HKSAR v. LIN, RUPING

HCMA 238/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 238 OF 2016

(ON APPEAL FROM STCC 3917 OF 2015)

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J U D G M E N T

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1.  The Appellant was charged with “Making a false representation to an Immigration Officer”, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong. She pleaded not guilty to the charge before a magistrate in Shatin Magistracy (“the Magistrate”). She was found guilty after trial and sentenced to 18 months imprisonment.

2.  The Appellant now appeals against her conviction.

3.  At the trial before the Magistrate, the Appellant was represented by counsel and the trial was conducted in Chinese.  At the request of the Appellant, the appeal before me is conducted in English, the evidence and the Magistrate’s Reasons for Verdict having been translated into English.  Mr Martyn Richmond now acts for the Appellant.

Issue of the case

4.  The Appellant is not a Hong Kong resident. The prosecution case is that on 19 May 2015, during the course of completing the procedure of immigration clearance in the Arrival Hall at the Hong Kong International Airport, the Appellant made a false representation by telling the immigration officer that she was not pregnant at the time.  The defence does not object to the fact that the officer had enquired whether the Appellant was pregnant, but it is the defence case that the Appellant told the officer that she had been pregnant for 25 weeks.

Prosecution case

5.  The prosecution called two witnesses to give evidence.  Senior Immigration Assistant, Yue Hong Shing (“PW1”) and Immigration Officer, Woo Kong Yin (“PW2”) were both on duty at the Airport Immigration Arrival Hall on 19 May 2015.

6.  At about 10:53 pm, the Appellant arrived at PW1’s counter for immigration clearance.  At the time, the Appellant was carrying a child in her arms. PW1 noticed that the Two-Way Exit-Entry Permit for travelling to and from Hong Kong and Macau held by the Appellant bore the endorsement of “T”, which stood for “visit relatives”.  According to the Immigration Department’s internal guidelines, a Mainland female within the age range of 18 to 44 holding a permit with “visit relatives” endorsement visiting Hong Kong must be referred to an Immigration Officer for further enquiries.  Therefore, PW1 wrote down the Appellant’s background information on the Immigration Department’s internal referral form “ID622” and summoned PW2 to come to the counter for further examination of the Appellant.

7.  PW2 came to the counter to take over the inquiry of the Appellant.  At that time the Appellant was still carrying the child in her arms.  PW2 asked the Appellant in Putonghua whether she was pregnant,  and requested her to put the child down so that he could see whether there were signs of the Appellant’s belly protruding out.  The Appellant put the child down as instructed, and answered “No” in Putonghua.  Seeing no signs of the Appellant’s pregnancy, PW2 directed PW1 to complete immigration clearance procedures for the Appellant and her child to enter Hong Kong.

8.  PW2 wrote on ID622 that he had granted entry to the Appellant.  He also recorded in English that the Appellant said she was not pregnant.

Defence case

9.  The Appellant elected to give evidence.  She did not call other witnesses.

10.  The Appellant testified that her mother tongue is the Amoy dialect, but she can speak Putonghua.  Neither she nor her husband are Hong Kong residents.  On 10 May 2012, the Appellant gave birth to her eldest daughter in a private hospital in Hong Kong.  The Appellant’s husband afterwards purchased a flat in Tseung Kwan O. 

11.  On the night of 19 May 2015, the Appellant along with her husband and eldest daughter arrived at the Hong Kong International Airport from Fujian Province.  Her husband was holding a 7-day tourist permit, while she was holding a 90-day “visit relatives” endorsement permit.  As these two permits were of different categories, her husband went to a different immigration counter to complete his clearance procedure. 

12.  As the Appellant’s eldest daughter is a Hong Kong resident, the Appellant and her eldest daughter went to a Hong Kong resident counter.  During the immigration clearance, PW2 turned up in front of the counter. 

13.  The Appellant said she had never expressed that she was not pregnant to any immigration staff, including PW2.  On the day of the incident, she knew she had been pregnant for 25 weeks.  However her purpose of visiting Hong Kong was not to stay in Hong Kong for confinement, but to sell her husband’s flat. She intended to go back to Shenzhen in late July pending delivery.  As hospitals in Shenzhen had more beds, she had not yet made a confinement booking with any Shenzhen hospitals.  The Appellant reiterated that she had no intention at all to give birth in Hong Kong.

