THE QUEEN v. MAK KWOK PING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 995 OF 1988

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REASONS FOR JUDGMENT

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1. The appellant was convicted on the 9th August 1988 on two charges. The first related to the aiding and abetting of the remaining in Hong Kong of an illegal immigrant. He was charged on this charge together with another defendant who was the 1st defendant at the trial below but who was acquitted The second charge upon which the appellant was charged alone was obstructing a police officer in the due execution of his duty. Both charges arose out of the same events which occurred on the 3rd June 1988 at Wing Sang Farm, No. 27 Sha Kong Tsuen, Lau Fau Shan, New Territories.

2. The appellant appeals only against his conviction on the 1st charge. He does not seek to overturn his conviction on the second: Having dismissed his appeal and said I would give reasons later, I now do so.

3. The events out of which both charges arose were described by three witnesses for the prosecution.

4. The first prosecution witness was Sergeant 13919 LUI Tak-cheong who is attached to the Uniform Branch, Lau Fau Shan Police Station., He testified that at 4.30 p.m. on the 3rd June 1988, he was on "illegal immigrant" duty at the farm. He was in uniform together with five other officers, some in uniform, some in plain clothes.

5. The farm was fenced off with wire mesh. There a large metal gate at the entrance which was closed when they arrived. He looked, through, the gate and saw he appellant (D2 in Court below) holding a hose and washing the pig sty.

6. He called out to the appellant saying he was a police officer and wished to come in on "illegal immigrant'' duty and asked the appellant to open the gage. The appellant turned around and shouted and shouted "run quickly, policemen have come.'' PW1 called to the appellant to stop shouting out but the appellant continued to do so in the same terms.

7. PC 19603 (who was not called to give evidence, according to PWl, immediately climbed into the farm over the gate to open it for the police party. He did so and the police party ran into the farm at once. PW1 went up to the appellant and called for his identity card. He said to the appellant that he would arrest him for obstructing police by deliberately delaying the opening of the gate.

8. It should be noted that the alleged obstruction arose out of the allegation that the appellant delayed the opening of the gate.

9. Shortly thereafter PC 4766 (who was not called) arrested another person from inside the farm.

10. He testified as to the distance' between himself and the appellant when he had first seen him with reference to the court room. It was agreed that that was 30 feet. He testified :-

"I called but loudly to D2 as the pigs were malting a noise. I did not see anyone else there at the time. Once I entered the farm I was there for about half and hour.''

11. He did not himself arrest anyone else. However the 1st defendant in the Court below was later arrested when he returned to the farm later.

12. In cross-examination he denied that the appellant had said that he was coming. He denied that the appellant said that he had to stop the pump first. He testified that the appellant turned the water off after the police entered the farm and he (PW1) was questioning the appellant.

13. He is recorded as saying:-

"D2 turned off the water after we entered the farm and I was questioning D2, No question of him saying he would turn off the pump and by that time we were inside the farm.''

14. There is nothing on the facie of the record to indicate that this officer was shaken in any way whilst giving his evidence, or to indicate exactly what questions were asked. The only real issue raised in the cross-xamination appears to be on the question as to whether the, appellant said that he was coming or that he had to stop the pump first.

15. The 2nd prosecution witness (PW2) was PC 13726 NG Hok-min, a colleague of PW1.

16. He testified that on arrival from outside the farm he saw the appellant holding a hose and washing the ground with it. PW1 revealed his identity and told the appellant they were policemen and that they wished to inspect documents. The appellant immediately walked forward with the hose in his hand and said loudly "Run away quickly. Policemen have come". PW1 then stopped the appellant from shouting but the appellant continued shouting like that. Then PC 19603 climbed over the gate and into the farm and opened the gate. The police party got into the farm.

17. Having covered the same ground as PW1 in his evidence he then went on to describe what he and the others did on entering the farm.

"We conducted a search in the farm. Several of us did so.including myself. I saw people running. I did not arrest anyone at that stage. Later I arrested a person.''

