HKSAR v. LI LI MUA

HCMA290/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.290 OF 2000

(ON APPEAL FROM WSCC 14927/99)

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J U D G M E N T

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1. The appellant was convicted on 23 February 2000 of one count of Breach of Condition of Stay, contrary to section 41of the Immigration Ordinance, Cap.115. She was on 1 March 2000 sentenced to one month imprisonment. She now appeals that conviction.

2. The facts were not in issue. It is the prosecution case that the appellant first came to Hong Kong as a visitor in 1991 on the strength of her Swaziland passport. She subsequently applied for a change of status from visitor to employment visa. Her application was approved in February 1992 and she was allowed to take up approved employment. She applied for extensions of stay for several times and was last permitted to remain until 3 October 1995 to continue taking up the approved employment. On 2 October 1995, before her limitation of stay expired, she submitted another application for an extension of stay to take up employment with another company. Supporting documents were required from her new employer. Before any decision could be made as to the extension of her stay, she disappeared. Repeated reminders were sent by registered mail to her last known address in 1995 and 1997 and were returned by the postal authorities indicating that there was no such person at that address. She did not reappear until 7 October 1999 when she applied for an extension of her stay. She gave an explanation to the Immigration authorities that she had a problem in extending the validity of her Swaziland passport in October 1995. She said she did not report to the Immigration Department because she did not want to leave Hong Kong. Since then, she said she had since cohabited with a Hong Kong resident. She had overstayed in Hong Kong since 3 October 1995 for a period of about four years. A charge was preferred on 22 November, charging her with overstaying.

3. The issue in the case was whether section 41 of the Immigration Ordinance, Cap.115 is a continuous offence and that accordingly the period of three years, being the period within which a prosecution could be brought, was a period which ran from each succeeding day in the continuation of the offence.

4. I am firstly referred to Li Tim Fuk v. R. [1981] HKLR 122 (Cr. App. No.908/1980) where the Court of Appeal in 1981 considered whether or not section 38(1)(b) of the Immigration Ordinance is a section which prohibits a person who having landed unlawfully in Hong Kong from continuing to remain in Hong Kong without the authority of the Director of the Immigration. It is an offence, very similar to an offence pursuant to section 41 under which the appellant was prosecuted. Section 41 reads :

"Any person who contravenes a condition of stay in force in respect of him shall be guilty of an offence and shall be liable on conviction to a fine at level 5 and to imprisonment for 2 years."

Section 46(2) provides :

" (2) A complaint may be made or an information laid in respect of an offence under section 38(1)(b) or 41 within 3 years from the time when the matter of such complaint or information respectively arose."

5. In the case before me, the Immigration Authorities must have known of the breach of condition of stay immediately the breach occurred. This is not a case where a condition of stay relates to employment with a particular employer or some other condition not related to length of stay when the knowledge of the authorities as to when the offence occurred may not coincide with occurrence of the offence, or when an offence might take place sometime after the grant of the right to stay. I do not propose to deal with the arguments in respect of those offences. The facts of the present case are that as soon as the appellant was in breach, those facts were known to the authorities. The only issue for me to decide is whether or not the offence continued and I find that it does pursuant to the authority of Li Tim Fuk, reinforced by the comments of Power J (as he then was) in the case of Attorney General v. Cheung Kam Ping [1980] HKLR 602 where he said at page 620 :

" It cannot be suggested that s. 45 [of the Immigration Ordinance] was not meant to apply to s. 3(1)(b) for the words of the section clearly make it applicable to all of the offences created by the Ordinance. How then does the limitation section apply itself to this continuing offence? The answer lies in the fact that this is a continuing offence of a particular kind which has both a static element and a continuing element. I am satisfied that what s. 45 lays down, as regards offences against s. 3(1)(b), is that the offence must be prosecuted within twelve months after the time when the matter of the complaint or information respectively first arose. It seems to me clear that the Legislature intended that a person could only be prosecuted within the period of twelve months after he first committed the offence. This was not to say that he did not thereafter remain in breach of the first element and continue to be in breach of the second element, only that he could not be prosecuted for the offence.

The same result exactly, in my view, follows when one looks at an offence under s. 38(1)(b) of Cap.115 in the light of s. 46(2). This section states that :

'A complaint may be made or an information laid in respect of an offence under section 38(1)(b) or section 41 within 3 years from the time when the matter of such complaint or information respectively arose.'

I am satisfied that what this section lays down is that a prosecution for an offence under s. 38(1)(b) must be launched within three years after the matter of the complaint or information first arose."

These comments apply, in my view, to the situation before the magistrate in this case. The offence under section 41 is a continuing offence. However, in this case the Immigration authorities were aware of the breach of the section immediately it occurred. From that point which was both the time when it arose and the time when the authorities first became aware of it, that the authorities had three years in which to bring a prosecution against the appellant. For reasons which were not the fault of the prosecution authority, they were unable to do so but, nevertheless, their opportunity is lost.

6. I find that the magistrate was wrong in holding that the prosecution was not time-barred, that the prosecution was barred from proceeding with this complaint. The appeal against conviction must be allowed and the period of imprisonment set aside.