ATTORNEY GENERAL v. YEUNG LUI

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BETWEEN

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J U D G M E N T

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1. This is an appeal by way of Case Stated by a Magistrate under the provisions of Section 105 of the Magistrates Ordinance from a refusal to grant forfeiture of a passport. The appellant who was convicted on her own plea of (A) making a false statement to an Immigration Officer contrary to s.42(l)(b), Imm. Ord.; (B) using an unlawfully obtained travel document contrary to s.42(1) (b), Imm. Ord. and (C) making a representation knowing it to be false to an Immigration Officer, contrary to s.42(l) (a), Imm. Ord. The case has been stated in the following terms :-

"The Respondent initially pleaded not guilty to those charges.

2. The Respondent appeared before me on the 24th day of June, 1988. She was legally represented. She pleaded guilty to each of the, foregoing charges. She also admitted the following facts to be true :-

On 25th May 1988, the defendant" arrived in Hong Kong from China and presented for Immigration Examination with an Argentinian passport No. 12574571 in the name of YOUNG Leila. She also submitted a duly completely Immigration Arrival Card and in accordance with the personal particulars recorded on the said passport, she falsely represented that she was born on 15th March 1983. (Subject matters of charges B & C). Accordingly, the case was referred for investigation.

Enquiries revealed that the defendant was actually born on 15th March 1961 in China and is a resident of China. In September 1907, she sneaked from China to Macao arid there a Chinese male 'CHOU Dunhill' arranged a Philippine passport in name of YOUNG Leila for her at a cost of HK$40,000,00. On 17th October 1987, the defendant came to Hong Kong from Macao and upon arrival examination, she furnished the said Philippine passport and a duly completed Hong Kong Immigration Arrival Card and falsely stated that she was a Philippine National. (Subject matter of Charge A). She was allowed entry and permitted to remain as a visitor until 17th January 1988.

On 13th January 1988, the defendant went with CHOU to Australia and there she was made known that an Argentinian passport could be arranged for her. Ten days later, she went to Argentina and obtained the said Argentinian passport at a cost of US$10,000.00. The defendant understood that for getting Argentinian nationality and passport, one has to live there for two years. As she did not want to stay long in Argentina, she had to pay money for other to arrange the passport for her. She was aware that her age recorded on the said passport had been understated for 2 years. On 31st March 1988, the defendant used the said passport for coming to Hong Kong and used it for applications to the Immigration Department for extension of stay, re-entry visa, and also two trips to China. However, she was apprehended when she used it for arrival on 25th May 1988.

3. I convicted her of the foregoing charges and sentenced her to an overall effective sentence of 2 months imprisonment.

4. I adjourned the issue of the disposition of the Argentinian passport referred to in charge B above and the summary of facts above to the 8th day of July, 1988. I ordered that the Appellant hold the passport until that day.

5. Prior to the hearing on the 8th day of July, 1988, the Appellant duly filed an application in writing for forfeiture of the said passport under section 46A of the immigration Ordinance. A true copy of the application was served on the Respondent. The form of the said application complied in all respects with section 46A of the Immigration Ordinance.

6. On the 8th day of July, 1988, Crown Counsel appeared for the Appellant in support of the application for forfeiture. The Respondent was represented by her solicitor. Crown Counsel submitted that :

(a) the terms of section 46A of the Immigration Ordinance required forfeiture unless the court before which the application was made is satisfied that it would be unjust to order forfeiture or that there is other good reason not to make such an order.

(b) that while the passport, the subject of the application, was not deemed to be unlawfully obtained by reason of section 42(3) of the Immigration Ordinance because that provision applies only for the purpose of the section, the Respondent had by her plea of guilty to charge B admitted that the said passport was unlawfully obtained.

(c) the admitted facts (which were binding by reason of section 65C of the Criminal Procedure Ordinance) not only did not contradict the proposition that the passport was unlawfully obtained, but rather supported that in that she had to pay US$10,000 for the passport to be arranged despite not complying with the Argentinian residence requirements.

7.    The Respondent's solicitor submitted that there was no evidence to prove that the passport was unlawfully obtaianed under Argentinian law. She called no evidence.

                        8.     I held that :-

               Section 42(3) Immigration Ordinance, Chapter 115 deems a passport to be unlawfully obtained if a false statement or representation is made. However that deeming provision does not have extra-territorial effect and only applies to persons entering, remaining or existing from Hong Kong.

                Confiscation of a foreign nationals passport is a matter that should be approached with extreme care and caution. Simply because a passport is deemed to be unlawfully obtainaned by virtue of section 42(3) Chapter 115 for the purposes of Hong Kong Law it may not necessarily mean that, that passport is unlawfully obtained in the country of its issue. Before the Court would even begin to consider the question of forfeiture of a foreign passport from a foreign national it would require evidence from either an expert on the laws of the country issuing that passport or from a Government Official of that country to establish that the passport was unlawfully obtained contrary to the laws of the country of issue.

                In the instant case the agreed facts do not assist as in no way can I regard the defendant as an expert on Argentinian Law.

                There is the further issue of section 46(3). I take Judicial Notice of the fact that the ownership of a passport is vested in the country of issue. I am therefore obliged to give an opportunity to the Government of Argentine to be heard on the question of forfeiture.

[There was no proof before the Court that the Argentinian Governmant was in the least aware of this application for forfeiture].

                If the Argentinian Government after being properly notified of the Application for Forfeiture of one of its passports, on the basis that it was unlawfully obtained, declines to be heard on the matter then I believe I must incline to the view that they do not consider the passport to have been unlawfully obtained.

