HKSAR v. JAGJEET SINGH

HCMA 78/2025

[2026] HKCFI 3434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 78 OF 2025

(ON APPEAL FROM KCCC NO 1773 of 2024)

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J U D G M E N T

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The Charge

1.  The Appellant was charged with an offence of “Breach of Condition of Stay”, contrary to section 41 of the Immigration Ordinance, Cap.115. He was convicted after trial and was sentenced to 2 weeks’ imprisonment.

2.  The Appellant now appeals against conviction. He was represented by a duty lawyer at the trial but is unrepresented in this appeal.

Prosecution Case[1]

3.  The prosecution relied on one prosecution witness, namely Ms Chan (“PW1”), an the immigration officer who was responsible for handling the Appellant’s two applications for extension of stay (the “Visa Extension Applications”). Certified true copy of the relevant records kept by the Director of Immigration in respect of the Visa Extension Applications were adduced as Exhibit P1(A) to (U).

4.  Briefly, the Appellant submitted an application for extension of stay (the “1^st Application”) through his solicitors, Messrs. Mohnani & Associates (“Mohnani”), on 21 May 2019. He applied as the dependant of his wife, Ms Kaur Ranjeet (the “Wife”). PW1 received the 1^st Application on 22 May 2019 and processed it. In the application form, the Appellant claimed his residence was in Shek Kip Mei, while using his solicitor’s address as the correspondence address. Later, since the Wife ceased to support the Appellant’s application, the 1^st Application was therefore unsuccessful.

5.  On 3 September 2019, Mohnani, representing the Appellant, delivered a letter and an application form to the Immigration Department. This time the Appellant applied for an extension of his stay under the General Employment Policy (the “2^nd Application”). The Appellant’s residential address on the application form was changed to Tsuen Wan, while the correspondence address remained that of Mohnani. The 2^nd Application stated that the Appellant was to be employed at a bar restaurant.

6.  Between 13 September and 10 December 2019, the Immigration Department sent multiple letters to the Appellant requesting for submission of necessary documents, but the requests were not fulfilled. Mohnani repeatedly issued letters to the Immigration Department asking for extensions of deadline.

7.  On 24 December 2019, the Immigration Department issued a rejection letter (the “Letter”) to the Appellant through the address of Mohnani, stating that the 2^nd Application had been cancelled and requiring the Appellant to leave Hong Kong by 7 January 2020 (i.e. the limit of stay referred in the particulars of charge) (the “Departure Order”). The Letter also advised the Appellant to visit the Immigration Tower to collect a departure memo to facilitate his departure. The Letter was delivered to Mohnani via registered mail and facsimile. There was no record of its return. On 31 December 2019, an employee from Mohnani went to the Immigration Tower to collect the departure memo (the “Departure Memo”).

Defence Case[2]

8.  After ruling that there was a case to answer, the Appellant elected to give evidence but called no other witnesses.

9.  The Appellant testified that he had engaged Mohnani to handle the Visa Extension Applications. According to him, he had consistently followed up the matter with a person called Sunny, who was a legal executive of Mohnani. Although he had paid a handsome amount of money as legal fees, Sunny repeatedly informed him that they were still waiting for a response from the Immigration Department, but never mentioned that the Immigration Department had previously requested additional documents from him and that his application was rejected.

10.  The defence case was that the Appellant had not been informed by Mohnani and therefore did not know that he had to leave Hong Kong on or before 7 January 2020.

Reasons for verdict

11.  In the Statement of Findings, the magistrate said[3]:

“20. In this case, the defence does not dispute that Appellant was overstaying. The focus of the defence’s dispute is that Appellant was unaware that he needed to leave Hong Kong by or before January 7, 2020. The reason for Appellant's lack of knowledge was that the solicitor, Mohnani & Associates, that he had instructed, failed to fulfil its duties by not fully informing Appellant of the progress of the relevant application, and the order to depart Hong Kong.

PW1

21. I carefully observed the demeanor of PW1 while testifying. Her testimony was straightforward and truthful. The Defence's cross-examination aimed to present their case through the witness, not to question her integrity. The witness's testimony remained unshaken under cross-examination, and there was no inherent improbability. I rule that PW1 is a credible and reliable witness. I accept her testimony.

Appellant

22. Regarding the testimony of Appellant, the court has the following observations:

From the beginning, when making application to the Immigration Department for the extension of stay, Appellant was represented by Mohnani & Associates. This was not the first time Appellant had used the services of this solicitor. He had previously applied as a dependent through the same solicitor.

