THE QUEEN v. NG MAN-CHOI AND OTHERS

H E A D N O T E

CRIMINAL EVIDENCE -whether failure to challenge or deny essential fact of prosecution case an admission by defence - judicial notice - boundaries of Hong Kong - scope of statutory; resumption in S.37K(1) of Immigration Ordinance (Cap.115.)

    Five members of the crew of a Chinese vessel were charged with offences contrary to Section 37C(1)(a) of the Immigration Ordinance, it being alleged that their vessel entered Hong Kong on the 3rd May 1989 with unauthorised entrants on board. Their vessel had been intercepted by marine police about half a mile from Yung Long Bay

    The only witness to give evidence of the location of the interception was not cross-examined on that issue and no suggestion was put forward that the vessel was the outside Hong Hong. At the close of the case for the defence counsel submitted that it was not proved that the vessel had entered Hong Kong when it was intercepted or that the persons found on board were unauthorised entrants at the time when the vessel entered Hong Kong.

Held,(1)     the failure to challenge or deny the allegation of entry into Hong Kong did not amount to an admission, by the defence;

(2)    the Court could take judicial notice of the fact that the western boundary of Hong Kong, as defined by the second schedule to the Interpretation and General Clauses Ordinance (Cap.1), was about four miles from the western coastline of the mainland New Territories, by relying on published sources of historical facts, such as the map annexed to the Convention of Peking, 1898; but not of the precise location of Yung Long Bay;

(3)     having regard to other evidence of the route taken by the vessel, the prosecution had discharged its burden of proving entry into Hong Kong

Quaere : whether presumption omnia praosumuntur rite ease acta could also be relied on by prosecution.

(4)     notwithstanding the absence of words like "at the date on which the offence is alleged to have taken place" (of S.37K(2) of Cap.115) the presumption in Section 37K(1), on its proper construction, related back to the time w en the alleged offence was committed, and not merely to the date when the charges were preferred.

IN THE DISTRICT COURT OF HONG KONG

CRIMINAL JURISDICTION

CASE No. 591 OF 1989

____________________

____________________

-------------------------------------------------

REASONS FOR VERDICT (Re: D2 - D6)

-------------------------------------------------

1. By a Charge Sheet dated the 24th June 1989 each of the above-mentioned persons was charged with contravening section 37C(1) of the Immigration Ordinance (Cap. 115). NG Man-hoi (D1) was alleged to be the captain of a ship, "Wai Loi 611", which entered Hong Kong with 10 unauthorised entrants on board. The other persons (D2 to D6 inclusive were alleged to be members of the crew of that ship on the day in question, namely the 3rd May 1989.

2. D1 pleaded guilty to the 1st charge upon his first appearance in the District Court. The remaining five defendants pleaded not guilty. At their trial, the prosecution relied on the evidence of marine police officers who took part in intercepting the ship other police officers who interviewed each defendant under caution on the 4th May 1989, as well as the evidential aids found in section 37K (1) and (2) of ,Cap. 115. Each of the defendants gave evidence on the special issue of the admissibility if records of their interviews, as well as on the general issue.

3. Apart from the admissibility of the records of interview (Exhibits P3, 4, 5, 6 &7), the real issue in this case is whether the remaining five defendants have brought themselves within the statutory exemption in subsection (2)(b) of section 37C by proving

"... that prior to the commencement of the voyage on which the unauthorized entrant was brought to Hong Kong, he slid not know and had no reason to suspect that any unauthorized entrant would be carried on the ship."

4. However, before dealing with these issues, I must deal with two points taken by Mr. Evans and Mr. Chan on behalf of these five defendants during their final submissions, because, if either one is valid, these defendants are entitled to be acquitted.

5. The first point taken is that there is no clear evidence of the location where the ship was intercepted and, accordingly, the prosecution has failed to prove that the ship had entered Hong Kong. It was never put or suggested to any of the witnesses for the prosecution that the ship was outside Hong Kong when it was intercepted. But, failure to question or deny an essential element of the prosecution's case cannot amount to an admission by the defence (see Chappell v D.P.P. (1989) 89 Cr. App. P.82, 87). There is, in my view, no express or implied admission in tire interviews or evidence of the defendants, that the vessel had entered Hong Kong before it was apprehended by the marine police. The fact of entry into Hong Kong is net a fact peculiarly within the knowledge of any of the defendants. It could easily be proved by marine police officers giving precise evidence of the location of the incident and the production of maps, sketches, or other evidence to show that the location was within the boundaries of Hong Kong. Entry into Hong Kong is an essential ingredient of the offence in this case. The burden of proving that fact lies on the prosecution. The evidential aids provided by cap. 115 do not assist the prosecution in this respect. Accordingly, the prosecution must establish. that fact_. by proof which satisfies me beyond reasonable doubt.