18. He identified D1 as that person. He was first aware of Dl being at the farm later at 4.45 p.m.

19. He was cross-examined by Mr Hagon on behalf of both defendants. He admitted that when he arrived at the farm he was in plain clothes. The sergeant revealed his identity. "He only said that he was a police officer from Lau Fau Shan Police Station". He denied that he only said "Police, open up". He did not hear any of his colleagues say open the gate. He said :-

"I heard D2 (appellant) say let me stop the water pump. He was about 30 to 40 feet away. I heard the pump. I heard the pigs. I did not see D2 (appellant) go to switch off the pump. 1 heard D2 shouting. D2 would not listen to our order so a colleague climbed over the fence (gate)."

20. This officer was more concerned with the arrest of D1 and was questioned about that.

21. At the conclusion of 'his evidence it was agreed (presumably admitted under Section 65C) that "Police arrested an illegal immigrant named WAN Ngan-leung on the 3rd June 1988 at 4.30 p.m. inside 'Wing Sang Farm.

22. The third prosecution witness (PW3) was the illegal immigrant from China WAN Ngan-leung himself. Summarising his evidence it was that he came to Hong Kong on the 29th May 1988. He worked for 2 days. He was then to go home. He spoke to both Dl and the appellant. He was told he would have to go after 2 days and could not stay any longer and he said he was alone in Hong Kong. He only reached the farm 2 days after arriving in Hong Kong. He did not tell the defendants where he came from and he was allowed to stay inside the farm. He was not paid before he was arrested. He got food and lodging. Both defendants gave him food. Whilst at the farm he was never asked for proof of identity and he did not have such proof.

23. In cross-examination he testified that he left Shum Chun on 26th May 1988. After 2 days in Hong Kong, he came upon the farm. The man who Look him was 50-60 years old. Having taken him to the entrance, he left.

24. He contradicted himself by saying at first that he did produce an identity card, but later corrected himself saying:-

"I mean I did not but the other man did. I went there alone, I do not know the other man, I am not protecting anyone."

25. Apparently at this stage photocopies of two identity cards were looked at and compared with PW3's appearance and the Magistrate stated he could see no resemblance (the identity cards were however not exhibited), There appears to have been a technical omissiom to fail to mark them as exhibits but no point is made of that and they were examined.

26. In reply to the court, PW3 also said that he had had his hair cut in custody.

27. A fourth prosecution withness (PW4) was called to say he lost his identity card No. G3254317, but no identity card with that number was ever produced at the trial and I cannot see that his evidence assisted the lower Court at all except perhaps in relation to the statement of D1 which would not have been admissible against the appellant. Indeed no mention of PW4's evidence appears in the statement of findings.

28. On the defence making no submission, and the Magistrate holding a case to answer the case was adjourned.

29. On the 9th September 1988 D1 gave evidence in his own defence. He admitted awning the pig farm and that the appellant was him manager. He could not testify as to what happened when the police arrived because he was not present. He was also not present when the illegal immigrant arrived at the farm. He found the 2 photostat copies of the identity cards of the two men on the table when he got back that evening. They were the two he gave to the police constable. He testified that three months ago when he saw the "illegal immigrant'' witness, he was very thin, was very brown and wore hair down to his neck. After he saw the two identity cards he was not in any way suspicious the two men were illegal immigrants.

30. In cross-examination he testified that he had compared the photos with the two men. They looked similar. The illegal immigrant was thin and wore long hair, but he denied knowing he was an illegal immigrant.

31. In re-examination, he claimed Exh. P5 was the photo of the illegal immigrant who gave evidence (PW3).

32. The appellant also testified in his own defence. He admitted being the manager of the farm and having employed PW3 and that PW3 and another man came to look for work having been brought by a former employee whom he knew as Yeung.

33. The two men gave him their identity cards He looked at them. They were similar to the two persons. He agreed with Dl's evidence about how the two men looked three months ago. Photocopies, of identity cards were made. They were given to him by the two men. When he hired these two men he did not suspect them to be illegal, immigrants from China.

