HKSAR v. Dumayag, Analyn Pedro

HCMA 668/2016

[2018] HKCFI 825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 668 OF 2016

(ON APPEAL FROM STCC NO 1719 OF 2016)

________________________

________________________

Before:  Deputy High Court Judge Anthony Kwok in Court

Date of Hearing:  19 September 2017

Date of Judgment: 24 April 2018

___________________

J U D G M E N T

___________________

1.The appellant was convicted after trial of one count of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115 before Ms. Ivy Chui, Magistrate sitting in Shatin Magistrates’ Courts and was sentenced to 5 months and 2 weeks’ imprisonment. She appealed against her conviction only.

2.The appellant is a foreign domestic helper from the Philippines.  The particulars of the charge aver that she had been in contravention of a condition of stay which limited her stay in Hong Kong “until 24 March 2011 or two weeks after termination of contract, whichever is earlier” but she remained in Hong Kong till 22 October 2015.

Application for stay of proceedings

3.Before the commencement of the trial, the appellant applied for a permanent stay of the proceedings on the ground that the prosecution of the appellant was an abuse of process for the appellant was a victim of human trafficking and exploitation.  It was submitted that she has been a victim of human trafficking by reason of the employer’s failure to submit the signed and certified employment contract to the Immigration Department to obtain a new employment visa.  She had been deceived about the progress of the application of the visa with her passport retained and a total of 38 months of salary was also withheld from her thereby abusing her position of vulnerability. 

4.The appellant further complained that there has been no such effective screening or investigation by the prosecution into the likelihood of the defendant being a victim of trafficking, despite the constitutional duty and requirements of prosecution policy under paragraph 18 of the Prosecution Code.  Therefore, the criminal proceedings should be stayed because the bringing of the prosecution against the appellant “offends the court’s sense of justice and propriety so that the entire prosecution was tainted as an abuse of process”.

Evidence in stay application

5.I shall adopt the summary of evidence as prepared by the magistrate in paragraphs 8 – 23 of her Statement of Findings: -

“ Defence evidence in the Stay Application

8. The defendant elected to give evidence in support of her application for stay. She called no defence witnesses.

9. The defendant was 36 years of age. She had been educated to high school level. She arrived in Hong Kong in March 2003 to work as a domestic helper for Ms Chow Siu Kam Mary (‘Chow’). She worked at the address stated in the contract of employment. However, Chow did not reside there. Instead, her daughter Ms Leung Mei Ling (‘Leung’), her husband and their two children lived there. The defendant performed domestic duties and looked after Leung’s children, one of whom was mentally disabled.

10. The defendant said that 2 months’ wages remained unpaid by Leung in 2008. When Chow passed away in 2009, the defendant asked Leung whether her employment visa would be terminated. Leung assured her that Chow’s death was not an issue as far as her employment was concerned and that she could continue to work for Leung and her family.

11. In 2010 Leung was owing to the defendant a total of 6 months’ wages. However, she always told the defendant that the outstanding wages would be settled soon without giving her a deadline.

12. The defendant said her 4^th 2-year contract expired in 2011. On 20 March 2011, she signed a new domestic helper contract with Leung which was verified by the Philippines Consulate on the same date[1]. When the contract was returned to the defendant, the defendant gave the contract to Leung along with her passport for Leung to approach the Immigration Department to obtain a new employment visa. One month passed and Leung still did not give her back anything. Leung told her that her employment visa was still being processed.

13. In May 2011 Leung told the defendant that some additional documents were needed to apply for her employment visa. The defendant gave evidence that she was very worried because if she was intercepted by the police in the street discovering that she did not have any valid employment visa, she would be in trouble and be sentenced to jail.

14. In 2014 the defendant repeatedly asked Leung about the process of her employment visa application. She also asked for thereturn of her passport as she wanted to go back to the Philippines to see her family. At that time, the defendant did not know whether her employment visa has been granted by the Immigration Department as Leung did not give her anything. Leung replied that it was still in process and she said she would put things right because she had connections to obtain the necessary visa.

15. On 20 June 2015 while cleaning Leung’s handbag at home, the defendant found that her passport and the contract with Leung were being kept there. She took a look at her passport and discovered that she has already overstayed in Hong Kong. As she was afraid of being accused of stealing, she put her passport back to the handbag. Subsequently the defendant went to see her sister and told her about the expiry of her employment visa. Her sister, who resided in Hong Kong, took the defendant to the Philippines Consulate for assistance. The Philippines Consulate issued a temporary travel document to the defendant[2]. Her sister helped the defendant to pay the costs of the document first as she did not have any money with her. As the defendant did not have her passport which had been retained by Leung, she decided not to approach the Immigration Department for assistance.

