HKSAR v. ANDAYA JASMIN MARQUEZ

HCMA 99/2021

[2021] HKCFI 1351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 99 OF 2021

(ON APPEAL FROM STCC NO 40 OF 2020)

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BAIL PENDING APPEAL:
REASONS FOR DETERMINATION

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Introduction

1.  Andaya Jasmin Marquez (hereafter the Applicant) faced 2 charges of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap 115.  On 16 February 2021, she was convicted after trial by Ms Frances Leung, sitting as a permanent Magistrate at the Sha Tin Magistracy and sentenced to 12 months’ imprisonment on the 1^st Charge and 3 months on the 2^nd Charge, to be served concurrently.

2.  On 17 February 2021, the Applicant filed and served a Notice of appeal to a judge against conviction, pursuant to section 113 of the Magistrates Ordinance, Cap 227.

3.  The Applicant applies for bail to this Court pending the hearing and determination of that appeal.

4.  On 8 March 2021, this matter came on for hearing. It was difficult for both the parties and the Court to make a proper determination of the application for bail on that day because the learned Magistrate had not completed her Statement of Findings. The matter came on again on 16 March 2021 and I pay tribute to the learned Magistrate for completing the Statement of Findings in that period.

Case at trial

Prosecution case

5.  The case for the prosecution was that on 2 January 2020 officers of the Immigration Department went to a restaurant in Tin Hau for an operation.  The Applicant was present.  She was asked for identification documents for inspection. She told the officers that she did not have any such document and she was invited to write down her personal particulars. She was cautioned at the scene in English and the Applicant admitted that she had been working as a waitress at this restaurant for less than a year and earned $400 per day. The officer who cautioned her expressed the view that he was able to communicate with the Applicant in English. She was arrested for overstaying.

6.  The Applicant was interviewed under caution and admitted, amongst other things, that she was working at this restaurant as a waitress and that having entered Hong Kong she was permitted to remain until a date in October 2005 and had not left since that date. During the interview, an Ilocano interpreter was present and assisted in the process.  The admissibility of the admissions at the scene and record of interview were challenged.  The learned Magistrate admitted the interview into evidence.  She did not admit the admissions at the scene.  The learned Magistrate found that the interview under caution was voluntary and refused to exclude record of interview in the exercise of her discretion.

Defence case

7.  The defence case was that in fact the Applicant had worked at this particular restaurant for some time and had filed tax returns and paid taxes. Her case was that the government had allowed the Applicant to stay and work in Hong Kong and that the Applicant had an honest belief that she was allowed to stay and work in Hong Kong.  The tax returns of the Applicant were exhibited in the Court.

8.  The Applicant did not testify at her trial.

Decision of the Magistrate

9.  The learned Magistrate said she applied the appropriate burden and standard of proof.  Apparently, she believed the prosecution witnesses.  In relation to the record of interview, the learned Magistrate applied the relevant and appropriate tests for determining that the record was admissible.  The learned Magistrate concluded that the statement was a mixed statement.  By that I assume that the Magistrate considered that the interview contained both inculpatory and exculpatory components.

10.  As to the record of interview, the learned Magistrate gave weight to certain inculpatory parts.  Critically, the Magistrate accepted the admissions of the Applicant that she knew that her status in Hong Kong was that of a visitor and was only allowed to stay until 2005.  Apparently, she was trying to alter her Visa status by reason of the fact that she had married a Hong Kong resident but that was unsuccessful.  She also admitted she knew that she could not work in Hong Kong.  The Magistrate accepted that the reason of the Applicant for staying in Hong Kong was that she loved Hong Kong and wanted to get back together with her Hong Kong husband.  The Magistrate also accepted that she worked at the restaurant on a wage of $400 per day and she worked because she no longer had any money.

11.  The learned Magistrate considered that there were exculpatory parts to the interview but having considered the principles identified in R v Sharp [1988] 1 WLR 7, she placed full weight on the inculpatory parts in place no weight on the exculpatory parts.