14.  In Hong Kong, the Appellant had been attending antenatal check-up consultation with a Dr Wong, who is an obstetrician with whom she is well acquainted.  The Appellant attended three antenatal check-ups consultation at Dr Wong’s clinic.  Dr Wong told the Appellant that the expected delivery date of her second daughter was 1 September 2015.

15.  On 30 July 2015, the Appellant’s water broke while she was shopping in North Point.  She gave birth to her second daughter at the Pamela Youde Nethersole Eastern Hospital on 31 July.  The delivery was premature.     

The Magistrate’s Reasons for Conviction

16.  The Magistrate reminded herself that the onus of proof was on the prosecution to prove beyond all reasonable doubt.  The Appellant did not have to prove anything.

17.  As the Appellant had a clear criminal record, the Magistrate gave herself appropriate direction in favour of the Appellant.

18.  The Magistrate viewed the undisputed CCTV footage lasting for about 3 minutes, which recorded the entire course of the immigration clearance.

19.  Having carefully considered all the evidence, the Magistrate found both of the prosecution witnesses honest and reliable.

20.  The Magistrate was alive to the issue of “misunderstanding” which might arise in the course of communication between PW2 and the Appellant.  The Magistrate found that there was no communication barrier between PW2 and the Appellant.  As the Appellant was a woman of Chinese nationality within the age range of 18 to 44 and was visiting Hong Kong holding a permit with “endorsement for visiting relative”, and there was a government policy to prevent “doubly non-permanent resident” pregnant women from giving birth to children in Hong Kong, the Magistrate found that the possibility of PW2 having misunderstood the content of the Appellant’s reply did not exist.

21.  The Magistrate did not accept the Appellant’s evidence as to why her husband queued up separately at another counter for immigration clearance. The Magistrate also disbelieved the Appellant’s claim that the purpose of her visit was primarily to handle the business of sale and purchase of property, as the Appellant was not the owner of the property in Hong Kong. 

22.  Having analyzed the evidence of the Appellant, the Magistrate found that the Appellant was not an honest and reliable witness. 

23.  The Magistrate yet reminded herself that the burden of proof was still on the prosecution. Having carefully considered all the evidence, the Magistrate found that the Appellant did tell PW2 that she was not pregnant.  The Magistrate drew an inference further that the Appellant attempted to conceal her pregnancy in order to gain successful entry into Hong Kong to await delivery.

The Ground of Appeal

24.  There is only one ground of appeal, namely: “That in view of the evidence, the learned Magistrate erred in concluding that the “only irresistible inference that can be drawn in this case is that the Appellant attempted to conceal the truth that she was pregnant in order to gain successful entry into Hong Kong to await the chance of delivery,” such finding being one which is not sustainable on the evidence.

Discussion

25.  In his written submission, Mr Richmond submits that the key issues at trial relevant to this appeal concern the evidence that:

a)  The Appellant never concealed the fact she was pregnant;

b)  The undisputed evidence that the Appellant was 25 weeks’ pregnant upon her entry to Hong Kong;

c)  That the Appellant (on the prosecution case) co-operated with the Immigration officers at the airport and allowed PW2 to inspect her;

d)  The uncontested evidence that the Appellant had medical advice from a registered medical practitioner in Hong Kong that she would not deliver until early September when she reached full-term;

e)  The uncontested evidence that the birth on 31 July was both premature and unanticipated; and

f)  The Appellant’s reasons for not having made a booking for confinement in Shenzhen were not shaken by cross-examination.

26.  Mr Richmond placed much emphasis on the uncontested evidence that the birth of the Appellant’s second baby on 31 July 2015 was premature and unanticipated.  As the Appellant did not contemplate the birth of her baby at the end of July, it is submitted that the Appellant would have unlikely contemplated of remaining in Hong Kong until 1 September.  The Magistrate’s inference that the Appellant attempted to conceal her pregnancy was therefore not properly based.