16. On 2 August 2015 the defendant and her sister together with a friend confronted Leung and asked her why she had caused the defendant to overstay her visa. Leung asked the defendant whether she wanted to continue to work for her and the defendant said ‘yes’. Leung then asked for 2 weeks to process her employment visa application. Leung told them not to worry as she had connections to obtain the necessary visa.

17. After a lapse of 2 weeks, Leung asked for two more weeks to rectify the situation. She said not to worry and that she would take care of the matter. After a few months the defendant suspected Leung was lying as she kept asking for more time to put things right.

18. Upon advice of her friend, the defendant decided to surrender to the Immigration Department on 22 October 2015 together with a letter dated 22 October 2015 written by Helpers for Domestic Helpers (‘HDH’) [3]. On that day, the defendant presented her Hong Kong identity card to the Immigration Department. She was then asked to return to their office on 28 October 2015 for an interview.

19. At an interview with the Immigration officer on 28 October 2015, the defendant asked an interviewing officer if she should leave her job as she was still staying with her employer. The Immigration officer said to her ‘it is up to you’. During the interview,she was asked to fill in the ‘Action card for the Debriefing of Human Trafficking Victims’ (‘Action card’) [4].

20. On 2 December 2015 the defendant ceased working for Leung. The defendant said Leung was owing to her a total of roughly 38 months’ wages[5], in a sum of about $150,000 covering the period from 2009 to December 2015. She was now taking proceedings in the Labour Tribunal against Leung to recover arrears of wages.

21. At all material times Leung was in possession of the signed employment contract, approved by the Philippine Consulate, and in possession of her passport. Her passport has never been returned to her.

22. The defendant gave evidence that her last visit to the Philippines was in May 2009. During her employment with Leung, she was given a rest day every Sunday. The defendant said Leung’s mentally disabled son was very attached to her and would often pin for her when she was not around.

23. There was no cross-examination of the defendant by the Prosecution.

Prosecution evidence in the Stay Application

24. The Prosecution called two witnesses to testify in the stay application: PW1, Ms Chan Hiu Wa and PW2, Ms Chu Yam Chit Yam. Both of them were the Immigration Assistants attached to General Investigation Team and Special Investigation Team respectively.

PW1’s evidence

25. PW1 said on 28 October 2015 she was assigned by the case officer to help the defendant, with the assistance of Tagalog interpreter, to complete Part A of the Action Card only. The aim of filling in the Action Card was to investigate whether the defendant was exploited.

26. Upon completion of Part A, PW1 handed the document for the case officer to follow the matters. PW1 was not responsible for Part B of the Action Card.

PW2’s evidence

27. PW2 gave evidence that on 28 October 2015 she was responsible to finish Part B of the Action Card with the defendant.  The purpose of the interview was to investigate whether the defendant was the victim of human trafficking.  The interview was conducted in the presence of a Tagalog interpreter.  PW2 was not the one who set the questions.  She simply followed the pre-set questions to conduct the interview with the defendant.  Upon completion of the Action Card, PW2 submitted it to her superior for further action.”

The magistrate’s ruling on stay application

6.The magistrate refused to stay the proceedings.  In so doing, she referred herself to the case of HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133 [6] at 148 – 151 where the Court of Final Appeal reiterated that a stay of criminal proceedings would only be justified in highly exceptional circumstances.  It was held that the burden is on the applicant for a stay to show, on a balance of probabilities, that the trial is so prejudiced by the matter of which he complains that it is beyond the power of the judge to preside over and hold a fair trial.  Where a fair trial is possible the jurisdiction to stay proceedings should not be used as a tool to discipline the authorities.

7.The magistrate found that regardless of whether Chow or her daughter Leung was the “actual” employer of the defendant, there was no evidence to suggest that the appellant had been deprived of her liberty to leave her contractual premises throughout her employment.  According to the appellant, she was granted a rest day each week by Leung and she was allowed to go out to meet her friends and her sister.  She was able to contact with her sister freely.  She could also return home late without receiving any punishment.

