HKSAR v. UJAH, IKECHUKWU HILARY

HCMA 625/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 625 OF 2012

(ON APPEAL FROM KCCC 2440/2012)

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J U D G M E N T

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1. This is an appeal against conviction for remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully contrary to section 38(1)(b) of the Immigration Ordinance Cap 115.

2. The appellant is a Nigerian.  He was stopped by police officers outside Mirador Mansion in Tsim Sha Tsui on 16 June 2012.  No proof of identity was found in his possession upon him being searched.  Under caution, the appellant admitted that he had overstayed in Hong Kong since his entry as a visitor in January 2009 when he was only permitted to stay for 14 days.

3. Immigration records revealed that a traveller using the appellant’s passport number had landed in Hong Kong on 8 January 2009; that this person went to Macau and returned on the same day, 19 January 2009 and that he departed through the airport on 29 January 2009.  There was no record of any subsequent lawful entry into Hong Kong by anyone using that passport number.

4. Thus, the prosecution argued, the appellant must have returned to Hong Kong unlawfully.  The appellant gave evidence that he had never left Hong Kong at any time since his return from Macau and that he lost his passport, though retaining a copy of it, and someone else must have used it to depart on 29 January 2009.

5. The presumption of unlawful landing in Hong Kong, following the failure to produce an identity card, in section 62(1) of the Immigration Ordinance was engaged.  The magistrate, in a careful statement of findings, set out between paragraphs 31 and 41 reasons why he did not believe the appellant.  He judged therefore that the appellant had failed to rebut the presumption.  He further found that it was an irresistible inference that the defendant had landed in Hong Kong at sometime after 29 January 2009 unlawfully.

6. The reasons given by the magistrate for rejecting the appellant's evidence were cogent ones.  There is no need for me to set them out again in this judgement.  They ranged from points concerning assertions made by the appellant concerning why he did not contain a replacement passport to consideration of the inherent probabilities.  He rejected the idea that within at most 10 days of accidentally losing his passport someone else had found it whose features happened to match sufficiently those of the appellant and who wanted to leave Hong Kong on someone else's passport or it was found by someone who had the contacts to arrange for credible photo substitution for a traveller wanting a false passport at that very time who happened to share the appellant’s age and nationality.  He did not spell it out in exactly that way but that is the conclusion from his findings.

7. At the forefront of the appellant's submissions was a challenge.  He argued that there must be a picture or image of the person who used his passport to leave Hong Kong on 29 January 2009.  He said that if the image was obtained it would not show him.  It was a forceful challenge made with confidence.  Accordingly, these proceedings were adjourned for steps to be taken to obtain such an image, if it existed.

8. I wish to say immediately that the police and the Department of Justice have been assiduous in the efforts they have made on behalf of the appellant at the request of the court to find such an image.  The matter received the personal attention of the Director of Public Prosecutions, who has appeared on no less than three occasions before me.  It must not be thought that the repeated requests of the court for further enquiry to be made reflect badly in any way on their integrity.  I accept that they diligently passed on the information they were given.  What had concerned the court was whether they were given all of the correct information.

9. No image was available.  I shall not detail the individual steps that have been taken, as the matter ended with an affidavit from the Secretary for Security.  He gave his oath that there was no scope for images of passengers using the Hong Kong International Airport on 29 January 2009 to be taken by or on behalf of the HKSAR or the PRC or others save by the Customs and Excise Department, the Immigration Department and the Hong Kong Airport Authority and that the images of passengers using the airport on that day have been deleted in accordance with the relevant systems in place and are not available.

10. I should add that the enquiries were directed only to the existence or absence of the relevant image.  Enquiry was not made into the policy that lay behind the destruction of records of images of passengers within at the most nine months when the records of their other details were preserved and remained available.  It would thus be wrong to comment upon it.  Its discussion in court has only been relevant to persistence in seeking an authoritative answer and to what the appellant may have expected.

11. The appellant argues that a member of the public such as himself would anticipate that security services of some sort would be interested in taking photographs and in keeping the photographs of passengers who travel internationally by air through our airport, especially in these days where international terrorism is obvious concern and the technology exists to store such images and where there is no readily apparent reason to destroy the visual part of the record as opposed to the written part of the record.  He says that his challenge is not therefore defeated by the lack of an image because it was made in the expectation of one being in existence.

12. I take the point that the appellant makes but in my judgment it lacks sufficient force to make me doubt the integrity of the conviction.  The magistrate saw and heard the appellant give evidence, an advantage which this court is denied.  He can be seen to analyse the evidence with care and his findings of fact can be seen to be based on good reason and common sense.  Whilst bearing in mind the challenge that the appellant has made, I am satisfied that the evidence rightly resulted in conviction.  Once his explanation of innocent loss was rejected, the inference that he travelled using his own passport on 29 January 2009 was irresistible.  Any other explanation as to how another man could travel on the appellant’s passport would be merely speculative, lacking any evidential basis.

13. Accordingly, the appeal against conviction is dismissed.