R. v. JERRY WOLF STUCHINER

IN THE COURT OF APPEAL

1996, No. 476
(Criminal)

- Headnote -

Criminal law - Accused pleaded guilty in the District Court to a charge which was a nullity or alternatively the conviction was one which was liable, in view of the admitted facts, to be set aside by the Court of Appeal on appeal. Conviction quashed.

Observations by Court of Appeal on the inherent jurisdiction of the APPEAL COMMITTEE, being a court of unlimited jurisdiction for the administration of justice, has a reserve of power exercisable outside the frame-work of the Criminal Procedure Ordinance: a jurisdiction which enables the court to function effectively as a court, in circumstances where statutory rules do not provide the answer.

IN THE COURT OF APPEAL

1996, No. 476
(Criminal)

_______________

_______________

_______________

J U D G M E N T

_______________

Litton, V.-P. (giving the judgment of the Court):

1. This matter first came before us on 17 April 1997 as an application for leave to appeal against sentence. Difficulties have arisen and the background needs to be explained.

2. The applicant pleaded guilty in the District Court to one charge of possession of forged documents, contrary to s42(2)(c)(i) of the Immigration Ordinance, Cap 115, and was, on 16 August 1996, sentenced by HH Judge Beeson to a term of three years four months' imprisonment.

3. The facts briefly are these. The applicant is a US citizen and was, in July last year, the officer in charge of the Immigration and Naturalization Service (INS) in the American Embassy in Honduras. He had, by then, served for over 20 years in the INS in various countries, including a period of about 5 years in the American Consulate in Hong Kong, between 1989 and 1994.

4. On 15 July last year the applicant arrived at Kai Tak Airport from Los Angeles. He was on vacation leave and therefore not entitled to use his diplomatic passport. He was observed to use that passport to negotiate immigration channels. He was stopped and when searched five blank instruments resembling blank Honduras passport forms were found on him. Each contained a chop and a signature but were otherwise left blank: In other words, no particulars as to any holder appears in those documents and there are, of course, no photographs of holders. The applicant knew that they were false documents and intended to deliver them to the Consul-General for the Republic of Honduras in Hong Kong. He knew that those instruments were to be traded.

5. The judge treated this case as one of a gross breach of trust and, taking six years as her starting point, sentenced the applicant to a term of three years four months in prison.

6. When this application came before this Court on Thursday 17 April, Mr McWalters, Senior Assistant Crown Prosecutor, pointed out a difficulty he faced: The charge, instead of being brought under s75 of the Crimes Ordinance, Cap 200 - as is usual in these cases - was brought under the Immigration Ordinance. The charge reads:

"Statement of Offence

Possession of forged documents, contrary to section 42(2)(c)(i) of the Immigration Ordinance, Cap. 115.

Particulars of Offence

Jerry Wolf STUCHINER, on the 15th day of July 1996, in Hong Kong, had in his possession forged, false or unlawfully obtained travel documents, namely five blank Honduras Passports numbered 645274, 617985, 521282, 512420 and 741369."

7. The core of the offence is the possession of false travel documents. The expression "travel document" is defined in the Ordinance as follows:

"Travel document means a passport furnished with a photograph of the holder, or some other document establishing to the satisfaction of an Immigration Officer or Immigration Assistant the identity and nationality, domicile or place of permanent residence of the holder."

8. Plainly, the blank instruments in the applicant's possession, at the time of his arrest, were not "travel documents". In other words, the charge itself is internally self-contradictory. Moreover, pursuant to the statement of admitted facts, which described the nature of the false instruments, it is quite clear that the applicant could not have been guilty as charged.

9. Confining attention to the charge alone, the applicant has been convicted, upon his own plea, on a charge which is a nullity. Further, the applicant, upon the admitted facts, could not - despite his own plea - have been found guilty as charged, since he never had "travel documents" in his possession. The conviction was therefore liable, from the inception, to be set aside.

10. We adjourned the hearing of the application for leave to appeal against sentence on 17 April to enable legal aid to be provided to the applicant and for further consideration of this matter.

11. It is now quite clear to us that the points raised on 17 April are unanswerable. In other words, the applicant has, since 16 August last year, been serving a sentence of imprisonment which is unsustainable in law.

12. What, then, is the proper course for this Court to adopt in the circumstances which have emerged?

13. This Court, being a superior court of unlimited jurisdiction for the administration of justice, has a reserve of power which is sometimes identified as the inherent jurisdiction of the court. This jurisdiction is exercisable outside the framework of the Criminal Procedure Ordinance: A jurisdiction which enables this court to function effectively as a court, in circumstances where statutory rules do not provide the answer.

14. The applicant has, on 22 April, lodged an application for leave to appeal against the conviction out of time: an application to which we must plainly accede. This provides a separate juridical basis for quashing the conviction.

15. Counsel Mr Wright, who has recently been brought in by Legal Aid, has asked us to go further and submits that, upon the basis of facts which have already been admitted, we should substitute the conviction by one under s75(2) or 76(2) of the Crimes Ordinance. We cannot agree. If it be right that, upon the admitted facts, the applicant must stand convicted of some other offence, that is a matter for the lower courts, upon a fresh charge being brought against the applicant. This court is not concerned at this time with the possibility of further charges being brought against him.

16. The conviction recorded in the District Court on 16 August 1996 is quashed and the applicant must be discharged from custody.