12.  It was proved that the Applicant had been filing tax returns and paying income tax since 2014/2015. She recognised that the case for the Applicant’s trial was that she had an honest and reasonable belief that she could remain in Hong Kong and worked legally by reason of the fact that she had filed tax returns and pay taxes throughout the year.^[1]

13.  The Magistrate concluded that the tax documents did not carry with them the implication that the Applicant was permitted to stay or to work.  She concluded there was no necessary correlation between adopting the tax procedures and a reasonable and honest belief that the Applicant could remain in Hong Kong and worked legally.  The Magistrate observed that there could be other reasons for undertaking the tax procedures including that the restaurant in question reported to the Inland Revenue their expenses which included the salary they had given to their employees. The Magistrate held that the Inland Revenue material could not change the immigration status of the Applicant.

14.  The learned Magistrate concluded that in the absence of evidence from the Applicant (she chose not to testify) there was nothing to rebut the obvious inference that she knew of her status and knew that she was not permitted to work. The Magistrate concluded “I find no evidence that show the defendant would have [thought] otherwise, and she has an honest and reasonable belief that her status as a visitor has somehow changed and can remain in Hong Kong after October 2005, or that the Immigration Department has allowed her to work in Hong Kong given her status then and during the time when she overstayed in Hong Kong.”^[2]

15.  The learned Magistrate concluded that the prosecution had proved all elements of each charge beyond reasonable doubt and there was no defence that the defendant could rely upon.^[3]

Bail pending appeal

16.  Section 122(2) of the Magistrates Ordinance provides that “a judge may, on the application of an Appellant who is in custody, admit the Appellant to bail pending the determination of his appeal or any proceeding therein”. Section 122(2) provides no criteria for the grant of bail. Nevertheless, there are general principles governing the grant of bail pending appeal which informed the discretion given to a Judge under this section. 

17.  The authorities which consider the discretion to grant bail pending appeal characterised the circumstances in which bail might be granted as exceptional. Generally, two considerations are opposite:

     (1)     the Appellant must be a good bail risk on the basis of suitable terms of bail; and  

     (2)     the circumstances must be such that justice can only be done by the grant of bail: R v Watton (1978) 68 Cr App R 293; HKSAR v Chan Man Chung CACC 87/2000 (26 July 2000, unreported).

18.  In relation to the 2^nd consideration, the starting point for analysis is that it is for the Appellant to demonstrate that his or her conviction is ill-founded. Accordingly, the Court considering whether or not to grant bail must determine whether the grounds of appeal compel that conclusion. The other consideration is whether the whole or a substantial part of the sentence of the Appellant might be served before the determination of the appeal.

19.  The standard that the grounds of appeal must attain before bail might be granted has been expressed in various ways. Generally speaking, the Appellant must be able to demonstrate that he or she has a strong prospect of succeeding on appeal and that a consequence of his or her success is that he or she will be at liberty.  See: HKSAR v Huynh Bat Muoi [2001] 4 HKC 643; HKSAR v Fan Ying Chao CACC 520/2000; HKSAR v Au Yeung Chun Yee CACC 438/2014 (25 April 2016, unreported); HKSAR v Fong King Choi CACC 319/2018, [2019] HKCA 487.

20.  These two considerations interact where the sentence imposed on the Appellant is such that there is a substantial risk that substantial part or all of the sentence might be served before the hearing and determination of the substantive appeal. In HKSAR v Lau Man Kin [2010] 1 HKLRD 336, §8 it was held that in such circumstances the Appellant must demonstrate that there are reasonable prospects of success on appeal. In short, even if the sentence is such that a substantial part or all of it might be served by the time of the determination of the appeal, the Appellant must still demonstrate that the appeal has merit: HKSAR v Wong Hon Ching, San Stephen CACC 547/2003, 7 January 2004.

