LAI YIU PUI v. R.

1993, Nos. 328 & 336
(Criminal)

H E A D N O T E

Presumption in section 37K(1) of the Immigration Ordinance, Cap.115, is constitutional.

Consents given for prosecutions under section 37C(1)(a) of the Immigration Ordinance suffice for convictions under section 37D(1)(a) of the same Ordinance substituted pursuant to section 51(2) of the Criminal Procedure Ordinance, Cap.221.

Substitution of section 37D(1)(a) convictions is appropriate where section 37C(1)(a) prosecutions break down on "enters Hong Kong" element.

IN THE COURT OF APPEAL

1993, No. 328
Criminal)

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J U D G M E N T

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Bokhary JA:

INTRODUCTION: TWO APPEALS

1. This is the judgment of the Court.

2. These two appeals were heard one immediately after the other. And we now give judgment in both together. We will refer to the two appellants in Criminal Appeal No. 328 of 1993 as "the Chans" and to the appellant in Criminal Appeal No. 336 of 1993 as "Mr Lai".

3. Both appeals are from the District Court. They are against conviction. The convictions are of the offence created by section 37C(1)(a) of the Immigration Ordinance, Cap.115. That is the offence of being a member of the crew of a ship which entered Hong Kong with an unauthorized entrant on board.

4. The Chans were convicted before H.H. Judge Hartmann on June 18, 1993. Mr Lai was convicted before H.H. Judge Caird on, by coincidence, the same day.

5. For reasons which will become apparent in due course, we should mention that none of the counsel appearing before us had appeared at either trial.

THE CHANS' APPEAL

6. As to the circumstances in which the Chans were arrested, the broad facts which the judge found were these. At about 10.45 AM on May 30, 1992, in the middle of Deep Bay, a police patrol craft intercepted a wooden boat of Chinese registration, the Po On 54009. That boat had been heading in the general direction of Lau Fau Shan when first sighted. But it had then turned towards the Chinese coastline. And it had been making for the same when intercepted.

7. Four persons were on board. All were Chinese citizens. Two were the Chans. They were on deck manning the boat. The other two were women. They were found in the cabin. The Crown's case was that the two women were unauthorized entrants.

8. The evidence is that immediately before it was intercepted the boat had sailed from Shekou.

Entering Hong Kong

9. Hong Kong (as one sees from section 3 and Schedule 2 of the Interpretation and General Clauses Ordinance, Cap.1) extends northwards so as to include the whole of Deep Bay up to the high water mark along that bay's northern shore, north and inland of which mark begins China.

10. Shekou is on that shore. It is therefore in China. But any boat there would, according to our law, be in Hong Kong, even though our police refrain from patrolling within one nautical mile of the Chinese coastline the area.

11. Accordingly, if the two women had first embarked at Shekou, the boat could not have entered Hong Kong with them on board. The boat would already have been in Hong Kong when they embarked.

12. No one at either trial appreciated the significance of the whole of Deep Bay being a part of Hong Kong. In each case, therefore, the evidence relevant to the "enters Hong Kong" element of the offence charged is not as full as it might otherwise have been. As a result, what would otherwise have been a simple issue, if it had become an issue at all, became one which took up a good deal of time before us.

13. Found on the boat were its papers showing Shajing as its home port. Found on each of the four persons on board was a card headed "Sea-going Boat Person Certificate". Those cards, whether or not they constitute anything else in addition, are clearly documents of identity. Each card shows that the holder lives in Shajing.

14. As against each of the Chans, the ship's papers found on the boat which they manned constitute real evidence of the boat's home port being Shajing. Equally, the cards found on the Chans as members of the same crew and on their passengers constitute real evidence that all four of them lived in Shajing.

15. Plainly, the boat and everyone travelling in her were from Shajing.

16. In evidence, Chan Chak Fan said that in their village he was asked to convey one of the two women to Deep Bay. He then contacted Chan Yui Cheung who owned this boat, the Po On 54009. And it was agreed that they would help that woman and her companion to fish for oysters in what he called "the Chinese waters of Deep Bay", meaning no doubt the belt within which the Hong Kong police did not patrol.

