CHIU SIN WAI v. R.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.505 OF 1996

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D E C I S I O N

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1. The appellant was convicted after trial of two charges, namely, making a false instrument, contrary to s.71 of the Crimes Ordinance, Cap 200 and assisting an offender, contrary to s.90(1) of the Criminal Procedure Ordinance, Cap 221. He was sentenced to 15 months imprisonment on the first charge and six months on the second, part of which, namely, three months, is to run concurrently with the first sentence, making a total of 18 months. He now appeals against his convictions.

The evidence

2. For the purpose of the present appeal, most of the evidence given at the trial is not in dispute. The prosecution case is this.

3. PW1 was a Chinese resident who was married to a Hong Kong citizen. On 30th July 1994, she came to Hong Kong using a two-way permit through the Lo Wu checkpoint. Her permit was to expire on 23rd October 1994. She passed by the immigration counter where the appellant who was an Immigration Officer was posted. Having finished the immigration procedure, she was asked by the appellant to give him her telephone number. She gave it to him thinking that it was for the purpose of contacting her by the Immigration Department. Two days later, the appellant telephoned her and invited her to come out for a meal. She refused. On the following few days, the appellant made similar phone calls to her but she declined those invitations.

4. On 6th August 1994, the appellant telephoned PW1 again and suggested to her that he could extend her stay in Hong Kong. He asked PW1 to have a meal with him on 10th August 1994 so that he could arrange for her extension. PW1 agreed. On 10th August 1994, at about 7 p.m. the two met in a restaurant. The matter of extension of stay in Hong Kong was discussed. The appellant took out three stamps and a stamp pad. Using the stamps, he put some stamps on PW1's two-way permit purporting to extend her stay in Hong Kong to 27th December 1994. He also asked her to cross out the date of 23rd October 1994 on the permit and initial against it. The appellant also put some water on the page to make it blur. The appellant told PW1 that he would charge others for doing that, but PW1 could be his girlfriend instead. During the course of the meal, the appellant touched PW1's hand and put his hand around her waist. PW1 felt rather uneasy and hence left the restaurant. After that occasion, the appellant telephoned PW1 several times but PW1 refused to go out with him again.

5. Between November and December 1994, on 5 different occasions, the police came to PW1's home and conducted a raid there, apparently having received information that the premises were involved in drug and prostitution activities. At the end of December 1994, PW1 could not tolerate this. The matter was referred to the police. The Immigration Department was notified. The Independent Commission Against Corruption took over the case and started investigation. Over the next few months, upon the directions of the ICAC, PW1 made contacts with the appellant on the telephone and at one meeting. She pretended to seek further extension and/or advice from the appellant. All these conversations were taped by a pre-arranged recorder provided by the ICAC. From the taped conversations, it is clear that the appellant had given her some advice on what to do, particularly how PW1 could leave Hong Kong and enter China even though her permit had expired. The two-way permit in question was examined by a Chief Immigration Officer at a later stage. This witness had described the stamps as rather amateurish and were blatantly incorrect and that one could easily see that there was something wrong with the stamps.

6. At the trial, the appellant gave evidence and called a number of witnesses. The defence was that he did not meet PW1 on 10th August and did not put the stamps on her two-way permit. I do not think I need to go into details of the defence evidence for the purpose of this appeal. The only grounds of appeal are, as described by counsel for the appellant, purely technical and do not turn upon his evidence given at the trial.

7. The learned Magistrate having assessed the evidence at length found that the appellant had indeed put those stamps on PW1's two-way permit and that they were false. He came to the conclusion that the charge was proved beyond reasonable doubt and convicted the appellant on these two charges.

