HKSAR v. PINDER SINGH

DCCC 188/2024

[2026] HKDC 514

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 188 OF 2024

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REASONS FOR VERDICT

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THE CHARGE

1.  The defendant (D)  pleaded not guilty to one count of assisting the passage within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a)  of the Immigration Ordinance, Cap 115.

2.  It is the particulars of the charge that D, on or about 6 November 2023, in Hong Kong, assisted the passage within Hong Kong of 3 unauthorized entrants, namely Jagjeet Singh, Kanwaljeet Singh and Dang Lam Anh.

BACKGROUND

3.  The essence of the prosecution case against D was that on 6 November 2023 at 8:44 a.m., acting on console’s information, the police set up a road block to conduct a snap check in the vicinity of Shek Mun Kap, Tung Chung. At around 9:10 a.m., a target taxi was intercepted. D was found sitting at the front passenger seat and three male passengers were found sitting at the rear seats of the taxi. It was the prosecution case that the three males were unauthorized entrants and it was alleged by the prosecution that D called the taxi and assisted the passage of the three unauthorized entrants within Hong Kong.

4.  D relied upon what he had said to the police in his record of interview. It is the defence case that whilst waiting for the taxi which he had called, three male persons approached D. They told D that they could not find any taxi and asked if D could help by giving them a ride.  D did not know, had no reason to suspect and could not with reasonable diligence have discovered that the three male persons were unauthorized entrants.

5.  The main issues of the case are:

(i)  whether or not it had been proven by the prosecution that the three males found on the rear seats of the taxi were unauthorized entrants.

(ii)  whether D did not know, had no reason to suspect and could not with reasonable diligence have discovered that the three persons were unauthorized entrants.

TRIAL

6.  The prosecution called 3 prosecution witnesses. They were

police constable 11846 (PW1), police constable 11663 (PW2)  and police constable 11873 (PW3).

7.  The voluntariness and accuracy of the record of interview of D were not challenged (Exhibit P1 and P1A). Admitted facts (Exhibit P2)  were agreed pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221.

8.  After the conclusion of the prosecution case, the defence made half time submission.  After hearing the submissions, I found there was a case to answer for the charge.

9.  D elected not to give evidence. He called no witness.

EVIDENCE

PROSECUTION CASE

Admitted facts

10.  Pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221, the following facts were agreed[1]:

(a)  At around 8:44 a.m. on 6 November 2023, a team of police officers including PW1 conducted a snap check in the vicinity of Shek Mun Kap, Tung Chung Road, Tung Chung, Lantau Island, New Territories (“the Location”).

(b)  At around 9:10 a.m. that same day, a taxi bearing vehicle registration number KF 9653 (“the Taxi”)  was stopped at the Location by the police. At the time, a female person calling herself PANG Tsz Mei (“Pang”)  was found to be the driver of the Taxi whilst the D was seated at the front passenger seat, and 3 male passengers were found sitting at the rear seats of the Taxi.

(c)  Prior to the Taxi being stopped by PW1’s team, upon first boarding the Taxi, D said nothing to Pang while the three male sitting in the rear seats said something but Pang did not understand what they were talking about.

(d)  D was at the material time a Form 8 holder, having been granted recognizance on 26 September 2023 under Section 36(1)  of the Immigration Ordinance, Cap 115.

(e)  D was arrested at the scene. Pang was not arrested.

(f)  A record of interview was conducted by PW1 with D in the presence of Ms.Vandana Rai, a Punjab interpreter between 2:47 p.m. and 5:35 p.m. on 6 November 2023. The said record of interview (Exhibit P1)  with D was conducted fairly and voluntarily. The voluntariness and accuracy of the record of interview are not in dispute.

(g)  D came to Hong Kong on 31 August 2023.

(h)  At all material times, D resided at Sun Tin Dei Street, Yau Mei Tei, Kowloon.

(i)  D has no criminal conviction record in Hong Kong.

