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Director of Public Prosecutions v Tong [1985] SBHC 9; [1985-1986] SILR 59 (17 May 1985)

1985-1986 SILR 59

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 10 of 1985

DIRECTOR OF PUBLIC PROSECUTIONS

v

TONG

High Court of Solomon Islands
(Wood C.J.)
Criminal Appeal Case No. 10 of 1985

13 May 1985 at Honiara
Judgment: 17 May 1985

Passport Act 1978 s.6 - false statement to obtain a passport - guilty knowledge required

Facts:

The respondent was found not guilty by the Magistrate’s Court (Central) of the offence of obtaining a passport by false statement c/s 6 of the Passport Act 1978 by knowingly stating that he had not previously held or applied for any passport. The DPP appealed on the ground that the Magistrate erred in holding that the respondent did not know he was applying for a passport when he filled out an application form supplied to him by the Taiwanese trade delegation. On 6 March 1980 the respondent was issued a Republic of China (R.O.C) passport. On 16 July 1980 he was granted Solomon Islands citizenship and on 12 August 1980 he applied for a Solomon Islands passport. Part 7 of the passport application form requires the applicant to declare by deleting the applicable section either that he has not previously applied for or held a passport or that all previous passports have been surrendered. The respondent deleted neither section.

Held:

1. Guilty knowledge is a necessary ingredient to the offence of obtaining a passport by false statement c/s 6 of the Passport Act 1978.

2. A court of appeal will only rarely upset a lower court’s finding of fact as the trial court is generally in a better position to judge the demeanour of the witnesses and assess the truth or otherwise of their evidence.

3. The appellant failed to prove beyond a reasonable doubt that the respondent knew his statement on his passport application was false or calculated to mislead. The respondent’s failure to delete the applicable section resulted from not knowing how to fill out the form and not from intent to mislead.

At the time the respondent applied for his Solomon Islands passport he thought he had only applied for a visa and not a passport from the R.O.C. since the R.O.C. application was for a very restricted form of passport and he had not yet actually received his R.O.C. passport which would have apprised him otherwise.

Accordingly the appeal was dismissed.

No cases considered

Francis Mwanesalua for the Appellant
Kenneth Brown for the Respondent

Wood CJ: This is an appeal from a decision of the Magistrates’ Court (Honiara) by the Director of Public Prosecutions brought under s.282 of the Criminal Procedure Code. The respondent was charged before the said Court on April 4, 1985 with the offence of obtaining [a] passport by false statement or representation contrary to section 6 of the Passport Act 1978 in that the said respondent Sunny Wunson Tong on August 12, 1980 at Honiara made a statement or representation namely that he has not previously held or applied for a passport of any description which to his knowledge [was] untrue for the purpose of procuring a passport. The learned Magistrate found the respondent not guilty of the charge and he was discharged.

The appellant’s ground of appeal is “that the learned trial Magistrate erred in holding that the respondent did not know he applied for a passport when he filled and sent off an application form supplied to him by the Taiwanese trade delegation in early 1980 upon which he was issued a passport of the Republic of China.”

The respondent was born in China on November 26, 1949 and has been resident in Solomon Islands since December 29, 1971. In 1980 he applied for citizenship of Solomon Islands which was granted on July 16, 1980. He had been issued with a passport by the Republic of China (Taiwan) on March 6, 1980 which is valid until November 16, 1985.

Mr Mwanesalua has submitted that the respondent failed to declare this Chinese passport in Part 7C of his application for a passport form which is the basis of the charge against him. Part 7 on the application form reads as follows:-

“I, THE UNDERSIGNED HEREBY APPLY FOR THE ISSUE OF A PASSPORT. I DECLARE

A. that the information given in this application is correct to the best of my knowledge and belief.

B. that I have not lost the status of Solomon Islands Citizen.

C. that I have not previously held or applied for a passport of any description.

D. that all previous passports granted to me have been surrendered other than passport or travel document No..... which is now attached and that I have made no other application for a passport since the attached passport or Travel Document was issued to me”

OR Delete “C” or “D” whichever is applicable.