17. Chan Yui Cheung gave evidence to the same effect.

18. Clearly, what was arranged was entry into Hong Kong by ship.

19. At the trial, the Chans had not made an issue of whether they had sailed from Chinese waters into Deep Bay. What they said was that they never got beyond the belt within which the Hong Kong police did not patrol. It was on that specific issue that they were challenged by the Crown and disbelieved by the judge.

20. Judge Hartmann's notes of the evidence, we should mention, are not before us. We take the Chans' evidence from his Reasons for Verdict. Doing so is, we are satisfied, safe. For Mr Dykes, who appears for the Chans and Mr Lai, has seen those notes. And when we asked him if he wanted us to look at them, he told us that he did not.

21. The whole of the evidence establishes that what the Chans and the two women had arranged was carried out. They set sail from China and entered Deep Bay - and therefore Hong Kong - by its western sea boundary.

Date

22. But it has not been established that such entry took place on the charge date, May 30, 1992. It may have taken place a day or two earlier. The boat may have lain off Shekou for a day or two before May 30, 1992.

23. None of that matters. The precise date is not material here. When it comes to dates, precision is not essential (as opposed to desirable) merely for the sake of being precise. It is only essential when there is some good reason why precise dates matter: for example, when the defendant requires the same for putting forward an alibi (as in the case of Wright v. Nicholson [1970] 1 WLR 142 in the Divisional Court). A difference of one or two days is immaterial in the present case.

24. Mr Dykes's submission that the "enters Hong Kong" element of the offence charged has not been established fails.

Permit

25. We come now to his submission that the two women on board the Chans' boat were not unauthorized entrants. The term "unauthorized entrant" is dealt with in section 37A of the Immigration Ordinance, Cap.115. In so far as is material to this case, that section says that the term "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".

26. The relevant order is the Immigration (Unauthorized Entrants) Order. And the relevant class or description of persons declared to be unauthorized entrants is the one contained in item (aa) of paragraph 2(1) of that Order, which item reads:

"all persons who leave, or seek to leave, the People's Republic of China when not in possession of documents issued in that country permitting them to do so in accordance with its laws."

27. As we have already noted, each woman - as indeed each of the Chans -was in possession of a card headed "Sea-going Boat Person Certificate". Those certificates, as each of them shows on its face, were issued by the Security Bureau of Baoan County in Guangdong Province. Each bears two sets of numbers which seem to be serial numbers. All four bear dates of issue. Two also bear expiry dates. Each displays the holder's photograph. And each bears his or her name, sex, age, native place, unit, post, port and address.

28. Mr Dykes argues that those certificates are documents issued in China permitting the holders to leave that country in accordance with its laws. They are issued in China all right. But do they constitute such permits? Undoubtedly, they do not. We have described the certificates. They say nothing about permitting anything. There is simply no basis for regarding them as permits of any kind.

Result

29. The appeal of each of the Chans must be dismissed.

MR LAI'S APPEAL

30. Turning to Mr Lai's case, the circumstances were these. He, too, is a citizen of China. His home is there. He had been a farmer. Then he bought a small fishing boat and became a fisherman. But fishing became slack. So he started using his boat to carry produce from China to Hong Kong.

31. At about noon on November 15, 1992, he was alone in his boat, the Poon Yu 38883, off Sha Kiu in Lau Fau Shan when it was boarded by police officers from a police patrol craft.

32. They were not satisfied with his explanation for his presence. So they arrested him.

Confessional statement

33. In a confessional statement which the police say he made voluntarily, but which he says they forced him to sign, he said, among other things, this:-

"Today, on 15.11.1992 at 2 a.m., I helped the others in Xixiang to ship bananas to Shekou. At Xixiang, there was a man asking me if I could ship him to Hong Kong. The said man was about 5'4" tall, 22-23 years old, wearing a red jacket, blue jeans, white sports shoes and short hair. As my son was born by Caesarian section and my wife is still in hospital. I am badly in need of money to pay for the hospital charges. I therefore asked him for $900 Renminbi as the price for my shipping him to Hong Kong and he agreed, He also gave me seven $100 notes and twenty $10 notes of Renminbi, so I told him to sit in my boat.

