R. v. ARUNASALAM RASAKOPALU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 759 OF 1996

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J U D G M E N T

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1. This is an appeal against conviction and sentence.

2. The appellant is a Sri Lankan who says that he normally resides in Sri Lanka. On 14th March 1996, he presented himself at the Scandinavian Airlines counter in the departure hall of Kai Tak Airport, and he also presented his passport. The flight which he intended to board was bound for Denmark, and he needed a visa to be allowed entry to that country. As is common airline practice, his passport was checked to see whether he had all the right entry requirements. The airline staff suspected, however, that the visa which purported to have been issued in Colombo, Sri Lanka, by the Danish authorities there was not genuine. Their suspicion triggered further investigation and inquiries and in due course, this appellant appeared before a magistrate charged with possessing a false instrument with intent to induce its acceptance as genuine. That offence is contrary to s.75(1) of the Crimes Ordinance, and is an offence which carries a maximum penalty on indictment of 14 years imprisonment.

3. The appellant pleaded not guilty.

4. The first prosecution witness was the passenger service supervisor for the airline. She was called to the desk whilst the staff were examining this visa in the passport. There were a number of features which persuaded her that the visa was bogus. She had a sample visa. The notes of evidence are not entirely easy to follow for they are in the abbreviated form in which the magistrate took down the evidence. It does not appear from the notes that she said from whom the sample was obtained. Be that as it may, the stamp on the visa did not tally with the sample, it was larger; and the signature was different; and the visa did not, as it ought, cross from one page of the passport to the opposite page. Furthermore, the use of a violet light showed that the visa did not, as it ought, have a number which illuminated when placed under such a light.

5. The police were called, and this witness said that she knew that there was no Danish Embassy in Colombo, although that was something she had been told. She produced the airline ticket which the appellant presented and on which he intended to travel. It was a ticket for a through trip to Amsterdam via Copenhagen. The passport also had in it a visa for the Netherlands. The Danish visa stated, however, that the purpose of the journey to Denmark was to visit family. If so, it was to be a very swift visit indeed, for the ticket showed him going on to the Netherlands the same day.

6. There was then tendered the evidence of a Government chemist who is an expert in the examination of forgeries of documents, passports, identity cards, and so forth. He had examined the passport, and the visa in it. He said he also received a control stamp from the Consulate in Hong Kong and a control visa, exhibit P3. The visa in the passport was different from the sample or samples, in that the background colour was different; the coat of arms was different; and the visa had obviously been tampered with for there was chemical erosive indicating that the passport number had been changed as had the entry which stipulated the purpose of visit. He was of the opinion that the original entry had been altered.

7. The last witness to provide oral testimony was the Danish Consul to Hong Kong. She was shown the passport and the visa and also exhibit P3. The stamp on the visa in question was purportedly issued by the Danish Embassy in Colombo. Ms Ohlson knew at once that that could not be so for there is no embassy in Colombo, but only a consulate. She has never been to Colombo, it seems, but has been in the Danish Foreign Service for 25 years; that is how she knew that there was no embassy there. She then produced the exhibit which was a sample provided by the Consul of genuine Danish visas. That was exhibit P3.

8. Also produced were the records of two interviews conducted with the appellant under caution. The first interview took place on 14th March in the afternoon; the second interview took place the following day. The appellant told the police that he had obtained the visa quite innocently, through the services of a man whose name, or address, or contact number he knew not, whom he had met in a temple in Colombo in October 1995. The man claimed, he said, to be a travel agent, and he said that he could obtain visas for the appellant for the Netherlands and for Denmark. So the appellant parted with 750 rupees and two gold rings to the stranger who, in due course, delivered the goods. The police, not too surprisingly, did not believe him. They suspected that he had come to Hong Kong to obtain a forged visa. That suspicion was fortified by what he told them next. He had come to Hong Kong two months prior to his arrest, in January 1996, he said, to do business. He said he was in the garment industry, and had come on this occasion to inspect garments with a view to buying only on the next visit. Yet he could not name one shop or outlet which he had visited in the course of pursuing this interest. He insisted, however, that at all times he had thought the visa genuine.

9. The appellant did not himself give evidence.

10. It is patently clear that the story the appellant gave to the police was untrue from start to finish. It was a fairy story. Yet that did not prove the case against him. The points taken on appeal do not go to the real merit of the matter; they are points which are purely technical save in relation to one ground which relates to the magistrate's record. But, of course, they are points which the appellant is entitled to take, and they must be examined thoroughly.

11. The magistrate expressed himself to be sure that the visa was a forgery, and he relied for that conclusion on the following evidence :

(1) the chemist's comparison with the control sample; he noted in the course of summarising this evidence the evidence about the chemical erasure of the original; and

(2) the Consul's evidence that there was no embassy in Colombo.

He was fully satisfied that the appellant knew the visa to be false not only because he rejected the appellant's story, but because he noted that the purpose of the visa was stated in it to be a visit to family whereas there was no stop intended, save in transit for Copenhagen. The appellant had been unable to account for his two months' presence in Hong Kong.

12. The points on appeal are these : first, that the evidence of the chemist was of no use since it relied on a comparison with a control sample, when it is said there was no evidence that the control sample was a sample of a genuine visa issued by the Danish Consulate in Colombo.