Grounds of appeal

21.  The Applicant filed perfected Grounds of Appeal on 17 February 2021. The grounds of appeal are as follows:

     (1)     Ground 1: the learned Magistrate erred in findings that the Applicant had an honest and reasonable belief that she was entitled to remain and to work in Hong Kong;

     (2)     Ground 2: the learned Magistrate should have given herself a lies direction (see Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113);

     (3)     Ground 3: the learned Magistrate failed to recognise that the answer in the record of interview about why the Immigration Department refused her application for a dependent Visa was hearsay and could not form part of the admissions against interest in that record;

     (4)     Ground 4: the learned Magistrate erred in holding that the record of interview was a mixed statement;

     (5)     Ground 5: the learned Magistrate erred in directing herself on the burden of proof;

     (6)     Ground 6: the learned Magistrate erred in raising a question about the tender of the taxation documents as to whether they were germane to raising a reasonable doubt in the case; and 

     (7)     Ground 7: the conviction is unsafe and unsatisfactory.

Consideration

General

22.  This is not the hearing of the appeal against conviction.  The task of this Court is to determine whether, in accordance with the recognised principles governing the admission of a person to bail pending an appeal against conviction whether that is the appropriate course.

Bail risk

23.  The first consideration is whether the Applicant is a proper bail risk. In other words, the issue is whether there is a proper basis for believing that the Applicant would not answer her bail if granted when called upon to do so. In my judgement, if she were granted bail pending appeal, the Applicant has every incentive to remain in Hong Kong.  I have no doubt that the Immigration Department have a mechanism to permit the Applicant to remain in Hong Kong to abide the event of the hearing and determination of her appeal.  

Merits

24.  The first ground advanced by the Applicant is that the Magistrate did not conclude that the Applicant had an honest belief that she had a right to remain and to work in Hong Kong.  The contention of the Applicant^[4] is that the prosecution had to prove that the Applicant knowingly overstayed and knowingly breached her condition of stay.  On the assumption that it is required that the prosecution proves that the accused knew she was in breach of a condition of stay and knew that she was overstaying it is pertinent to note that Applicant in her record of interview admitted that she knew that.  It may be that what the Applicant is trying to argue is that no reliance should be placed on the record of interview because of a belief on the part of the accused based on the tax documents.

25.  It is contended by the Applicant that section 41 of the Immigration Ordinance, Cap. 115 requires that the prosecution must prove the accused knew that a condition of stay have been breached.  That requires a construction of section 41 of the Ordinance.  Section 41 provides:

“Any person who contravenes a condition of stay in force in respect of him shall be guilty of an offence and shall be liable on conviction to a fine at level 5 and to imprisonment for 2 years.”

26.  The prosecution accepts that section 41 requires proof that the accused knew of the relevant condition: Duration of Stay or Right to work. As will shortly appear, I am not sure that that is how the Magistrate perceived the construction of section 41.

27.  The Magistrate found the elements of the offence proved beyond reasonable doubt.  She placed weight on the inculpatory parts of the record of interview and was entitled to do so.  If she accepted what was said in the record of interview as true, then it demonstrates that the Applicant knew that she had no right to remain in Hong Kong after October 2005 and had no right to work.  It is true that the learned Magistrate expressed herself in terms of whether or not the Applicant had an honest and reasonable belief that despite what she said in the record of interview, she believed that somehow by reason of her filing tax documents in connection with the work that changed her immigration position. The use of the phrase “honest and reasonable belief” in the context could carry with it the implication that the learned Magistrate considered that the offence was one of strict liability (she did not say so) and that the common law defence was implied into section 41 and a person who established an honest and reasonable belief has a defence to the charge.

28.  The position of both counsel for the Applicant and counsel for the Respondent is that section 41 is an offence which requires proof of mens rea. On that premise, the argument of the Applicant must be that the tax documents somehow contradict the clear admissions made in the record of interview. On that premise, it is conceivable that it could be argued that the learned Magistrate applied the wrong test when referring to an honest and reasonable belief. That forms no part of the grounds of appeal before me. Indeed, the grounds as argued by counsel for the Applicant was a repetitive and unfocused argument.

