Public Prosecutor v Ma Yuxiang

• Jurisdiction: Singapore
• Judge: Lorraine Ho
• Judgment Date: 24 November 2017
• Neutral Citation: [2017] SGDC 311
• Court: District Court (Singapore)
• Docket Number: DAC No. 909422-2017 & 4 Ors
• Year: 2017
• Published date: 30 November 2017
• Hearing Date: 05 September 2017,21 September 2017,04 September 2017,25 September 2017,26 September 2017,20 September 2017,13 October 2017,22 September 2017
• Plaintiff Counsel: APP Andrew Low (Attorney-General's Chambers) and ASP Syed Mubaruk (Immigration and Checkpoints Authority)
• Defendant Counsel: Thong Chee Kun and Ho Lifen (M/s Rajah & Tann Singapore LLP)
• Subject Matter: Criminal Law - Immigration Offences - Passports Act
• Citation: [2017] SGDC 311

District Judge Lorraine Ho: INTRODUCTION

The accused is a 19-year-old male People’s Republic of China (“PRC”) national from the Linxia City of Gansu Province. He arrived in Singapore at Changi Airport Terminal 3 (“T3”) on 9 March 2017 from a flight which had departed from Lanzhou. He faced five charges under section 47(5) of the Passports Act (Cap. 220) [“PA”] for being in possession, at the material time without a reasonable excuse, of five foreign travel documents which he knew were not lawfully issued to him. The five foreign travel documents were five PRC passports. The accused claimed trial to all five proceeded charges. The trial was heard before me over an 8-day period and parties tendered written submissions thereafter.

BACKGROUND FACTS The Charges

The first charge reads as follows:

You, MA YUXIANG are charged that you, on 09.03.2017 at Changi Airport Terminal 3 Arrival section, Singapore, without a reasonable cause, had in possession of a foreign travel document namely a People’s Republic of China Passport bearing serial number G93XXXXXX and particulars issued under “ZHANG FATUMAI (Female/15.06.1945)”, which you knew was not lawfully issued to you and you have thereby committed an offence under Section 47(5) of the Passports Act (Chapter 220), which is an offence punishable under the same section of the said Act.”

The remaining four charges were similar in nature, save for the serial numbers of the PRC passports and particulars of the passport holders, the details of which are as follows:

	Name of Passport holder	Gender / Date of Birth
Second Charge	Ma Mingyu	Male / 02.07.1938
Third Charge	Ma Fatumai	Female / 02.07.1947
Fourth Charge	Ma Gaman	Male / 01.12.1943
Fifth Charge	Ma Jinren	Male / 07.06.1936

Statement of Agreed Facts

When the accused arrived at about 3am on 9 March 2017 in T3, he produced his own PRC passport to an immigration officer for immigration clearance at the immigration counter located at the Arrival Section. The accused’s PRC passport has been ascertained to be a genuine passport lawfully issued to him by the PRC government.

At the said counter, the immigration officer discovered that although the accused had been issued with a visa under a Collective Group Visa (“CGV”) for a group comprising of the accused and 13 other PRC nationals with a validity period from 21 February 2017 till 14 March 2017, he had however arrived alone without the group. The CGV issued was for the purpose of allowing the group to visit Singapore as tourists. In fact, the rest of the people listed in the same CGV had already completed the tour and left Singapore. Given the circumstances, the accused was referred to the duty officer for further checks at about 3.44am on the same day.

At the duty office, a check was conducted on the accused’s backpack which he was carrying with him. Five PRC passports that were not issued to the accused were found in the accused’s possession. The five PRC passports have been ascertained to be genuine, unaltered passports, lawfully issued by the PRC government to the relevant passport holders.

The Accused’s Defence

Initially, when the accused was first asked whose passports did he have possession of, he said that he did not know who the passport holders were. The accused informed Investigating Officer (“IO”) Shahrin Bin Jamil (PW6) during a statement recorded (P10) of the accused at about 6.20pm on the same day of the accused’s arrival that the purpose of him coming to Singapore was to obtain a 1-year Saudi Arabia Visa (“SA Visa”) through a Singapore agent who was supposed to have greeted him at Changi Airport. As the accused was a student in an Islamic school in his home country, he had wanted to perform an Islamic pilgrimage out of the Hajj period at the Holy Land in Saudi Arabia with his paternal grandfather. His trip to Singapore in order to obtain the SA Visa was arranged by a China agent called “Salading” or Saladdin, who is also a well-known pilgrimage delegation leader to Saudi Arabia. The accused understood from Saladdin that the wait to obtain the SA Visa from Singapore will be much shorter than if he had applied for it in China. The cost of the entire trip to Saudi Arabia would cost RMB60, 000 per person.

