HKSAR v. ZHANG WENJING

HCMA1060/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1060 OF 2004

(On Appeal from KTCC NO.6435 OF 2004)

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J U D G M E N T

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1. The appellant was convicted on 21 October 2004 of one charge of breach of condition of stay and she was on the same day sentenced to 13 weeks imprisonment.  She now appeals that conviction.

2. The case for the prosecution was that on 19 August 2004 an immigration assistant who was PW1 at the trial, together with a colleague, posed as customers at premises known as Cindy Beauty Salon at King’s Road North Point.  It was the evidence of PW1 that for eight minutes she observed a person whom she later said was the appellant performing a manicure on a customer.

3. Later other immigration officers came into the shop.  PW2 was Chief Immigration Assistant Mr Yung and he together with about 14 other officers entered the shop.  He said that the appellant was standing behind the cashier counter.  She was asked whether she was a staff member and PW2 testified that he heard her say :

“The shop is my husband’s he has gone to the mainland and I came here to look after the shop for him.”

PW2 then requested the identity documents of the appellant and she produced to him a two-way permit that permitted her to visit Hong Kong but with the restriction that she was not permitted to work in Hong Kong.  As he was inspecting that two-way permit a customer paid money for services received in the beauty salon to the appellant and she received it.

4. At trial the admission was not challenged as to its voluntariness but was challenged on the basis that it was never said.  It is not at issue that her husband owned the business where she was found.

5. At the trial PW1 testified that she did not at the scene point out the appellant as the person who had been performing a manicure in the beauty salon.  She testified that on two occasions between her visit to the premises and the trial she had seen the two-way permit of the appellant which included the photograph and particulars of the appellant.  No identification parade was held prior to trial.  At the trial the prosecution sought to have PW1 identify the appellant by way of dock identification.  This was permitted by the magistrate and the witness identified the appellant.

6. The first challenge to the proceedings is that a dock identification ought not to have been permitted in the circumstances.  I agree.

7. In The Queen v. Hoang Duc Hoa and others [1997] HKLRD 12 at page 14 Mortimer JA said :

“… Normally the only time a dock identification is permitted is in true recognition case where the accused is well known to the witness and has been described by him at the time or shortly after the offence and so at trial, he simply confirms that this is the person about whom he speaks.”

8. Further justification for a dock identification would also arise where an accused refuses to attend an identification parade and a confrontation or other parade is not possible.  In such cases where a proper foundation is laid a dock identification may be permitted.  None of these factors are present in this case.  If the prosecution wished PW1 to identify the appellant it should have been by way of a parade prior to trial.  The evidence of identification by PW1 at trial was inadmissible.  Even had the identification been admissible it was compromised to an extent by the examination on two occasions by PW1 of the two-way permit of the appellant after she was in the salon but before making an identification.  Having ruled the identification evidence to be inadmissible I do not find the examination of the permit by PW1 to have any value in this appeal.

9. Evidence of the identification by PW1 having been ruled inadmissible the evidence left against the appellant is her alleged admission to be looking after the premises on behalf of her husband whom she said was absent on the mainland and her standing at the reception counter receiving in the presence of PW2 money for services provided in the salon.

10. Mr Man for the respondent urges me to amend the charge faced by the appellant.  Pursuant to section 119(1)(d) of the Magistrates Ordinance I have the power to:

“… make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised.”

11. Given the evidence of PW2 as to the admission which the magistrate found as a fact was made by the appellant and given the evidence that she received payment on behalf of the business Mr Man urged me to amend the charge to read as follows :

“ZHANG WENJING you are charged that on the 19^th August, 2004 in Hong Kong, you did contravene a condition of stay in force in respect of you imposed on 17^th of August 2004 by an Immigration Assistant, in that, you were only permitted to remain in Hong Kong as a visitor for 71 days from your date of entry on 17^th of August 2004, subject to the prescribed condition by virtue of regulation 2 of the Immigration Regulations that you shall not establish or join in any business, but you did join in the business of Cindy Beauty Salon, G/F 471 King’s Road, North Point by managing the salon on behalf of your husband and by acting as cashier for that salon.”

12. Mr Percy for the Appellant concedes that I have the power to so amend and does not argue that I should refrain from doing so.  I hereby amend the charge as above.

13. It is for me to now decide whether the evidence of PW2 as to the words said by the Appellant :

“The shop is my husband’s he has gone to the mainland and I came here to look after the shop for him”

together with his evidence that he saw the Appellant standing in the position where a cashier would stand receiving a sum of money on behalf of the business amounted to “joining in” the business of the salon.  Mr Percy argues that since there is no evidence as to how long she performed either of those duties I should not find she “joined in”.

14. I am unable to agree with him.  In particular her statement, which I accept from PW2 that she made, indicated that her husband has left the jurisdiction and that she was taking care of the business in his absence.  That is reinforced by her handling of at least one payment to the business.

15. The appeal against conviction is dismissed.