Holding Taiwanese Born in China to Have ROC Chinese Passport

8/6/2019 Holding Taiwanese Born in China to Have ROC Chinese Passport

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Holding Taiwanese born in China to have ROC Chinese passport

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 Magistrates 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


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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 SolomonIslands 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 courts 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 therespondent knew his statement on his passport application was

false or calculated to mislead. The respondents 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
http://www.paclii.org/cgi-bin/disp.pl/sb/cases/SBHC/1985/9.html?query=taiwanese#disp2http://www.paclii.org/cgi-bin/disp.pl/sb/cases/SBHC/1985/9.html?query=taiwanese#disp0


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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.282of 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 appellants 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 declarethis 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.
http://www.paclii.org/sb/legis/consol_act/cpc190/http://www.paclii.org/cgi-bin/disp.pl/sb/cases/SBHC/1985/9.html?query=taiwanese#disp3http://www.paclii.org/cgi-bin/disp.pl/sb/cases/SBHC/1985/9.html?query=taiwanese#disp1http://www.paclii.org/sb/legis/consol_act/cpc190/


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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 attachedand 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 crossedout 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:-


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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 thedefendant 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 courts 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


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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 calculatedto mislead in a material particular.

If the immigration officials concerned had done their job properly in

1980 when processing the respondents 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.

Holding Taiwanese Born in China to Have ROC Chinese Passport

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