HKSAR v. YEUNG KAM YUEN

[English Translation – 英譯本]
CACC 55/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 55 OF 2010

(ON APPEAL FROM DCCC NO. 877 OF 2009)

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REASONS FOR JUDGMENT

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Hon Yeun JA (giving the Reasons for Judgment of the Court):

1.  The applicant, Yeung Kam Yuen, was the 2^nd defendant in the case. He was charged with three counts of assisting the passage to Hong Kong of a conveyance which carried unauthorized entrants. (Emphasis added).

2.  He pleaded not guilty and was tried before Deputy District Judge Sham. On 31 December 2009, he was convicted of the three charges and sentenced to 4 ½ years of imprisonment.

3.  The applicant applied for leave to appeal against conviction and sentence. Upon considering the submissions from both parties, we dismissed his application for leave to appeal against conviction. Leave was granted to him for application to appeal against sentence, and treating the application as the appeal, the appeal was allowed and the total sentence on the applicant was reduced from 4 ½ years to 4 years, to be served concurrently in respect of the three charges. The following are our reasons for the judgment.

4.  The prosecution alleged that at around 1 a.m. on 13 June 2009, 15 unlawful entrants arrived Hong Kong by boat and were received by a woman (the 1^st defendant) after landing on a beach at Tung Chung. Several minutes later, three taxis arrived at an unnamed road near the beach. The applicant was the driver of one of the taxis while the 3^rd and the 4^th defendants were the drivers of the other two taxis. The unlawful entrants came out from a water channel and boarded the three taxis separately. PW4 was one of the unlawful entrants. He testified in court that the applicant had urged him to get in the vehicle quickly and therefore, he, together with others, boarded the applicant’s taxi. The taxi drove in the direction of Kowloon. The 1^st defendant did not get into any taxi and was arrested by the police who were laying in ambush at the scene. Later, the police intercepted those taxis. At that time, the applicant’s taxi was carrying two men and three women who were unlawful entrants. The police arrested all the passengers and the driver. From the person of the applicant, the police seized six mobile phones, five of which had SIM cards installed. Evidence showed that over thirty phone calls had been made in that night between the applicant and the other two taxi drivers.  

5.  In his cautioned statement and testimony in court, the applicant said that he always gave 20% off to customers who called to hire his taxi. On the day in question, before 7 p.m., he received a phone call from someone who called herself “Miss Lee”. He said he did not know her nor her phone number. Since she had taken his taxi before, she got his name card. Miss Lee at first asked him to arrange a taxi to pick up passenger(s) at 1 a.m. However, she did not specify the pickup point or the destination. The applicant did not accept her request. Within the next six hours, she called the applicant time and again, asking for three taxis in total. However, the pickup point and the destination were still unconfirmed. The applicant said that eventually, at around 1 a.m., Miss Lee called him on the phone again, asking for taxis to go to a power station in the vicinity of Discovery Bay. The applicant said that since he happened to reach Tung Chung while he was driving, he accepted the request and also found two other taxis for Miss Lee. When he drove to the vicinity of the power station, five men and women got in his taxi. He said that he did not find them suspicious in any way, because he had picked up customers in that vicinity before, for example, people who went fishing, construction site workers, Discovery Bay staff, etc.

6.  The trial judge found that the applicant knew that the passengers were unlawful entrants based on the following factors: the applicant, in the small hours and at a remote place, picked up people who were not waiting at the road side but came out from a water channel; the three taxis arrived almost at the same time, yet there were over thirty phone calls between the drivers, which showed that it was not a normal pickup arrangement; moreover, according to the applicant, Miss Lee kept calling him on the phone to make the pickup booking several hours in advance, yet the location was not disclosed, which again, was unusual. The trial judge found that the only inference to be drawn was that the applicant knew full well that that group of people came to Hong Kong illegally.  

7.  Regarding the sentence, after referring to the decision in HKSAR v Chan Lai Choi, CACC166/1997, the trial judge took three years of imprisonment as the starting point. However, since the applicant was the middleman of the organization who summoned the other taxi drivers to carry unlawful entrants, his culpability was greater. The trial judge thus sentenced him to four years of imprisonment. Further, since the case involved 15 unlawful entrants, parts of the sentence had to be served consecutively. The applicant was sentence to a total of four and a half years of imprisonment.  

