R. v. TSE HING SAN AND OTHERS

1996, No. MA 1395

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The three appellants were convicted before a magistrate 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) of the Immigration Ordinance, Cap.115.

2. The facts agreed before the magistrate were these : The appellants were taken by fishing vessels from China to fish rafts at the Lo Tik Wan Fish Culture Zone off Lamma Island within the territorial waters of Hong Kong. They were taken there to find work. The fish rafts were structures floating in water attached to the sea bed by concrete anchors. The appellants remained on these rafts until they were arrested by the Marine Police. They did not possess any identity card.

3. Section 38 of the Ordinance states as follows :-

"38(1) Subject to subsection (2) a person who

(a) ...

(b) having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director,

shall be guilty of an offence ...."

4. There is no question that these appellants had no authority from the Director to remain in Hong Kong. They had therefore remained in Hong Kong unlawfully. The question is whether they had landed in Hong Kong by reason of getting off the fishing vessels onto the fish rafts in the territorial waters of Hong Kong.

5. Section 2(1) of the Ordinance gives the following definition :-

" 'land' means :-

(a) enter by land or disembark from a ship or aircraft; and

(b) in the case of a person who arrives in Hong Kong otherwise than by land or in a ship or aircraft, land in Hong Kong."

Since the appellants were brought into Hong Kong by fishing vessels, the question turns on the meaning of "disembark from a ship".

6. There is no statutory definition of the word "disembark". The dictionary meaning of "disembark" according to the New Shorter Oxford English Dictionary is "put or go ashore from a ship". It was contended before the magistrate that the appellants had never put their foot on dry land and according to this meaning of "disembark" they had not landed in Hong Kong.

7. The magistrate adopted a purposive construction of the definition "land". In his reasons for decision delivered at the trial,

he said :-

"Whether a person has disembarked and thus landed is one of fact and degree. In these two matters

• the accused have all got off ships which transported them into Hong Kong

• they have got onto rafts in fish farms

• fish farms are commercial undertakings

• the rafts themselves are substantial structures

• they are notionally movable but certainly are not, themselves, vessels or ships

• they are securely held in place by concrete blocks

• they are separated from dry land by various distances, all of them short

• they are located in areas where they are afforded protection to carry on the business of fish farming

• the ships which transported them have departed.

It would be naive to hold that conduct of this nature would have been intended by the Legislature to be something other than having landed in Hong Kong."

8. The magistrate concluded that in the circumstances of this case, the legislature must have intended to include getting on a structure such as a fish raft as having landed in Hong Kong.

9. The sole ground of appeal is the magistrate was wrong in construing the verb "to land" by failing to give its natural and plain meaning particularly when the matter at issue is one of personal liberty. In addition, the Chinese text of the definition of 「入境」 (land) gives its natural and plain meaning.

10. Mr Tong for the appellants submits that "disembark" should be given its ordinary dictionary meaning of "put or go ashore from a ship" and "shore" the dictionary meaning of "land bordering the sea" or "part of a seashore built up as a landing place or a wharf or quay". He submits that a fish raft can neither be land nor a wharf or quay even though it may be secured in its position in water by means attached to the seabed. He further submits the Chinese text of "land" makes it very clear that to constitute the offence under s.38(1)(b) the prosecution must prove beyond reasonable doubt that the appellants had set foot on dry land. The Chinese text is this :「入境」(land) - (a) 指從陸路進入，或從船隻上岸，或從飛機著陸. All these, Mr Tong says, involve touching dry land.

11. He refers to a number of authorities on statutory interpretation : Warburton v. Loveland [1832] 2 Dow & CI 480, R. v. The Judge of the City of London Court [1892] 1 QB 273,Bowditch v. Balchin [1850] 5 EX 378, Barnard v. Gorman [1941] AC 378 and Liversidge v. Anderson [1942] AC 206. Suffice to say that these authorities are clear on the principle that where the language of a statute is clear and unambiguous, the court must give effect to it and give to it its natural meaning particularly where the liberty of a subject is involved. Mr Tong also relies on the approach of Yeung J. in R. v. Tam Yuk Ha MA 933/96 that where the English text and the Chinese text of a statutory provision are in conflict, the construction most favourable to the appellant should be adopted by the court. If that approach is adopted, Mr Tong submits, the prosecution failed to prove that the appellants had landed in Hong Kong.

