THE QUEEN v. HO CHUN WAI

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1768 OF 1990

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BETWEEN

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JUDGMENT

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1. The appellant was convicted of the offence of employing a person not lawfully employable contrary to s.17I(1) of the Immigration Ordinance, Cap. 115. He was fined $1,000.00 and ordered to pay $500.00 by way of costs.

2. I allowed the appeal on 25th April, 1991 and now give my reasons.

3. It was not disputed that on 14th August, 1990 the police arrested a woman who gave her name as MAN Shuk-man because of some "amendment" on her identity card; nor wasit disputed that this woman was in fact employed at a night club, of which the appellant was the manager, as was abundantly clear from the woman's employment record which the police also seized form the night club. What was in issue was whether she was SO Yuet-hing, the person named in the charge sheet as the employee and certified by the Assistant Director of immigration as being not lawfully employable in his certificate dated 6th November, 1990.

4. The prosecution adduced evidence from the arresting officer (P.W.1) of how he was able to find the name of So Yuet-hing. He was allowed to tell the court, despite an objection from the defence in that regard, "under caution, she admitted it." The appellant, who had admitted employing the woman MAN Shuk-man, allegedly gave the name of the employee as SO Yuet-hing in his cautioned statement which was admitted after a voir dire, but this was because, as the recording officer (P.W.2) explained, he - P.W.2 - had mentioned this name to the appellant. The woman was not called to testify at the trial.

5. This was the sum total of the prosecution case. The learned trial magistrate rightly and properly paid no regard to the fact that the appellant had in his cautioned statement referred to the employee in question as SO Yuet-hing as "manifestly that was based on what had been communicated to P.W.2 by others." However, in considering the evidence of the arresting officer, he said,

"Apart from the fact that the female who was arrested in the villa gave her name as SO Yuet-hing and produced an identity card in the name of MAN Shuk-man I disregarded so much of P.W.1's evidence as emanated from what the female in question told him."

He went on to find as a fact that the female who was "arrested was the same female named MAN Shuk-man on the employment record whatever her true name was," and continued:

"The appellant in his cautioned statement admitted employing the female in the employment record and given the circumstances I found that it was fanciful to suggest that the certificate of the Director of Immigration referred to any other lady. I was accordingly satisfied beyond reasonable doubt that the appellant had employed a person going by the name of So Yuet-hing who was not lawfully employable at the time."

6. It was submitted by Mr. A.W. Sedgwick, Q.C., that there was no admissible evidence to link the person arrested to that named in the Director's certificate, and he relied on R. v. Isaac Rogers (1910) 10 Cr. App. R.276 where it was held that "on an indictment for carnal knowledge of a girl not thirteen years old, her age must be strictly proved, and if her certificate of birth is put in she must be positively identified with the person therein certified." Learned Crown Counsel was unable to take the matter any further than that the evidence of the statement made by the woman to P.W.1 was admissible only to the extent of it having been said, rather than to the truth of what was said. I do not think that this argument was capable of taking the prosecution any further, the question remaining whether in the absence of any direct evidence from the person who was arrested, her statement, even if admitted for such limited purpose, proved beyond reasonable doubt that she was in fact the person named in the Director's certificate. As Mr. Sedgwick emphasized, what the woman was alleged to have said to the constable had remained strictly hearsay. What is required in such circumstances was stated thus by Reading, L.C.J. in the case cited at p.278:

"No evidence was given identifying the child with whom the offence was alleged to have been committed with the child whose birth was registered in the certificate produced. Some evidence is necessary to connect the girl with the certificate, and that evidence is entirely absent, although it could obviously have been given apart from the mother."

Likewise here, there was no admissible evidence identifying the woman claiming to be MAN Shuk-man with the female mentioned in the certificate.

7. Learned Crown Counsel sought to rely on the presumption created by s.17I(4) of the Immigration Ordinance in that the person named in the certificate, that is, SO Yuet-hing, was presumed to be the employee in respect of whom the offence was alleged to have been committed. With respect I am unable to accept this contention. That section, while making the Director's certificate admissible in evidence without further proof, goes o n to state that until the contrary is proved it shall be presumed-

8. Clearly the presumption relates not to the identity of the employee in respect of whom the offence is alleged to have been committed. The Director alleges the employee to be a certain person as named in the certificate and that remains a matter of positive proof. The presumption is to the effect that the employee named in the certificate was on the date of the alleged offence not lawfully employable. In other words, this presumption will be erected only where the prosecution has proved beyond reasonable doubt that the employee was in fact none other than the person named in the Director's certificate. In this case the prosecution had failed to prove that primary fact and, in my opinion, the learned trial magistrate erred in law in finding sufficient nexus between the person arrested as the employee and the one named in the Director's certificate as being the same on the basis that it would be "fanciful" to suggest that the certificate referred to any other lady.

9. Clearly, in my opinion, the charge had not been proved. I allowed the appeal, quashed the conviction and ordered the fine and the costs paid by the appellant be refunded to him.