Grounds of appeal

8. Counsel for the appellant, who did not appear before the learned Magistrate, relied on two grounds of appeal, one in respect of each offence. He had quite fairly described them as technical grounds. In respect of the first charge, counsel submitted that in order to convict the appellant of the offence, it was necessary to prove, among other things, a "double intention", namely, the intention to induce a person to accept the stamp as genuine and the intention to induce that person to act to his/her prejudice. He referred me to the English cases of Tobierre (1986) 82 Cr App R 212 and Garcia (1988) 87 Cr App R 175. It was submitted that these authorities which dealt with s.3 of the Forgery and Counterfeiting Act 1981 which used similar wordings as our ss.71 and 73 held that proof of the double intention was necessary. It was further argued that these sections of the Crimes Ordinance should also be read in conjunction with s.70(1). This latter provision defines the situations in which an act or omission intended to be induced is to a person's prejudice. The relevant part would be paragraph (f). Counsel submitted that the combined effect of ss.70 and 71 was that it must be shown that the prejudice is not only potential but certain to happen if it occurs. He further argued that the purpose of the appellant putting the false stamps on PW1's two-way permit was probably to fool PW1 only so as to enable him to pursue his ambition to court her. The double intention and prejudice could not, as a matter of cause, follow from what the appellant did. In any event, counsel pointed out that the learned Magistrate did not deal with the question of intention let alone double intention in his Reasons for Verdict. It was his duty to consider the question of intention on the part of the appellant. This the learned Magistrate had failed to do.

9. In respect of the second charge, counsel submitted that during the period covered by the charge, namely, between 30th January 1995 and 2nd April 1995, PW1 was not an offender. Hence, it was argued there was no question of the appellant assisting an offender contrary to s.90(1) of the Criminal Procedure Ordinance. Counsel submitted that the Immigration Department had in fact granted an extension to PW1 to stay in Hong Kong and that there was no evidence that she was an offender during the period in question.

The forgery charge

10. It is true that the learned Magistrate did not in his Reasons for Verdict refer to the question of intention on the part of the appellant. It is also correct that specific intention is an ingredient of the offence. However, it is only fair to point out that the main, if not the sole, issue in dispute before the learned Magistrate was whether it was the appellant who had put the false stamps on PW1's two-way permit. The learned Magistrate dealt with the evidence in great detail. He analysed the evidence in the light of the submissions made by counsel for both the prosecution and the defence. He gave reasons as to why he was satisfied that PW1's evidence was truthful and reliable. He came to the conclusion that he was satisfied beyond reasonable doubt that the appellant had put the stamps on the two-way permit. In the Reasons for Verdict, the learned Magistrate said he was satisfied that the charge had been proved beyond reasonable doubt. There are of course many ingredients in the charge. What he said must mean that he was satisfied that each of the necessary ingredients of the charge had been established to the requisite standard of proof. I do not think it can be said that he had not considered the issue of intention.

11. With respect, counsel's submissions on the first charge would have greater force if the charge in the present case had been one under s.73 of the Crimes Ordinance. However, the appellant was charged and convicted of s.71 of that Ordinance. The wordings of these two sections are similar but not the same and I think the difference is important. In my view, while the Court of Appeal in England in the Tobierre and Garcia cases correctly construed s.3 of the Forgery and Counterfeit Act 1981 (the equivalent of s.73 of the Crimes Ordinance), there does not seem to be any direct authority on s.1 of the 1981 Act which is the equivalent of s.71 of the Ordinance.

12. I should perhaps set out the two offences to illustrate the difference between the two.

"S.71. A person who makes a false instrument, with the intention that he or another shall use it to induce somebody 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, commits the offence of forgery and is liable on conviction on indictment to imprisonment for 14 years.

S.73. A person who uses an instrument which is, and which he knows or believes to be, false, with the intention of inducing somebody 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, commits an offence and is liable on conviction on indictment to imprisonment for 14 years." (my emphases)

13. It is clear that section 71 punishes the maker of a false instrument whereas s.73 catches its user. Under s.73, not every person who uses a false instrument will be guilty of an offence. It must be shown that first, he knows or believes the instrument to be false and second, he has at the time of using the false instrument the specific intention. According to the two English Court of Appeal's decisions, this element of specific intention requires proof of a double intention, namely, first, the intention to induce the recipient of the false instrument to accept it as genuine and second, the intention to induce the recipient of the false instrument to do or not to do something to his or another's prejudice. I would respectfully agree with this construction of s.3 of the 1981 Act (our s.73). If the person does not know or believe the instrument to be false, it is not an offence for him to use such instrument. But even if he knows or believes the instrument to be false, if he uses it for some innocent purpose or without any intention to induce somebody to accept it as genuine and to do or not to do something to his prejudice, he would not be found guilty of an offence as a user under s.73.

