THE QUEEN v. LAM FAI CHEUNG

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N O T E

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1. The Court's attention was not drawn to Sec. 37K(1) of the Immigration.Ordinance, Cap. 115. This judgment is therefore per incuriam.

Headnote

2. Assisting passage to Hong, Kong of unauthorized entrants - S. 37D(1)(a) of the Immigration Ordinance - proof that the persons assisted were unauthorized entrants - issue of status of the entrants

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J U D G M E N T

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Yang, V.-P.:

3. This application is decided on a preliminary point of law, it being unnecessary to bear arguments on the other grounds of appeal.

4. Lam Fai-cheung was convicted by Deputy Judge Cannon in the court below of one charge of assisting the passage to Hong Kong of two named unauthorized entrants, Chong Fook-yeung and Chong Fook-chung, In her Reasons for Verdict, the learned judge said this_.:_.

"    The Crown was unable to prove that the boys carried in the vehicle were those named. in the charge, but this is not a material particular, in that the charge relates to unauthorised entrants. PW1's evidence that the two boys were hidden in the goods vehicle as it crossed the border and that he did not see any documents on them must surely be probative of their illegal status to any reasonable jury. The onus would then fall on the defence to prove what is a negative averment that the children did hold valid authorisation for coming to Hong Kong, the evidential burden only passing to the defence. I note Phipson's comments on this topic at paragraphs 4-17 and 18 of the 13th Edition."

5. As Mr Davies for the Crown fairly concedes before us, the issue for the judge to consider was the status of the two Chongs. In this context, we need refer only to R. v. Lam Wu-nom (1976) H.K.L.R. 423, where Pickering, J.A., said.(at pp.428-429):

"    As it seems to us it was for the Crown to show that these two women were not members of one of the classes of persons described in s. 8(1) as having the right to land in Hong Kong. The issue was a very technical one involving status and the lack of such status is not a matter which can, in a criminal case, be left to the opinion of unsophisticated witnesses themselves. It is true that the courts accept statements as to status every day. Thus if the victim of a robbery says that she is married, her status as a married woman will be accepted by the court without further question because it is irrelevant to the charge. But where status is an essential feature of the case it must be properly proved even in civil cases. Still more in a criminal case is it for the Crown to prove status. The statement of the prostitute that she entered Hong Kong illegally was no more than a statement of opinion upon a question of mixed law and fact for had she been asked who were the persons having, the right to land in Hong Kong she would have been unable to answer the question still less to say whether or not she was a member of one of those classes."

6. Though that case was decided on s.8(1) of the Immigration Ordinance and this prosecution was brought under s.37D(1)(a) of the same Ordinance, the principle in both situations is the same.

7. In the case before us, neither the Chongs nor the Immigration Department gave evidence touching, upon the issue of status. On the authority referred to, we do not think a case has been made out by the Crown to indicate that either of the Chongs was an unauthorized entrant.

8. The application for leave to appeal against conviction is allowed, the hearing treated as hearing of the appeal, and we allow the appeal. The conviction is accordingly quashed and the sentence set aside.

9. We do not think this is a proper case for a re-trial to be ordered.