Before the accused flew to Singapore using his own passport, Saladdin had handed over the five PRC passports found in the accused’s backpack to him. According to the accused in his statement, Saladdin had requested the accused to bring the five PRC passports with him to Singapore and hand them over to the Singapore agent for him since he was already travelling to Singapore for his SA Visa application. The accused had agreed to Saladdin’s request even though he did not know the purpose of bringing those PRC passports to Singapore or knew the Singapore agent. Further, he did not even look at the passports to see the details of the passport holders. It was the accused’s first overseas trip out of China.

Attempts by the accused to contact the Singapore agent called “Miao” via WeChat more than an hour after his arrival in Singapore were unsuccessful. Nobody was also seen waiting for the accused at the greeting area outside the T3 arrival hall. When shown a copy of each of the five PRC passports, the accused denied knowing any of the passport holders save for Ma Jinren. The accused acknowledged that Ma Jinren is his paternal grandfather.

The Defence of the accused at the trial differs from his recorded statement. At the trial, the accused said that besides his paternal grandfather, the other four remaining passport holders were his relatives, namely:

	Name of Passport holder	Passport Exhibit No.	Relationship with the Accused	Age
First Charge	Zhang Fatumai	P3	Wife of Ma Gaman/ Accused’s maternal aunt	72
Second Charge	Ma Mingyu	P4	Accused’s paternal uncle/ Cousin of Accused’s father	79
Third Charge	Ma Fatumai	P5	Wife of Ma Mingyu/ Accused’s paternal aunt-in-law	70
Fourth Charge	Ma Gaman	P6	Accused’s maternal uncle/ Older brother of Accused’s mother	74
Fifth Charge	Ma Jinren	P7	Accused’s grandfather	81

The accused added that he was entrusted by his family members with their passports to come to Singapore to apply for the SA Visa on their behalf. This was made possible because Saladdin had informed him that applicants above the age of 70 need not have to fly down to Singapore personally to apply for the SA Visa. As the accused was the only person below the age of 70, he was therefore authorised by his family members to make the trip to Singapore with their passports for the SA Visa application.

In view of the foregoing, it was the accused’s position that he had a reasonable excuse to be in possession of the five PRC passports. When he signed the cautioned statement (P11) on 9 March 2017 at between 10.05pm to 11.05pm, he had thought that at that time, coming to Singapore from China to obtain a SA Visa was an offence. At the trial, the accused explained that he had lied to the immigration officers earlier claiming that he did not know the passport holders because he was afraid of getting his relatives into trouble and had wanted to protect them. I understand that he had sought to correct the untruth at subsequent meetings with the IO and representations made to the Prosecution.

THE PROSECUTION’S CASE

The Prosecution’s case was that the accused had no “reasonable excuse” to possess the five PRC passports that were not issued to him. At the trial, the Prosecution called a total of eleven witnesses to give their testimonies and sought to prove the following in that the accused: Had possession of the five PRC passports in order to circumvent the visa application framework lawfully imposed by the Saudi government; Either knew or had reasonable suspicion to know that he might be breaking the law imposed by the Saudi government when he brought the five PRC passports into Singapore for a SA Visa application; Has failed to provide any evidence to show that it was proper for him to apply for a SA Visa to perform a pilgrimage through the Saudi Arabia Embassy in Singapore instead of through his own country; and Did not have a genuine belief that he could apply for a SA Visa successfully in Singapore for him to travel to Saudi Arabia to perform a pilgrimage.

Evidence from the Immigration Officers on the Incident

At the trial, SSgt Nurhawanizan Binti Abdullah (PW1) gave evidence that on 9 March 2017 at about 3am, the accused had gone to the immigration counter where she was on duty, and produced his PRC passport for arrival immigration clearance. Through the computer systems at the immigration counter, the accused was detected to be on a Collective Group Visa (“CGV”). However, he had arrived alone without the group. PW1 then asked the accused in both simple Mandarin and English if he had arrived alone or he came with someone. The accused shook his head. As such, the accused was referred to the duty office by PW1 for further checks.

Diana Teresa Phang (PW2), the primary screening officer deployed to the duty office counter on 9 March 2017, confirmed that the accused was referred to her duty office counter for further checks on the date of incident, as the accused was on a CGV but had travelled alone. PW2 testified that she had conducted an interview of the accused with her colleague, ASP Jonathan Lee (PW3).

PW3 corroborated PW2’s evidence that the accused was referred to him and PW2 on 9 March 2017 after being detected to be on a CGV while travelling alone. PW3 testified that a screening was conducted on the accused’s passport after it was handed over to him. The accused was not found to be wanted in Singapore. However, from the Immigration and...