This morning, at 4 o'clock, we arrived at Shekou. After unloading the bananas, sometime past 5 o'clock, I sailed the boat off Shekou for Hong Kong. At about 8 o'clock, we arrived at Sha Kiu, Hong Kong. As it was beginning to ebb at that time and on our arrival at the shore of Sha Kiu, I told him to go down into the sea and go ashore by himself. He then left. As the sea was dry, I waited until high tide before I could leave. Sometime after 11 a.m., the tide began to rise, so I sailed the boat away from Sha Kiu to head for Shekou, Mainland China. However, when I was leaving, I was intercepted and arrested."

34. Further on in the same statement, one finds this question and answer:-

"Q. LAI Yiu-pui, do you know that it is against the law to ship people to unlawfully enter Hong Kong?

A. I know that it is against the law. I (did so) because I wanted to make money. My wife is in hospital and I have to pay for the medical charges. My son was just born a month ago and it is still in hospital. My father is sick and he cannot work. I do not want to be imprisoned. I beg the judge to give me a chance. I dare not do it again in future. I beg the judge to forgive me."

35. The judge was satisfied beyond reasonable doubt that the statement was voluntary and admitted it in evidence. He found that Mr Lai's passenger was an unauthorized entrant and that Mr Lai's boat, with him constituting its crew, had entered Hong Kong with that unauthorized entrant on board.

36. Mr Dykes attacks the judge's decision to admit that statement in evidence. The attack is based on certain departures by the police in the present case from certain guidelines given to them and other investigators by the Secretary for Security in connection with the questioning of suspects. Suffice it to say that those departures do not begin to vitiate that decision.

Two questions

37. What Mr. Lai's statement establishes is that his passenger embarked at Xixiang and that his boat set sail from there. The issue of whether that boat entered Hong Kong with an unauthorized entrant on board raises two questions.

38. The first question boils down to whether Xixiang is in Deep Bay. As explained earlier, any vessel lying at any Deep Bay port would be in Hong Kong. Accordingly, no vessel lying at such a port can enter Hong Kong carrying anyone who embarks there, since the vessel would already be in Hong Kong when he embarks. The second question is whether Mr Lai's passenger was an unauthorized entrant.

Entering Hong Kong

39. As to the first question, one sees from Mr Lai's statement to the police that it was at Xixiang (in the small hours of the morning of the charge date) that he agreed to "ship" his passenger "to" Hong Kong. Shipping to Hong Kong is impossible if you are already in Hong Kong. It points to entering Hong Kong by ship, and runs counter to the notion that Xixiang is in Deep Bay. Clearly, Xixiang is not in Deep Bay. As in the case of the Chans, Mr Dykes's submission that the "enters Hong Kong" element of the offence charged has not been established fails.

Presumption

40. We turn now to the second question. At the trial, the Crown did not invite the judge to find that Mr Lai's passenger was an unauthorized entrant on the evidence unaided by the presumption contained in section 37K(1) of the Immigration Ordinance, Cap.115, which subsection provides that:

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

41. Before us, the Crown adheres to its earlier approach and relies on the presumption.

Construed restrictively

42. Mr Dykes submits that the presumption has to be construed restrictively. Quite rightly, Mr Thomas for the Crown concedes as much.

43. Taken literally, having reasonable grounds for believing that someone may be an unauthorized entrant would mean no more than reasonably suspecting him of being one. That, as a matter of reality, would add nothing to the earlier condition in the subsection that he be alleged to be one. For it is inconceivable - in any event but particularly in light of the consent requirements for prosecutions of the kind concerned - that any such allegation would ever be made in the absence of at least reasonable suspicion.

44. Section 37K(1) can and must be construed to require that it appear more likely than not that the person in question is an unauthorized entrant.

