HKSAR v. WONG TAK KEUNG

CACC 118/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 118 OF 2007

(ON APPEAL FROM DCCC NO. 953 of 2006)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 28 March 2007, District Judge Chua convicted the applicant on a charge alleging that he, on 25 August 2006, assisted the passage within Hong Kong of an unauthorised entrant, namely Zheng Lianhua, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115 (the Ordinance).  The applicant was sentenced on the same day to 3 years’ imprisonment.  He then sought leave to appeal against conviction.  At the conclusion of proceedings on 25 October 2007, we dismissed the application and now give our reasons for so doing.

2.  When refusing an application for bail on 30 August 2007, Yuen JA provided a concise summary of the case, setting out the full background to the evidence and the judge’s assessment of the witnesses.  She stated:

“	Prosecution case
	4.	The prosecution evidence was that at about 12:45 pm on 25 August 2006, a policeman at an observation post saw a pregnant woman walk past an unguarded post at Sha Tau Kok at the border with the Mainland. The Applicant was seen waving her to his car. She walked towards him and he let her into his car. He then got into his car and started it but it was intercepted shortly after by police.
	5.	The police questioned the woman and the Applicant. The woman said she did not have an identity card and had sneaked into Hong Kong to give birth. The Applicant gave various excuses as to why the woman was in his car but according to the police evidence he did not suggest that she had a permit to enter Hong Kong.
	6.	Two searches of the car were conducted which did not reveal any permits for her entry into Hong Kong. The first search was conducted by the police officer at the scene of the incident, the second on the same day by a CID officer when that department took over the case. A few days later there was another search of the car by a third police officer who retrieved the Applicant’s sunglasses and toll pass for him. The car was then taken to a pound.
	7.	About 4 months later in December 2006, a 2-foot by 2-foot hole was found cut in the perimeter fence of the pound near where the car was parked.
	8.	Some 6 months after the incident at the border and 2 months after the hole in the pound, on the request of the defence another search was conducted of the car at the pound. During this search, a forged 2-way permit bearing the name and date of birth of the woman (but bearing a photograph of a different person) was found in the pocket at the back of the front seat of the car. This document was exhibited as ‘P-6’ at the trial.
	9.	At the trial, the woman gave evidence although she had to be turned a hostile witness. She testified that she did not have the forged 2-way permit (P-6) with her on the day in question (Transcript p.60). She stood by that evidence throughout cross-examination by the Applicant’s counsel (Transcript p.76K).
	Defence case
	10.	As for the defence, the Applicant’s case was based on s.37D(2) which provides that ‘no person shall be convicted of an offence under (1) if he proves that he did not know, had no reason to suspect and could not with reasonable diligence have discovered ... that the person whose passage is the subject of the charge was an unauthorized entrant’.
	11.	In support of this defence, the Applicant testified at trial. He alleged that he had previously been asked by a mainlander to drive pregnant women with proper documents, and on this occasion when the woman reached where he was, he had asked her if she had got ‘all the identification documents’. More importantly he alleged that he actually saw at the time that she was holding a 2-way permit in her hand (Transcript p.82D) - an allegation he made for the first time only at trial (para. 32 Reasons for Verdict).
	12.	The Applicant said that since he saw the 2-way permit in the woman’s hand, he had let her into his car and was about to ask to inspect the document when the police arrived.
	13.	The Applicant claimed that he had told the police about the existence of the document but he said ‘they did not hear it’ and ‘they were not paying attention to this’ (Transcript p. 91D). However in the course of cross-examination, it was put to the police officer on his behalf that after the woman said that she had no travel document, the Applicant had ‘repeatedly’ told him that she did have one (para. 17 Reasons for Verdict). Nevertheless the Applicant agreed that the police had never questioned him about the document (Transcript p.91H).
	Verdict
	14.	After seeing and hearing the witnesses, the judge concluded that the police officers had told the truth and that the Applicant was not to be believed. As for the issue whether the woman had been holding the 2-way permit in her hand (which the Applicant asserted and which the woman denied), the judge considered the possibility that the woman had denied having it to avoid a criminal charge of possession of the forged document, but concluded that the woman had not lied in this instance (para. 34 Reasons for Verdict). The judge took into account the fact that the Applicant did not insist on the document being looked for when the car was searched on a number of occasions. The judge also took into account the fact that during his video recorded interview, the Applicant said that he did not tell the woman to board his car, he did not know her and he did not know why she boarded his car, but he did not mention at all that he had seen the 2-way permit in her hand.”