8.  The first ground of appeal put forward by the applicant was that the charge and particulars of offence faced by him accused him of “assisting the passage to Hong Kong of a conveyance which carried unauthorized entrants”. However, the prosecution evidence only consisted of those unlawful entrants’ passage within Hong Kong.

9.  We are of the view that:

(1) According to HKSAR v Huynh Bat Muoi, CACC28/2000, the Court of Appeal has the power to amend the charge on an appeal. Section 23(1) of the Criminal Procedure Ordinance, Cap. 221 provides that:

“Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.”

(2) There is precedent of amending the charge in this type of cases. In HKSAR v Cheng Chi Yung, CACC338/2003, the Court of Appeal, by virtue of section 23 (1) mentioned above, amended the Statement of Offence, so that “to Hong Kong” was replaced with “within Hong Kong”. Counsel for the applicant in our case submitted that in Cheng Chi Yung, only the Statement of Offence was wrong, whereas the Particulars of Offence did aver that the crime was committed within Hong Kong (paragraph 14). Therefore, the indictment in Cheng Chi Yung was defective and could be amended by virtue of s. 23(1). However, in the present case, both the Statement of Offence and the Particulars of Offence used the same wordings “to Hong Kong” and thus s. 23(1) did not apply. We do not accept this argument. We do not see any reason to restrict the power of amendment in s. 23 (1) to the narrow scope of the above circumstances or to cases involving typographical error, as suggested by counsel for the applicant. Such restriction cannot be found in the letter of the Ordinance. Counsel for the applicant also indicated that a magistrate could amend the charge in the circumstances of the present case according to the Magistrates Ordinance. That being the case, what is the legal basis for a District Court case to be dealt with differently? Counsel for the applicant was unable to come up with sufficient legal basis in support of his argument. We are of the view that there is no distinction in principle between the circumstances of the present case and those of Cheng Chi Yung, and that this court may amend the indictment by virtue of s. 23(1). 

(3) As pointed out by this court in HKSAR v Wong Kim Fai [2001] 1 HKLRD 424, if there was insufficient evidence to support a charge in an indictment, but there was other ample evidence to support other charges, the court should not neglect such evidence and was entitled to amend the charge sheet; nevertheless, whether the court should do so in individual cases depends on whether any injustice would be caused to the defendant. In this regard, the court will take into consideration factors such as the position of the defence, the grounds of the defence, whether witnesses can be recalled for the defence to cross-examine and so on.

(4) At the trial, the relevant issue about the charge was raised and discussed. The then legal representative of the applicant had already stated that the defence would not be inflexible about the wordings of the charge. He stated the position expressly:

“Court: But would you argue the point about “to”?

MR WONG:  I believe (we) would not be too inflexible about this point. It is because it seems that “to” could have a wider definition which includes passage after his arrival—had reached the territory, to his destination; it may also be included in the scope of his (passage) “to”. Therefore, I do not intent to waste the court’s time to dwell on this point.”

(See page 309 of the Appeal Bundle, i.e., page 259 I-K of the Transcript.)

Based on the above reasons, we are of the view that an amendment of the charge now to delete the words “to Hong Kong” and substitute them with “within Hong Kong” would not cause any injustice to the applicant. On this basis, there is no substantive arguable issue in the first ground of appeal.

10.  The second ground of appeal put forward by the applicant was that the trial judge failed to take into consideration the safeguard offered by the “presumption of innocence”.

11.  The applicant was charged with section 37D of the Immigration Ordinance, which provides that:

“(1) Subject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong-

(a)  arranges or assists the passage to, or within, Hong Kong;

(b)  offers to arrange or assist the passage to, or within, Hong Kong; or

(c)  does or offers to do an act preparatory to or for the purpose of arranging or assisting the passage to, or within, Hong Kong,

of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable-

(i) on conviction on indictment to a fine of $5000000 and to imprisonment for 14 years; (Amended 82 of 1993 s. 8)

(ii) on summary conviction to a fine of $350000 and to imprisonment for 3 years. (Amended L.N. 25 of 1996)

(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

(b) that the conveyance in relation to which he is charged was carrying, or would carry, any unauthorized entrant,

as the case may be.”

