Ma Wenjie v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 08 June 2018
• Neutral Citation: [2018] SGHC 137
• Published date: 14 June 2018
• Date: 08 June 2018
• Year: 2018
• Hearing Date: 25 April 2018
• Plaintiff Counsel: Ong Lip Cheng Peter (Chung Ting Fai & Co.)
• Defendant Counsel: Ang Feng Qian (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2018] SGHC 137
• Docket Number: Magistrate's Appeal No 9012 of 2018/01 and 9012 of 2018/02

See Kee Oon J: Introduction

The Accused, Ma Wenjie, was convicted after trial in a District Court on 17 charges under s 47(5) of the Passports Act (Cap 220, 2008 Rev Ed). He was sentenced to six months’ imprisonment for each charge, and a global sentence of 12 months’ imprisonment. The Accused appealed against his conviction and sentence, while the Prosecution appealed against the sentence.

The 17 charges against the Accused relate to his possession of People’s Republic of China (“PRC”) passports without reasonable excuse. The charges are phrased identically, with the only differences being the identity of the holder and the serial number of the foreign travel document that is the subject of each charge. Each charge is worded as follows:

You … are charged that you, on 05.03.2017 at Changi Airport, Terminal 1 Arrival section, Singapore, without a reasonable excuse, had in possession of a foreign travel document namely a People’s Republic of China Passport bearing serial number [serial number] and particulars issued under “[name]”, which you knew was not lawfully issued to you and you have thereby committed an offence under Section 47(5) of the Passports Act, which is an offence punishable under the same section of the said Act.

The serial numbers and names stated in the 17 charges respectively are:

S/N	[serial number]	[name]
1.	G44824755	MA ZHELAIYE (Female / 01.03.1949)
2.	E49953456	YANG JIANCHENG (Male / 01.02.1968)
3.	E55120002	MA GUANGHUI (Male / 13.08.1947)
4.	G44827120	YANG JINMING (Male / 01.05.1972)
5.	G44824754	MA FATUMAI (Female / 01.06.1972)
6.	E64334641	ZONG DEFU (Male / 07.08.1950)
7.	E64374705	MA GASUO (Female / 03.08.1961)
8.	E55120001	MA HAIJICHE (Female / 09.06.1949)
9.	E18223704	MAI JIANRONG (Male / 04.11.1977)
10.	E67166685	MA ZHILIANG (Male / 18.02.1962)
11.	E67166684	MA SHANGZHEN (Female / 30.10.1964)
12.	E16606983	MAI JIANJUN (Male / 03.10.1974)
13.	E64374710	ZHOU ZHANSHAN (Male / 08.03.1968)
14.	E40037737	ZHOU HUSAINI (Male / 01.01.1963)
15.	E49950050	MA SUMU (Female / 01.03.1970)
16.	E21437243	MA GADE (Male / 17.02.1954)
17.	E65711499	HAN ZHONGXIAO (Male / 05.10.1989)

Having heard submissions from the parties, I dismiss both the Prosecution’s appeal against sentence and the Accused’s appeal against conviction and sentence.

Background facts

The key background facts are largely undisputed. The Accused got to know one Habibu sometime in 2015 when he was working in Saudi Arabia. He continued to keep in contact with Habibu after he returned to Beijing in 2016. The Accused told Habibu that he intended to come to Singapore to survey the market for potential business opportunities, and Habibu asked the Accused to do him a favour by bringing some PRC passports into Singapore. Habibu told him that there were no problems with the PRC passports and he agreed to help Habibu. Habibu did not tell him the purpose of bringing the PRC passports into Singapore and he did not ask Habibu about the purpose.

The arrangement was that a friend of Habibu would hand the PRC passports to the Accused in Beijing, since Habibu was in Saudi Arabia. The Accused was to call Habibu after he entered Singapore and Habibu would then make arrangements for someone to collect the PRC passports from the Accused in Singapore. The Accused was not told the name nor the contact details of the person who would be waiting to collect the PRC passports. Neither did the Accused ask Habibu for the details of this person.

On 4 March 2017, the Accused received a call from an unknown Chinese male claiming to be Habibu’s friend. Subsequently, the unknown male met the Accused at the Beijing airport and passed the Accused a red bag, telling the Accused that there were more than 10 passports inside. The Accused took the passports out of the red bag without counting them or looking at their contents, and put them into his hand luggage. The Accused then boarded a plane to Singapore.

