HKSAR v. FUNG SIU PAN

bjbj byx] HCMA1106/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 1106 OF 2006 ____

HKSAR and FUNG Siu-pan ____ Before: Hon Wright J in Court Date of Hearing: 13 February and 11 May 2007 Date of Judgment: 11 May 2007 ___

JUDGMENT ___ On 20 October 2006 the appellant was convicted, upon his own pleas of guilty, by a magistrate of an offence of using a false travel document contrary to section 42(2)(b) of the Immigration Ordinance, Cap. 115, and of the allied offence of making a false representation to an immigration assistant contrary to section 42(1)(a) of the Ordinance. In due course he was sentenced to serve a period of 12 months imprisonment on each charge, the sentences to be served concurrently with one another. The appellant now appeals both the convictions and the sentences. The offences related to his production, on 13 March 2004 in order to gain entry to Hong Kong, of a Chinese permit which bore the name MA Xihe and reflected the date of birth of the holder of that permit as 7 April 1969. He was granted entry, under that name, as a visitor for a period of 14 days. On 12 October 2006 he was arrested as a result of having overstayed. His fingerprints were taken. When compared with fingerprints already on record it was established that the appellant had previously visited Hong Kong, in about 2002. On that occasion he had claimed his name to be FUNG Siu-pan and his date of birth 8 November 1974. Based upon this earlier information the appellant was charged with the instant offences. When the matter previously came before me on the 13 February 2007 the appellant indicated that,

in truth, he is MA Xihe and was born on 7 April 1969. In support of this claim he produced to me two further documents which, at that stage, were in his prisoner s property, a PRC identity card and a PRC household register. Each of those documents was consistent, superficially, with the permit used by him on 13 March 2004 and his claim to me. The matter was adjourned to today: the prosecution arranged for the permit, the PRC identity card and the PRC household register to be examined by the government chemist with a view to establishing their authenticity. In respect of the permit, the government chemist had available to her a control document in the form of another permit known to be authentic: she had no such control documents in respect of the other two documents. Her report in respect of the permit is equivocal. She could reach no conclusion in regard to the other two documents due to the absence of control documents. She does record, however, in respect of all three documents that there does not appear to be any suggestion of forgery, portrait- or page-substitution or alterations to the original documents. That said, the lack of any sign of forgery or tampering does not establish either the accuracy of the data recorded in those documents or the authenticity or genesis of the documents themselves. There is consequently nothing to be gained by the appellant were the additional documents to be admitted in evidence in this appeal pursuant to the provisions of the Criminal Procedure Ordinance, Cap.

221. The appellant has failed to make out any case for such admission at this stage in that the documents were plainly in his prisoner s property throughout and available to be produced to the magistrate: he did not follow that course. Obviously the production of those documents before the magistrate would have been inconsistent with what he had told the police under caution and what he admitted before the magistrate. His failure to produce them thus was a conscious and deliberate decision on his part. The convictions followed upon pleas of guilty entered by him and his agreement of a summary of facts. At the time of those proceedings he was represented by a representative of the Duty Lawyer Scheme. The summary of facts agreed by the appellant established each of the essential elements of the respective offences, reading as follows: Under caution, the defendant admitted that he was properly known as Fung Siu-pan born on 8 November 1974. He previously entered Hong Kong under his true identity but was repatriated after legal proceedings. In order to conceal his adverse record and enter Hong Kong to seek job, he used another person's identity to procure the Chinese permit number W02318682 in the name of MA Xihe with date of birth 7 April 1969. Upon receipt of the questioned permit, he noticed that the personal particulars recorded thereon did not relate to him except the photo

affixed. On 13 March 2004, he used the questioned permit to enter Hong Kong and falsely represented his bogus identity upon arrival examination. Today, apparently lost in the wed of his varying identities, the appellant says he told the police on arrest that he was MA Xihe, contrary to what he agreed in the magistracy. The difficulty which faces the appellant is that a person convicted of an offence by his own plea of guilty cannot appeal that conviction pursuant to section 113 (1) of the Magistrates Ordinance, Cap.

227. The only course open to the appellant would be to establish that the pleas of guilty were nullities. The Court of Appeal in HKSAR v WONG Chi-yuk [2000] 3 HKLRD 125 concluded, at page 135, that where an unequivocal guilty plea resulted in a conviction the plea will only be rendered a nullity if (a) the facts admitted by the accused did not amount to the offence with which he was charged; (b) the admitted facts were equivocal as to guilt; (c) the plea was tendered to a charge which was defective on its face or invalid or unclear; (d) the plea was tendered involuntarily; (e) the plea was induced by fraud or made under a fundamental mistake; or (f) the plea did not result from a deliberate and informed decision. The pleas tendered by the appellant were, plainly, unequivocal. None of the outlined circumstances is applicable in the instant matter. I am satisfied on the facts of this matter that the appellant's pleas were not nullities. I would repeat the observation of the Court of Appeal in Wong Chi-yuk that ... we do not feel any injustice has occurred in this case or that the appellant should harbour any legitimate grievance because the conviction arose out of his own deliberate plea of guilty. and would add that, in this matter, it is self-evident that the appellant s decisions to lie at one stage or another and to agree a summary of facts which he now asserts he knew to be

false, were conscious and deliberate decisions made by him. Insofar as sentence is concerned, 12 months imprisonment after a plea of guilty in respect of each of these offences is consistent with current sentencing practice, as is the order that the sentences be served concurrently with one another. Other than the fact that the appellant finds himself hoist upon his own petard, at whatever stage the lies occurred, he is unable to point to any mitigating features which justifies departure from the sentences usually imposed. In the circumstances, the appeals against both conviction and sentence are dismissed. (A R WRIGHT) Judge of the Court of First Instance High Court Appellant in person. Laura NG, Government Counsel, Department of Justice, for the HKSAR

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