3.  The only ground which was advanced by Mr Ross during the bail application as giving rise to a real prospect of success on appeal was, as Yuen JA expressed it, that “if the woman [PW3] had left the Mainland with permission then she would not have been an ‘unauthorized entrant’.  This would follow from the definition of ‘unauthorized entrant’ in section 37A of the Ordinance coupled with paragraph 2 of the Immigration (Unauthorized Entrants) Order, Cap. 115 which includes: “(aa) 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”.  Yuen JA continued by saying:

“	16.	Section 37K(1) of the Ordinance provides that ‘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’. It was held in R v Chan Chak-Fan [1994] 2 HKCLR 17 that as the Court of Appeal construed s.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. ... The presumption contained in s.37K(1) is justifiable. And the argument that the subsection is unconstitutional fails’.
	17.	I should first point out that the issue whether the woman had left the PRC with proper permission was never taken before the trial judge, but that of course does not mean that it cannot be taken on appeal if the relevant evidence is available.
	18.	Mr Ross has referred to some parts of the transcript where the woman said that she was given a Chinese identity card and ‘a piece of paper’. There was no evidence as to what that ‘piece of paper’ was, although it was referred to at times as ‘the identification document’ or as part of ‘the identification documents’. The only evidence was that an officer on the Chinese side punched a hole and put a chop mark on it, and then after she had crossed the checkpoint an unidentified man came and took it away from her.
	19.	So far as I can see at this stage, a Chinese identity card by itself is unlikely without more to be a document permitting a person to leave the Mainland, and in any event when arrested the woman was not found in possession of it.
	20.	As for the ‘piece of paper’, there is no evidence that that ‘piece of paper’ was lawful permission to leave the PRC. The Applicant’s counsel at trial never sought to suggest that the ‘piece of paper’ was such lawful permission. Certainly the woman - who held it and would have occasion to read it - did not say that was what it was. Her own evidence was that she was ‘sneaking’ into Hong Kong to give birth.
	21.	Insofar as the evidence was that the ‘piece of paper’ was only given to her after she had gone through some procedures at the border checkpoint (Transcript p66M), it is unlikely that that was lawful permission to leave the PRC.
	22.	As for the fact that the officer on the Chinese side had let her leave after inspecting the document(s), it has to be remembered that her evidence was that the relevant document(s) was/were taken away from her by the unidentified man after she left the Chinese side. If the document(s) were not hers, then the fact that they might have misled the officer on the Chinese side into letting her leave would not make those document(s) lawful permission to leave the Mainland.”

4.  In short, the bail application was refused because Yuen JA considered that, in the light of all the circumstances, the Chinese identity card and the piece of paper allegedly given to Zheng Lianhua (PW3) before she went across the border were unlikely to have been lawful documents permitting her to leave the Mainland so that the applicant’s prospects of success on appeal on this point could not be regarded as strong.

Grounds of appeal

(1) PW3 an unauthorized entrant or illegal immigrant

5.  Not long after his unsuccessful application on the applicant’s behalf for bail, Mr Ross served amended perfected grounds of appeal.  The amendments only applied to the 1^st ground on which he had mounted his arguments for bail. The 1^st ground (with the amendments underlined), which Mr Ross described as his “main ground” of appeal, now reads:

“	1.	(a)	The Applicant was convicted or may have been convicted because the learned trial judge found that PW3 was an illegal immigrant whereas a conviction required a finding that PW3 was an unauthorized entrant. There was evidence that PW3 may not have been an unauthorized entrant.
		(b)	In the alternative to (a) the learned trial judge erred in convicting the Applicant when there was insufficient evidence to prove beyond a reasonable doubt that PW3 was an unauthorized entrant.
				Immigration Ordinance (Cap 115), SS37A (definition of ‘unauthorized entrant’), 37D(1), 37K(1)
				Immigration (Unauthorized Entrants) Order, para 2(1)(aa)
				Bundle 16 K, 65 O – 66 O, 68 M – 69 N”

6.  Mr Ross submitted that the whole of the case, both for the prosecution and the defence, had been dealt with at trial on the basis that the prosecution had to prove that PW3 was an ‘illegal immigrant’ and he argued that the prosecution should have been put to proof that PW3 was an ‘unauthorized entrant’.  He agreed that there was evidence on which the judge could have inferred that PW3 was an unauthorized entrant but his complaint was that no consideration was even given to this issue at trial.