PW1 PC 11846

11.  Acting on console’s information, PW1 and his team of police officers were assigned to conduct a snap check in a road block in the vicinity of Shek Mun Kap, Tung Chung Road.  At 9:10 a.m., the Taxi was stopped by the team.  It was a Lantau taxi. There were 5 people inside the Taxi: D, 3 male passengers and the driver Pang. They were asked by the police to alight from the Taxi. 

12.  PW1 first approached D. PW1 used simply English and asked D his relationship with the passengers. PW1 felt D kept looking around, PW1 then handcuffed D. PW1 body searched D and found him to be a Form 8 holder.  After having a brief check, it was found that D was trying to go to Mongkok. D said he called the Taxi via WhatsApp. With D’s consent, his mobile phone was checked.  PW1 checked the WhatsApp message and found there was an English message about wanting to call a taxi on Lantau Island, going from Nam Chung to Mong Kok.  PW1 also saw some other conversations, but they were in foreign language that he did not understand.  D was arrested and was brought back to police station.

13.  When asked about the ethnicity of the three male passengers at the rear seats, it was the evidence of PW1 that two of them were Indian and other one was Vietnamese.

14.  Under cross examination, PW1 mainly testified that:

(a)  PW1 did not caution D in English at the scene as the English proficiency of D was not good and neither was PW1. The phone of D was seized.

(b)  PW1 did not pay much attention to the 3 male passengers. PW1 did not find them to be carrying any luggage and he was not sure if one of the passengers carried a bag with fabric appeared to be waterproof. PW1 agreed that this was not mentioned in his witness statement.

(c)  PW1 had made enquiry with Pang. Pang told PW1 that she received a call asking for taxi. Believing Pang was there only to provide taxi service, she was not arrested by PW1. Pang was allowed to drive off the Taxi.

(d)  PW1 did not ask Pang if she had ever checked the immigration status of the passengers because PW1 did not see there’s any reason Pang should ask from the passengers. PW1 agreed that a taxi driver has no right, and it is unreasonable for the driver to ask the ethnicity of the passenger or how a passenger entered Hong Kong.

(e)  The Taxi was the target taxi of the road block. PW1 confirmed that before interception, the Taxi was going towards Tung Chung from Cheung Sha. There was some village houses around the area.

PW2 PC 11660

15.  PW2 was one of the officers conducting the snap check. 

16.  PW2 found that all the three male passengers sitting at the rear passenger seats were non-Chinese.  PW2 conducted enquiry on the male sitting at the rear left of the passenger seat. PW2 conducted search and found on this male passenger an Indian passport, some RMB and Indian dollars.

17.  PW2 further conducted enquiry on the male passenger who has a moustache sitting at the rear right of the seat. PW2 also found an Indian passport on this male passenger. The male passenger sitting in the middle of the rear passenger seat was enquired by his team member, police constable 11873.

18.  All the three male passengers were arrested and escorted to the Tung Chung police station. As they were non-Chinese, interpreters were required.  In order to identify the right interpreters for the three males, they were asked to indicate the languages they speak. They were brought to the interview room where a list of languages were shown for them to indicate. The two arrested male passengers whom PW2 arrested indicated that they spoke Punjabi.

19.  Under cross examination, PW2 mainly testified that:

(a)  It was based on the immigration record of the males that caused PW2 to arrest them.

(b)  PW2 conducted search on the two male passengers and found that their bodies were soaked. PW2 found they were wet whilst conducting body search. (In Re-examination, PW2 found the pants of the male were wet when he checked the pockets and waistband of the male, however, PW2 was not sure if the clothes of one or two of the males were wet.)  PW2 agreed that this information was not written in his witness statement. Yet, PW2 did not agree that he made this information up.

(c)  PW2 agreed that the three male passengers dressed in a normal way. PW2 were considered to be non-Chinese because they had beard and moustache and they wore hats.

(d)  After receiving the console’s information, a road block was set up to intercept the Taxi. The police had been waiting for the Taxi for around 15 minutes. Whilst waiting, around 2 taxi passed by.

PW3 PC 11873

20.  PW3 was patrolling in the vicinity of the road block, he was asked to provide assistance to the snap check operation.  After the Taxi was intercepted, PW3 together with other officers perform arrest at scene.  The arrested persons were brought back to the police station.