6. Sergeant 13797 Lam Kwong Yuen (PW1) testified that he "spotted" the ship "at about half a mile from Yung Long bay in a north-west position". I infer that the shin was intercepted in roughly the same position or, perhaps, a ,little closer to Yung Long bay. It is contended that this evidence is insufficient to establish beyond reasonable doubt that the ship had, entered Hong Kong, simply because the precise location of Yung Long bay has not been established. Faced with this late objection or "ambush" point, Mr. Kenny invited me to take judicial notice of the fact that Yung Long bay is within Hong Kong waters. In my view, that was a perfectly reasonable and understandable response to the point taken on behalf of the defendants. However, not having had the benefit of full argument on this point, I am not entirely sure that the device of taken judicial notice of certain facts is in itself, sufficient to deal with the point taken by the defence in the present case.

7. As I understand the concept of judicial notice, I can rely on it for the purpose of recognising the boundaries of Hong Kong; but, I cannot rely on it to find that a particular place is within or outside those boundaries. It seems that I cannot rely on my personal knowledge of Hong Kong in order to be satisfied that Yung Long is within the territory of Hong Kong. But it seems that I can take judicial notice of historical or notorious facts. If that is so, I consider that I can rely on published sources of such historical facts. In particular I consider that I can find as a fact, from the map annexed to the Convention of Peking, 1898, that the westernmost point of the mainland New Territories is about four miles from the western boundary of Hong Kong, as defined by the second schedule to the Interpretation and General Clauses Ordinance (Cap. 1). (See P. Wesley-smith: Unequal Treaty, 1898-1997 O.U.P. 1980 pp XVi and 193). If Yung Long bay is part of the coastline of the mainland New Territories, the inescapable inference is that the ship was well within Hong Kong when it was intercepted. There would be a problem, however, if Yung Long Bay is on one of the islands, particularly Lantao island, because part of Lantao lies west of the meridian of 113^o52^' East of Greenwich. But, on the basis of the evidence in this case, I regard the possibility that the ship was about half a mile from any part of Lantao island as utterly fanciful.

8. Firstly, there is evidence that the ship was intercepted as it was passing through Hong Kong on the 1st May 1989 on its way to Shekou. Secondly there is evidence that it sailed from Shekou during the night of the 2nd/3rd May 1989. No normal cargo was on board at that time, and it is reasonable to infer that it would pass through Hong Kong, as being the shortest route back to its home port in Kap Sze (or Jiaxi), near Swatow. The shortest route would not take it anywhere near the western coastline of Lantao island which lies beyond the meridian.

9. Until final submissions, I have to confess that I thought that the vessel was intercepted in Deep Bay, somewhere near the estuary of the Shit Chun river, partly because DPC 13412 Chan Yiu-yan (PW6) referred to the location as "Yuen Long Wan" and "Yuen Long Bay" in the preambles to the records of his interviews with D5 and D4, (Exhibits P6 and P7.). But, I can satisfied that PW1 spoke of another location; namely, Yung Long bay, as Mr. Evans and Mr. Chan clearly heard when the evidence was given. I have no hesitation in accepting the evidence of PW1 on this aspect. He was the officer on the spot. DPC 13412 was merely brought in to investigate part of the case after the persons on board the ship had been brought to the Illegal Immigrants Intelligence Bureau, in Peking Road, several hours after their apprehension.