34. His version as to what happened at the time of the police visit is as follows :-

"When I first saw them I was hosing down a pig sty. Some police in uniform; I knew that they were police, they asked me to open the gate. Y said I was coming, coming. I tuned off the tap. By the time I turned off the tap a police officer was over the gate and it was opened. I never said words to the effect to anyone 'Police coming run away'. I first realised that a man was an illegal immigrant on the day he was arrested. The 3rd June, I guessed that he was.''

35. In cross-examination he stated that he compared the two photocopies of the men. He then employed them.

36. When cross-examined about the obstruction to the police by delaying the opening of the gate and asked why he did not put the hose down and open the gate, he answered "Because the hose was running, I had to turn it off. It would take me several minutes to turn off the hose-pipe and pump, I had to go 70 feet from one to the other". He denied he saw workers running away. He denied he shouted to alarm workers that police were coming, He denied that he purposely tried to switch off the tap to delay the police.

37. The Magistrate though suspicious of D1, acquitted him. However, he accepted the prosecution evidence that a warning was given to illegal immigrants to run away and that a illegal immigrant was found on the premises. He also found that the appellant delayed opening the gate and seemingly did nothing about it. He therefor convicted the appellant on both charges.

38. The conviction of the appellant in respect of the first charge is challenged on the bast that it is unsafe and unsatisfactory for a number of reasons which are set out.

39. The first: is as follows:-

"1. The learned Magistrate gave no evaluation in his second Statement of Findings to the significant: evidence of Crown witness PC 13726 NG HOK-NIN (PW2) at the bottom of page 14 where the said withess is recorded as saying 'I heard D2 (the applicant) say let me stop the water pump' thus partially or wholly corroborating the Defence Case as set forth on page 28 where the Applicant is recorded as responding to the Police demand to open the gate by saying, 'I said I was coning, I turned off the tap' and thus providing a reasonable explanation for the delay in opening the gate."

40. It is suggested by A Eddis, on behalf of the appellant, that the magistrate failed to resolve important issues at the trial and he got himself into a muddle in respect of the evidence. He has referred to the record of appeal and the apparent discrepancies between PW1 and PW2 as to whether the appellant had said he had to stop the pump first and that he was coming.

41. Mr Eddis argues that although they were ad idem regarding the warning, the conflict in their evidence had not been resolved. He suggests that the evidence of PW2 in cross-examination supported the evidence of the appellant when he said at page 28 of the record :-

"They asked me to open the gate.I said I was coming coming; I turned off the tap. By the time 1 turned off the tap a police officer was over the gate and it was opened. I never said words to the effect to anyone 'Police coming, run away'."

42. There is no specific ground of appeal relating to discrepancies between the evidence of PW1 and PW2. However I did not consider the discrepancies in the evidence of PW1 and PW2 to be of a serious nature. Independent recollections of events often differ. The man doing the talking should have a better recollection of what he said. The discrepancies were of a kind that would tend to indicate that the police officers had not put their heads together. I was of the opinion that even if their evidence was seen in the light most favourable to the appellant, as to whether he did say anything about turning off the tap and that he was coming, it didn't necessarily detract from the evidence of both the prosecution. witnesses, PW1 and PW2, to the effect that the appellant " had given a warning to the persons on the farm and obstructed the police entering the premises. That was clearly evidence upon which the magistrate relied.

43. It is significant that the conviction in respect of obstructing the police in the execution of their duty has not been challenged. There could have been no reasonable explanation. for the delay in opening. the gate, otherwise he could not be guilty on this second charge.

44. Ground 2 is that:

"The learned Magistrate, having nowhere in his Second Statement of Findings expressly disbelieved the evidence of the Applicant on pages 27 and 28 about the provision of identity cards and having photocopies given 'by the 2 men', and having accepted without comment, as he must have done, the evidence of D1 recorded on pages. 25 and 26 that he, D1, accepted the similarity between the photos and the 2 workers, was inconsistent to find as he did on page 31 'I accept Dl's evidence that he did not know and had no reason to believe the 2 men to be illegal immigrants' when, on the concurrence of the evidence adduced, he, ought to have made a similar finding of innocence in favour of the Applicant.''