Constitutional

45. Initially, Mr Dykes's argument was that the subsection would be unconstitutional if not construed restrictively. But later on, possibly sensing danger in Mr Thomas's ready concession that it is indeed to be construed restrictively, Mr Dykes developed an alternative argument to the effect that the subsection would be unconstitutional even if construed restrictively, although not as obviously unconstitutional as it would be if construed otherwise than restrictively.

46. The argument on constitutionality is by reference to article 11(1) of the Bill of Rights which provides that:

"Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

47. That provision is taken word for word from article 14(2) of the International Covenant on Civil and Political Rights.

48. The Letters Patent entrench the Bill of Rights by prohibiting any legislative inroad into the International Covenant on Civil and Political Rights as applied to Hong Kong. The Bill is the embodiment of the Covenant as applied here. Any legislative inroad into the Bill is therefore unconstitutional, and will be struck down by the courts as the guardians of the constitution. And the test of constitutionality is the same as the test of Bill consistency.

49. We are here concerned with a departure from the normal principle that it is for the prosecution to prove its case beyond reasonable doubt. And we have to decide if the departure is justifiable. The test is the one laid down by the Privy Council in AG v. Lee Kwong-kut [1993] 3 WLR 329 at p.341. It is "whether it remains primarily the responsibility of the prosecution to prove the guilt of the accused to the required standard and whether the exception is reasonably imposed, notwithstanding the importance of maintaining the principle which article 11(1) enshrines."

50. In our judgment, section 37K(1) passes that test. In the paragraph in which the test is laid down, the Privy Council went on to cite the decision of the United States Supreme Court in Leary v. United States (1969) 23 L. Ed. 2d 57. And the Board adopted that Court's statement (at p.82) that it will be difficult to justify a presumption unless "it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend."

51. 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.

Facts

52. Failing his argument that section 37K(1) is unconstitutional, Mr Dykes argues, on the facts, that it did not appear more likely than not that Mr Lai's passenger was an unauthorized entrant. We disagree. At the very least, it appeared more likely than not that he was one.

53. Mr Dykes concedes that if a presumption that the passenger was an unauthorized entrant arose, then it was not displaced since no evidence to the contrary had been given. That concession is rightly made.

54. Accordingly, it was established that Mr Lai's passenger was an unauthorized entrant.

Result

55. Mr Lai's appeal must be dismissed.

SUBSTITUTION: BOTH APPEALS

56. Mr Thomas has made, as a precautionary alternative, a submission as to the proper course for us to take in the event of any appellant being right on - but only on - the argument that his boat was already in Hong Kong by the time any unauthorized entrant embarked. What that situation would call for, Mr Thomas submits, is the substitution of a conviction of assisting the passage of an unauthorized entrant within Hong Kong, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap.115 (an offence for which the maximum penalty is the same as that for the offence of which the appellants have been convicted, being members of the crew of a ship which entered Hong Kong with unauthorized entrants on board, contrary to section 37C(1)(a) of the same Ordinance).

57. Since we uphold the Chans and Mr Lai's section 37C(1)(a) convictions, Mr. Thomas's precautionary alternative submission does not demand a decision. However, on instructions, he invited us to deal with it even in the event of our upholding those convictions. In all the circumstances - and having heard full argument on the both sides of the question - we accede to that invitation.

Trial Judge's power

58. Section 51(2) of the Criminal Procedure Ordinance, Cap.221, provides that:

"If on the trial of any information, charge or indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence."

(Subsection (7) extends the meaning of "court of trial" to include the District Court and a magistrate).

Passage to and then through Hong Kong waters

59. The destination of every unauthorized entrant is of course Hong Kong soil. So when it is alleged in a charge that a ship carrying him entered Hong Kong, the allegation is necessarily of a passage to and then through waters forming part of Hong Kong. A section 37C(1)(a) charge necessarily alleges also a section 37D(1)(a) offence. For the passage must have been to Hong Kong prior to entry and within Hong Kong immediately upon entry. Manning a ship is, of course, assisting in her passengers, passage.