10. These various wrinkles in the evidence do not cause me to harbour any doubt that the ship was intercepted after it had entered Hong Kong. Fortunately I do not have to consider or reach a decision on the precise boundaries of Hong Kong (of Chapter 6, P. Wesley-Smith, supra), since that fact is settled, for the purposes of these proceedings, by the provisions of the Interpretation and General Clauses Ordinance (Cap.1). I would merely remark that, in the absence of any suggestion that the ship was intercepted outside the boundaries of Hong Kong, as defined by that Ordinance, I consider that some slight reliance can be placed on the maxim omnia praesumuntur rite esse acta, on the basis that it can be inferred that, as a general rule, officers of the marine police of the Royal Hong Kong Police Force do not intercept or remove persons from Chinese ships, or seize documents relating to such vessels or their crews, unless they are within Hong Kong. That well-known presumption cannot be relied on completely, because such police officers are given powers to act with regard to ships outside the waters of Hong Kong. (See sections 370 and 37S of Cap. 115). Furthermore the Privy Council has expressed the view that this presumption cannot be used to prove facts which ere central or crucial to an accusation of a criminal offence. (cf. Dillon [1982] AC 484). That case is perhaps, distinguishable. However, the Board appeared to approve the case of Scott v Baker [1969] 1QB 659, where it was stated that the presumption would only cease to be prima facie evidence, if the relevant fact in issue was disputed. In the present case, the-exact location of the ship when it was intercepted was never challenged until final submissions. Neither Mr. Evans nor Mr. Chars made any submission at the close of the case for the prosecution that it had failed to prove a crucial fact of its case. In all the circumstances, I am satisfied by the combined operation of the concert of judicial notice and the other facts proved in evidence as well as inferences therefrom, that the ship had entered Hong Kong by the time it was intercepted.

11. The next question is whether the ship had unauthorised entrants on board when it entered Hong Kong. There is the unchallenged evidence of PC 21614 Wan Ngok Yuen (PW2) that he found four males and one Chinese female concealed in a hold behind a large water tank, made of concrete and measuring about 6 feet by 4 feet. He recorded the names of these persons. They are the same as the last five names mentioned in the particulars of offence in each charge. Their presence in the hold was not discoverec; until the ship, had been escorted to the Tai Nam (or Tai Lam) marine base. There are admissions in the statements of all defendants, except D2 and D5, that such persons and five others boarded the ship in Shekou. There is no evidence, nor any suggestion, that any of these ten persons were taken off or on board the ship after it had entered Hong Kong. The manner in which five of them were concealed demonstrates, in my view, that ouch operation must have taken_. place before the ship set sail from Shekou. The possibility of an embarkation within the waters of Deep Bay in the hours of darkness is so remote that, in my view, it must be dismissed as fanciful. There is no statutory presumption that the actual or alleged unauthorised entrants were on board when the ship entered Hong Kong. But in the present case the prosecution has satisfied me beyond reasonable doubt that at least, five of the persons mentioned in the charges were on the ship when it entered Hong Kong. The names or identity of the others has not been so clearly proved. The other names have been obtained from the 11 cards (Exhibit P.2) seized when the ship was intercepted. At the end of the day, Mr. Kenny did not seek to contend that these documents were admissible as proof of their contents under section 22 of the Evidence Ordinance (Cap. 8) or any other exception to the rule against hearsay evidence. In the circumstances, there is strictly no evidence as to the presence or status of the five other persons on the ship, supposedly posing as members of the crew; and, in the absence of any evidence to establish their identity, I do not consider that the prosecution can rely on the presumption in section 37K(1) of. Cap. 115 in respect of the others named in the charges.

12. Mr. Chan takes a further point on this statutory provision. If I have understood his argument correctly, he contends that the sub-section does not operate retrospectively so as to relieve the prosecution of its normal duty of proving beyond reasonable doubt that the alleged unauthorised entrants had that status at the date when the alleged offence was committed. He contends that the presumption only begins to operate from the date when the particular allegation is made, namely the date when the charge is preferred against the accused person. In support of his contention, he pointed to the express inclusion of the words "at the date on which the offence is alleged to have taken place" in sub-section (2); and the absence of similar words in sub-section (1) of section 37K. It may be that greater precision has been used in the drafting; of sub-section (2) in order to indicate what should be stated in the certificate, instead of requiring the contents of the certificate to follow some prescribed statutory form. Be that as it may, I am not persuaded that the difference in language leads to the conclusion contended for by Mr. Chan. Indeed, if it does, I am of the opinion that it would render section 37K(1) completely otiose. It could never be invoked simply because our criminal justice system does not provide for allegations or formal charges to be made until after the alleged offence has been committed To avoid that patent absurdity, section 37K(1) must, in my view, be construed as giving rise to a presumption of the status of the person alleged to be an unauthorised entrant at all stages and for all purposes of the "proceedings" in question. Accordingly, I have come to the view that the burden of showing that the five persons concealed in the hold were not unauthorised entrants is placed upon these defendants. Of course, they only have to discharge that burden by the lower standard of proof on the balance of probabilities. They have not attempted to do so.

