R. v. KO YIU CHUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 137 OF 1995

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J U D G M E N T

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1. This is an appeal from Mr. Jeremy Poon in North Kowloon Magistracy where the Appellant was charged with aiding and abetting an illegal immigrant to remain in Hong Kong and also employing another person who was an illegal immigrant. She was acquitted on the 2nd charge but convicted on the 1st charge.

2. The brief facts were that police officers had been watching a noodle restaurant and had seen this particular illegal immigrant washing vegetables in the kitchen of the restaurant which in itself is some evidence of employment. A police officer questioned the illegal immigrant, who said that she had been employed by the Appellant who knew that she was illegally there. The Appellant was standing nearby and it was assumed she heard the conversation.

3. When the matters came to the Court, the illegal immigrant did not come up to proof and was treated as a hostile witness and gave very unsatisfactory evidence. The Magistrate found her evidence was "wholly unacceptable" and therefore ruled that he should not attach any weight to her oral testimony.

4. So there was no evidence then against this Appellant other than the fact that the police officer had seen the illegal immigrant washing the vegetables, how then did the Magistrate come to convict her? He said that as the police officer had asked questions and she had kept silent, then she accepted the assertion by the illegal immigrant that she had employed her and he cited R v. Christie and R v. Cho Chak-bor [1983] H.K.L.R. 174.

5. In my judgment, the Magistrate has misunderstood the position in law as to a person's silence. It may be in very exceptional circumstances that silence can be taken as some evidence of guilt but those circumstances must be extremely rare and extremely exceptional. The general rule is that if a person keeps silent when an accusation is made against him either by a police officer or by anybody else, silence itself is not an acceptance of anything, it means nothing. However, a person may accept a statement as true, for example, they may say 'yes, that is correct. I did employ her'. Then, of course, the statement and the accusation is admissible and the answer is admissible.

6. Here, this lady kept quiet and the Magistrate convicted her because he said: 'I found the Appellant's silence in the circumstances amounts to an acceptance'. This is wrong in law. Furthermore, Mr. MaCrae points out this was not even a confrontation, this was a police officer asking questions of the illegal immigrant and the answers being given to the police officers.

7. The approach of the Magistrate, therefore in my judgment, is flawed as a matter of law. There are other matters which Mr. MaCrae raises but I do not think it necessary for me to go into them, other than the fact that the illegal immigrant was an accomplice.

8. In the circumstances, therefore, there was no evidence against this lady and the Magistrate should have stopped the case at half time. Furthermore, an application was made for bail pending appeal, the Magistrate refused it and the Appellant had to go before a High Court Judge. I do not know why bail was not granted in these circumstances, Magistrates must not be sensitive about granting bail, it is part of our system that we are all appealed.