Appellant stated that he had written a letter (D1) to the Immigration Department to follow up on his application progress. The letter did not express dissatisfaction with the solicitor or that he was not receiving information from them, nor did it ever complain about any wrongdoing by the solicitor. Even throughout the relevant period, there is no evidence whatsoever that Appellant had informed the Immigration Department about the solicitor's failure to fulfil their duty or that they had not accurately reflected the application's progress or outcomes. Appellant never indicated that he would dismiss the lawyer and handle the application himself at any stage of the application. Therefore, Appellant’s letter only indicates, at most, that Appellant wanted to personally know the progress of his application.

23. Besides Appellant's testimony, there is no evidence in this case to support his claim that the lawyer did not inform him of the progress of his application. Given that Appellant was continually dissatisfied with the solicitor's services, not only doubting whether the solicitor provided accurate progress information but also taking it upon himself to write directly to the Immigration Department to inquire about the progress, and later dismissing the lawyer, one wonders why Appellant did not directly inform the Immigration Department that he had terminated the employment of the solicitor and, would handle the application matters himself. According to Appellant’s educational background, he claimed that he received higher education in Singapore and India. D1 shows that Appellant is fully capable of writing a letter to inquire about the progress of his application. The court does not believe that Appellant would be incapable of writing a simple letter stating the termination of the lawyer's services to handle the application himself. There is also a lack of evidence to prove exactly when Appellant stopped instructing the relevant lawyer. All application forms continuously used the solicitor's office as the correspondence address. The application appeared to be important to Appellant, it is implausible that Appellant did not know that the correspondence address for the application was the solicitor’s office. Since he seized to engage the lawyer, it would be common sense for Appellant to notify the Immigration Department to change the correspondence address back to his residence, but Appellant did not do so.

24. In fact, there are many lawyers in Hong Kong, and Mohnani & Associates is not only the solicitor involved in this case. Since Appellant was dissatisfied with the services of that solicitor, it would have been easy to switch to another solicitor. Of course, hiring a lawyer involves costs, but since Appellant was dissatisfied with the original solicitor's services, he could have complained to the Law Society and requested a refund, among other things. There is no evidence showing that Appellant took any such actions. In other words, Appellant's claims are unsupported by evidence.

25. Under Hong Kong's legal system, since Appellant had a legally registered lawyer acting on his behalf, it is reasonable for the Immigration Department not to doubt that the solicitor provided services according to the professional code. That is, the Immigration Department had no reason to suspect that Appellant was not receiving messages and letters from the Department.

26. For the same reason, the Immigration Department also had no reason to believe that the lawyer representing Appellant in the application was incompetent or fraudulent. Appellant’s two applications for extension of stay, including as a dependent and as an employee, both used Mohnani & Associates as point of communication and were never changed. All applications were signed and confirmed by Appellant. Appellant’s actions also directly led the Immigration Department to believe that the solicitor acted under Appellant’s instructions.

27. Regarding the two applications mentioned, Appellant applied for extension of stay as a dependent unsuccessfully before applying under the general employment policy. It is therefore obvious that Appellant and the lawyer had close contact, and the lawyer provided legal advice accordingly.

28. I noted that the address on Appellant's exhibit D1 differs from the addresses submitted in all his applications. As mentioned above, throughout the relevant period, Appellant never reported a change of address to the Immigration Department. His latest address in D1 is again different from any in his applications. He also never expressed to the Immigration Department the decision to terminate the employment of the lawyer and requested that the Immigration Department directly contact him directly in future application procedures.

29. The Defense in their submission asked the court to infer from D1 why, if Appellant knew he had overstayed, he would write to the Immigration Department to inquire about the progress of his application. The court considers that this letter can only allow the court to infer at most that Appellant wrote a letter to the Immigration Department to inquire about his application situation. As analyzed above, if Appellant had truly dismissed the lawyer, why did he not appear in person at all during the entire application process. Even the court noted that as mentioned above, the address claimed by Appellant on the application form differs completely from the addresses in D1. Moreover, the letter did not reveal why Appellant made such an inquiry, nor did it elaborate that Appellant had dismissed the solicitor on a certain date. There is also no evidence in this case that Appellant personally reported to the Immigration Department the situation of dismissing the solicitor. If Appellant was concerned about his application, logically, he would have informed the Immigration Department as soon as possible after dismissing the lawyer, requesting that all correspondence be sent back to the address provided by Appellant, and not take it lightly. But Appellant did not do so. Appellant's claims are illogical. There is no evidence in this case to support Appellant's claims. The court finds that Appellant did not tell the truth. I rule that Appellant is not an honest and reliable witness. The court refuses to accept his testimony.

