THE QUEEN v. DENNIS LAI ALIAS DANNY LI ALIAS LAI TAK-MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.184 OF 1995

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JUDGMENT

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1. The Appellant was convicted by a magistrate after trial of two charges of without reasonable excuse applying for more than one Hong Kong identity card contrary to Regulation 19(2B)(a) of the Registration of Persons Regulations made under the Registration of Persons Ordinance Cap. 177.

2. It was the case for the Prosecution that on the 10th of February 1970 the Appellant, being a resident of Hong Kong, applied for and was issued with a Hong Kong identity card in the name of Lai Tat-ming showing his date of birth as the 13th of September 1951 and his place of birth as China.

3. It was common ground that in 1971 he went to the U.S.A. to study and that he returned to Hong Kong to reside here in late 1991. In the intervening period he had returned to Hong Kong from time to time to visit and acquired US citizenship and a US passport.

4. On the 2nd of January 1992 he went to the Immigration Department to claim right of abode in Hong Kong. He was asked to accept appointment as Honorary Consul for Sierra Leone and naturalised himself as a citizen of that country on the 6th of January 1992 using the name Danny Li. In his diplomatic passport he was stated to be born in Hong Kong on the 13th of September 1995.

5. On the 4th of March the Appellant applied at the Immigration Department for a Hong Kong identity card by virtue of his residence here and produced in support the Sierra Leone diplomatic passport referred to above. The application form was filled out at his direction by an Immigration Officer in the name Danny Li and stated he was born in Hong Kong in 1955.

6. On the 17th of June 1992 after obtaining a permanent residence endorsement in his US passport the Appellant applied for a Hong Kong identity card presenting in support his US passport. The application form described him as Dennis Lai born in China on the 13th of September 1951 although the Appellant testified to that date being an administrative error..

7. The Appellant was issued with an identity card in response to each application

8. It was the argument of the Prosecution that the application on the 4th of March 1992 was a second application in respect of the application made on the 10th of February 1970. The magistrate found that the Appellant was fully aware of that first registration when he made his application in march 1992 as he had produced that 1970 card when he visited the Immigration Office in respect of his right of abode claim on the 2nd of January 1992. Further by virtue of Section 5 of the Registration of Persons Ord:

9. Mr Marash argues that by virtue of the Registration of Persons (Invalidation of Identity Cards) (Consolidation ) Order the identity card issued to the Appellant in 1970 was invalid and that appears to be so. However whilst the card was declared to be invalid the registration made by the Appellant in 1970 was not expunged. If the legislature had meant to invalidate the registration which led to the issue of an identity card it would have said so. Further if the obligation upon a person dealing with the Government was to use a particular name only if a valid identity card was held Section 5 would read "every person who holds a valid identity card under this Ordinance etc."

10. Section 3 of the Ord. provides:

11. The reference to identity card in Section 2(a) is clearly to a valid identity card. Thus in his application on the 4th of March the Appellant was obliged to apply for a second time for an identity card (second to his application in 1970) and was provided with a reasonable excuse for that second application by the statutory requirement provided that his application was honestly intended to comply with the section and not with the intent of obtaining an either a duplicate identity card or a second identity card containing different particulars.

12. I accept the findings of the magistrate that the mens rea required to commit this offence is the intention to apply for 2 identity cards which I take to mean the intention to apply for 2 distinct and different cards as well as the intention to apply for a duplicate card.

13. I am satisfied the magistrate was not in error in finding the application on the 4th of March to be a second application with the intention of obtaining a card containing different particulars than that in the application in 1970. The Appellant admits that intention. He meant to use the name Danny Li, he meant to use the different place and date of birth. He gave explanations for the use of those particulars but he intended to give them and for them to be on his identity card. I accept the magistrate was correct in her findings in respect of this charge both as to actus reus and mens rea. I will consider reasonable excuse later.

14. Similarly in his application of the 17th of June 1992 the Appellant intended to and did apply for an identity card second to his application of the 4th of March 1992 intending that card to contain a name and particulars different from those in the card issued in respect if the application of the 4th of March 1992. Having considered all the arguments I am satisfied that the magistrate was correct in finding that the actus reus and the mens rea of this offence were made out.

15. Having found that the magistrate adopted the correct test in respect of both the actus reus and the mens reus it falls to consider whether she has properly considered the issue of reasonable excuse.

16. The Appellant was at the time of his application on the 4th of March 1992 and at all relevant times thereafter ordinarily resident in Hong Kong. He was not therefore within the definition of Consul or Consular Staff as set out in the Regulations. The question of whether the Appellant was mistaken as to fact and this affords him a defence was set out in Lamb (1967) 2 QB 981 where the Court of Appeal said;

"...it would, of course, have been fully open to the jury, if properly directed to find the defendant guilty because they considered his view as to there being no danger was formed in a criminally negligent way. But he was entitled to a direction that the jury should take into account the fact that he had indisputably formed that view and that there was expert evidence as to this being an understandable view."

17. Thus an understandable or reasonable mistake could be a defence but a criminally negligent or unreasonable mistake would not be. In paragraphs 83 and 84 of her reasons the magistrate addresses this test. She took into account the deliberate use of a particular name and place and date of birth notwithstanding the explanations given for each and found that the mistake in all the circumstances was not a reasonable mistake to make. She properly considered this defence and rejected it. I note Mr. Marash's argument as to the law in respect of a mistake of fact but do not accept that our law has progressed to the point as it stands in Australia no matter how attractive it might be.

18. The learned magistrate did not need to consider whether there was a reasonable mistake of fact in respect of the application of the 17th of June as the Appellant believed his 4th of March card would expire at the end of his role as consul. That role did not expire until many months later and in any event her finding that there was no defence of mistake of fact in respect of the first charge rendered that unarguable on the second charge. She also considered evidence from many witnesses for the prosecution and the defence in respect of consular identity cards. I do not consider, notwithstanding the matters raised by Mr. Marash, that she wrongly found it was unreasonable for the Appellant not to appreciate the difference between a consular identity card and a Hong Kong identity card. Given that he did not fall within the definition of consul or consular staff and given the evidence before her I am satisfied the magistrate came to the correct conclusion.

19. Ground seven of the appeal relates to cross examination of the Appellant permitted to the prosecution in respect of his familiarity with cross border formalities as a traveller. I am satisfied the cross examination was proper as it was directed to lack of naivete.

20. I have considered all the arguments of counsel whether I have specifically needed to deal with the detail of them or not. I find nothing in the final ground of appeal to warrant a holding that the conviction was unsafe or unsatisfactory.

21. The appeals against convictions are dismissed.