HKSAR v. LEUNG YUK KIT

HCMA 741/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 741 OF 2000

(ON APPEAL FROM WSCC 5127/2000)

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J U D G M E N T

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1. On 6 July 2000, this Appellant was convicted by K A Browne, Esquire in the Magistrate's Court at Western on a single charge particularised as follows:

"LEUNG, YUK KIT, you are charged that on 25 February, 2000 in Hong Kong you did knowingly mislead a member of the Immigration Service by making a false statement, in that, you falsely stated that MUHAMMAD SALEEM was your husband on 25 February 2000."

2. In the written statement on which the charge was based, the appellant said this to the Immigration Department:

"I am LEUNG Yuk-kit. I consider that my husband has begun to change since 1998 and he has become responsible for the family and for our daughter, and has come to know how to show concern for me. He has changed greatly when compared with the past, so I absolutely have reason to believe that my husband has corrected his mistakes and hopes to live with his family forever.

Moreover, I can only live on my husband MUHAMMAD SALEEM. Please grant permission for my husband to stay in Hong Kong. I also need my husband to take care of the daily living of my daughter after my surgery. I earnestly request your assistance.

In addition, I totally disagree to the disclosure of the contents of the letters dated 19 February 1998 and 1998 concerning my termination of being his sponsor."

3. The Magistrate's Statement of Findings reads as follows:

"The defendant pleaded not guilty to a charge of misleading a member of the Immigration Service by making a false statement.

Admission made under S. 65C of the Criminal Procedure Ordinance (Ex. P1) disclosed that the defendant had married a Pakistani male MUHAMMAD SALEEM on the 30 November 1998. MUHAMAD, whom he referred as husband, to stay in Hong Kong. However, the marriage had been dissolved on the 14 July 1999 (Ex. P4). On the 25 February 2000 the defendant attended the Immigration Department in connection with Saleem's deportation from Hong Kong.

In a written statement (P7) made by the defendant on the 25 February 2000 she refers to Saleem as her husband and asks for permission for her husband to live in Hong Kong.

The defendant elected not to give evidence.

Having considered all the evidence I was satisfied that the prosecution had proved each and every ingredient of the offence beyond reasonable doubt.

The defendant now appeals that conviction."

4. It is by no means clear that the appellant's statement to the Immigration Department was false. It is true that her registry marriage had been dissolved on 14 July 1999 and that it was not until 28 March 2000 that she re-married the same man at the Marriage Registry. But it appears from the additional evidence produced by agreement at this hearing before me that the couple had contracted a marriage according to religious rites prior to the appellant's statement to the Immigration Department. There is no evidence that they have ever been divorced according to religious rites. It is therefore by no means clear that her description in that statement of the man in question as her husband was false. Even on that basis alone, I would regard this conviction as unsafe and unsatisfactory.

5. Moreover, there is the question of whether, even assuming that her statement was false, she knew it was false. The Magistrate may well have been distracted from that issue by his mistake in thinking, as he said in his Statement of Findings, that the first registry marriage was on 30 November 1998. In fact it was much earlier on 27 February 1995; and it might be added that they have a child born in wedlock on 21 March 1996.

6. It is complained on the appellant's behalf that the Magistrate's mistake may have led him to believe that the marriage was a short one solely for immigration purposes. I cannot dismiss that complaint as far-fetched. There may well be something in it.

7. This conviction is, for at least two reasons, unsafe and unsatisfactory. I allow this appeal to quash this conviction and set aside the sentence.