HKSAR v. KO YEUNG

CACC 267/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 267 OF 2008

(ON APPEAL FROM DCCC 511 OF 2008)

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JUDGMENT

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Hon. Yuen JA (giving the judgment of the Court):

1.  The Applicant is applying for leave to appeal against a sentence of 20 months imprisonment imposed by Deputy Judge Yau for an offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to s.38(1)(b) Immigration Ordinance Cap. 115.  For convenience I will refer to this as the “illegal entry” offence.  The Applicant pleaded guilty to that offence as “Ko Yeung (高楊) also known as Li Keung (李強)”.

2.  Subsequently however the Applicant claimed that he had in fact entered Hong Kong legally – under a Two-way Permit issued under the name of Nie Xi Tai (聶喜太) – but had overstayed.  For convenience I will refer to this as the “overstaying” offence.   

Issue

3.  The Applicant is now not asking for leave to appeal against conviction of the illegal entry offence, because we have refused him leave to do out of time (see separate Reasons), but he is asking for a lighter sentence as if he had been convicted of the overstaying offence instead.  The issue is whether this court can or should deal with the matter in that way.

Background

4.  The Applicant was arrested by police officers at about 4 a.m. on 16 May 2008 shortly after he had assisted another person to climb into domestic premises in the New Territories.  The police officers were unable to apprehend the other person.  

5.  The Applicant was charged with conspiracy to burgle and the illegal entry offence.  The conspiracy to burgle offence is not relevant to this application for leave to appeal and I will say no more about it. 

Arrest

6.  According to the Summary of Facts, the arresting officer cautioned the Applicant and enquired about his identity.  The Applicant said he had “sneaked into Hong Kong the day before by climbing over a mountain in Sha Tau Kok”.  The officer then arrested the Applicant for the illegal entry offence. 

Cautioned interview

7.  In the afternoon of the same day, another police officer conducted a cautioned interview with the Applicant.  Amongst other things, the Applicant said that beside the name Ko Yeung, he was also known as Li Keung.  He repeated his story of how he had illegally entered Hong Kong and added that this was in the small hours of 15 May 2008.  In other words he had only been in Hong Kong for about 24 hours before his apprehension.

8.  The Applicant now says (in his affirmation filed 11 June 2009) that when he was questioned by the police after his arrest, he had told the police officer (it is not clear whether this was the arresting officer or the interviewing officer) that his name was Nie Xi Tai and that he had come to Hong Kong on a Two-way Permit which he had lost.  He says that the police officer told him that if he could not produce the Two-way Permit then he would be an illegal entrant and that if he insisted he was Nie Xi Tai, he would be thought of as playing tricks with the police and would be beaten up.  The Applicant says that in view of this threat, he did not proceed with his claims.

Instructions to Duty Lawyer

9.  Two days later on 19 May 2008 the Applicant appeared before the magistrate in Fanling.  He received the services of the Duty Lawyer Scheme.  According to a letter from the Duty Lawyer Scheme Court Liaison Office, the Applicant gave instructions that he had in fact come to Hong Kong on 31 March 2008 via Lo Wu Control Point on the strength of a Two-way Permit bearing the name of “Nei Xi Tai (聶喜太)”.  Although the spelling of the surname in this letter is different from that in para. 2 above, the Chinese character is the same. 

10.  The Duty Lawyer Scheme Court Liaison Office informed the prosecution about the Applicant’s assertion and the case was adjourned to 16 June 2008 for further enquiries.  It appears that he did not give instructions to the Duty Lawyer about the threat from the police recounted above.

11.  On 16 June 2008 however the prosecution informed the Court Liaison Office that the police could not find any travel records in relation to the Two-way Permit and that they would proceed with the illegal entry charge.    

Instructions to lawyer at District Court

12.  The case was then transferred to the District Court.  A solicitor Miss Chong was assigned by the Director of Legal Aid to represent the Applicant.  There are some discrepancies between Miss Chong and the Applicant in the recounting of events. 

13.  According to Miss Chong (in her letter dated 20 November 2008), the Applicant did allege that he had entered Hong Kong under another name but refused to disclose either the name, or the type of travel documents he had used to enter Hong Kong, or the whereabouts of the Two-way Permit.  On 14 July 2008 (shortly before the case was heard by the judge) the Applicant signed a Chinese document acknowledging that he had decided to plead guilty to all charges, and specifically stating that he did not need Miss Chong to “enquire from relevant department to ascertain my entry [into Hong Kong] record”.

14.  According to the Applicant, Miss Chong advised him that due to the negative result of the police’s enquiries, there was no further means of advancing his claim and that if he insisted, the court would treat him as pleading not guilty and he would lose the one-third discount for pleading guilty.

