R. v. TANG MAN BIU

IN THE COURT OF APPEAL

1994 No. 662
(Criminal)

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J U D G M E N T

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Seagroatt, J. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction of the Applicant of an offence of assisting the passage of an unauthorized entrant, contrary to section 37D(1)(a) of the Immigration Ordinance, by H.H. Judge Kilgour on 29th November 1994.

2. The case against him rested on the evidence of a number of police officers who described the events surrounding the position and movement of a light goods vehicle which the Applicant was driving on 3rd August 1994 at about 18.30 hours in the Sha Tau Kok region, an area in which surveillance was carried out specifically with a view to arresting illegal immigrants. The Applicant's vehicle was seen in a stationary position on open ground and at about 18.30 hours he was seen to get into the driver's seat. And shortly after, two apparently pregnant women were seen heading in the direction of the lorry. The lorry began to show signals with its lights and the two women boarded it. The lorry drove off and the police vehicle, with a number of officers on board, decided to intercept it. At the junction, some police officers shouted to the vehicle to halt, but the Applicant continued on with the police vehicle close behind it. It came to an abrupt halt in Luk Keng Road and the two women quickly left; the lorry drove on. One police officer left the vehicle to pursue the women whilst the police car drove on and pursued the lorry. The lorry overturned after a sharp turn, and the Applicant was arrested.

3. One of the two women was arrested. She was clearly an illegal immigrant. She was called by the prosecution to give evidence against the Applicant who made no oral or written admissions. She was clearly an accomplice, and the learned judge equally clearly expressed the proper approach in law that he should make, to her evidence, in the light of that fact.

4. She attested to a plan whereby she and the other woman were to reach Hong Kong territory by boat, walk to the main road and look for a vehicle which would flash or show its lights at them as a signal for them to board it and be taken to their homes in Hong Kong. After they had done so, and boarded it and been driven off, they were suddenly told by the driver to get off the vehicle and run as the police were chasing.

5. The learned judge found her evidence reliable and supportive of and supported by other evidence, and believed her. He did not believe the Applicant. He can have had little difficulty, in those circumstances, in finding the case proved. His decision is attacked on a number of bases. The first of which is that he allowed in and relied upon hearsay evidence. Mr. Egan referred to the learned judge's findings reflecting the evidence of the women having been given some instructions before being taken to a boat, and what to do thereafter, in addition to what one woman, the one who was not traced, was alleged to have said to the other, shortly before boarding the vehicle. This was not and was not expressed to be direct evidence against the Applicant and was merely background as to how the witnesses reached Hong Kong. The witness was clearly entitled to give evidence as to what happened and what she was looking for and what she did. The fact that this was couched in narrative form is neither here nor there. It would be wholly artificial for it to be expressed in any other way. To the extent that it was hearsay, it was part of the res gestae and it mattered not, since it was not evidence directly against the Applicant. There is no merit or substance in this ground.

6. Secondly, it is advanced certainly on paper that the learned judge erred in, having disbelieved the Applicant, failing to remind himself of the legal tests to be applied in reaching his decision. We see no reason for doubting that the learned judge approached the Applicant's evidence with all the necessary matters properly in mind. Indeed, the reference to page 11 of his findings, confirms that this was the case.

7. Ground 3 complains about the judge's reference to there being two unauthorized entrants and that there was inadmissible evidence in that regard and admissible evidence only as to one entrant, namely the woman who gave evidence. This is patently misconceived. Two women were seen to board the lorry, two left together in the circumstances described, one was not traced, and the witness who was arrested was entitled to give evidence of the circumstances in which she came to be with the other woman and what they did together. Their conversations were hearsay, but in any event part of the res gestae. There was ample admissible evidence to justify the learned judge's reference, and in any event, it did not prejudice the Applicant in any way at all. This, too, is a ground without substance or merit.

8. This application is dismissed.