A A
DCCC 501/2019
[2022] HKDC 659
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 501 OF 2019
C C
----------------------
D
HKSAR D
v
E E
Harjit Singh
----------------------
F F
Before: HH Judge Casewell
G Date: 17 June 2022 at 11.05 am G
Present: Mr Duncan Percy, counsel on fiat, for HKSAR
Mr Simon N M Young, instructed by Chaudhry Solicitors,
H for the defendant H
Offence: (1) to (4) Making a false statement or representation
to an Immigration Officer or Immigration Assistant
I lawfully acting under Part III of the Immigration I
Ordinance
J (向一名根據《入境條例》第III部合法行事的入境事務主任或入境事務助 J
理員作出虛假的陳述或申述)
(5) Possession of forged identity cards
K K
(管有偽造身分證)
(6) Possession of unlawfully obtained travel documents
L (管有非法取得的旅行證件) L
M --------------------- M
Reasons for Verdict
N N
---------------------
O O
1. The defendant has pleaded not guilty to a total of six
P charges on the charge sheet. The first four charges allege false P
statements made to Immigration officers in relation to four
Q separate spousal dependency visa applications between 18 May Q
2009 and 3 October 2016. Charge 5 alleges possession of three
R R
forged identity cards at the premises, the Jagpreet Indian
Provision Store in To Kwa Wan. The 6th charge alleges possession
S S
of unlawfully obtained travel documents at the same location,
T namely, two Philippine passports which had previously been lost T
by their owner.
U U
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V V
A A
2. The prosecution case arose as a result of a raid on a
grocery store on 1 November 2017. The grocery store was the
B B
Jagpreet Indian Provision Store. I shall call it “the store”
C from now on. It is in To Kwa Wan. The raid was made pursuant to C
a search warrant.
D D
3. The defendant was present in the store and admitted
E being the owner of the store. During the search, three forged E
identity cards were found together with the two Philippine
F passports. The business registration of the store shows the F
defendant is the sole proprietor. The store trades as the Sun
G G
Star Trading which had the same registered business address as
the store.
H H
4. The three forged identity cards were found inside a box
I I
inside a locker below the cash register in the store. Two of the
J cards bore the name and personal particulars of one Doly Sharmin J
Akther. The faces on the cards were different. The third
K identity card was in the name of Mudassar Habib U Rehman. K
L 5. Various copy identity cards were found inside the cash L
register. One was found to have the defendant’s fingerprint upon
M it. There were markings on some of these identity cards. M
N 6. The two Filipino passports were found together inside a N
ziplock bag in the locker under the cash register in the store.
O O
7. A Ms Perez Ma Teresa Simbulan was the holder of the two
P passports. She had lost her passports on 18 May 2016 in a taxi P
in Tsim Sha Tsui. She had reported their loss to police. She
Q Q
did not know the defendant. She did not know the store and had
never been there.
R R
8. In respect of the first four charges, the Immigration
S S
records show that the defendant married as Ms Kaur in India on
T 11 March 2004. He was initially approved to remain as a T
dependant, her dependant, in Hong Kong from 2006 onwards.
U U
CRT30/17.6.2022/LMF 2 DCCC 501/2019(1)/Verdict
V V
A A
9. The defendant has applied and been granted extensions
of stay on 18 May 2009, 10 July 2012, 16 October 2013, and
B B
3 October 2016. Each time the defendant made an application for
C extension, the form contained a declaration that his matrimonial C
status had not changed throughout.
D D
10. The prosecution say, or initially said, that the
E E
defendant’s marriage to Ms Kaur had been formally dissolved by a
decree absolute on 28 August 2008 and, therefore, they had said
F F
they have false statements, the defendant had made false
G statements to Immigration officers when making the applications G
for all extensions of his dependency visa.
H H
11. As far as the evidence was concerned, a number of
I Immigration officers were called to deal with the raid upon the I
store, the seizure of the items and the defendant’s application
J for visas. J
K 12. The first prosecution witness arrested and cautioned K
the defendant at the store during the raid. He executed the
L L
search warrant, spoke to the defendant in English, which he did
say the defendant understood. When the defendant was asked who
M M
was the store owner, the defendant replied, “Mr Harjit Singh”,
N which is his name, and that was written down by the defendant. N
There has been no dispute of the defendant status within the
O store. O
P 13. The second prosecution witness photographed exhibits P
when discovered. The defendant did not at the time make any
Q response about the Filipino passports. Other witnesses found a Q
wooden box with the forged identity cards when all the items
R R
were seized. A further search of the premises was also conducted
by PW3. He gave evidence of the seizure of the relevant
S S
exhibits.
T T
14. Officers were also called who dealt with the visa
U
extensions. Ms Perez gave evidence about losing her passport in U
a taxi. She had reported the matter to the police. As I said
CRT30/17.6.2022/LMF 3 DCCC 501/2019(1)/Verdict
V V
A A
earlier, she did not know the defendant or the store and had
never been there.