21.  Under cross examination, PW3 testified that he had no recollection if the Taxi had ever been searched.  Also he had no recollection if the belongings of the arrested people had ever been searched.

RECORD OF INTERVIEW

22.  On 6 November 2023 between 2:47 p.m. and 5:35 p.m., a record of interview was conducted by PW1 with D in the presence of a Punjabi interpreter. The voluntariness and accuracy of the record of interview (Exhibit P1)  were not in dispute.

23.  In the record of interview, D confirmed he came to Hong Kong on 31 August 2023. D is a Form 8 holder.  When asked why was in the Lantau taxi, he explained that he booked a taxi to go to Mongkok.  Whilst D was waiting for the taxi, he was approached by three males. D was told that they could not find any taxi. So they asked if D could help to give them a ride.  D did not ask them for money for the ride.

CASE TO ANSWER

24.  At the close of the Prosecution case, the defence made half-time submission. After hearing the submissions, I ruled that there was a case to answer in respect of the charge that D was facing.

DEFENCE CASE

25.  D did not elect to give evidence. There was no defence witness.

ANALYSIS

26.  I reminded myself that the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt.  D has no burden to prove.

27.  D did not elect to give evidence.  This is his right. No adverse inference would be drawn against him.

28.  D has a clear record. I reminded myself of the relevant principles as to the directions of propensity and credibility. (HKSAR v Soo Chun Sou Dominic CACC 262/2008 and HKSAR v Hsu Ming Mei [2013] 1 HKLRD 286)

29.  If the court is to draw any inferences adverse to the defendant, such inferences have to be the only reasonable inferences to be drawn from the evidence.  

30.  I have considered all the evidence, exhibits and the submissions made by both parties.  

31.  In this case, most of the prosecution evidence was not in dispute.

32.  As to the credibility of the witnesses, the defence commented that PW1 and PW2 were defensive, PW3 was direct and forthright. The defence emphasized that some of the evidence of PW1 and PW2 were not recorded either in their notebooks or witness statements and the defence further suggested that those were made up new fact as they went along. Their live evidence regarding those evidence cannot be relied upon.

33.  I have considered the testimony of all the prosecution witnesses.  I found them to be cogent and straightforward.  Their evidence were not shaken under cross-examination. I did not consider those evidence not recorded in their statements or notebooks were made up ones.  Those evidence raised by defence under cross examination were material only to issues arising in trial and not to matters pertaining to the police investigation. It did not affect the credibility of the witnesses.  I found all the prosecution witnesses to be credible and reliable.

Main issues

34.  The main issues of the case were:

i. whether or not it had been proven by the prosecution that the three males found at the rear seats of the Taxi were unauthorized entrants. (UE issue)

ii. whether D did not know, had no reason to suspect and could not with reasonable diligence have discovered that the three persons were unauthorized entrants. (Statutory defence)

UE issue

35.  Defence submitted that the prosecution failed to prove the three male passengers were unauthorized entrants.  The defence half time submission centred on this issue and it was also adopted in its final submission.

36.  The prosecution invited the court to find that the three male passengers were unauthorized entrants. By doing so, the prosecution based on the evidence aided by the presumption under section 37K(1)  of the Immigration Ordinance, Cap. 115. The relevant legislative provision engaged by the prosecution also include section 2(1)(a)  of the Immigration (Unauthorized Entrants)  Order, Cap 155D[2]. The prosecution cited R v Chan Chak Fan [1994] 2 HKCLR 17[3], in which the Court of Appeal construed section 37K(1), a person is only presumed to be an unauthorized entrant if it appears more likely than not he is one. The prosecution further submitted that although the names of the three males were not adduced, they were not required as an element of the offence.  Regarding this, there was an initiation to amend the indictment, i.e. by removing the names of the three males, in the initial prosecution submission.  However, in the final oral submission, the prosecution did not apply for an amendment but relied on the provision of section 22 of the Criminal Procedure Ordinance, Cap 221:

22. General provision as to matters not necessary to be alleged, etc.

No indictment shall be held insufficient for want of the averment of any matter unnecessary to be proved, or for that any person mentioned in the indictment is designated by a name of office or other descriptive appellation instead of his proper name, or for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, or for stating the time imperfectly, or for stating the offence to have been committed on a day subsequent to that of the indictment, or on an impossible day, or on a day that never happened, or for want of any statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil, in any case where the value or price, or the amount of damage, injury, or spoil, is not of the essence of the offence.