45. With the greatest respect 1 cannot: see that there is any force in this ground. The basis for distinguishing between the appellant and the first defendant is that there was no evidence against the first appellant that he had shouted any warning to anybody on the farm, or that he had caused any obstruction to the police in the execution of their duty. In my view, the magistrate quite rightly dismissed the case against he first defendant on the basis that the evidence against him did not go beyond suspicion.

46. Ground 3 is in the following terms:

''The learned Magistrate made no evaluation in his Second Statement of Findings regarding the confusion caused by the conflicting record of the photo copies of the Identity Cards; the Crown witness WAN NGAN-LEUNG (PW3) on page 18 of the record first said he and another both produced Identity Cards; then corrected that to say I mean I did not but the other man did'; this evidence was supported when the learned Magistrate observed as he did on page 19 'I cannot see any resemblance between the two photocopies of identity Cards and PW3' and went on to mark both the two Exhibits P5 and P6 a `MF1'; later at page 26, Dl was recorded as saying in re-examination that Exhibit P5 was the photo of effect, PW3. There was thus an obvious and unexplained disparity whereby Dl was acquitted despite contradicting PW3 and giving evidence contrary to the learned Magistrate's own observation and yet the Applicant was convicted albeit giving evidence in essence agreeing with PW3 and with the learned Magistrate's own observation."

47. It is apparent from his Statement of Finding that the Magistrate did not believe all the evidence of WAN Ngan-leung whom he regarded as an unsatisfactory witness concerned for his own well being. Furthermore, it would appear iron the record at page 27 that the appellant agreed with the first defendant's evidence about how the illegal immigrant looked 3 months before. In any event the prosecution case against the appellant was far stronger than against the first defendant because; as I have said, of the evidence of the warning and the obstruction of the police in the execution in their duty.

48. Ground 4 is :

"That the learned Magisrate, in his Second Statement of Findings, convicted the Applicant on the basis of his demeanour and in particular by accepting the Crown evidence of his 'persistence in continuing his verbal. warning and its failure to open the gate when asked so to do' and convicted him of 'aiding and abetting an illegal immigrant' that is to say, Wan Ngan Leung (PW3) but since the learned Magistrate 'rejected the rest of his (PW3) testimony for all purposes' (page 39) there was no credible evidence on which the learned Magistrate could have found the Applicant had the necessary actual or implied knowledge that the said P.73 was an illegal immigrant.''

49. It is clear that the evidence of the shouting to the people on the farm and of the obstruction of the police in the execution of their duty and the purpose of he police visit was the evidence upon which the magistrate relied to infer the requisite knowledge. I cannot say he was wrong to do so.

50. Ground 5 is that the learned Magistrate ought not to have convicted the Applicant without resolving any or all of the matters in Grounds 1 to 4 above and without showing in his findings how he had resolved these matters or any of them

51. Mr Eddis relies upon the authorities of R v. Tse Pak-hang Magistrate's Appeal No. 887 of 1988, P. v. Lee Tat-choi Magistrate's Appeal No, 304 of 1988 and Lam Kam Ming and another v. Criminal. Appeal No. 607 of 1979, to support his contention that the magistrate should have resolved conflicting issues between the witnesses.

52. Mr Pallaras for the Grown supports the conviction. He contends that taking the evidence of the prosecution witnesses in the most favourable light for the defence as supporting the appellants contention that words had been said to the effect that he was coming and he had to turn oft the, nevertheless, there was no good reason for the delay, Indeed the appellant had not appealed against the conviction for obstructing the police in the execution in their duty. He suggests that the real complaint is that there was insufficient evidence that the appellant had knowledge of the presence of the illegal immigrant. He points out that it is clear on the record that the appellant new why the police were there, the purpose of the visit and that there was evidence that he gave a warning. He also argues that there was no inconsistency in the decision to acquit the first defendant and convict the appellant because of the difference in the evidence against them.

53. There was indeed evidence on all these matters and it is clear from his statement of findings that that is what led the Magistrate to convict. I have considered these authorities but cannot not say that the Magistrate did not direct himself properly on all major issues. He considered the demeanour of the respective withnesses. He directed himself properly on the burden and standard of proof. He might have said more but I consider he said enough in the circumstances of this case to enable me to fulfil my appellate duties properly.