B B
15. An issue in the prosecution case was that the defence
C C
challenged the validity of the search warrant and the subsequent
D admissibility of the items seized by the immigration officers as D
a result of the search of the store, the search of the store
E being made pursuant to that search warrant. E
F 16. The defence contended that, firstly, the magistrate F
used the wrong test to issue the warrant, the wrong statutory
G test. Secondly, the application itself was not made upon oath by G
the Immigration officer attesting. And, thirdly, that no proper
H H
reasons were given for why it was suspected that the defendant
was a member of a forged Hong Kong identity card syndicate.
I I
17. I ruled against this application and admitted the
J J
exhibits that had been seized pursuant to the search warrant. I
K
found that there was, in fact, no evidence that the magistrate K
had applied the wrong statutory test, and the wording of the
L warrant suggests that is not the case. The fact that the L
applicant said he had reasonable cause does not mean that the
M magistrate did not apply herself correctly. M
N 18. Likewise, the second submission could not be sustained. N
An affirmation or declaration can be used instead of an oath.
O O
The wording of the application is by way of declaration.
P 19. As to the third submission, the applicant said that the P
items and documents of evidential value existed in relation to
Q Q
offences under section 89, Criminal Procedure Ordinance, and
section 7A and 7A(1) of Cap 177, and such items were likely to
R R
be found.
S S
20. There is, therefore, sufficient information to justify
T the issue of the warrant. In fact, such items as alleged were T
found so there was, in fact, evidence of such offences at the
U U
CRT30/17.6.2022/LMF 4 DCCC 501/2019(1)/Verdict
V V
A A
premises. Clearly, there was sufficient information to issue the
warrant and I found the warrant was valid and properly issued.
B B
21. There were sets of Admitted Facts that established,
C C
amongst other things, the following. On 26 August 2008 the
D defendant’s marriage to Rajwant Kaur was dissolved. D
22. On 7 November 2008, the defendant solemnised a marriage
E E
to a Mohan Jethani Lakhan in Hong Kong. On 9 February 2009, the
F defendant applied to divorce that Ms Mohan in India, and the F
divorce from Ms Mohan was finalised in April 2009 by a petition
G for dissolution dated 20 April 2009. G
H 23. On 23 April 2009, the defendant married, or remarried, H
a Ms Rajwant Kaur. A marriage certificate was obtained dated 23
I I
April 2009. It is Exhibit D2. A register entry for the marriage
is dated 27 April 2009. It is Exhibit D3.
J J
24. In Hong Kong, a decree absolution of the defendant’s
K K
marriage to Ms Mohan was not, in fact, pronounced until
7 February 2018 in Hong Kong, and later, on 6 August 2019, the
L L
defendant was formally married in Hong Kong to Ms Rajwant Kaur
M by a civil celebrant, but it does not appear to be that there M
was a valid subsisting marriage at the time when the defendant
N went through this further marriage on 6 August 2019. N
O 25. As far as the defence case is concerned, the issues O
raised in the course of the defence case was the defendant’s
P declaration the visa applications were not known by him to be P
false or untrue. And, secondly, the defendant was not in knowing
Q Q
possession of any of the items found in Charges 5 or 6. These
issues, in fact, result from the defendant’s testimony.
R R
26. The defence evidence was supplied by the defendant’s
S S
oral testimony and by sets of Admitted Facts.
T T
27. The defendant is a man of clear record. He is from
U
Punjab in India. He met Ms Rajwant Kaur in India. They met as U
long ago as 1994 and they had a child two years later called
CRT30/17.6.2022/LMF 5 DCCC 501/2019(1)/Verdict
V V
A A
Jagpreet. In 1997 Ms Kaur had come to Hong Kong. The defendant
finally married Ms Kaur in March 2004 in Punjab. She returned to
B B
Hong Kong. The defendant came to Hong Kong in 2006 as Ms Kaur’s
C spousal dependant. C
D 28. The defendant agreed the contents of all the D
applications for the spousal dependency visas that constitute
E charges 1 to 4. He said a Mr Gill had advised him how to E
complete the visa applications. Mr Gill was unable to give
F evidence as he is apparently deceased. The defendant’s visas F
were sponsored by Ms Kaur.
G G
29. In August 2008 the defendant had divorced Ms Kaur and
H H
married Ms Mohan later in November 2008. Ms Mohan apparently
came from the United States. However, the marriage to Ms Mohan
I I
was not a success. It appears to have quickly unravelled due to
J financial arguments between them and, in fact, in February 2009 J
in India the divorce was obtained by consent leading to the
K subsequent remarriage of Ms Kaur and the defendant in K
April 2009. They both returned to Hong Kong that month, the
L L
defendant making an application for extension of his visa about
a month later.
M M
30. All this is evidence by the documented being produced
N N
and it does not appear to be disputed and I shall treat it as if
it is in agreement.
O O
31. The defendant said in respect of the four spousal visa
P P
applications that followed his remarriage to Ms Kaur that he
Q genuinely believed that Ms Kaur was his wife at the time of Q
those applications. They lived together. They had a full
R married life. There is evidence of their joint home in R
Cooke Street, evidence of bills and the like was produced to
S S
show they were both living there.
T 32. The defendant said that he believed for his part that T
the declarations made by him in the visa applications were true.