13. I now turn to the records of interviews (Exhibits P3 to P7 inclusive). Their admissibility has been challenged on the grounds that they were involuntary because they were made after each of the defendants had been assaulted while they were in police custody and given assurances that they would be released, or sent back to China within a few days, if they cooperated with the police and signed these records. The defendants allege, and have testified, that, far from being records of interviews carried out at different times in Room 9, they were required to sign prepared statements in another room, also occupied by other persons. In addition there were allegations that the defendants had been handcuffed and required to squat, or otherwise kept in uncomfortable postures or positions, while investigations were being carried out at the Intelligence Bureau of the Marine Police on the 3rd and 4th May 1989, There were complaints of the provision of inadequate mealls or deprivation of meals at normal times. I have heard e. considerable amount of evidence from various witnesses on the latter issue. In my respectful view, their attendance, and the time taken to adduce oral and they evidence from them, was unnecessary, because, in the end, the basic facts were not disputed, and none of the defendants claimed the his will had been sapped or adversely affected by the lack of adequate nourishment. Similarly, the manner in which the defendants were handcuffed and confined in the Intelligence Bureau was canvassed at great length, but to no real purpose, except on the general question of credibility. I am inclined to the view that the use of handcuffs, and ordering detainees to squat, was carried to excess in this case. But there is really no suggestion that this treatment caused the defendants to sign the records of interview against their free will.

14. Having heard evidence from various police officers and the defendants, there are clearly discrepancies and contradictions. These weaknesses are to be found in the evidence given by the witnesses for the prosecution at various stages of this case. They do not touch directly on the central issues; but they are clearly relevant to credibility. I am fairly convinced that most of these weaknesses, and the other criticisms of the handling of these defendants by the police officers attached to the Intelligence Bureau, stem from the fact that initially, at least, the police officers did not regard this as an investigation of serious criminal offices but as an operation for gathering "intelligence" about the methods used by Chinese "snakeheads" for bringing illegal immigrants from China into Hong Kong. Indeed, this can be the July reasonable explanation for keeping these defendants collectively in the same room as the suspected unauthorised entrants during the evening of the 3rd May 1989.

15. Most of the inconsistencies and contradictions related to the evidence as to the manner in which the defendants were handcuffed and the provision of a meal on the evening of the 4th May 1989. These are not really matters affecting the admissibility of the records, and they do not, in my view, so discredit the police officers as to render the rest of their evidence unreliable. It is difficult to understand why the police officers should assault the defendants on the evening of the 3rd May, but not seek to take cautioned statements from them until the following evenings; and, furthermore, not even threaten them with similar treatment if they did not sign the records. As already indicated, I think that there was excessive use of handcuffs in this case. There was also a disregard of normal police procedures by keeping the defendants together in the same room as persons who might be required to identify them as members of the crew of the ship. There was total disregard of the provisions of section 52 of the Police Force Ordinance in the sense that these defendants were not taken before a magistrate within either of the periods specified in that section. Indeed they were not charged until some six weeks after their arrest. Nevertheless, I am satisfied that they were not assaulted on the 3rd May 1989, as these defendants have alleged. According to them, the person who assaulted them said nothing at the time. Assuming they could see that he was a police officer, as they had their heads lowered at the time, I regard this suggestion as unacceptable, especially as there is absolutely nothing to indicate the slightest connection between the alleged assault and the signing of Exhibits P3-P7 on the following evening. The fact that DPC 14879 FONG Tak-ki (PW4) did not obtain a detailed statement from D2, but merely a very limited admission coupled with a denial of bringing illegal immigrants into Hong Kong, strongly supports his denials of the use of any force or other pressures to get the defendants to sign documents against their will. It also supports his, and his colleagues, denials that these exhibits were prepared in advance and by collusion before they were presented to the defendants for signature. There was information in the form of the seaman's card in the name of NG Chun-choi which might have led DPC 14879 and other officers to suspect that D3 was the captain of the ship. Yet there was no attempt to get D3 to_. sign a statement, confessing to a greater role or having detailed knowledge of the presence of illegal immigrants.

