HKSAR v. HARJIT SINGH

CACC 91/2022

[2023] HKCA 443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 91 OF 2022

(ON APPEAL FROM DCCC NO 501 OF 2019)

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J U D G M E N T

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1.  On 17 June 2022, the applicant was convicted after trial before District Court Judge Casewell (the judge) of one charge of possession of forged identity cards, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap 177 (Charge 5); and one charge of possession of unlawfully obtained travel documents, contrary to section 42(2)(c)(i) and section 42(4) of the Immigration Ordinance, Cap 115 (Charge 6). He was sentenced to a total of 15 months’ imprisonment.

2.  On 28 June 2022, the applicant filed a notice of application for leave to appeal against conviction.

The brief facts

3.  The facts relevant to the present appeal can be summarised as follows. On 1 November 2017, Immigration officers searched a grocery store owned by the applicant in To Kwa Wan (the store) pursuant to a search warrant (the search warrant). The applicant was present during the search. The officers recovered three forged identity cards (subject matter of Charge 5) and two Philippine passports (subject matter of Charge 6). The owner of the two passports testified that she had lost them on 18 May 2016[1]. The search warrant was issued on 30 October 2017 by a magistrate[2] on the information provided by an Immigration officer (PW2) in an unsworn declaration[3].

4.  At the trial, the applicant challenged the validity of the search warrant and the admissibility of the subsequently seized items on three grounds:

(a) the magistrate used the wrong statutory test to issue the search warrant;

(b) the application for the search warrant was not made on oath by the Immigration officer attesting; and

(c) no proper reasons were given for why it was suspected that the applicant was a member of a forged Hong Kong identity card syndicate[4].

5.  The judge ruled against the applicant, holding that the search warrant was valid and properly issued. Accordingly, the items seized were admissible. In his reasons for verdict, the judge set out his reasons for the ruling as follows[5]:

“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.”

The applicant’s submission

6.  Mr Simon Young, who appeared for the applicant at trial and in this application, advances three grounds of appeal for the applicant, which are referred to as questions of law[6].

7.  Ground 1 avers that the search warrant was invalid and the judge erred in law in holding it was not, because:

(a) the terms of the search warrant signify that the magistrate applied the standard of “reasonable cause to suspect” for the issuance of the warrant;

(b) the information presented to the magistrate and upon which the magistrate made her decision was not given “on oath”; and

(c) the information was insufficient to satisfy the “reason to believe” standard required of under section 13C(1) of the Immigration Service Ordinance, Cap 331 (section 13C)[7].

8.  Mr Young abandones Ground 1(a) and only relies on Ground 1(b) and (c). Mr Young cites George v Rockett[8] to argue that the judge erred in holding that an affirmation or declaration can be used instead of an oath[9] and that there was sufficient information to justify the issue of the search warrant[10].

9.  In addressing Ground 1(b), Mr Young submits that the information supporting the issuance of the warrant had to be “on oath of a member of the Service” and the unsworn declaration did not conform with section 7(1) of the Oaths and Declarations Ordinance, Cap 11. In addressing Ground 1(c), he refers to a series of New Zealand authorities which culminate in the decision of R v Williams [11], where the Court of Appeal laid out general principles applicable to the drafting and issuing of search warrants[12].

10.  Ground 2 argues that if the search warrant was held invalid, without other legal authority for the entry, search and seizure, the search at the store would have been unlawful[13], infringing the constitutional rights guaranteed by Article 14 of the Hong Kong Bill of Rights (BOR14)[14] and Article 29 of the Basic Law (BL29)[15]; and the court ought not to exercise its discretion to receive into evidence the items found from the search.

11.  Mr Young submits[16] that the prosecution would have difficulty in satisfying the relevant test for “receiving” the evidence in breach of the applicant’s constitutional rights as laid down in HKSAR v Muhammad Riaz Khan^[17]. He argues that without those seized items as evidence, the applicant would have no case to answer on the two charges. He contends that the judge failed to address the issue in his initial ruling or reasons for verdict despite the matter being fully argued before him.

12.  Ground 3 avers that in respect of the two passports in Charge 6, the judge erred in law in applying the wide interpretation of “unlawfully obtained” in section 42(2)(c)(i) of the Immigration Ordinance, Cap 115[18]. Mr Young argues that it should be interpreted as “unlawfully obtained from an issuing authority” (the narrow interpretation) instead of “unlawfully obtained from any person at any time” (the wide interpretation)[19]. He submits that if the narrow interpretation is adopted, the applicant would have no case to answer for Charge 6 as the two passports in question are valid passports, thus not unlawfully obtained from the issuing authority. The judge failed to address the issue in his reasons for verdict despite it being fully argued before him.