U U
He said at the time he signed it, as far as he is concerned,
CRT30/17.6.2022/LMF 6 DCCC 501/2019(1)/Verdict
V V
A A
there is, to use the words of the declarations, no change in his
matrimonial relationship. He was married to Ms Kaur.
B B
33. As far as the later divorce from Ms Mohan and marriage
C C
to Ms Kaur in Hong Kong in 2019 were concerned, he said he did
D this on the advice of Mr Gill to regularise the position. D
34. In respect of Charges 5 and 6, the defendant did not
E E
dispute his status within the store as the owner. He did not
F dispute that the three forged identity cards and two Philippine F
passports were found in the black wooden box underneath the cash
G register in his store. G
H 35. He agreed he was the proprietor of Sun Star Trading, H
which was trading as Jagpreet Indian Provision Store, and in
I I
evidence said he was the owner of the store. He had operated it
from 2013. He was present in the store when the Immigration
J J
Department raided on the date in November.
K K
36. As far as the work in the store was concerned, he
worked during the day. He also employed a man called Vicky and
L L
his son would also work in the store as well.
M M
37. The defendant explained the presence of the items in
N the black box, the subject of both Charges 5 and 6 in the N
following way. He said that the store provided fax and photocopy
O facilities for Indian, Pakistani and Filipino customers, as well O
as general provisions. The store was busy. There could be
P hundreds of customers a day. P
Q 38. On occasions, the customers would leave their original Q
documentation in the store. They would forget them and then
R R
possibly collect or pick these items up later. It was the
practice of the store to keep these items in the black box and
S S
retain them and then return them to the customers when they
T asked for these items back. T
U
39. The defendant said he was unable to recall who of the U
people working in the store, including himself, had put the
CRT30/17.6.2022/LMF 7 DCCC 501/2019(1)/Verdict
V V
A A
identity cards and passports in the box. It could have been
himself, Vicky or his son, he said. But the items found in the
B B
box were unclaimed items from customers.
C C
40. He had no idea that the identity cards were forged or
D that the Perez Philippine passports had previously been lost. D
41. The defendant said that after the police raid in
E E
November 2017, he instituted a different practice, and had since
F then taken all unclaimed items to the police station’s lost F
property. The defendant produced documentation to support this
G evidence and the documentation showed the kind of evidence, the G
kind of items that had been left in the store as lost property.
H H
42. As far as the legal issues are concerned, the
I I
prosecution bring the charges. The burden of proof clearly
remains on them at all times and the prosecution must prove the
J J
case beyond reasonable doubt in respect of each charge
K
separately. The court must necessarily find the facts proved to K
that criminal standard. The court can, however, infer a fact
L from proven primary facts. In order to do so, that conclusion of L
fact must be drawn itself to a criminal standard, that is beyond
M reasonable doubt. Sometimes this is also expressed as being the M
only reasonable conclusion that can be drawn from the primary
N N
facts.
O O
43. The defendant initially faces four counts of making a
false statement or representation to an immigration officer
P P
contrary to section 42(1)(a) of Cap 115. The prosecution in this
Q case seek to prove that the defendant made a representation of Q
no change of matrimonial relationship, and that he knew that to
R be false or did not believe it to be true. R
S 44. Under Charge 5, under section 7A(1) of Cap 177, the S
prosecution needs to prove the defendant was in possession of
T the three forged identity cards, but also he knew them to be in T
his possession.
U U
CRT30/17.6.2022/LMF 8 DCCC 501/2019(1)/Verdict
V V
A A
45. In respect of Charge 6, the prosecution must prove the
defendant’s possession of the two Philippine passports, and also
B B
that they were unlawfully obtained, and he knew that he was in
C possession of unlawfully obtained passports. C
D 46. The defendant is of clear record, which is clearly D
relevant to the way in which the credibility of his evidence
E should be assessed, and also the propensity to commit offences E
of this nature.
F F
47. A resolution of the issues raised is as follows. On
G Charges 1 to 4, it is common ground on these charges there is no G
dispute as to the timeline and the facts of the defendant’s
H H
marital status. The four charges relate to the period of the
defendant’s divorce from Ms Kaur in Hong Kong in August 2008,
I I
his marriage to Ms Mohan in November 2008, the short marriage
J which terminated in India in February 2009 by consent, and then J
his subsequent remarriage to Ms Kaur in April 2009.
K K
48. When the store was raided in 2017, the divorce
L certificate from Ms Kaur was discovered. This would be the 2008 L
divorce. There was no remarriage in Hong Kong until 2019. The
M Immigration Department was satisfied on that basis that the M
statements in the spousal visa applications must have been false
N N
and untrue. Clearly, one can understand their position.
O O
49. The evidence of the subsequent remarriage has come out
during the course of trial, has taken a long time to surface and
P P
prove due to the restrictions imposed by the COVID-19 lockdowns
Q both in Hong Kong and India. But the position is now settled. Q
50. The prosecution now submits the defendant took part in
R R
a scheme to evade the effect of his 2008 divorce from Ms Kaur,
S and his marriage to Ms Mohan. As the defendant could not divorce S
Ms Mohan in Hong Kong within the first year of being married,
T this would take him beyond the expiry of his Hong Kong visa. T
U U
CRT30/17.6.2022/LMF 9 DCCC 501/2019(1)/Verdict
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A A
51. The defendant needed, in order to maintain his spousal
visa status, to divorce Ms Mohan and marry Ms Kaur in India
B B
before the next application. They say this is clearly a
C manipulation and dishonest, and they point to certain mistakes C
made in the application.