16. The alternative or second ground for objecting to the admissibility of these records was that of an inducement, namely, that they would be released and repatriated within a few days. The possibility of such an assurance being extended to these defendants arises from the manner in which they were investigated, and the time at which that took place. The long delay between the 4th May and the first appearance of these defendants before a magistrate in the middle of June 1989 suggests, perhaps, that the previous policy and manner of dealing with persons like the defendants was being reviewed. One of the reasons for this extraordinary delay in charging these defendants, according to Inspector MA, was the need to obtain legal advice on whether all 16 persons found on the ship should be repatriated to China, or be detained as Crown witnesses. It may be that these defendants reasonably expected to be sent back to China, instead of being prosecuted for these offences. I am only concerned with the question whether these expectations might have resulted from something said to them by one or more police officers before they signed the records of interview during the afternoon and evening of the 4th May 1989. If they did so because of something said at that time, it could only have been a result of conduct by two officers, DPC 8963 CHAN Lit-tung (PW7) or DPC 13165 LAM Chun-wah (PW5), as these were the only officers able to speak the Chiu Chau dialect spoken by the defendants. After careful consideration of their evidence I satisfied that neither officer uttered the suggested assurance or inducement to these defendants before they signed the records of interview. I am satisfied that DPC 8963 spoke to them as a group, solely to ascertain that they could understand him when speaking Chiu Chow, before they were taken to a separate room to be interviewed. I reject the suggestions that everything took place in Room 5 at the Bureau. I believe the evidence of the police officers that D2 to D6 were interviewed separately in Room 9 between 2.45 p.m. and 9.40 p.m. on the 4th May 1989, and I am satisfied that exhibits P3, 4, 5, 6 and 7 are accurate records of what they said at these interviews, due allowance being made for the circumstances in which they were conducted. I am satisfied that no promises or assurances were extended to these defendants before they were interviewed; and that they signed the records freely and voluntarily, as fair and accurate records of what they had told the police officers. Accordingly, I ruled that they should be admitted in evidence.

17. Having regard to the provisions of 37C(2)(b) and 37K of Cap. 115, the necessity for the prosecution to rely on admissions ,or confessions by these defendants may be questioned. In the present case, their significance is appreciated. With the exception of Exhibit P5, they tend to rebut in advance any defence under section 37C(2)(b) of Cap. 115, by reason of their inherent probative value or as statements inconsistent with the evidence of these defendants in. this trial. Although I am satisfies; they ware made voluntarily, I now have to assess their veracity and reliability, in the light of the versions given by the defendants in their defence to these charges. The burden of proving that they come within the statutory exemption, based on ignorance of the presence of unauthorised entrants on the ship, is one which the defendants only have to discharge by proof on the balance of probabilities. In all essential respects, each defendant has given the same explanation for his lack of knowledge or reason for suspecting that unauthorised entrants were on board the ship. Only the defence of D2 needs to be given separate consideration, since he has been consistent in his denials of knowledge of the presence of unauthorised entrants. The other defendants admit, in their records of interview (Exhibit P3, 4, 6 and 7), knowledge of their presence on board before sailing from Shekou, although it is right to say that D.5. denied all knowledge of those concealed in the hold.

18. The defendants' evidence in support of their defence is as follows. Having loaded a cargo of salt at Kap Sze, near Swatow, they sailed to Shekou. By midday on the 2nd May 1989 they had been engaged in unloading the salt after the ship arrived at Shekou. They had no other work to do on the ship. Indeed some of them spent most of the voyage in their sleeping quarters because of sea-sickness. This was their first work at sea, they previously having worked as farmers in the same village. They did not know each other or the other 5 members of the crew, and only met the captain (D1) a few days before the ship loaded the salt at Kap Sze. After they had eaten their lunch on the ship on the 2nd May 1989, the captain sent them ashore. He did not tell them at what time they should report back on board or when the vessel would sail from Shekou. After walking around the streets, taking a meal and some drinks, and watching a Kung-fu film in a cinema, they returned to the ship at about or shortly after 10 p.m. They found nobody on board, and the ship was in darkness. They went immediately to their sleeping quarters, and quickly fell asleep. Shortly before dawn, they were awakened by the captain and went onto the deck, and later were transferred to a marine police vessel.