37.  Defence argued that the failure to prove the identity of the named individuals in the charge is fatal to the prosecution. Without such proof, the consent given by the Secretary for Justice is defective: HKSAR v Leung Chung Man [2025] 5 HKLRD 121 §§73, 74. The defence submitted that in the Opening of the prosecution[4], it was the case that the three males were subsequently confirmed to be unauthorized entrants. Nevertheless, after the close of the case, the prosecution changed by relying on section 37K to presume, not confirm, that the three males were unauthorized entrants.  If it was the case, the defence would have presented or led different evidence if the prosecution case was reliant only on the general description of three males, possibly of South Asian heritage. The defendant is now prejudiced as he is no longer able to call evidence as to the identity of the three males.

38.  Moreover, it was submitted by the defence that it remain possible for the prosecution to prove the status of the alleged unauthorized entrants, for example, by travel documents or immigration database, section 37K(1)  therefore has no application and justification. The defence further submitted that it is doubtful that section 37K is constitutional in light of the case law on reversing the onus of proof onto the defence of an essential element of an offence HKSAR v Tsim Sum Kit Ada (2024)  27 HKCFAR 332, §§51 & 54. The presumption under s.37K(1)  can only ever apply where the prosecution show “reasonable grounds for believing that such person may be, an unauthorized entrant”. Such reasonable grounds must arise from evidence providing “substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend”: see HKSAR v Lam Kwong Wai (2006)  9 HKCFAR 574, 603B §50 and R v Chan Chak Fan & Ors [1994] 2 HKCLR 17 at p.24 lines 6 to 10.

39.  Under section 37A Cap 115, unauthorized entrant means a person belonging to a class or description of persons who, by an order made under section 37B, are declared to be unauthorized entrants, other than a person who under subsection (2)  of that section is excepted from the declaration in such order. The speech of the Attorney General introducing the section at LegCo Official Report of Proceedings dated 1 August 1979 pp. 1038-1039 was considered.

40.  The presumption that the prosecution relied on under section 37K provides:

37K.Proof

(1)  If in any proceedings under this Part a person is alleged to be, and there are reasonable grounds for believing that such person may be, an unauthorized entrant, that person shall be presumed to be such in the absence of evidence to the contrary.

41.  In HKSAR v Tsim Sum Kit Ada (2024)  27 HKCFAR 332 cited by the defence, the provision of section 3(2)  Homicide Ordinance Cap 339 was discussed. Section 3(2)  reads:

“(2)On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.”

As a matter of construction, there are differences between the two sections. The contention of the presumption in section 37K(1)  was unconstitutional was discussed in R v Chan Chak Fan & Ors [1994] 3 HKC 154. It was held that:

“Now, as we construe section 37K(1), a person is only presumed to be an unauthorized entrant if it appears more likely than not that he is one. And the prosecution's responsibility includes making that appear. Construed restrictively as we construe it, the departure here from the normal principle is within acceptable bounds as a measured response to the serious, prevalent and difficult problem presented by the activities of those who make money by smuggling human cargo into Hong Kong. The presumption contained in the section 37K(1)  is justifiable. And the argument that the subsection is unconstitutional fails.”

The offence in the present case is a serious one. It was held in R v Chan Chak Fan & Ors the argument that section 37K(1)  is unconstitutional, failed.

42.  I do not agree that the prosecution changed the allegation from confirming to presuming that the three males were unauthorized entrants.  In trial, defence strongly and persistently objected to prosecution asking questions in relation to the evidence of the investigation of the background of the three male passengers in the course of examination-in-chief of PW1 and PW2. Upon defence objection, the prosecution succumbed and did not ask the witnesses any further evidence in relation to this area. 