D D
52. All this may well be so. The defendant clearly was
E banking on some arrangement happening with Ms Mohan that never E
took place, and it was necessary for him to regularise his
F position in order for the upcoming Hong Kong visa application to F
be made.
G G
53. The issue I have to decide is whether the defendant’s
H H
representation in each of the visa applications is false or what
he didn’t believe to be true. The actual representation in each
I I
application that is charged, the actual representation is the
J following: J
“I, as the spouse of Rajwant Kaur, declare there
K K
is no change in our matrimonial relationship.”
L 54. On each occasion that is dated. So I assume that the L
“is” relates to the date on which the application is made. It is
M a representation as to the existing position, the present M
moment.
N N
55. It is possible to take a narrow or wide interpretation
O O
of this wording. The prosecution naturally would prefer the
wider interpretation be taken, and that wider interpretation
P P
would be that when the defendant made the representation that
Q there had been no change at all in his matrimonial status since Q
the last application. I know the defence say this could only
R actually apply to the 1st charge. However, that is a R
representation being made as to not only the present state of
S S
affairs but the affairs since the last application.
T 56. The stricter interpretation is the literal one, that T
the defendant represented his matrimonial status was the same,
U U
there being no change to that status.
CRT30/17.6.2022/LMF 10 DCCC 501/2019(1)/Verdict
V V
A A
57. This, of course, is a criminal offence that is being
B B
charged, and it is trite law that the interpretation of criminal
liability should be construed narrowly. The defendant’s
C C
representation is as to his status in the present tense on the
D day of the application. That is what is required by the visa D
application form.
E E
58. On that basis, the defendant’s representation cannot be
F false as his matrimonial status with Ms Kaur is unchanged in F
that they are still married and still in a spousal relationship.
G It is undoubtedly economical with the truth; however, no wider G
provision of information is required by the declaration.
H H
59. I find that on this somewhat technical basis the first
I I
four charges will have to be dismissed.
J 60. I now turn to the last two charges. As I have already J
outlined, there is no factual dispute as to discovery of the
K K
forged identity cards, the Philippine passports inside the black
box under the cashier counter in the store. The defendant admits
L L
to being the proprietor. It is clear that the inference can be
M drawn to a criminal standard that the defendant is in possession M
of these items and, in fact, the essential facts on which that
N inference can be drawn are not disputed. N
O 61. It is necessary for the prosecution to establish beyond O
reasonable doubt the defendant possessed these items with the
P requisite knowledge of their status as being either forged P
identity cards or unlawfully obtained passports.
Q Q
62. The prosecution seek to establish this by way of
R R
drawing an inference from the primary facts of their discovery.
They say that if no proper explanation is offered for their
S S
possession or, if the explanation offered is rejected, then
T those primary undisputed facts allow the court to draw the T
inference necessary for a criminal conviction beyond reasonable
U doubt. U
CRT30/17.6.2022/LMF 11 DCCC 501/2019(1)/Verdict
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A A
63. The defendant has provided an explanation which if
B B
accepted would show he did not have knowing possession and his
belief could create a reasonable doubt as to this issue.
C C
However, I find that the defendant’s explanation cannot be
D accepted. It appears to me to have the clear form of a concocted D
story, devised to explain away his possession of the items.
E E
64. The fact is, the undeniable fact is, there are three
F forged identity cards here, two with the same name and different F
photographs. Two bore the personal portraits, personal
G particulars of Doly Sharmin Akther but different facial images. G
The third is in the name of Mr Mudassar.
H H
65. Furthermore, within the cash register were further copy
I I
Hong Kong identity cards in different names, one containing a
similar photograph, and these contained the defendant’s
J J
fingerprints upon them, so there is no doubt the defendant had
K
access to all these items. K
66. If I may put it this way, the odds that the three
L L
forged identity cards would be left in the defendant’s shop by
M customers is to be so remote as to be wholly unbelievable, and I M
reject this application.
N N
67. I find in respect of Charge 5 the only available
O inference I can draw from these primary facts is that the O
defendant possessed these cards with full knowledge of their
P status. He is, accordingly, convicted on Charge 5. P
Q 68. Furthermore, the defendant was in possession of the two Q
Philippine passports in the same location. I have already
R R
rejected the defendant’s explanation that these passports were
left behind and acquired, as it were, lawfully, i.e. left in his
S S
store as lost property. I find it simply unbelievable and
T extraordinary. T
U
69. We know from the evidence that Ms Perez lost her U
passport in a taxi about a year before their discovery. I find
CRT30/17.6.2022/LMF 12 DCCC 501/2019(1)/Verdict
V V
A A
in the circumstances the fact that these were found in the
defendant’s store together with the forged identity cards leads
B B
to the only available inference that they were unlawfully
C obtained. This conclusion I draw beyond reasonable doubt and the C
defendant is accordingly convicted on Charge 6 as well.