9. The questions of law arising on the foregoing statement for the opinion of this court therefore are :

Firsty Defore proceeding to consider an application for forfeiture of a Foreign Passport purportedly issued to a Foreign National is it necessary for me to be satisfied that, that passport was unlawfully obtained in the country issuing that passport.

Secondly do the admissions by the Respondent in her plea of guilty to the "B" charge (taken either alone or with her other admissions) constitute evidence that the said passport was unlawfully obtained for the purposes of an application for forfeiture of the said passport under section 46A of the immigration Ordinance?

Thirdly if the answer to the first question is in the affirmative, was there sufficient evidence before me to justify an order for forfeiture of the said passport under section 46A?

Fourthly if the answer to the first question is in the negative, was there, despite such a conclusion, evidence sufficient to justify an order for forfeiture under section 46A of the Immigration Ordinance?

Fifthly was there any evidence before me which was in law capably of justifying a conclusion either that an order for forfeiture of the said passport would be

(a) unjust or

(b) there is other good reason for not doing so within the meaning of section 46A(2) of the Immigration Ordinance?

Sixthly as it appeared to me that ownership of the passport was vested in the Argentinian Government then in terms of section 46A(3) Chapter 115 is it a prerequsite to making an order for forfeiture of the passport to give the Argentinian Government an opportunity to be heard as to why such an order should not be made.

Seventhly in view of the foregoing, in the light of the evidence which was relevant and admissible in relation to the determination of the application, was I bound to conclude that the said passport should be forfeited."

2. This first question is phrased in very general terms and would appear to be designed to elicit from the Court an answer to a much wider question than that which arose in these proceedings. What the Magistrate was concerned with was an Argentinian passport, the subject matter of the B charge in respect of the use of a travel document which had been unlawfully obtained. The application for forfeiture was made under the provisions of Section 46A of the Immigration Ordinance.

3. Mr Coghlan who appears for the appellant acknowledges that the appellant had made its application under the wrong section. Section 46A provides :-

"(1)    An application may at any time be made by the Attorney General to a magistrate in the prescribed form, or .................... or the High Court by motion, for forfeiture under subsection (2) of any property other than a ship or vehicle.

(2)    If in the course of a prosecution for an offence under section 38(1) or under section 90(1) of the Criminal Procedure Ordinance where the arrestable offence which a parson has committed is an offence under section 38(1), or of the hearing of an application made under subsection (1) by the Attorney General for forfeiture under this section, it appears to the court that any property other than a ship or vehicle -

(a)    has been, is being or is intended to be used in the commission on to procure or facilitate the commission of such an offence, or

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the court shall, whether or not any person is convicted of any such offence, order the forfeiture of such property unless it is satisfied that is would not be just to do so or that there is other good reason why it should not do so.

(3)    Where it appears to a court which is considering making an order for forfeiture under this section that a person who is not before the court may claim ownership of, or an interest in, the property which may be forfeited, it shall give that person an opportunity to make representations to the court as to why such an order should not be made."

4. Mr Coghlan points out that subsection (2) refers to Section 3S of the Immigration Ordinance or Section 90 of the Criminal Procedure Ordinance. Sub-paragraph (a) refers to the commission of "such an offence". The respondent in this case was charged with an offence under Section 42(2)(b) of the Immigration Ordinance. Thus, Says Mr Coghlan, Section 46A seems to be confined to Section 38 and Section 90 offences and not Section 42 offences. He submits, however, that this should not prevent this court from answering the questions on the basis that the application had been made under Section 102 of the Criminal Procedure Ordinance.

5. Mr McCoy who appears before me as Amicus Curiae, and to whom I am therefore much indebted, supports Mr Coghlan's contention that Section 46A did not permit the forfeiture of a travel document which had been used in the commission of an offence contrary to Section 42 (2) (b). He does, however, dispute Mr Coghlan's contention that the general provisions of Section 102 of the Criminal Procedure Ordinance grants the court power to forfeit the travel document in the circumstances of this case. He refers in particular in this connection to subsection (6) of Section 102 which is in the following terms :-

"Where by any other ordinance it is provided that any particular property or class of property shall or may be forfeited, destroyed or disposed of, then the provisions of such ordinance shall prevail."

6. Thus, says Mr McCoy, one has to consider whether the Immigration Ordinance has provided that any particular property or class of property shall or may be forfeited and the answer he says is that it clearly does because Section 46A(1) expressly says that an application may be made ..........……. for forfeiture under subsection (2) of any property other than a ship or vehicle. Section 102(6) therefore goes out of the window because that would only apply if the Immigration Ordinance did not cover it. The Immigration Ordinance does cover a class of property, namely "any property other than a ship or vehicle". Thus says Mr McCoy, there is a lacuna in our law but one which it would be vary easy for the Attorney General to remedy.

7. I respectfully agree with both counsel's contention that the application under Section 46A was misconceived. Further, although there had been very useful submissions to this court about the points raised by the Magistrate in his Case Stated, I do not think it would be appropriate for me to answer any of the questions for the reason that the application for forfeiture of the travel document was made under the provisions of Section 46A of the Immigration Ordinance and not Section 102 of the Magistrates Ordinance. It would, therefore, be inappropriate for me to comment on the powers of the Magistrate under Section 102 of the Magistrates Ordinance, when no application was made thereunder and no arguments were addressed to the Magistrate in respect of the powers which he would have under that section.

8. This court should not be required to answer hypothetical questions which were not raised before the Magistrate and are not set out in his Case Stated.

9. The fact of the matter is that the forfeiture provisions in Section 46A of the immigration Ordinance are just not wide enough to cover the situation and the Magistrate was therefore not bound to conclude that the said passport should be forfeited under that section. I cannot therefore answer the questions as framed and the appeal is dismissed.