THE QUEEN v. LEE SIU PING AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMIAL APPEAL NO. 42 OF 1985

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BETWEEN

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JUDGMENT

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1. The Appellant, who pleaded not guilty, was convicted after trial on the following charge:-

2. To found a verdict of guilty the prosecution had to prove beyond a reasonable doubt that :

3. Element (a) was proved by the production of a certificate issued pursuant to section 63A of the immigration Ordinance.

4. As to (b), it was the prosecution case that the Appellant had permitted Ma to use the Appellant's identity card so that Ha could use it to avoid being apprehended as an illegal immigrant.

5. Two police officers gave evidence for the prosecution. Both said that they went in uniform to the mahjong school at about 11.10 p.m. on 3.12.84. One officer, whilst checking the identity cards of the players discovered that two -- Ha and the Appellant -- who were sitting at separate tables were in possession of identity cards with the same registration number and particulars. Both cards were in fact the Appellant's. In the presence and hearing of the Appellant the officer asked Ha how he obtained the card he produced. Ha replied:-

6. "I took the identity card of my friend."

7. According to the officer the Appellant made no comment when Ha said that. The card had been produced by Ha from a drawer of the mahjong table in the place where he had been sitting when the officer approached him. The Appellant, questioned by the other officer, said that he had known Ha for more than a year, that he (the Appellant) had lost his original identity card and received a replacement after reporting the loss on 12.10.84 and that he had found the original again on the morning of 3.12.84. He was arrested and taken to a police station. There, the arresting officer formally cautioned him after saying that he had reason to believe that he had aided and abetted Ha to land in Hong Kong unlawfully. In reply to the caution the Appellant wrote:-

8. "I did not aid or abet as illegal immigrant." He then went on to explain how he had met Ha for the first time about a year earlier in Hong Kong and repeated his earlier explanation as to how he came to be in possession of the two identity cards.

9. That was the evidence for the prosecution. It certainly proved that Ha had possession of an identity card which belonged to the Appellant and which would have helped him to avoid arrest as an illegal immigrant if the alert officer had not detected the duplication. But could it be said that the only reasonable inferences from that evidence were (a) that the Appellant had permitted Ha to use the identity card and (b) that he did so to enable Ha to avoid detection as an illegal immigrant? Mr Mullick, for the Appellant, submitted that they were not: that the evidence did not exclude an unauthorised taking of the card by Ha; nor did it necessarily follow, even if it were found that he had allowed Ha the use of the card, that he knew that He was an illegal immigrant. He submitted that the placing of the card in a drawer of the mahjong table was consistent with its use for some purpose during the mahjong game whereas if the real purpose had been to have it for production to police or immigration officers he would have carried it on his person.

10. I think that the learned magistrate was entitled to take the view, at the end of the prosecution case, that a jury might conclude because of the remarkable coincidence that Ha was found in possession of the original card on the day it reappeared; because the two were known to one another and were it the same mahjong school at the same time; because the Appellant made an explanation of how he had come to be in possession of two identity cards but offered no explanation of Ha's possession of it on the first day of its reappearance -- that the only reasonable conclusion was that the Appellant crust have allowed tin to use the card, must have, therefore, known that Ha did not have a card of his own, must have, therefore, known that Ha was unlawfully in Hong Kong, and must, therefore, have lent the card to assist Ha to remain here unlawfully. So, even if the solicitor who appeared for the Appellant at the trial, had submitted no case to answer the learned magistrate would have been entitled to reject that submission.

11. Both the Appellant and Ha gave evidence. The effect of the evidence they gave about what had occurred before the arrival of the police officers was that, unless the learned magistrate rejected their version of how the card came to be in Ha's drawer when the police arrived, he could not find that the Appellant had permitted Ha to use the card for the purpose of remaining here unlawfully. In his Statement of Findings the learned magistrate said this:-

12. The learned magistrate deliberately refrained from concluding -- beyond reasonable doubt, at any rate -- that they were "untruthful and/or totally unconvincing" in respect of their version of how Ha came to be in possession of the card. If he could not be convinced beyond reasonable doubt that that version was untrue he could hardly be convinced beyond reasonable doubt that the Appellant had permitted Ha to use the card for the purpose of remaining here unlawfully.

13. He did, however, go on to say this:-

14. If his Statement of Findings ended there it would be possible to say that since a learned magistrate would be aware of all the essential ingredients then it necessarily followed that he had in fact rejected that version and that paragraph (b) of his "Conclusions" was imprecisely phrased. The Statement, however, continued:-

15. Permitted use for an unlawful purpose was not the ingredient which had to be proved but permitted use for the purpose of helping Ha as an illegal immigrant to remain here. If the Appellant had allowed his card to be used for unlawful pawning, for instance, the purpose would have been unlawful but his conduct would not have been caught by the charge with which the learned magistrate was concerned. The learned magistrate, having found the Appellant and Ha untruthful and wholly unconvincing as to part of their evidence, may well have been entitled to conclude that their lies were consistent only with a consciousness of guilt arising from a use for an unlawful purpose. But that conclusion took him only part of the way towards a verdict of guilty. In order to be properly satisfied that guilt had been proved he had to consider that part of their evidence which was not in conflict with the testimony of the prosecution witnesses, particularly that part of their evidence which relatad to the Appellant's ignorance of Ha's unlawful presence here. As the learned magistrate's Statement of Findings indicates that he did not in fact bear in mind what had to be proved in order to establish guilt he clearly misdirected himself on a fundamental matter.

16. The conviction is, therefore, unsafe and unsatisfactory and must be quashed. The appeal is allowed.