D D
E E
F F
(T Casewell)
District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT30/17.6.2022/LMF 13 DCCC 501/2019(1)/Verdict
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A A
DCCC 501/2019
[2022] HKDC 659
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 501 OF 2019
C C
----------------------
D
HKSAR D
v
E E
Harjit Singh
----------------------
F F
Before: HH Judge Casewell
G Date: 17 June 2022 at 11.05 am G
Present: Mr Duncan Percy, counsel on fiat, for HKSAR
Mr Simon N M Young, instructed by Chaudhry Solicitors,
H for the defendant H
Offence: (1) to (4) Making a false statement or representation
to an Immigration Officer or Immigration Assistant
I lawfully acting under Part III of the Immigration I
Ordinance
J (向一名根據《入境條例》第III部合法行事的入境事務主任或入境事務助 J
理員作出虛假的陳述或申述)
(5) Possession of forged identity cards
K K
(管有偽造身分證)
(6) Possession of unlawfully obtained travel documents
L (管有非法取得的旅行證件) L
M --------------------- M
Reasons for Verdict
N N
---------------------
O O
1. The defendant has pleaded not guilty to a total of six
P charges on the charge sheet. The first four charges allege false P
statements made to Immigration officers in relation to four
Q separate spousal dependency visa applications between 18 May Q
2009 and 3 October 2016. Charge 5 alleges possession of three
R R
forged identity cards at the premises, the Jagpreet Indian
Provision Store in To Kwa Wan. The 6th charge alleges possession
S S
of unlawfully obtained travel documents at the same location,
T namely, two Philippine passports which had previously been lost T
by their owner.
U U
CRT30/17.6.2022/LMF 1 DCCC 501/2019(1)/Verdict
V V
A A
2. The prosecution case arose as a result of a raid on a
grocery store on 1 November 2017. The grocery store was the
B B
Jagpreet Indian Provision Store. I shall call it “the store”
C from now on. It is in To Kwa Wan. The raid was made pursuant to C
a search warrant.
D D
3. The defendant was present in the store and admitted
E being the owner of the store. During the search, three forged E
identity cards were found together with the two Philippine
F passports. The business registration of the store shows the F
defendant is the sole proprietor. The store trades as the Sun
G G
Star Trading which had the same registered business address as
the store.
H H
4. The three forged identity cards were found inside a box
I I
inside a locker below the cash register in the store. Two of the
J cards bore the name and personal particulars of one Doly Sharmin J
Akther. The faces on the cards were different. The third
K identity card was in the name of Mudassar Habib U Rehman. K
L 5. Various copy identity cards were found inside the cash L
register. One was found to have the defendant’s fingerprint upon
M it. There were markings on some of these identity cards. M
N 6. The two Filipino passports were found together inside a N
ziplock bag in the locker under the cash register in the store.
O O
7. A Ms Perez Ma Teresa Simbulan was the holder of the two
P passports. She had lost her passports on 18 May 2016 in a taxi P
in Tsim Sha Tsui. She had reported their loss to police. She
Q Q
did not know the defendant. She did not know the store and had
never been there.
R R
8. In respect of the first four charges, the Immigration
S S
records show that the defendant married as Ms Kaur in India on
T 11 March 2004. He was initially approved to remain as a T
dependant, her dependant, in Hong Kong from 2006 onwards.
U U
CRT30/17.6.2022/LMF 2 DCCC 501/2019(1)/Verdict
V V
A A
9. The defendant has applied and been granted extensions
of stay on 18 May 2009, 10 July 2012, 16 October 2013, and
B B
3 October 2016. Each time the defendant made an application for
C extension, the form contained a declaration that his matrimonial C
status had not changed throughout.
D D
10. The prosecution say, or initially said, that the
E E
defendant’s marriage to Ms Kaur had been formally dissolved by a
decree absolute on 28 August 2008 and, therefore, they had said
F F
they have false statements, the defendant had made false
G statements to Immigration officers when making the applications G
for all extensions of his dependency visa.
H H
11. As far as the evidence was concerned, a number of
I Immigration officers were called to deal with the raid upon the I
store, the seizure of the items and the defendant’s application
J for visas. J
K 12. The first prosecution witness arrested and cautioned K
the defendant at the store during the raid. He executed the
L L
search warrant, spoke to the defendant in English, which he did
say the defendant understood. When the defendant was asked who
M M
was the store owner, the defendant replied, “Mr Harjit Singh”,
N which is his name, and that was written down by the defendant. N
There has been no dispute of the defendant status within the
O store. O
P 13. The second prosecution witness photographed exhibits P
when discovered. The defendant did not at the time make any
Q response about the Filipino passports. Other witnesses found a Q
wooden box with the forged identity cards when all the items
R R
were seized. A further search of the premises was also conducted
by PW3. He gave evidence of the seizure of the relevant
S S
exhibits.
T T
14. Officers were also called who dealt with the visa
U
extensions. Ms Perez gave evidence about losing her passport in U
a taxi. She had reported the matter to the police. As I said
CRT30/17.6.2022/LMF 3 DCCC 501/2019(1)/Verdict
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A A
earlier, she did not know the defendant or the store and had
never been there.