Upon his arrival in Singapore at Terminal 1 of Changi Airport, while the Accused was going through immigration clearance, it was discovered that his entry visa into Singapore had expired. He was stopped and his hand luggage was searched. 17 passports issued by the PRC were found in his hand luggage. These 17 PRC passports are the subjects of the charges the Accused faced.

While the Accused was not promised and did not receive anything from Habibu for bringing the 17 PRC passports into Singapore, he hoped that by helping him, he would get business opportunities from Habibu in the future.

Proceedings below

The Accused claimed trial to all of the 17 charges. He did not dispute that the ingredients of the Passports Act charges had been made out, since he was in possession of the 17 PRC passports while knowing that they were not lawfully issued to him. His main argument was that he had a reasonable excuse under s 47(7) of the Passports Act for possessing the 17 PRC passports.

The Accused testified and also called two witnesses in support of his defence. First, the Accused called Zhou Xingwen, who was known to him as Habibu, as a witness to testify that he had arranged for one Ma Mingzhe to pass the 17 PRC passports to the Accused to be brought into Singapore. Habibu said that the purpose of doing so was to apply for visas to Saudi Arabia for the passport-holders of the 17 PRC passports. The Accused tendered a letter purportedly from Zangari Travel & Tourism (“the Zangari letter” and “Zangari” respectively) stating that the Accused worked “as a tour agent to bring Chinese tourists to visit the Arabian Gulf countries” and listed the names of the holders of the 17 PRC passports. It was also stated in the Zangari letter that the purpose of the Accused holding these passports was “to issue them visa from the Embassy of Kingdome [sic] of Saudi Arabia and Qatar Embassy in Singapore”. Habibu and the Accused however conceded that the Accused was not a tour agent with Zangari, which was purportedly a travel company from Bahrain, and he was not entrusted with the 17 PRC passports in that capacity. The Accused also attempted to adduce 17 letters of invitation purportedly issued by the Ministry of Foreign Affairs of Saudi Arabia (“Letters of Invitation”), one for each of the 17 PRC passports, inviting the passport-holders to visit Saudi Arabia on commercial visas. However, since only three of the 17 Letters of Invitation were translated, only these three translated Letters of Invitation were admitted in evidence.

The Accused also called Yang Guojiang (“Yang”), a Chinese national, to testify that it was possible to have his visa application to Saudi Arabia applied for in Singapore without having to come to Singapore personally. Copies of his passport and a commercial visit visa were adduced in evidence. However, Yang, who was elderly and illiterate, was not one of the passport-holders named in the 17 charges. Yang said he did not know why he was issued a commercial visit visa since he had only wanted to travel to Saudi Arabia for religious purposes.

The decision below

The grounds of decision of the District Judge is reported at PP v Ma Wenjie [2018] SGDC 41 (“the GD”). The District Judge found that the elements of the offence under s 47(5) of the Passports Act were fulfilled: the Accused did not dispute the actus reus or the mens rea of the offence; he admitted that he was in possession of the 17 PRC passports and he knew that they were not issued to him. Therefore, the decision turned on whether the Accused could avail himself of the defence of reasonable excuse under s 47(7) of the Passports Act. Section 47(7) states that subsections (2) to (6) “shall not apply if the person has a reasonable excuse”.

The District Judge analysed the law on reasonable excuse before deciding that the Accused had no reasonable excuse on the facts ([30]–[41] of the GD). She held that the burden was on an accused person to prove, on a balance of probabilities, that the defence of reasonable excuse applied (at [27]). In analysing the elements of reasonable excuse, she relied on the case of Madiaalakan s/o Muthusamy v PP [2001] 3 SLR(R) 580 (“Madiaalakan”), which involved the failure to provide an adequate breath specimen. The accused in that case argued that he suffered from chronic obstructive lung disease, and this afforded him a reasonable excuse for his failure. Yong Pung How CJ stated the elements of reasonable excuse in the context of failing to provide an adequate breath specimen as follows: (a) no excuse was reasonable unless the accused had tried as hard as he could; (b) whether the accused had a reasonable excuse (this included both subjective and objective elements); and (c) whether the Prosecution had negatived the defence. The District Judge also relied on Chan Chun Yee v PP [1998] 3 SLR(R) 172, where it was held that there must be objective evidence showing that an accused’s belief in a fact constituting a reasonable excuse was reasonable in the circumstances. Blind reliance was not sufficient.

On the facts, the District Judge found that the Accused did not have a reasonable excuse. At the material time when he came into possession of the 17 PRC passports, all he could say was that he assumed that the passports were to be brought into Singapore for the purpose of visa applications (at [36] of the GD). The Accused attempted to rationalise his...