Proceedings before the deputy district judge

15.  Before Deputy Judge Yau, the Applicant pleaded guilty to both charges of conspiracy to burgle and illegal entry.  He agreed with the Summary of Facts which included the matters set out (in paras. 6 and 7) above, i.e. that the Applicant had illegally entered Hong Kong through the mountains to Sha Tau Kok the day before.  The name of Nie Xi Tai was not mentioned, nor entry under a Two-way Permit. 

16.  It was disclosed that the Applicant had had a string of offences involving illegal entry, as well as robbery and possession of offensive weapons.

17.  On 17 July 2008 the judge sentenced the Applicant to 2 years imprisonment on the conspiracy to burgle charge and a consecutive term of 20 months imprisonment on the illegal entry charge. 

Application for leave to appeal against sentence

18.  On 7 August 2008 the Applicant applied for leave to appeal against sentence on the illegal entry charge. 

Applications for fresh or new evidence

19.  The Applicant’s present lawyers have issued notices of motion for leave to file fresh or new evidence on appeal under s.83V Criminal Procedure Ordinance Cap. 221.  The new evidence comprise:

(a)      the Applicant’s affirmation containing his allegations as to the previous occasions when he had entered and exited Hong Kong under the name of Nie Xi Tai using the Two-way Permit, and

(b)     documents exhibited to his and his lawyer’s affirmations supporting those allegations to some extent. 

Queries about the fresh or new evidence

20.  However there are a number of queries about the fresh or new evidence that have not been answered.  

21.  First, the Applicant has produced a PRC identity card and a PRC passport in the name of Nie Xi Tai containing photographs which appear to be of himself (the authenticity of which has not been verified by the authorities).  However the Applicant has failed to explained why the date of birth recorded on those documents (29 July 1966) is different from that recorded in his criminal record (20 March 1973).    

22.  Secondly, there is a serious problem with his evidence about the Two-way Permit.  No copy of the Two-way Permit has been produced.  The Applicant alleges that he had lost it when his bag was stolen in Hong Kong on 4 April 2008 but he had found the serial number from a travel agency he used for his last entry to Hong Kong.  The problem is this – he claims it was a 3-month multiple entry visa issued on 18 August 2003 valid for 5 years.  However if that were the case, it would still have been valid for entry into Hong Kong on 7 November 2003 and yet the Applicant said in his affirmation that his visa had expired by that day.  The Applicant said in his affirmation (paras. 12-13):

“in November 2003 I became jobless and out of money.  I thought of going to Hong Kong to find work.  Since by that time the entry visa to Hong Kong had expired and it was costly to renew the visa (as I had to travel back to Heilongjiang Province to make the application for renewal), I came to Hong Kong illegally.  I was arrested and prosecuted for illegal remaining in November 2003".  (Emphasis added). 

He was sentenced on 7 November 2003, well before the expiry date of the visa, and sentenced to imprisonment for 22 months.  There has been no reply affirmation from the Applicant even though the Respondent’s skeleton had been provided 7 days ago making this point.

23.  Thirdly, although this may only be a minor discrepancy, the person known as Nie Xi Tai entered and exited Hong Kong on a day trip on 16 October 2003.  This was not mentioned by the Applicant when he was listing trips to Hong Kong made under the Two-way Permit issued under the name Nie Xi Tai. 

24.  Given these queries which have not been answered, we are not persuaded that those parts of the fresh or new evidence upon  which the Applicant alleges that he is also known as Nie Xi Tai are credible.  Unless the fresh or new evidence is likely to be credible, an appellate court will not consider it (Archbold Hong Kong 2009 §7-81).

Court cannot sentence for illegal entry on basis of overstaying only

25.  Even if the fresh or new evidence had been admitted as evidence however, we do not see how this court can accede to the present application.  The fact of the matter is that the Applicant has pleaded guilty to the charge of illegal entry.  We have refused his application for leave to appeal against conviction out of time.  The offences of illegal entry and overstaying are not alternative charges.  We  do not see how conceptually a court can sentence a person on a plea of guilty to illegal entry on the basis that he has only been guilty of overstaying.

26.  Counsel for the Applicant has referred us to HKSAR v Tsoi Shan Shan (蔡山山) HCMA 1229/2007 and HKSAR v Yang Ying Ying (楊英英) HCMA90/2008.  In both magistrates appeals, the deputy judges refused appeals against conviction for illegal entry but then sentenced the appellants on the basis of overstaying.  However there was no discussion on matters of principle to justify that approach, and with respect to the two learned deputy judges, we cannot agree with it. 

Order

27.  We would therefore dismiss the present application.