19. It is conceivable that the captain (D1) might take advantage of the defendants' absence. Ashore to take on board and conceal five persons in the hold. It is also conceivable that he would not take on the additional persons until after the defendants had returned to the ship. But, I simply do not believe the defendants' version of their adventure in Shekou on the afternoon and evening of the 2nd May 1989. I do not believe that the captain would or did send them ashore without telling them to return by a certain time in order to be ready for sailing from Shekou. But, assuming that his scheme included the possibility of deceiving the defendants as to his intentions, I cannot believe that they would leave the ship without knowing when they should return, or then the ship would sail from Shekou. They had little money; they were in a, strange place, where they could not understand the-dialect spoken by the inhabitants, or that spoken by the actors in the film, which they claim to have watched. Their apparent failure to make any effort to make known the fact of their return to the ship; their apparent lack of interest in its sailing plans; their finding the ship completely deserted and in darkness are all matters which I am unable to accept. They may have been naive in accepting recruitment as members often crew of the ship at short notice and without prior experience as seamen. But, I do not believe that they would go ashore in a strange port without some assurance that they would not be abandoned there by their captain. Their dependence on him for their work as "coolies", at a salary greatly in excess of their monthly earnings as farmers, has to be contrasted with their apparent disinterest in making known to him the fact that they had returned to the ship, ready and willing to continue their service, and to earn their promised reward at the end of the month.

20. In my view they have failed to prove the matters required of them by section 37C(2)(b) of Cap. 115. If, as they claim, they spent some eight or more hours ashore, one can understand their speedy descent into deep sleep. But, I do not think that they fell into such slumber without becoming aware that, the ship would sail from Shekou with a purely human cargo, which was intended to be discharged in Hong Kong. I consider that the accounts given by D3, D4, D5 and. D6 in Exhibit P3, P7, P6 and P4 are more probably true. They were aware of what had been done before the ship sailed from Shekou. Whether they were in total agreement with what had been done, or expected any financial reward for their assent or assistance, are matters which go merely to mitigation but not to guilt of the offences charged. Accordingly, I find D3, D4, D5 and D6 guilty of the offences in the 3rd, 4th, 5th and 6th charges. I do so principally because I disbelieve the evidence they have given during this trial, and not merely because it is inconsistent with Exhibit P3, 4, 6 and 7. I have not overlooked the possibility that the contents of these records of interview may be untrue or unreliable because the defendants may have told the officers what they thought they wanted to hear, even though I am satisfied that they were not induced to do so. But, the fact remains that, according to them, they did not utter any words before they signed the records of interview. That prompts the question why they did not at that time offer the explanation which they later gave in court. They may have thought that the police officers would not believe such explanations. But that was never put to the test. The versions they then gave to the police, which I am satisfied they did give, all had the common element of placing sole or prime responsibility on the captain (D1).If, as they now claim, they were cheated or deceived by D1, I am sure that they would have disclosed this at the earliest opportunity, especially if they thought that they had committed no crime and would be repatriated in a few days' time. Strictly speaking, it is not necessary to reach any finding on the truth or falsity of the contents of the records of interview in view of my finding that these defendants have failed to prove what is required of them by section 37C(2)(b) of Cap. 115. But, for the sake of completeness, I think that what they told the police officers on the 4th May 1989 was largely the truth.

21. I must now consider the position of D2. Although he claims that he did not speak to DPC 14879 on the 4th May 1989 in Room 9, he is, recorded as having said: "I am just a crewman. I did not take anyone to sneak into Hong Kong." Basically that is a denial of the offence with which he is charged, coupled with an admission of one ingredient. If the prosecution had to prove knowledge of the presence of unauthorised entrants by the usual standard of proof, I might have been obliged to acknowledge the existence of a reasonable doubt on that issue. But the burden of proving lack of such knowledge and reason to suspect the same is cast upon D2. Of course, he has given evidence which is perfectly consistent with his earlier denial. But, his evidence before me is, for all practical purposes, precisely the same as that given by the other defendants. In my view, it suffers from the same defects and weaknesses. I disbelieve it completely. I am left with the conclusion that his earlier denial was a false denial, and that he has failed to discharge the burden imposed on him by the statute. In my view, the only difference between his case and that of the other defendants is that the prosecution has failed to prove that he knew of the presence of the unauthorised entrants beyond reasonable doubt. But, as the statute relieves the prosecution of that task, D2 is in the same position as the other defendants. He has failed to prove what he must prove to escape conviction for the offence with which he is charged. I find him guilty of the 2nd charge.