B B
15. An issue in the prosecution case was that the defence
C C
challenged the validity of the search warrant and the subsequent
D admissibility of the items seized by the immigration officers as D
a result of the search of the store, the search of the store
E being made pursuant to that search warrant. E
F 16. The defence contended that, firstly, the magistrate F
used the wrong test to issue the warrant, the wrong statutory
G test. Secondly, the application itself was not made upon oath by G
the Immigration officer attesting. And, thirdly, that no proper
H H
reasons were given for why it was suspected that the defendant
was a member of a forged Hong Kong identity card syndicate.
I I
17. I ruled against this application and admitted the
J J
exhibits that had been seized pursuant to the search warrant. I
K
found that there was, in fact, no evidence that the magistrate K
had applied the wrong statutory test, and the wording of the
L warrant suggests that is not the case. The fact that the L
applicant said he had reasonable cause does not mean that the
M magistrate did not apply herself correctly. M
N 18. Likewise, the second submission could not be sustained. N
An affirmation or declaration can be used instead of an oath.
O O
The wording of the application is by way of declaration.
P 19. As to the third submission, the applicant said that the P
items and documents of evidential value existed in relation to
Q Q
offences under section 89, Criminal Procedure Ordinance, and
section 7A and 7A(1) of Cap 177, and such items were likely to
R R
be found.
S S
20. There is, therefore, sufficient information to justify
T the issue of the warrant. In fact, such items as alleged were T
found so there was, in fact, evidence of such offences at the
U U
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A A
premises. Clearly, there was sufficient information to issue the
warrant and I found the warrant was valid and properly issued.
B B
21. There were sets of Admitted Facts that established,
C C
amongst other things, the following. On 26 August 2008 the
D defendant’s marriage to Rajwant Kaur was dissolved. D
22. On 7 November 2008, the defendant solemnised a marriage
E E
to a Mohan Jethani Lakhan in Hong Kong. On 9 February 2009, the
F defendant applied to divorce that Ms Mohan in India, and the F
divorce from Ms Mohan was finalised in April 2009 by a petition
G for dissolution dated 20 April 2009. G
H 23. On 23 April 2009, the defendant married, or remarried, H
a Ms Rajwant Kaur. A marriage certificate was obtained dated 23
I I
April 2009. It is Exhibit D2. A register entry for the marriage
is dated 27 April 2009. It is Exhibit D3.
J J
24. In Hong Kong, a decree absolution of the defendant’s
K K
marriage to Ms Mohan was not, in fact, pronounced until
7 February 2018 in Hong Kong, and later, on 6 August 2019, the
L L
defendant was formally married in Hong Kong to Ms Rajwant Kaur
M by a civil celebrant, but it does not appear to be that there M
was a valid subsisting marriage at the time when the defendant
N went through this further marriage on 6 August 2019. N
O 25. As far as the defence case is concerned, the issues O
raised in the course of the defence case was the defendant’s
P declaration the visa applications were not known by him to be P
false or untrue. And, secondly, the defendant was not in knowing
Q Q
possession of any of the items found in Charges 5 or 6. These
issues, in fact, result from the defendant’s testimony.
R R
26. The defence evidence was supplied by the defendant’s
S S
oral testimony and by sets of Admitted Facts.
T T
27. The defendant is a man of clear record. He is from
U
Punjab in India. He met Ms Rajwant Kaur in India. They met as U
long ago as 1994 and they had a child two years later called
CRT30/17.6.2022/LMF 5 DCCC 501/2019(1)/Verdict
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A A
Jagpreet. In 1997 Ms Kaur had come to Hong Kong. The defendant
finally married Ms Kaur in March 2004 in Punjab. She returned to
B B
Hong Kong. The defendant came to Hong Kong in 2006 as Ms Kaur’s
C spousal dependant. C
D 28. The defendant agreed the contents of all the D
applications for the spousal dependency visas that constitute
E charges 1 to 4. He said a Mr Gill had advised him how to E
complete the visa applications. Mr Gill was unable to give
F evidence as he is apparently deceased. The defendant’s visas F
were sponsored by Ms Kaur.
G G
29. In August 2008 the defendant had divorced Ms Kaur and
H H
married Ms Mohan later in November 2008. Ms Mohan apparently
came from the United States. However, the marriage to Ms Mohan
I I
was not a success. It appears to have quickly unravelled due to
J financial arguments between them and, in fact, in February 2009 J
in India the divorce was obtained by consent leading to the
K subsequent remarriage of Ms Kaur and the defendant in K
April 2009. They both returned to Hong Kong that month, the
L L
defendant making an application for extension of his visa about
a month later.
M M
30. All this is evidence by the documented being produced
N N
and it does not appear to be disputed and I shall treat it as if
it is in agreement.
O O
31. The defendant said in respect of the four spousal visa
P P
applications that followed his remarriage to Ms Kaur that he
Q genuinely believed that Ms Kaur was his wife at the time of Q
those applications. They lived together. They had a full
R married life. There is evidence of their joint home in R
Cooke Street, evidence of bills and the like was produced to
S S
show they were both living there.