…

31. The Defence continually criticizes the Immigration Department for its responsibility to directly contact Appellant and inform him about the deadline for leaving Hong Kong. Therefore, Appellant was unaware of the departure requirements, placing the responsibility not on Appellant. This court has closely examined all evidence, and throughout, the communication address declared by Appellant has consistently been Mohnani & Associates. Moreover, the address provided by Appellant in the first application, the second application, and on D1 were all different. However, the communication address reported by Appellant to the Immigration Department has never changed. Given this, the Immigration Department merely acted according to Appellant's instructions by sending the correspondence to the address he claimed. Essentially, they were acting based on Appellant's direction. Appellant frequently changed his residential address, yet Mohnani & Associates is a solicitor. It is evident that sending correspondence to Mohnani & Associates is the correct method to ensure Appellant receives all communications. The actions of the Immigration Department are reasonable, and the Defence's challenge is not valid.”

Grounds of appeal

12.  In his homemade ground of appeal, the Appellant asserted that the magistrate erred in the ruling concerning his knowledge.

The Respondent’s Submissions

13.  The Respondent submitted that the central issue of this case fell on whether the Appellant had knowledge of the Departure Order. In this regard, credibility and reliability of the Appellant was of paramount importance.

14.  Upon reviewing the Statement of Findings, the Respondent submitted that the magistrate had properly rejected the testimony of the Appellant based on a thorough analysis of the evidence of the case.

15.  Notwithstanding the refusal to accept the Appellant’s evidence, it is trite that the prosecution still bears the burden to establish every element of the charge beyond reasonable doubt. In his Statement of Findings, the magistrate had rightly pointed out that when making a finding of fact, he could infer the existence of additional facts based on proven facts, but any inference so drawn must be the only reasonable inference that one can be drawn. In this case:

(a)  According to PW1, Mohnani had sent a staff member to the Immigration Tower to collect the Departure Memo as instructed under the Letter, which informed the Appellant that he had to leave Hong Kong on or before 7 January 2020;

(b)  Additionally, Mohnani also continued to write on 7 January 2020 asking for an extension on behalf of the Appellant;

(c)  If they had no instruction or further instruction to act, it was beyond common sense that the solicitors firm would still send someone to the Immigration Tower on 31 December 2019 to collect the Departure Memo and further issued a letter to ask for an extension on 7 January 2020;

(d)  Regarding the Visa Extension Applications, the Appellant had indeed applied for extension of stay as a dependent unsuccessfully (i.e. the 1^st Application) before applying under the general employment policy (i.e. the 2^nd Application). It was, therefore, obvious that the Appellant and Mohnani had indeed maintained close contact, and Mohnani did provide legal advice accordingly;

(e)  As pointed out by the magistrate, there was in this case no other evidence, apart from the Appellant’s testimony to support his claim that Mohnani had failed to fulfil its duty by not informing him the progress of the application and the Departure Order. It is illogical and unreasonable that a solicitor firm would have kept the progress away from the Appellant and not inform him of the cancellation of the application, and further not notifying him about the Departure Order even they had received such an important letter and memo from the Immigration Department.

16.  To this, the Respondent respectfully submitted that the magistrate was fully entitled to use common sense in drawing such an irresistible inference. The magistrate did not err in holding that the Appellant had been informed of and had knowledge about the Departure Order.

Consideration

17.  The Court of Final Appeal in HKSAR v Hui Lai Ki[4] held that an appeal under section 113 of the Magistrates Ordinance is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power. The judge must be satisfied that the appellant’s guilt has been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. The Court held that on such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict. The Court recognized that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Despite those limitations it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

18.  I have considered all the evidence of this case including the closing submissions made on behalf of the Appellant at the trial by his duty lawyer.

19.  The Appellant’s ground of appeal merely repeated the arguments previously advanced by the duty lawyer in the court below.

20.  As rightly submitted by the Respondent, the credibility and reliability of the Appellant was of utmost importance. In assessing the evidence of the Appellant, the magistrate had reminded himself that the Appellant was of clear record and he gave himself the appropriate legal directions.

21.  I have, in preceding paragraphs, set out substantially the full reasoning of the magistrate in arriving at the decision to convict the Appellant. It suffices to say that I have had regard to the magistrate’s detailed and comprehensive analysis of the evidence. The magistrate was alive to the issues raised in the defence final submissions. In my view, the magistrate’s anaylsis was reasonable and logical.

22.  Upon a rehearing of the matter, I am satisfied that there was sufficient evidence upon which the magistrate was entitled to draw the only and irresistible inference that the Appellant had knowledge of the relevant matter. Accordingly, I dismiss the appeal and affirm the conviction.