60. If the Crown's case on a section 37C(1)(a) charge is otherwise made out but breaks down only because the ship may have already been in Hong Kong by the time any unauthorized entrant embarked, then all the ingredients of a section 37D(1)(a) offence would have been made out. The latter offence would be proved. The legal corollary of such proof is that the former offence has been disproved in the sense contemplated by section 51(2). In the normal way, the proper course for the trial judge would be to convict under section 37D(1)(a).

Our power

61. That brings us now to our power under section 83A of the Criminal Procedure Ordinance, Cap.221, which reads:

" (1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

(2) The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorized by law for the other offence. not being a sentence of greater severity."

Where, as here, the appeal is from the District Court, then there comes into play section 83 of the District Court Ordinance, Cap.336, which provides that:

"Sections 80 to 83Y inclusive of the Criminal Procedure Ordinance shall apply to criminal proceedings in the Court with such verbal alterations and modifications not affecting the substance thereof as may be necessary to render the same conveniently applicable, and, in particular, any reference to 'indictment' shall be understood to refer to a charge sheet, and any reference to 'jury' shall be understood to refer to a judge as a judge of fact."

62. Also, there is section 13(4)(a) of the Supreme Court Ordinance, Cap.4. It is thereby expressly provided that for the purposes of and incidental to the hearing and determination of any appeal to this Court, we have all the authority and jurisdiction of the court or tribunal from which the appeal was brought. There is nothing radical in that. It is of the essence of an appellate court's function. And, even in the absence of express provision, such a power would be an implication of this Court's inherent jurisdiction.

63. This Court is here to do what the court below ought to have done but wrongly failed to do.

64. If the court of trial ought to have convicted under section 37D(1)(a) rather than section 37C(1)(a), then this Court, hearing an appeal against the section 37C(1)(a) conviction, ought to substitute for that conviction one under section 37D(1)(a).

Consent

65. Was convicting under section 37D(1)(a) something which the court below ought to have done if the "enters Hong Kong" point were a good one? In this connection, Mr Dykes has taken a point in regard to consent.

66. Prosecutions under section 37C(1)(a) require consents under section 37L of the Immigration Ordinance, Cap.115, and under section 23C of the Crimes Ordinance, Cap.200. So do prosecutions under section 37D(1)(a).

67. Do consents given expressly (as here) for prosecutions under section 37C(1)(a) suffice for convictions under section 37D(1)(a) instead (pursuant to section 51(2) of the Criminal Procedure Ordinance, Cap.221)? In our judgment, the answer is "Yes". Prosecutions under section 37C(1)(a) and prosecutions under section 37D(1)(a) require the same consents. The considerations relevant to the giving or withholding of such consents is the same in respect of each section. To hold that consents given for a prosecution under section 37C(1)(a) do not suffice for a conviction under section 37D(1)(a) would be to put an illegitimate fetter on the courts' power under section 51(2).

68. Cases like these are wholly different from R. v. Pearce (1981) 72 Cr.App.R. 295, a decision of the Court of Appeal in England cited by Mr Dykes. In that case, it was held (not surprisingly) that consent given under one statute to prosecute for a substantive offence did not constitute consent required under another statute to prosecute for a conspiracy.

CONCLUSION: BOTH APPEALS

69. If Mr Dykes's "enters Hong Kong" point had succeeded, we would have substituted section 37D(1)(a) convictions for the ones under section 37C(1)(a). And we would then have passed sentence on the substituted convictions. Of course, we have not heard counsel on sentence. But since the present exercise is for future guidance, we will say this much. There is no obvious reason why, in cases like these, substituted convictions should attract lighter sentences than the ones imposed for the original convictions.

70. Anyway, sentence does not arise, since the "enters Hong Kong point" fails. So do all the other points taken on behalf of the Chans and Mr Lai. Their section 37C(1)(a) convictions stand. And, with an expression of our indebtedness to counsel on both sides for their assistance, we dismiss these appeals.