7.  This ground was misconceived.  At no stage during the case was it suggested the PW3 might not be an unauthorized entrant and that issue never arose.  The sole issue of any importance related to whether the applicant knew he was assisting the passage in Hong Kong of an unauthorized entrant.  If he believed, as he stated in evidence, that he was being called upon to assist a person with proper documents, then he was entitled to rely (as, at trial, he did) on the statutory defence contained in section 37D(2) of the Ordinance, namely:

“	(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 …”

8.  The only reason that Mr Ross was given an opening for this ground at all on the papers before us is that the judge had made a number of references to the term ‘illegal immigrant’ in a context where, to be more accurate, she ought to have referred to ‘unauthorized entrant’ but it is perfectly apparent from the exchanges between counsel and herself that the whole focus of the case was upon the statutory defence under section 37D(2) which can only be engaged in regard to an ‘unauthorized entrant’.

9.  Furthermore, as Ms Laura Ng pointed out in her helpful analysis of the law, an ‘unauthorized entrant’ in relation to a mainlander found in Hong Kong is a person who has left the People’s Republic of China when not in possession of documents issued in that country permitting him to do so in accordance with its laws whereas an ‘illegal immigrant’ refers to a person who lands in Hong Kong without the permission of an immigration officer or immigration assistant unless he falls within the exceptions contained in section 7(1)(aa)-(b) of the Ordinance.  None of the exceptions apply in this case.  In addition, section 62(1) of the Ordinance provides:

“

For any of the purposes of this Ordinance, if a person who by virtue of section 7 may not land or remain in Hong Kong without the permission of an immigration officer or immigration assistant does not produce an identity card relating to himself when required to do so by an immigration officer, immigration assistant or police officer, such person shall be deemed, until the contrary is proved, to have landed in Hong Kong unlawfully.”

Ms Ng suggested, therefore, that the position in the present case, if indeed it mattered, was that PW3 could on the evidence be deemed to have been an ‘illegal immigrant’.

10.  In our view, whether or not PW3 was also an illegal immigrant had no bearing on the point at issue although Ms Ng is plainly right in saying that if PW3 had left the Mainland without the document she was required to have to enable her to leave legitimately and had sneaked into Hong Kong, she was not only an ‘unauthorized entrant’ but would also have been an ‘illegal immigrant’.  In this case, the inference that she was both was overwhelming and no doubt it was for this reason that the point now being taken was never adopted at trial.  It was doomed to failure.

11.  For these reasons and those previously set out by Yuen JA in paragraphs 16-22 of her judgment (see para. 3 above), this ground failed.

(2) Prosecution’s failure to cross-examine

12.  In the 2^nd ground of appeal, Mr Ross submitted that prosecuting counsel’s omission to put to the applicant that he was not giving truthful evidence in support of the defence amounted to a material irregularity.  According to Mr Ross, the matters counsel allegedly failed to put were:

“	(a)	that PW3 was not holding the forged two-way permit, P6, in her hand as she entered the Applicant’s car;
	(b)	that the Applicant knew that P6 must have been placed in the Applicant’s car after the Applicant’s arrest and while the car was in police custody; and
	(c)	the Applicant knew that PW3 was an unauthorized entrant
	thereby precluding the Applicant from explaining why such imputations were wrong.”

13.  Plainly, as Ms Ng for the respondent accepted, there is a general rule in both criminal and civil proceedings which are, by nature, adversarial that material matters in dispute should be challenged by counsel when his instructions conflict with the evidence given by a witness called by the other side.  This is a rule which ensures fairness to the witness whose account is disputed to avoid the possibility that the witness may have failed to appreciate that his testimony has not been accepted and to give the witness a proper opportunity to answer the suggestion which is being made.  This is sometimes referred to as the principle in Browne v Dunn [1893] 6 R 67.  Moreover, when that case was considered in Kaifull Investments Ltd v Commissioner of Inland Revenue [2002] HKLRD 858, it was held (at 859) that:

“	… there was no breach of principle if the witness knew or ought to have known that his version of events was being challenged or that adverse inferences might have been drawn against him”.