12. Mr Cheung for the Crown submits that the court should adopt a purposive approach in construing the meaning of "land" since the object of the Ordinance is to control immigration and to deter illegal immigrants from coming to and remaining in Hong Kong. He refers to s.19 of the Interpretation and General Clauses Ordinance, Cap.1 which provides that an ordinance shall be deemed to be remedial and to ensure the attainment of the object of the ordinance. He submits that to attain that object, it is necessary that those who have come to Hong Kong unlawfully and remained here without permission should be prosecuted and to limit the meaning of "land" as to require an element of setting foot on dry land would defeat that object.

13. On the definition of "land" in the Chinese text which appears to be different from the English text, Mr Cheung refers to s.10B ofthe Interpretation and General Clauses Ordinance. This provides that both the English text and the Chinese text of an ordinance are authentic and where there is a difference in meaning between the two, the meaning best to reconcile the two texts having regard to the object and purposes of the ordinance should be adopted. He further refers to the civil case of Chan Fung Lan and Lai Wai Chuen MP4210/96 where Cheung J. disagreed with Yeung J.'s approach in Tam Yuk Ha and favoured the following approach. He said :-

"... The solution does not lie in giving effect to a text which favours one party as in the recent criminal case of R. v. Tam Yuk Ha (Ma.App.No.9330/16). This is not a workable approach because ambiguities of the two texts do not arise solely in criminal cases but in civil matters as well where there are two or more litigants. Where the court comes to the view that the authenticated Chinese text contains inaccuracies then it should not give effect to that text but should instead rely on the original legislation."

14. Mr Cheung asks me to adopt a purposive approach and if there is a difference in meaning between the two texts, I should follow the approach in theChan Fung Lan case even though it is a decision on a civil matter.

15. The question, as I see it, does not involve either the approach in Tam Yuk Ha or the one in Chan Fung Lan because there is simply no conflict between the definition of "land" in both the English text and the Chinese text. The Chinese translation of "disembark" is directly translated from its English dictionary meaning "to put or go ashore from a ship". The rest of the definition of "land" in the Chinese text has the same meaning as in the English text.

16. The crux of the matter lies in whether the intention of the legislature is that those who have unlawfully entered into and remained in Hong Kong to work by such means which do not involve them touching dry land should not be dealt with in the same manner as those who have touched land. Is it the intention that deportation apart, the appellants who had entered Hong Kong unlawfully and remained and worked on the fish rafts which are secured close to the shore in Hong Kong waters, would be immuned from prosecution under s.38(1)(b) but once they set foot on dry land they would be prosecuted? Is it the intention that they would be allowed to remain and roam on the waters of Hong Kong without risk of prosecution so long as they do not get ashore? If that is the intention, the object of the Ordinance to control and deter illegal entrants would be defeated. The intention of the Legislature not to draw such a distinction may be seen in s.2(2) of the Ordinance the relevant part of which is as follows :-

"2(2) References in this Ordinance to landing in Hong Kong unlawfully are references to landing in or entering Hong Kong in contravention of this Ordinance ..."

17. It should be noted that the New Shorter Oxford Dictionary gives a further meaning to "disembark" and this is : "to leave an aircraft or train, etc".

18. Thus, having regard to s.10B of the Interpretation and General Clauses Ordinance, it would be wrong to disregard the object of the Ordinance and the second dictionary meaning of "disembark". Adopting a purposive approach, the reference in s.38(1)(b) to "having landed in Hong Kong unlawfully, remains in Hong Kong" should be so construed as to mean "having entered Hong Kong by land or by leaving a ship or aircraft, remains in Hong Kong". On this construction, the conviction was supported by evidence.

19. The magistrate's approach was not wrong and the appeal against conviction must be dismissed.