13. That left, it was said, the embassy point. The argument there is that the Danish Consul's evidence that there is no Danish Embassy in Colombo is inadmissible evidence because it infringes the rule against hearsay.

14. As for the suggestion that there was no evidence that the control sample of the visa or visas was a sample of a genuine visa from the Danish Consulate in Colombo, that may have arisen at first because the record states that the Consul identified exhibit P2 as the genuine sample. It seems obvious enough to anyone reading the transcript that that was an error in the number attributed to the exhibit which the Consul was identifying. P2 was the air ticket, whereas the control sample which the chemist had examined was P3. Nevertheless, Mr Walters was, as he was entitled to do, not prepared to accept the suggestion that the record contained an error, so a letter was written to the magistrate who confirms that it should indeed read "P3". That is now accepted on the appellant's behalf.

15. It is true that the evidence of the Consul does not show her as saying in actual terms that exhibit P3 was a genuine sample of the visa or visas issued by a consulate in Colombo, but the implication was, in my judgment, as clear as can be, that the sample was a genuine sample of genuine and valid visas issued by Danish Consulates. It is not suggested that she was not qualified to say so. There is nothing in this point and subject to the third ground, this would dispose of the appeal.

16. It was suggested that the Consul was not qualified to say that there was no Danish Embassy in Colombo even though she has been in the Danish Foreign Service for 25 years; and it is suggested that the evidence is hearsay. It is difficult to see how else the Danish Government can prove such a matter other than by the evidence of one of its servants or agents of senior rank whose direct experience over 25 years will have placed her in personal possession of this information. I had thought that it would not be suggested that one requires the evidence of someone who had, for example, cycled the streets of Colombo and failed to find a Danish Embassy. Even that perhaps would not be fool proof. Mr Walters was driven to suggest that a certificate from the Foreign Secretary of Denmark was necessary, which could then be produced under section 22 of the Evidence Ordinance, but he resiled from the suggestion when it was put to him that the logic of his previous argument suggested that the Foreign Secretary, unless he had been to Colombo, could not give the evidence sought. In that case, Mr Walters contended, the witness would have to be the Consul in Colombo.

17. There is, in my judgment, nothing in the points taken. I do not really need, in the circumstances, to address the question of whether the Consul was an expert entitled to give this evidence in that capacity - although an expert she clearly is - and whether the magistrate has expressly to say she was. There was no challenge to the facts she put forward, and she stated, unchallenged, that she had been in the Foreign Service for 25 years. I do not think the failure in those circumstances to say that she was an expert would be fatal in the particular circumstances of this case.

18. There was a further matter raised by Mr Walters. He noticed that in the Statement of Findings the magistrate had said this :

"The appellant was a man with a clear record and I took this fully into account when considering the evidence against him and his propensity to commit the offence charged. He did not give evidence and I drew no adverse inference from that."

However, it is clear from the record of proceedings that the magistrate was only told of the fact that the appellant had a clear record until after he had delivered his verdict. The record of the proceedings contains a section entitled "Verdict" which records the thrust of what the magistrate said before announcing his decision on the question of guilt. Those pages begin :

"The defendant did not give evidence and I drew no conclusion from that."

But there is naturally no reference there to the clear record of the appellant. Implicit in Mr Walters' concern was that the suggestion by the magistrate, to be found in the Statement of Findings, that he had taken something into account which he could not have taken into account, ought to cause this court to question whether the court at first instance had in fact given the issues in the case the proper consideration which those issues deserved; a matter of no small significance, he said, when the defence was very much allied to issues of credibility.

19. I therefore adjourned the hearing of the appeal to enable the magistrate to address the issue thus raised. He has done so. In his written response to a letter sent by this court, the magistrate says as follows :

"I was in error in referring to the appellant's record of previous convictions in my Statement of Findings. This was due to an error in my transcription from my rough notes and should have read 'that the defendant did not give evidence and I drew no adverse conclusion from that'. This would have followed the verdict given on 23rd May 1996."

20. It is not entirely easy to follow what happened, but in any event, Mr Walters asserts that the Statement of Findings is of central significance and ought to enable the court to be satisfied that the reasoning of the magistrate has been set out and is clear. I have looked carefully at the magistrate's Statement of Findings. It constitutes a very careful and full analysis of the evidence. What is more, his findings and the basis for them are fully explained and there is ample justification for the conclusions which he has reached. The Statement of Findings shows, in other words, that he has actually applied himself to the facts of this case, and I am satisfied that his reference to previous convictions does not evidence anything that turns the Statement of Findings as a whole into some standardised or ritual incantation, divorced from a genuine and conscientious consideration of the particular case, the evidence in it, and the defence advanced. That conclusion is fortified by the fact that the reasons for verdict themselves illustrate a clear and adequate analysis of the issues. I am satisfied that nothing untoward is evidenced by the matter that Mr Walters has raised.

21. In the circumstances, this appeal against conviction is dismissed.

22. Mr Walters seeks leave to abandon the appeal against sentence. He is wise to do so. The sentence which, on the evidence presently before me, the magistrate ought to have imposed was one of 18 months imprisonment, and pursuit of this appeal would have raised the very real possibility of an increase by this court of the sentence the magistrate in fact imposed. The appellant has, in the event, leave to abandon the appeal against sentence, and accordingly, that appeal is also dismissed.