29.  The language that the learned Magistrate used in paragraphs 46 and 47 of her Statement of Findings carry with them the implication that she viewed section 41 of the Ordnance as an offence of strict liability.  In fairness to the Magistrate, she does not say so and given the perhaps unfair pressure this Court placed her under in preparing her Statement of Findings, no criticism could be levelled against her.  Nevertheless, the language of paragraph 46 of her Statement of Findings carries with it the implication that she was considering, in effect, the common law defence to a strict liability offence. In Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142and Kulemesin v HKSAR (2013) 16 HKCFAR 195, the Court of Final Appeal recognised that there is the possibility of such a defence where the offence created by a statute is one of strict liability. In the event that such a defence is applicable, the onus of proof is on the accused and the standard of proof is proof on the balance of probabilities. In the event that as a matter of construction of section 41 of the Ordinance was that this was an offence of strict liability and it was concluded that the common law defence was applicable, the practical issue before the Court would be whether the Applicant had an honest and reasonable belief that she was entitled to work and that she was not obliged to leave Hong Kong in the manner averred in the 2 charges.

30.  It must be said that such a defence in the circumstances of this case faced formidable difficulties. The most formidable of those was that the accused did not testify.  While as a matter of strict theory there must be circumstances in which the common law defence could be established without testimony from the accused, the practical forensic realities are very much against such an accused. In the instant case, the Applicant could, conceivably, point to the inferences arising from the tax material.

31.  If my assumption is correct and the learned Magistrate proceeded upon the basis that section 41 of the Ordnance was an offence of strict liability and that she was addressing the issue of whether or not the Applicant had discharged the burden of proof which lies on her on the premise of my assumption, it is clearly arguable that she had concluded that the Applicant could not demonstrate on the balance of probabilities that she believes she could work and had a right to stay in Hong Kong.

32.  I perfectly appreciate that in paragraph 47 of the Statement of Findings the Learned Magistrate appears to have put the alternative on the basis of there being no reasonable doubt.  The problem is that the Magistrate does not explain why there is no reasonable doubt.  That is not to say that a properly directed tribunal could not come to that view.  Plainly it could.  I must confess that had I been that tribunal I could see myself coming to that view.  The problem is always that where there has been an error in characterising the offence as one of strict liability and, consequentially, that the Applicant had a persuasive burden of proof imposed upon her that switching between differing burdens of proof and standards of proof is fraught with danger.  In my opinion, there are reasonable prospects of success on appeal that such a danger exists in this case.

33.  The other grounds of appeal advanced as a justification for bail pending appeal can be taken quite shortly.  Nothing in those grounds either alone or taken together even remotely provides a basis for bail pending appeal.

Time

34.  Time is a relevant factor. It will be noticed that I have used the phrase “reasonable prospects of success on appeal” when characterising my view as to whether bail is justified.  The sentence overall is one of 12 months. With or without the assumption that the Applicant might receive a remission of one third of that sentence for good behaviour, given the pressures on this Court to hear and determine appeals such as that of the Applicant, it will be many months before there can be such a hearing let alone a determination of the appeal.  In my opinion, there is a substantial risk that a substantial portion of the sentence imposed upon the Applicant might be served and there is a real risk on the premise that there are reasonable prospects of success on appeal and that the Applicant might be set at liberty.  Given the time factor, applying the principles in HKSAR v Lau Man Kin (above) the combination of circumstances of prospects and time compel bail pending appeal.

Consequential comments

35.  The present grounds of appeal do not articulate the basis on which I concluded that there is a reasonably arguable basis for an appeal and, consequently that bail is a just conclusion.

36.  Lest there be any doubt about it, I have not overlooked the proposition that an appeal under section 113 of the Magistrates Ordinance, Cap. 227 is an appeal by way of rehearing and it would be open to the appellate court to come to the same outcome as occurred at trial against the background that the offence requires proof of mens rea as opposed to being an offence of strict liability. Reasonable arguability is, by definition, a world away from a concluded appeal under section 113.

Disposition

37.  For the reasons articulated, I admitted the Applicant to bail pending appeal.

[1] Statement of Findings, §29.

[2] Statement of Findings, §46.

[3] Statement of Findings, §48.

[4] Written Submission of applicant, §5.