27.  A magistracy appeal is in the nature of re-hearing on the paper and the appellate court will not depart from a magistrate’s finding of witness credibility unless it is “plainly wrong”.  I need only to quote paragraph 10 of the judgment inHKSAR v FOK, James Alistair [2015] 4 HKC 247,  where the test of “plainly wrong” is well summarized:

“10. In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, the finding was one that no reasonable magistrate could have reached.”

28.  Having carefully considered the evidence of all the witnesses, the Magistrate came to her findings that both PW1 and PW2 were reliable witnesses.   The Magistrate found the Appellant’s evidence as to why she queued up at a different counter for immigration clearance separately from her husband and the reason for coming to Hong Kong, being to sell property owned by her husband, unconvincing. The Magistrate found the Appellant’s evidence evasive.  The Magistrate had the opportunity to see and hear the witnesses. The assessment of the credibility of the witnesses in this case is entirely within the province of the Magistrate.  In this case, I do not see any sufficient basis to interfere with the findings of the Magistrate.

29.  It is submitted that the Appellant was all along co-operative with the immigration officers.  In my judgment it is neither here nor there.

30.  Mr Richmond’s argument that the Magistrate wrongly drew the inference, that the Appellant attempted to conceal her pregnancy in order to gain successful entry to wait for the delivery of her baby, might be attractive.  The force of the argument was based on the uncontested evidence that the birth of the second daughter was premature and unexpected.  The suggestion is that, as the permitted stay ran out on 17 August and the expected delivery date was not until 1 September, there was no incentive or motive for the Appellant to lie.  However I do not think there is a strong basis for the argument as it would be entirely up to the Appellant to decide whether to remain in Hong Kong after 17 August, albeit overstaying.  

31.  It is also to be noted that the inference was only drawn by the Magistrate at the latter part of paragraph 35 of the Reasons for Verdict.  That inference was only drawn after the Magistrate had found at paragraph 34 that PW1 and PW2 were honest and reliable witnesses, with the finding of fact that the Appellant did in fact express to PW2 that she was not pregnant.  That latter part of paragraph 35 of the Reasons for Verdict in respect of the Appellant’s intention of giving birth in Hong Kong is not relevant insofar as the conviction is concerned. 

32.  The prosecution does not have to prove the Appellant’s ulterior motive of lying to PW2.  The reason why the Appellant wanted to conceal her pregnancy is not material in proving the charge. Even if the inference was wrongly drawn, it could not have affected the basis of the conviction. It is only relevant to the sentence.

33.  In my judgement, the Magistrate was entitled on the totality of the evidence to draw the inferences as she did.  In any case, the inference that the Appellant intended to gain entry for delivery of baby would not have affected the finding by the Magistrate that the Appellant did tell PW2  she was not pregnant. 

34.  It is also the defence of the Appellant that there was a possibility of mistake in the sense that PW2 made a mistake about the Appellant’s reply.  This issue was alive to the Magistrate.  Having analysed the issue carefully, she excluded such a possibility.

35.  I agree with the analysis of the Magistrate. At the relevant time, there was a government policy to prevent pregnant “doubly non-permanent resident” Mainland women from coming to Hong Kong to give birth.  There was also an internal instruction in the Immigration Department how this category of women should be handled. Following the internal instruction, PW1 specifically referred the case to PW2 for this purpose. 

36.  Had the Appellant replied that she was pregnant, PW2 would have adopted a different handling procedure by inviting the Appellant to go to an interview room for a more detailed inquiry to be carried out. Having heard the answer of the Appellant, PW2 there and then recorded the Appellant’s reply on the immigration referral card and directed PW1 to allow the Appellant’s stay in Hong Kong.  PW2 needed to speak Putonghua every day in the carrying out of his duties. 

37.  The expressions of “No” and “25 weeks” are as different as day and night.

38.  On these evidence, the Magistrate’s finding that there was no possibility of mistake cannot be faulted. 

39.  In my judgment, the Magistrate has analysed the evidence in this case carefully and accurately.  There is no basis for me to interfere with any of the findings of the Magistrate. 

40.  Performing my statutory duty of conducting a rehearing and looking at the evidence afresh, I am satisfied that on the evidence adduced by the prosecution the guilt of the Appellant has been proven beyond reasonable doubt.

Conclusion

41.  The conviction is neither unsafe nor unsatisfactory.  The appeal against conviction is therefore dismissed.