14. For an offence under s.71, the actus reus is the making of a false instrument. Apart from that, it is also necessary to prove the mens rea which is the specific intention of the defendant. Under this section, the specific intention relates to the act of making the false instrument. In other words, it is the person's the specific intention at the time of making the false instrument. By way of contrast, it is important to note that the words "with the intention" in s.73 qualify the act of using the false instrument.

15. What then is the necessary specific intention in a s.71 offence ? In my view, it is the intention at the time of the making of the false instrument that the false instrument shall be used by himself or by another person for the particular purpose as set out in the section. As I said, s.71 is intended to catch the maker and not the user of the false instrument which is left to be dealt with under s.73. When dealing with a maker charged under s.71, we are not so much concerned with the user (or more correctly, the person who obtains the false instrument from the maker). He (the user) may not know or believe that it is false. He may not have the requisite specific intention when he uses it. He may not even have the opportunity to use it and may not have used it at all before its falsity comes to light. Whatever happens to the user (i.e. the person who obtains the false instrument from the maker), that does not mean that the maker is not guilty of an offence if the necessary ingredients of the offence under s.71 are proved. In my view, it is not necessary to show that a maker has, in addition to his intention that the false instrument will be used for a particular purpose, also the "double intention" which is required to convict a user of the instrument. That is to say, for a s.71 offence, it is not necessary for the prosecution to prove that the maker has the specific intention to induce somebody to accept it as genuine and to do or not to do something to his prejudice. It is sufficient if it can be proved that he has the specific intention at the time of making the false instrument that the false instrument which he has made will be used by him or another person and that it is within the maker's contemplation that he or another person will use it to induce any recipient of the instrument to accept it as genuine and to do or not to do something to the recipient's or another's prejudice. Afterall he is not charged with using the false instrument under s. 73. In my view, it is clearly not the intention of the legislation to require the prosecution to prove that a maker charged under s.71 has a "triple" intention.

16. In the present case, when the appellant put the false stamps on PW1's two-way permit, he was making a false instrument. That is not disputed. Furthermore, when he made this false instrument, he knew that PW1 was anxious to have an extension of stay in Hong Kong. He knew and intended that she would rely on it, act on it and use it to remain in Hong Kong after the first expiry date. The appellant's motive might be to fool or even to defraud PW1 so that she would stay longer in Hong Kong in order that he might have the opportunity to date her. He might also hope that what he had done would please PW1 so that she would go out with him. But his intention was quite clear - he intended that PW1 would use the false instrument. He would not have intended that PW1 would put the permit aside and not use it. It must also inevitably be within his contemplation that PW1 would, if and when she was asked to produce proof of her identity, produce her two-way permit to induce the person asking for it that she was permitted to stay in Hong Kong during the currency of the extension and that that person would not take any action such as to arrest her for overstaying or to repatriate her to China immediately. In my view, under these circumstances, one can draw the irresistible inference that when the appellant made the false instrument by putting the false stamps on PW1's two-way permit, he had the specific intention as required by s.71.

17. Even if I am wrong in my construction of s.71 and that it is necessary to prove not only the specific intention that the false instrument will be used for the particular purpose set out in s.71, but also the double intention with regard to the using of the false instrument, I would also think that the court can draw from the circumstances of this case the inference that the appellant had the double intention as well.

18. It must be within his contemplation that PW1 would rely on the false stamps to remain in Hong Kong. If so, it must be within his contemplation that there might be occasions when PW1 would be asked to produce proof of her identity and would produce her two-way permit. Furthermore, however long the extension was, there would be a time when PW1 would have to leave Hong Kong. In that event, she would have to produce her two-way permit to the Hong Kong and/or the Chinese immigration authority. And if the forgery should be discovered either while she was in Hong Kong or at the border checkpoint, it is likely that PW1 would reveal that it was the appellant who gave her the extension by putting the stamps in the permit. All these must have been within the appellant's contemplation. Hence, one would not expect that he would put on false stamps which would easily be discovered or were incapable of inducing somebody to accept them as genuine and to act on them. And when he put the false stamps on the permit, he must have intended that PW1 would use it and that the stamps would work at least on someone who was not familiar with the official stamp and would rely on the stamps which he had put on the permit.