T 32. The defendant said that he believed for his part that T
the declarations made by him in the visa applications were true.
U U
He said at the time he signed it, as far as he is concerned,
CRT30/17.6.2022/LMF 6 DCCC 501/2019(1)/Verdict
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A A
there is, to use the words of the declarations, no change in his
matrimonial relationship. He was married to Ms Kaur.
B B
33. As far as the later divorce from Ms Mohan and marriage
C C
to Ms Kaur in Hong Kong in 2019 were concerned, he said he did
D this on the advice of Mr Gill to regularise the position. D
34. In respect of Charges 5 and 6, the defendant did not
E E
dispute his status within the store as the owner. He did not
F dispute that the three forged identity cards and two Philippine F
passports were found in the black wooden box underneath the cash
G register in his store. G
H 35. He agreed he was the proprietor of Sun Star Trading, H
which was trading as Jagpreet Indian Provision Store, and in
I I
evidence said he was the owner of the store. He had operated it
from 2013. He was present in the store when the Immigration
J J
Department raided on the date in November.
K K
36. As far as the work in the store was concerned, he
worked during the day. He also employed a man called Vicky and
L L
his son would also work in the store as well.
M M
37. The defendant explained the presence of the items in
N the black box, the subject of both Charges 5 and 6 in the N
following way. He said that the store provided fax and photocopy
O facilities for Indian, Pakistani and Filipino customers, as well O
as general provisions. The store was busy. There could be
P hundreds of customers a day. P
Q 38. On occasions, the customers would leave their original Q
documentation in the store. They would forget them and then
R R
possibly collect or pick these items up later. It was the
practice of the store to keep these items in the black box and
S S
retain them and then return them to the customers when they
T asked for these items back. T
U
39. The defendant said he was unable to recall who of the U
people working in the store, including himself, had put the
CRT30/17.6.2022/LMF 7 DCCC 501/2019(1)/Verdict
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A A
identity cards and passports in the box. It could have been
himself, Vicky or his son, he said. But the items found in the
B B
box were unclaimed items from customers.
C C
40. He had no idea that the identity cards were forged or
D that the Perez Philippine passports had previously been lost. D
41. The defendant said that after the police raid in
E E
November 2017, he instituted a different practice, and had since
F then taken all unclaimed items to the police station’s lost F
property. The defendant produced documentation to support this
G evidence and the documentation showed the kind of evidence, the G
kind of items that had been left in the store as lost property.
H H
42. As far as the legal issues are concerned, the
I I
prosecution bring the charges. The burden of proof clearly
remains on them at all times and the prosecution must prove the
J J
case beyond reasonable doubt in respect of each charge
K
separately. The court must necessarily find the facts proved to K
that criminal standard. The court can, however, infer a fact
L from proven primary facts. In order to do so, that conclusion of L
fact must be drawn itself to a criminal standard, that is beyond
M reasonable doubt. Sometimes this is also expressed as being the M
only reasonable conclusion that can be drawn from the primary
N N
facts.
O O
43. The defendant initially faces four counts of making a
false statement or representation to an immigration officer
P P
contrary to section 42(1)(a) of Cap 115. The prosecution in this
Q case seek to prove that the defendant made a representation of Q
no change of matrimonial relationship, and that he knew that to
R be false or did not believe it to be true. R
S 44. Under Charge 5, under section 7A(1) of Cap 177, the S
prosecution needs to prove the defendant was in possession of
T the three forged identity cards, but also he knew them to be in T
his possession.
U U
CRT30/17.6.2022/LMF 8 DCCC 501/2019(1)/Verdict
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A A
45. In respect of Charge 6, the prosecution must prove the
defendant’s possession of the two Philippine passports, and also
B B
that they were unlawfully obtained, and he knew that he was in
C possession of unlawfully obtained passports. C
D 46. The defendant is of clear record, which is clearly D
relevant to the way in which the credibility of his evidence
E should be assessed, and also the propensity to commit offences E
of this nature.
F F
47. A resolution of the issues raised is as follows. On
G Charges 1 to 4, it is common ground on these charges there is no G
dispute as to the timeline and the facts of the defendant’s
H H
marital status. The four charges relate to the period of the
defendant’s divorce from Ms Kaur in Hong Kong in August 2008,
I I
his marriage to Ms Mohan in November 2008, the short marriage
J which terminated in India in February 2009 by consent, and then J
his subsequent remarriage to Ms Kaur in April 2009.
K K
48. When the store was raided in 2017, the divorce
L certificate from Ms Kaur was discovered. This would be the 2008 L
divorce. There was no remarriage in Hong Kong until 2019. The
M Immigration Department was satisfied on that basis that the M
statements in the spousal visa applications must have been false
N N
and untrue. Clearly, one can understand their position.
O O
49. The evidence of the subsequent remarriage has come out
during the course of trial, has taken a long time to surface and
P P
prove due to the restrictions imposed by the COVID-19 lockdowns
Q both in Hong Kong and India. But the position is now settled. Q
50. The prosecution now submits the defendant took part in
R R
a scheme to evade the effect of his 2008 divorce from Ms Kaur,
S and his marriage to Ms Mohan. As the defendant could not divorce S
Ms Mohan in Hong Kong within the first year of being married,
T this would take him beyond the expiry of his Hong Kong visa. T
U U
CRT30/17.6.2022/LMF 9 DCCC 501/2019(1)/Verdict
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A A
51. The defendant needed, in order to maintain his spousal
visa status, to divorce Ms Mohan and marry Ms Kaur in India
B B
before the next application. They say this is clearly a
C manipulation and dishonest, and they point to certain mistakes C
made in the application.
