap 115, Charge 1. The particulars are that on 9 September 2020, he made a statement, knowing the same to be false or not believing the same to be true, to an immigration assistant stating that there was no change in his marital or relationship status between the sponsor “ Bibi Samir” and himself.

2.  He was charged and convicted of causing to be made a false statement to an immigration assistant lawfully acting or in the execution of part 3 of the Immigration Ordinance, contrary to section 42 (1)  and (a)  of the Immigration Ordinance, Charge 2.  The particulars are that on 5 October 2020, he made a statement, knowing the same to be false or not believing the same to be true, to an immigration assistant, in that, he caused to be made a representation in that statement that Bibi Samir was willing to sponsor him in applying for an extension of stay in Hong Kong.

3.  He was lastly charged and convicted of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200, Charge 3.  The particulars are that on 5 October 2020, he did use an instrument, namely “a declaration of sponsor”, which was, and which he knew or believed to be false.  He used it with the intention of inducing Chief Immigration Assistant Tang Wai Sang Aires to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

The Prosecution’s Case

4.  In April 2021, the Immigration Department received a complaint from PW3 Bibi Samir alleging the appellant had submitted false documents to support his application for an extension of stay as a dependent in Hong Kong.

5.  PW3 and the appellant were married in Pakistan on 15 February 2018.  She was a Hong Kong resident, his sponsor and applied for a dependent visa for the appellant in September 2018.  His first visa was granted and he arrived on 16 September 2019 on the strength of that dependent visa. It was valid for one year and he was permitted to remain in Hong Kong until 16 September 2020.

6.  However, 4 months after he arrived in Hong Kong, PW3 became very unhappy with their relationship and she went back to Pakistan for 6 months.  She returned in August 2020 and told the appellant she wanted a separation.  She explicitly told the appellant she would no longer sponsor him when he had to apply for an extension of stay.

7.  Despite this, the appellant applied for an extension of stay on 9 September 2020 and submitted the documents in Exhibit P8, the Form ID 91, an application for extension of stay and ID 481B in which he declares there was no change in the marital/relationship status between his sponsor and himself.  There was another declaration of sponsor form known as ID 481A submitted to the Immigration Department on 5 October 2020 purportedly signed by PW3 declaring she was willing to sponsor the applicant in applying for an extension of stay in Hong Kong.  She denies having filled in or signing this form.

8.  A divorce was filed in Pakistan on 6 February 2021 and their marriage was officially dissolved on 6 May 2021; it was an admitted fact.

9.  In short, the appellant declared in ID481B that his marital status had not changed, which was false; the particulars of Charge 1.  The appellant caused a false statement to be made to the Immigration Department stating that PW3 was willing to sponsor his application for extension of stay in Form ID 481A submitted on 5 October 2020 by him; the particulars of Charge 2.  The appellant must have filled out the form on his own and forged PW3’s signature, only he stood to benefit.  He used this false instrument with the intention of inducing the immigration officer to grant him an application for an extension of stay, the particulars of   Charge 3.

The Defence’s Case

10.  The appellant elected not give evidence.  He elected not to call any witness.  It was part of his case that his sister went with PW3 to the Immigration Department to submit the Form ID 481A.  During his appeal hearing, he said his sister was present during his trial but they were both advised not to give evidence.

11.  It was suggested in cross-examination that PW3 said in her evidence that she was blamed by family for the divorce and she therefore had a motive to tell lies to protect her reputation.  It was suggested that she did help him the appellant renew his dependent visa and did fill in the forms at P8, ID 91 and Form 481B asking the appellant to sign.  She denied anything to do with these forms and denied she wrote on and signed the other form, 481A.

12.  It was suggested to her she in fact submitted these documents to the Immigration Department with the appellant’s sister on behalf of the appellant because the appellant was working at the time.  She denied this was the case.  She agreed that the appellant sister did beg her to sign the necessary documents as his sponsor and submit them but she refused.

13.  Part of the appellant’s case was that in fact, their relationship had not disintegrated and they were living together in harmony after her return from Pakistan in August 2020 until December 2020.  This she strenuously denied.

14.  She did go to the Immigration Department only to enquire about how to cease to be the appellant’s sponsor.  During this visit and it was in October 2020 she was shown those documents in P8 including the Form 481A by immigration officers and she reported immediately that it was false because the signature did not belong to her nor did she write on it.  She was not asked until later to give a statement.  She was in fact told to make a formal complaint to another department.  She said there was a delay and she made a formal complaint in March 2021.  She was requested by the Immigration Department to give a witness statement in June 2021.

The Legal Principles

15.  It is clearly established that a magistracy appeal is conducted by way of a rehearing on the evidence before the trial court.  Where findings of fact are based on the oral testimony of witnesses, the appellate court would be subject to limitations and must therefore exercise caution.  After all, the magistrate enjoyed the advantage of having seen and heard witnesses giving evidence.  The appellate court is not in that same position.

16.  Nevertheless, the appellate court must work with those limitations when undertaking its duty to rehear the trial to reach its own conclusion on disputed issues of fact or law.  In this case, the evidence of the prosecution witnesses was materially challenged therefore, credibility was an issue.

17.  If the appellate court is not satisfied on the evidence of the appellant’s guilt beyond reasonable doubt then the appeal must be allowed.  If the appellate court comes to a different view on that evidence, this would justify the decision to allow the appeal.

18.  What this means is that the appellate court is required to consider and weigh all the available evidence, relevant evidence and reach its own conclusion as to whether the elements of all charges are proved to the requisite standard, beyond reasonable doubt.