43.  The defence informed the court that, before the commencement of trial, they had well notified the prosecution that the facts relating to the identities of the three males would not be admitted. The defence all along made it clear that the identities of the three males were in dispute. There is no prejudice to the defence. It should also be noted that, none had been put by the defence to PW1 under cross examination that the ethnicities of the three males were not Indian and Vietnamese.

44.  Section 37K provides the basis upon which the prosecution seeks to establish that the three males were unauthorized entrants.  

45.  In the present case, there were evidence to show that police did make enquiry on all the three male passengers. It was the evidence of PW1 that the ethnicities of the three male passengers were Indian and Vietnamese. Though there being no touch up on what investigation had been made by the police, evidence showed that the police did investigate and after it had been done that the three male passengers were arrested. From the evidence, it was reasonable to conclude that the identities of the three males would be checked.  Unlike Pang, who was allowed to leave following on-scene investigation, the three males were arrested and brought back to the police station for further investigation.  In the interview room, they were asked to indicate the languages they speak.  Two of the males indicated that they speak Punjabi. Interpreters were arranged for the males.

46.  In view of the evidence, there was substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. There being no evidence to the contrary, by relying on the presumption, I found the prosecution has established that the three males were unauthorized entrants.

Assisting

47.  The defence submitted that the prosecution has failed to demonstrate that D voluntarily and knowingly assisting the three males. I do not consider this is a material issue in this case. Putting aside the defence case raised, if the prosecution succeeds in proving the case beyond reasonable doubt – that is, in proving that D knew that the three males were unauthorized entrants, D’s conduct amounted to assisting their passage within Hong Kong.

Statutory defence

48.  The defence case was set out in the record of interview which was adduced as part of the prosecution case. At the material time, D booked a taxi to go to Mongkok.  Whilst D was waiting for the taxi, three males approached D and said they could not find any taxi. So they asked if D could help to give them a ride.  D did not ask for any money for the ride. The effect of what D said in his record of interview was that he did not know, had no reason to suspect and could not with reasonable diligence have discovered that the three males were unauthorized entrants,

49.  D raised the statutory defence of section 37D(2)  of the Immigration Ordinance, Cap 115.  Section 37D(2)  provides:

(2)  No person shall be convicted of an offence under subsection (1)  if he proves that he did not know, had no reason to suspect and could not with reasonable diligence have discovered—

(a)  that the person whose carriage on a conveyance or whose passage is the subject of the charge, was an unauthorized entrant; or

(b)  that the conveyance in relation to which he is charged was carrying, or would carry, any unauthorized entrant,

as the case may be.

(3)  In this section conveyance (運輸工具)  means a ship, aircraft, vehicle or any other means whatsoever of travel or transport.

50.  In HKSAR v Leung Chung Man and Ors [2025] 5 HKLRD 121[5], the Court of Appeal held that the statutory defence in section 37DA(2)  of the Immigration Ordinance, falls under the fourth alternative in Kulemesin[6] and imposes merely an evidential burden on the defendants to raise as an issue that all three conditions do not apply, leaving the prosecution to fulfil the persuasive burden of proving the subsistence of any of the three conditions.

51.  It is agreed by the parties that the statutory defence in the present case, i.e. section 37D(2), with identical wordings as in section section 37DA(2), also falls under the fourth alternative of Kulemesin.

52.  The statutory defence under that section requires that the accused did not know (subjectively), and had no reason to suspect (objectively subjective), but also could not with reasonable diligence have discovered (objectively), that the person he was assisting to remain in Hong Kong was not an unauthorised entrant[7].

53.  In Leung Chung Man and Ors, the Appeal Court found that in assessing whether the statutory defence were made out in that case, the circumstances and factual framework are vitally important consideration[8].

54.  It was the evidence of PW1 that PW1 and D were not proficient in English, so PW1 did not caution D upon arrest.  It was when D was brought back to the police station with the presence of a Punjabi interpreter that D was cautioned. It was only few hours after the arrest of D.  D relied on his record of interview to raise his defence.  Under such circumstances, I consider that D’s record of interview represented his immediate response to put forward his explanation.