14.  Further, (at 860) it was held:

“

… the principle did not inflexibly require every point which might be used against the witness to be put to him.  The paramount consideration was fairness to the witness.  In essence, the principle was breached, if in all the circumstances, an omission to cross-examine on a specific point was unfair to a witness.”

15.  In the present case, the essential foundation of the case against the applicant was fundamentally different to the way the defence presented their case.  Much turned on whether PW3 had the document, P6, before her arrest and this point and the other two issues referred to in this ground of appeal were central to any determination of the case.  The prosecution had called two officers (PW7 and PW8) to provide the framework for an inference to be drawn that P6 had been planted inside the applicant’s car while it was in the police car pound.  When counsel for the prosecution put to the applicant that his car had been searched three times, the applicant disagreed with this.  Further, counsel also put to the applicant that he had never mentioned P6 to the police.  His answer, while he agreed he had not been questioned about it, was that he had told the police about its existence “but they did not hear it.  They were not paying attention to this”.

16.  We were satisfied that no unfairness was created by counsel’s failure to suggest in terms that the applicant was telling a pack of lies.  The circumstances were that the main line of dispute between the prosecution and the defence was obvious and had been clearly drawn.  We were satisfied, therefore, that the applicant was given every opportunity to put his version in the light of the allegations made against him.

17.  There was no substance to the suggestion made at (b) in this 2^nd ground.  The prosecution had led evidence from PW3 that she did not have P6 with her on 25 August 2006 and, because of this, the defence had suggested to PW3, consistent with the applicant’s case, that she was holding P6 when she got into the applicant’s car.  PW3 disagreed and again the issue between prosecution and defence could not have been more starkly illustrated.  While it might well have been preferable for prosecuting counsel to suggest to the applicant that he knew, as the only person who stood to gain from it, that P6 had been placed in the car while it remained in the custody of the police, it was not strictly necessary.

18.  As to (c), Ms Ng pointed out that as the whole of the case centred on the applicant’s state of mind at the time he let PW3 into his vehicle, he could hardly be said to have been labouring under any misapprehension as to the inferences the prosecution was inviting the judge to draw against him.  Crucially, this involved questions related to knowledge on his part of PW3’s illegal status in Hong Kong.

(3) PW3’s credibility

19.  The 3^rd ground amounted to a submission that the judge had erred by accepting PW3’s evidence as credible, when PW3 had been treated as hostile, “without first warning herself that PW3’s evidence should be considered with the utmost care and caution”.  This complaint relates to a passage in the Reasons for Verdict which reads:

“

34.

Secondly, I believe the officers, that while it was cloudy, it had not yet rained (see the weather report for Sha Tau Kok, P10) when PW3 boarded the car. This was a lame excuse thought up by the defendant to distance himself from her, which PW3 adopted. It is possible that to avoid a criminal charge regarding the forged document P6, PW3 had lied that she had never had it (see her criminal record PD2), but I judge she had not lied in this instance. This explains why her fingerprints were not found on it.” (Appeal bundle p. 21)

20.  In fact, the judge had anticipated why PW3 might have been motivated to tell lies about P6, assuming it had ever been in her possession.  As it was, of course, she had not been found with it and, as no reference was ever made to it in PW3’s statements (for the obvious reason that it was not discovered in the applicant’s vehicle until many months later), there was never a danger of her being prosecuted for a forgery–related offence arising from the present facts.  Furthermore, PW3’s criminal record, as the judge had observed, was before the court as an exhibit (PD2).  From this, the judge would have been aware that PW3 was sentenced on 7 June 2004 to a total of 10 months’ imprisonment for breach of her conditions of stay and two connected forgery offences.  The record also showed that on 28 August 2006, just three days after her arrest in the present matter, PW3 had received a sentence of 12 months’ imprisonment for the offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Ordinance.  Although, therefore, PW3 had nothing whatever to gain from giving evidence for the prosecution, it seems the judge had still given consideration to a possible motive for PW3 to tell lies.

21.  This ground was without substance.

Conclusion

22.  There was no merit in this application and, for the reasons we have given, it was dismissed.