12.  (1) At the beginning of the submission made by counsel for the applicant, he said that the statutory construction of the statutory offence set out in s. 37D required the prosecution to prove the mens rea in relation to each element of the charge beyond reasonable doubt. His argument implied that this statutory offence fell into the first alternative set out by the Court of Final Appeal in paragraph 96 of HKSAR v Hin Lin Yee [2010] 2 HKLRD 826.

(2) In Hin Lin Yee, the Court of Final Appeal discussed thoroughly  the defendant’s mental state that the prosecution is required to prove in various statutory offences. The Court of Final Appeal explained that when a statutory offence is silent as to the state of mind required, it is incumbent on the prosecution to prove mens rea in relation to each element of the offence (paragraphs 40-41). This is the “presumption of mens rea” (we are of the view that it is the same concept as the “presumption of innocence”).

(3) However, the Court of Final Appeal also pointed out that a statute may displace the “presumption of mens rea” expressly or by necessary implication (paragraph 43). The Court of Final Appeal listed out five possibilities that arise in respect of the mental requirement attaches to a statutory offence. The first (the strictest) alternative is that the prosecution must prove mens rea beyond reasonable doubt; the fifth (the loosest) alternative is that the presumption is displaced, so that the prosecution succeeds if the accused is proved to have performed the actus reus, regardless of his state of mind (paragraph 96).

(4) In relation to s. 37D in this case, we do not think that the mental requirement falls within the first alternative as suggested by counsel for the applicant. Instead, it falls within the third alternative listed by the Court of Final Appeal, which is also known as “the defence approach”, namely, that the presumption has been displaced so that the prosecution need not prove mens rea but that the accused has a good defence if he can prove on the balance of probabilities that the prohibited act was done in the honest and reasonable belief that the circumstances were such that, if true, he would not be guilty of the offence (paragraph 96).

(5) Applying the above approach to the defence provided in s. 37D(2), it means that the defendant has to prove on the balance of probabilities that his act was done in the honest and reasonable belief that the circumstances were such that he did not know, had no reason to suspect and could not with reasonable diligence have discovered that the passengers he carried in his taxi were unlawful entrants.

(6) However, counsel for the applicant submitted forcefully that it involved reverse onus of proof and therefore violated his human right to “presumption of innocence”. We are of the view that even if s. 37D imposes an additional persuasive burden of proof on the defendant, this court should therefore read it down as imposing an evidential burden instead which is less harsh on the defendant (see HKSAR v Lam Kwong Wai [2006] 3 HKLRD 808, HKSAR v Gurung Krishna [2010] 4 HKLRD 456). Nevertheless, in the present case, there is still ample evidence showing that the applicant knew full well that he was carrying unlawful entrants. The trial judge has already listed many pieces of prosecution evidence in this regard, for example, there were multiple contacts between the applicant and the other two taxis; the applicant, in the small hours, at a remote place, picked up people who were not waiting by the road side but came out from a water channel instead; and he even urged them to get in the vehicle quickly. All these show that the applicant in fact knew that his passengers were unlawful entrants. Under these circumstances, this ground of appeal cannot stand.   

13.  The third ground of appeal put forward by the applicant was that the trial judge, without evidential support, made a finding about taxi operation based on his own “daily experience”. We agree with the trial judge that the evidence listed above in this case indicated that the passengers were unlawful entrants. The version of events (namely, a Miss Lee, having phoned him many times in six hours without specifying the pickup point) put forward by the applicant in his self defence also clearly differs from what happens every day and common sense. Therefore, in the light of the facts in the present case, there is nothing improper in the verdict of the trial judge.   

14.  Having considered the above arguments from the applicant and the replies from the respondent, we do not think that the applicant’s appeal has any chance of success.

15.  Regarding the sentence, the judge has already enhanced the starting point to four years to reflect that the case involved a number of unlawful entrants. As the three offences took place at the same time, we do not think that there is any justification to further order parts of the sentence to be served consecutively.

16.  Accordingly, we dismissed the applicant’s application for leave to appeal against conviction. Leave was given to him for application to appeal against sentence, and treating the application as the appeal, the appeal was allowed and the total sentence on the applicant be reduced from 4 ½ years to 4 years, to be served concurrently in respect of the three charges.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.