19. I note that according to the evidence, there were altogether five occasions when the police raided the premises of PW1. They had received information about the premises which was not and could not be substantiated. It is quite clear that when the police raided the premises, they would have asked PW1 for proof of her identity, that she must have handed over her two-way permit to the police officers for inspection, and that the police officers must have also inspected the permit and satisfied themselves that PW1 was entitled to stay in Hong Kong and not an overstayer. If they had not been so satisfied, they would have taken action against her already. It is therefore quite clear that even the police officers who had raided the premises on five different occasions were satisfied with the false stamps on the two-way permit. One of the witnesses described the stamps as amateurish and poor forgeries. As a Chief Immigration Officer, that witness would no doubt be in a much better position to distinguish between a genuine and a false stamp. But the evidence shows that even police officers had on at least 5 occasions accepted them as genuine and not taken action against PW1.

20. I am therefore of the view that even if it was necessary for the prosecution to prove the "double intention", the court in the present case was entitled to draw the irresistible inference that the appellant had the requisite intention when he made the false instrument.

21. For the reasons which I have given, I take the view that all the necessary ingredients of the charge under s.71 had been proved beyond reasonable doubt. This ground of appeal must fail.

The assisting of offender charge

22. It is clear from the evidence that when PW1 first came to Hong Kong, she was given permission to stay until 23rd October 1994. On 10th August, she was "given an extension" by the appellant until 27th December 1994. The appellant might, as an Immigration Officer, have the power or authority to give an extension to PW1. However, that had to be done in the proper way and through the proper channel, but certainly not in a restaurant and using false stamps. In my view, her extension between 23rd October 1994 and 27th December 1994 was not a proper or valid extension. Hence, during that period, she would have overstayed and was therefore an offender, having contravened the provisions of the Immigration Ordinance. But that was not the end of the matter.

23. The case was reported to the police, the Immigration Department and the ICAC towards the end of December 1994. When the Immigration Department was notified of these allegations, it had extended her stay for a number of times : on 23rd December 1994, giving her extension until 21st February 1995; on 15th February 1995, giving her extension until 31st March 1995; on 30th March 1995, giving her extension until 30th April 1995; on 27th April 1995, giving her extension until 28th July 1995. These extensions were clearly given to her to enable investigations to be made and for her to give evidence in court against the appellant. In my view, counsel for the appellant was right in saying that when the Immigration Department extended PW1's permit, these extensions must have retrospective effect. This is not a case where she had left Hong Kong and come back. She had all the time remained in Hong Kong. By giving her extension until say, the end of July, it means that PW1's stay in Hong Kong since she first came here must have been approved. I do not think it can be said that even after the proper and lawful extensions, part of her stay during her period in Hong Kong was lawful and part of it was unlawful. In my view, since the Immigration Department had as a matter of fact properly and validly extended her stay in Hong Kong, she was permitted to stay from the time when she first came here in July 1994 until the expiry of her permit. During all this time, she was not an offender.

24. During the period specified in the 2nd charge, namely, between 30th January 1995 and 7th April 1995, it is clear from the evidence that the appellant had given her advice as to how to depart from Hong Kong and go back to China. He was of course not aware that the Immigration Department had given her extension and must have thought that she had overstayed. In other words, he must have reasons to believe that she was an overstayer and therefore an offender. With that knowledge and belief, he had given her assistance in the form of advice. If PW1 were in fact an offender during the period set out in the charge or indeed some earlier period, I would have thought that the charge was clearly proved. However, there is no evidence that PW1 was an offender. In fact, she was given permission and therefore not an offender.

25. In these circumstances, I think one of the ingredients of this charge has not been proved. Although this is a technical point, the appellant is entitled to take it. I must however say that the Immigration Department and the ICAC were faced with a difficult situation. They had to allow PW1 to remain in Hong Kong to enable them to continue with the investigation and to give evidence against the appellant in court. To do so, they had to extend her permit. That having been done, PW1 was no longer an offender. Hence, the appellant could not be charged with the second offence. I think that the conviction against the second charge must be quashed.

Conclusion

26. The result is that the appeal against conviction in respect of the first charge of forgery, contrary to s.71 of the Crimes Ordinance is dismissed. The conviction against the second charge of assisting an offender, contrary to s.90 of the Criminal Procedure Ordinance is quashed and the sentence is set aside.