Grounds of Appeal

19.  There were grounds of the appeal filed by Mr William Allan on behalf of the appellant and amended once.  However, he did not represent the appellant during the appeal hearing; the appellant was unrepresented.  It was his position that he did not completely rely on the grounds drafted by Mr Allan but did not elaborate other than to argue there was no justice in his convictions.

20.  Mr Allan had suggested in the first ground that the trial magistrate had failed to consider the motive PW3 had to lie and frame the appellant.  There was no evidence to corroborate her evidence and this included any handwriting expert to prove the appellant forged her signature and writing.

21.  The only other ground was that the convictions were unsafe and unsatisfactory.

22.  The appellant submitted he had evidence in his phone that they were still happily married at the material time and he could challenge his

The Magistrate’s Findings

23.  The prosecution called three witnesses, the first two were immigration officers who handled the appellant’s application for an extension of stay as a dependent person and the last was PW3, the appellant’s ex-wife, Bibi Samir.

24.  The magistrate had no difficulty accepting the evidence of the immigration officers; their evidence was not disputed.  For the most important witness, PW3, the magistrate gave full and comprehensive reasons for his finding that she was credible and reliable.

25.  The magistrate was sure to remind himself of not only the prosecution’s burden of proof but also the appellant’s clear record, giving himself the appropriate directions.  He also was clearly well aware that he could not draw any adverse inference due to the fact the appellant elected not giving evidence.

26.  He found the fact that PW3 had brought to the attention of an officer at the Immigration Department the forged document filed to support the application of stay but it was not dealt with until much later and after the application was approved, did not affect her credibility or evidence.  It was a matter for the Immigration Department and their workings, their procedure in dealing with complaints and how they were investigated.  Clearly until a complaint is verified, the application process proceeded on the papers submitted.

27.  The magistrate also found that the appellant must have submitted the incriminating documents ID 91 and Form 481B to the Immigration Department because there was no letter of authorisation from the appellant authorising another person to submit it on his behalf as would have been required according to the evidence of PW1 and immigration officer.  He drew the only irresistible inference that it was the appellant who filled in those forms and made a declaration that there had been no change in his marital status.  On the face of it, they were signed by the appellant.

28.  The magistrate however found that at that time his ex-wife had already told him that the marriage had ended and she would no longer sponsor him to remain in Hong Kong.  Despite this knowledge, he went on to file those documents and make false declarations in the hope that his extension of stay would be approved by the Immigration Department.  This is in respect of Charge 1 and the magistrate found the prosecution had proved the offence beyond reasonable doubt.

29.  It followed that the magistrate found the appellant had made a false statement to an immigration officer that his ex-wife was willing to sponsor his application for an extension of stay when he found the evidence of PW3 credible and reliable.  He found she did not sign Form 481A declaring she was willing to sponsor the appellant in applying for an extension of stay in Hong Kong.  Therefore, he was satisfied the prosecution had proved the offence, Charge 2 beyond reasonable doubt.

30.  Since he found PW3 had never signed that declaration saying she was willing to sponsor the appellant, the magistrate drew an irresistible inference that it was the appellant who must have forged her signature to induce the Immigration Department to believe the contents and the signature was genuine in the hope that an extension of stay was granted.  He was satisfied beyond reasonable doubt that the prosecution had proved Charge 3 to the required standard.

Considerations

31.  The appellant represented himself in his appeal, requested the opportunity to introduce fresh evidence, and argued he was entitled to a retrial.  I have to agree with the submissions from the respondent who referred the court to Muhammad Muhammed Mahabobur Rahman v HKSAR (2010)  HKCFAR 2 where the Court of final appeal set out the conditions to be satisfied before an appellate court would consider fresh evidence.

32.  There is no reasonable explanation for the failure to call defence witnesses to testify in court when the alleged witness who accompanied the appellant’s ex-wife was his own sister and available and present the day of trial.  I have no information other than there was no need to call her.  Similarly, there is no reasonable explanation as to why he could not retrieve information from his own phone during the trial but could now.  There was no merit in the suggestion the court allow fresh evidence of telephone messages to be produced.

33.  I thank Miss Linda Chan for the respondent for her comprehensive reply and submissions.  Being a rehearing and for the purposes of this appeal, I have reconsidered afresh the evidence highlighted in both the statement of findings and closing submissions from the appellant’s legal representative before he represented himself as well as the respondent.  I find no merit in any ground or complaint put forward by the appellant.

Conclusion

34.  I agree with the respondent, having reviewed the appeal bundle myself, that the magistrate was entitled to draw an irresistible inference against the appellant and convict him of all three charges.  The evidence from the prosecution witnesses that the magistrate found credible was more than sufficient to be able to draw an irresistible inference that the appellant had made a false statement to an immigration officer that there was no change in his marital status.  There was more than sufficient evidence to be able to draw an irresistible inference that the appellant had made the false statement his ex-wife was willing to sponsor him in applying for an extension of stay in Hong Kong.

35.  It followed that the conviction for using a false instrument was justified, the appellant must have known the declaration of sponsor form was false.

36.  I am satisfied all three offences were proved beyond reasonable doubt by the prosecution.  The magistrate’s findings and reasons given are more than valid; they are correct.

37.  In the circumstances, the magistrate was justified in convicting the appellant and I find no basis for disturbing those convictions.  There is no merit in this appeal.

38.  Therefore, the appeal against his convictions is dismissed.