55.  It was the defence case that D booked a taxi from Lantau to Mongkok. Prosecution submitted that Lantau taxi is not allowed to leave the island, therefore, the saying was not believable. Nevertheless, the prosecution evidence showed the contrary. After having checked the phone messages of D and enquired with driver Pang, PW1 believed D did call driver Pang for taxi from Lantau to Mongkok. PW1 did not further question driver Pang why she answered the taxi request to go to Mongkok by using Lantau taxi. PW1 also let driver Pang go.  While Lantau taxi is prohibited from leaving the island, it does not render the facts itself implausible. As a matter of fact, Lantau taxi is not allowed to leave Lantau Island unless they obtain written approval from the Transport Department.

56.  With the consent of D, D voluntarily unlocked his mobile phone. PW1 found D messaged driver Pang for taxi from Lantau to Mongkok. PW1 also note there were other messages in foreign language that he did not understand. D’s phone was seized. After seizure, there appeared to be no follow up with the messages found in D’s phone.  It is not shown whether D had any prior communication or connection with the three males.

57.  The prosecution evidence revealed that the three males were dressed normally. There was no evidence from the prosecution, nor such had ever been tried to explore in detail from the witnesses even the prosecution had already been given with D’s explanation in his record of interview, concerning the appearance of all the three unauthorized male entrants. It is not known whether anything in the males’ appearance would have cased D to regard them as unauthorized entrants or even as strangers. 

58.  Regarding the appearance of the three unauthorized entrants, PW2 testified that he found the clothing of one or maybe two of the Indian males[9] were wet. Nevertheless, PW2 only came to aware of that when he body searched him/them.  PW2 was not further questioned as to whether, from the appearance of the males, it could be observed that their clothing was soaked. Moreover, all the witnesses testified that the belongings of the males had not been formally searched, in fact the witnesses were not sure if the males had carried anything save that PW1 had mentioned (though it had not been recorded in his statement)  that the fabric of a bag appeared to be waterproof.

59.  It was an admitted fact that before the Taxi was intercepted, the three males said something but she did not understand.  The effect of the admitted fact supported the defence case that the conduct of the three males, acted actively rather than quietly, did not convey to D that they were unauthorized entrants.

60.  It was submitted by the Prosecution that Nam Chung is a remote area in Lantau. Nonetheless, except that there were some villages in the area around, there was no evidence, nor such had ever been tried to explore more from the witnesses. It was also unknown where the three males had approached D.  It was submitted by the defence that there is also a plausible possibility that one could consider the three males are tourists, given the many tourist attractions on the island.

61.  Having further considered the overall circumstances, it should be note that the case occurred in the morning hours, not in the small hours that unauthorized entrants would be less likely to be discovered. Two of the unauthorized male entrants speak Punjabi, the same language that D uses. This support the defence that D could communicate with the males when he was approached. It is also note from the case that D did not seek any special transport arrangement to facilitate concealment but made use of public transport service.

62.  The circumstances and the factual framework indeed support D’s case that he did not know and has no reason to suspect the three males were unauthorized entrants. D was approached by three males for help to give them a ride, if D’s case is true, it is considered that D could not with reasonable diligence have discovered the males were unlawful entrants as he had no cause to discover the status of the males and he had no duty to do so under such circumstances.

63.  Though Leung Chung Man and Ors ruled that the statutory defence in the reasoning of  HKSAR v Yeung Kam Yuen [2011] 5 HKLRD 378 was made per incuriam, it is noted in that case, there were many pieces of prosecution evidence to show that the defendant knew his passengers were unauthorized entrants, “for example, there were multiple contacts between the applicant and the other two taxis; the applicant, in the small hours, at a remote place, picked up people who were not waiting by the road side but came out from a water channel instead; and he even urged them to get in the vehicle quickly.  All these show that the applicant in fact knew that his passengers were unlawful entrants”[10]. Nevertheless, in this case, it was found to be insufficient.

64.  Having regard to all the above, I do not consider the prosecution’s allegation against D to be the only possible conclusion of the case.  I could only conclude that D’s act was suspicious.  

CONCLUSION

65.  I found the prosecution fail to prove the case beyond reasonable doubt. D is acquitted of the charge.