D D
52. All this may well be so. The defendant clearly was
E banking on some arrangement happening with Ms Mohan that never E
took place, and it was necessary for him to regularise his
F position in order for the upcoming Hong Kong visa application to F
be made.
G G
53. The issue I have to decide is whether the defendant’s
H H
representation in each of the visa applications is false or what
he didn’t believe to be true. The actual representation in each
I I
application that is charged, the actual representation is the
J following: J
“I, as the spouse of Rajwant Kaur, declare there
K K
is no change in our matrimonial relationship.”
L 54. On each occasion that is dated. So I assume that the L
“is” relates to the date on which the application is made. It is
M a representation as to the existing position, the present M
moment.
N N
55. It is possible to take a narrow or wide interpretation
O O
of this wording. The prosecution naturally would prefer the
wider interpretation be taken, and that wider interpretation
P P
would be that when the defendant made the representation that
Q there had been no change at all in his matrimonial status since Q
the last application. I know the defence say this could only
R actually apply to the 1st charge. However, that is a R
representation being made as to not only the present state of
S S
affairs but the affairs since the last application.
T 56. The stricter interpretation is the literal one, that T
the defendant represented his matrimonial status was the same,
U U
there being no change to that status.
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A A
57. This, of course, is a criminal offence that is being
B B
charged, and it is trite law that the interpretation of criminal
liability should be construed narrowly. The defendant’s
C C
representation is as to his status in the present tense on the
D day of the application. That is what is required by the visa D
application form.
E E
58. On that basis, the defendant’s representation cannot be
F false as his matrimonial status with Ms Kaur is unchanged in F
that they are still married and still in a spousal relationship.
G It is undoubtedly economical with the truth; however, no wider G
provision of information is required by the declaration.
H H
59. I find that on this somewhat technical basis the first
I I
four charges will have to be dismissed.
J 60. I now turn to the last two charges. As I have already J
outlined, there is no factual dispute as to discovery of the
K K
forged identity cards, the Philippine passports inside the black
box under the cashier counter in the store. The defendant admits
L L
to being the proprietor. It is clear that the inference can be
M drawn to a criminal standard that the defendant is in possession M
of these items and, in fact, the essential facts on which that
N inference can be drawn are not disputed. N
O 61. It is necessary for the prosecution to establish beyond O
reasonable doubt the defendant possessed these items with the
P requisite knowledge of their status as being either forged P
identity cards or unlawfully obtained passports.
Q Q
62. The prosecution seek to establish this by way of
R R
drawing an inference from the primary facts of their discovery.
They say that if no proper explanation is offered for their
S S
possession or, if the explanation offered is rejected, then
T those primary undisputed facts allow the court to draw the T
inference necessary for a criminal conviction beyond reasonable
U doubt. U
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A A
63. The defendant has provided an explanation which if
B B
accepted would show he did not have knowing possession and his
belief could create a reasonable doubt as to this issue.
C C
However, I find that the defendant’s explanation cannot be
D accepted. It appears to me to have the clear form of a concocted D
story, devised to explain away his possession of the items.
E E
64. The fact is, the undeniable fact is, there are three
F forged identity cards here, two with the same name and different F
photographs. Two bore the personal portraits, personal
G particulars of Doly Sharmin Akther but different facial images. G
The third is in the name of Mr Mudassar.
H H
65. Furthermore, within the cash register were further copy
I I
Hong Kong identity cards in different names, one containing a
similar photograph, and these contained the defendant’s
J J
fingerprints upon them, so there is no doubt the defendant had
K
access to all these items. K
66. If I may put it this way, the odds that the three
L L
forged identity cards would be left in the defendant’s shop by
M customers is to be so remote as to be wholly unbelievable, and I M
reject this application.
N N
67. I find in respect of Charge 5 the only available
O inference I can draw from these primary facts is that the O
defendant possessed these cards with full knowledge of their
P status. He is, accordingly, convicted on Charge 5. P
Q 68. Furthermore, the defendant was in possession of the two Q
Philippine passports in the same location. I have already
R R
rejected the defendant’s explanation that these passports were
left behind and acquired, as it were, lawfully, i.e. left in his
S S
store as lost property. I find it simply unbelievable and
T extraordinary. T
U
69. We know from the evidence that Ms Perez lost her U
passport in a taxi about a year before their discovery. I find
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A A
in the circumstances the fact that these were found in the
defendant’s store together with the forged identity cards leads
B B
to the only available inference that they were unlawfully
C obtained. This conclusion I draw beyond reasonable doubt and the C
defendant is accordingly convicted on Charge 6 as well.
D D
E E
F F
(T Casewell)
District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT30/17.6.2022/LMF 13 DCCC 501/2019(1)/Verdict
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