The respondent signed and dated Part 7 12/8/80 but made no deletions in it.

The learned Magistrate commented on this in his judgment as follows:-

“The first matter that strikes one is that Part 7 declaration for C and D should have been made in the alternative with the inapplicable one deleted. Neither has been deleted. This should have been queried when the form was presented. It was not. Further a bank manager of the “DBSI” appears to have recommended the defendant. However his signature and profession have been crossed out and the signature of a senior immigration officer inserted. He having made his recommendation apparently failed to check or require proper completion of Part 7. This does not alter the central issue, however it does show the approach that was made, certainly by at least one immigration official, to this passport application.”

S.6 of the Passports Act 1978 reads as follows -

“6. Any person who, for the purposes of obtaining a passport, or a renewal or endorsement in respect thereto, makes any representation or statement which he knows to be false or calculated to mislead in a material particular, or recklessly makes any statement which is false or calculated to mislead in a material particular, shall be guilty of an offence.”

In his judgment the learned Magistrate said:-

“I now turn to the acts of the defendant and in particular his state of mind. S.6 clearly requires knowledge or recklessness. The charge itself does not mention recklessness. There is a doubt in my mind that at the time the declaration was made on 12th August the defendant had received Ex. 6. There is a strong suspicion he had which I will deal with later. However that is not enough.

The defendant accepted he filled in and sent off the forms supplied by the trade delegation. The document with which he was supplied was a very restricted form of passport. It may well be that the application form reflected that degree of restriction to the extent that the defendant did not think he was applying for a passport but merely a travel permit or visa or document such as his Hong Kong “C.I.” In these circumstances I cannot say that the defendant knew he had applied for a passport.”

In other words the learned Magistrate was quite correctly saying that the prosecution in this case had to prove that the appellant had guilty knowledge when he applied for a Solomon Islands passport and that he was not satisfied that the evidence before him proved beyond reasonable doubt that he had such guilty knowledge.

A court of appeal will only rarely upset a lower court’s finding of fact on appeal as the trial court is generally in a far better position to judge the demeanour of the witnesses and assess the truth or otherwise of their evidence.

Less than 3 weeks after the issue of his Solomon Islands passport the appellant flew to Nauru, presumably on his way to Taiwan. Arriving at Nauru on October 5, 1980 he used both his Chinese passport and his Solomon Islands passport as both had been stamped “Seen on arrival” at Nauru Airport. The learned Magistrate found as a matter of fact that the document Exhibit 6 was a passport. There is no doubt therefore that the respondent had in his possession two passports which he used, that is a Solomon Islands passport and a Chinese passport. However the respondent was not charged with being in possession of two passports. Although s.23 of the Constitution provides for the avoidance of dual nationality no legislation has been drawn to my attention which makes it an offence to be in possession of two or more passports. The question before the learned Magistrate was whether or not the respondent had made a statement which he knew to be false or was calculated to mislead in a material particular.

If the immigration officials concerned had done their job properly in 1980 when processing the respondent’s application for a passport then the statement in Part 7 would have been clarified. They did not do so and the result is that Part 7 does not in fact make sense as Part 7C and Part 7D are contradictory. The fact that the appropriate deletion was not made in Part 7 indicates to me uncertainty and confusion rather than any deliberate intention to make a false statement or to mislead. From the evidence of the respondent and his wife it would appear that they did not understand how to fill in the form correctly and they obviously had no help from the immigration official. They did not know that the respondent had applied for a Chinese passport thinking that he had applied for a visa or travel document and did not receive it until at the earliest after he had applied for a Solomon Islands passport. On these facts the learned Magistrate found that the prosecution had failed to prove the necessary ingredient of guilty knowledge. I can see no reason to disturb that finding and this appeal is accordingly dismissed.