The respondent’s submission

13.  As for Ground 1, the respondent submits that Apple Daily Ltd v Commissioner of the ICAC (No 2)[20] has laid down the relevant principles in determining the validity of search warrants. There is no evidence to suggest that the magistrate had misunderstood the statutory requirements under section 13C or misapplied them before issuing the search warrant. How the information was drafted did not logically follow that the magistrate did not have “reason to believe” that the applicant’s store contained evidence which may be required in proceedings for an offence under the Immigration Service Ordinance, Cap 331[21].

14.  Whilst the unsworn declaration made by the Immigration officer may not be in full compliance with the form set out in Schedule 1 to the Oaths and Declarations Ordinance, Cap 11, it is argued that this was only a minor drafting error. It did not cause any prejudice or lead to substantial abuse to the applicant. It also did not amount to a legal defect which would invalidate a search warrant[22] as envisaged by the Court of Appeal in R v Saunders[23].

15.  It is finally submitted that reading the contents of the information as a whole, it was implicit that the suspected identity of the applicant as a member of the criminal syndicate was apparent from the operation against illegal workers in December 2016. Accordingly, there was more than sufficient information to justify the magistrate’s reasonable belief for issuing the search warrant[24].

16.  As for Ground 2, the respondent submits that if the search warrant was found to be invalid, the court should exercise its discretion in favour of the prosecution in admitting the relevant evidence because:

(a) the evidence of the forged identity cards and lost passports was central to the prosecution case and highly reliable, and the admission of the evidence was not adverse to the applicant’s defence which was that the seized items were left by his customers and he had no knowledge of their nature[25];

(b) the drafting error on the information and the search warrant was minor and technical in nature, and was not made deliberately or in bad faith, thus it was a very limited breach or derogation of the applicant’s constitutional rights. In carrying out the balancing exercise, considerable weight should be placed on the interest of the detection and punishment of crime in this case[26]; and

(c) the admission of the evidence appears unlikely to encourage any future breaches of the applicants’ rights[27].

17.  As for Ground 3, the respondent submits that the narrow interpretation suggested by the applicant was unduly restrictive and contrary to authorities[28]. The judge had not erred in interpreting an “unlawful obtained” travel document in the present case.

Consideration

18.  A person’s right of appeal against conviction and the basis on which it can be made is governed by section 82 of the Criminal Procedure Ordinance, Cap 221. An appellant whose appeal against conviction is on any ground which involves a question of fact alone, or a question of mixed law and fact, or on another ground which appears to the Court of Appeal to be a sufficient ground of appeal, may appeal with the leave of the Court of Appeal: section 82(2)(b). An appeal on any ground which involves a question of law alone does not require leave nor does a case fit for appeal that has been certified by the trial judge: section 82(a) and (b).

19.  It is important therefore to be able to distinguish when the ground of appeal involves only a question of law because this will entitle an appellant an automatic right of appeal to the Court of Appeal. The distinction between a question of law and one of mixed law and fact can be elusive and notoriously difficult. It is for that reason that these concepts are not clearly defined and need to be assessed on a case-by-case basis. Describing a ground of appeal as a question of law is not enough to qualify as one for an appellant to have a right of appeal without leave. A question of law has to involve a pure point of law which is not allied to or interwoven with a factual complaint, otherwise it is likely to be a question of mixed law and fact. However, a question of mixed law and fact normally involves an issue as to whether the facts satisfy a legal rule or principle, but sometimes that legal rule or principle is also in question. Broadly speaking, a question of law involves an issue regarding the application or interpretation of a law, including questions as to jurisdiction, duplicity, allegation of an offence not known to law, interpretation of the wording or construction of a statute, misdirection on the law, and so on.

20.  Having heard from the parties, I am satisfied that the Ground 1(b) and Ground 3 involve questions of law, and hence the applicant does not require leave to appeal. Grounds 1(c) and Ground 2 involve questions of mixed law and fact, and I am satisfied that these grounds are reasonably arguable and leave is therefore granted to the applicant to appeal these grounds to the Court of Appeal.

21.  Ground1(c) concerns, on an objective assessment, whether the information set out in the Information for a Search Warrant provided a factual basis to satisfy the test of “reason to believe” to issue the search warrant in question. This will involve an examination of the relevant legal principles that apply when an issuing magistrate considers an application for a search warrant under section 13C(1). Mr Young stresses the role of an issuing magistrate as a “gatekeeper”, ensuring that the prescribed circumstances exist for the issuance the warrant.

22.  Ground 2 only arises if Ground 1 is successful. It seeks to address the next step after a search warrant is determined to be invalid and the search unlawful, namely whether the unconstitutionally obtained evidence may be received in evidence: HKSAR v Muhammad Riaz Khan.