8.The magistrate was critical of the appellant’s version as testifiedand found that her behaviours during the period did not support her allegation that she was a victim of human trafficking.  For example, the appellant did not seize the opportunity to get back her passport but still put it back in Leung’s handbag even after she realized that Leung has not submitted her application for a new working visa to the Immigration Department.  Shecontinued to work for Leung who has failed to pay her salary during the period of her employment and there was no reason for her to continue to place trust in Leung.

9.The magistrate referred to the fact that the appellant had been working as a domestic helper for more than 10 years in Hong Kong since 2003.  The appellant was well aware of her rights and legal duties; for example, she knew that she would be in trouble if the police found she was an over-stayer.  Judging from the evidence before her, the magistrate failed to see how the appellant was subjected to trafficking by Leung who by means of fraud, deception, coercion and abuse of power using the appellant’s position of vulnerability exploited her.

10.Finally, the magistrate, upon invitation from the defence, also referred herself to a judicial review decision: ZN v Secretary for Justice & Others HCAL 15/2015 [7] (“the ZN case”) in which a Pakistani national has been ruled to be a victim of human trafficking for servitude or forced labour but she found the appellant was totally different from the applicant in the ZN case and they were clearly distinguishable in many ways.

11.On the evidence before the magistrate, she was satisfied that the prosecution in this case has properly considered the claim in accordance with its constitutional duty and the Prosecution Code before laying the charge against the appellant and that there was no abuse of process on the part of the prosecution.  The magistrate considered that there were neither exceptional circumstances nor sufficient grounds to stay the prosecution of the charge against the appellant.

The trial

12.The trial is simple and straightforward.  There is no prosecution witness.  The prosecution case was presented by way of an Admitted Factscovering, inter alias, the details of the appellant’s working visa and her employment contract signed with Leung.

13.The appellant elected to give evidence after the magistrate ruledthat there was a case to answer.  She went to the witness box and adopted what she has testified in the stay application and gave no further evidence.  She called no defence witness.

14.There was again no cross-examination by the prosecution.

The magistrate’s finding

15.The magistrate bore in mind that the appellant had on a number of occasions raised her concerns with Leung as to the progress of her employment visa application.  According to the magistrate, it clearly demonstrated that the appellant was well aware of the need to obtain a new employment visa under a new contract with Leung.  She even knew she would be in trouble if she was intercepted by the police in the street questioning about the expiry of her employment visa.  It clearly showed that the appellantwas well aware of the importance of the validity of her working visa and what the legal consequence she would possibly bear if she failed to obtain one.  

16.The magistrate found the appellant’s evidence far-fetched and unbelievable in that she could still place trust in someone who had repeatedly made empty promises to her.  From 2011 to 2015, she all along relied on Leung’s assurances that everything was in hand and continued to remain in Hong Kong and work for Leung but was not given a copy of the contract nor was her passport returned to her by Leung for a total of 4 years.  She asked Leung what was happening with her application but received no satisfactory response. 

17.The magistrate was of the view that a domestic helper of the appellant’s experience having worked in Hong Kong since 2003 would have known that on the death of Chow the contract would automatically terminate.  She was well aware of her rights and legal duties.  It was incredible that the appellant would have believed Leung’s assurances after Chow died in 2009 that she could continue working for Leung without signing a new contract.  The appellant only applied for a new contract at the end of the contract period of her contract with Chow and the new contract, certified by the Philippine Consulate, was dated 20 March 2011.  She then passed the certified contractand her passport to Leung to apply to the Immigration Department for the visa which she did not do.

18.The magistrate found it also unbelievable that the appellant agreed with Leung’s proposal in August 2015 that she would continue to work for Leung as by that time the arrear of wages was in the sum of about $150,000.

19.The magistrate also found it incredible that she did not approach the Immigration Department or the police station for assistance when she found out her visa had already expired from the document in Leung’s handbagin June 2015 but yet she went on working for Leung and remaining in Hong Kong illegally.

20.All in all, the magistrate considered the appellant not an honest and reliable witness and did not accept her evidence.  She was satisfied that the appellant has remained in Hong Kong without a valid domestic helpercontract or the appropriate employment visa after her previous contract expired on 2 December 2009.  She convicted her of breach of condition of stay for her right to remain in Hong Kong expired on 16 December 2009.

Grounds of appeal

21.Mr. Philip Ross, counsel for the appellant both at the trial and in the appeal hearing, has raised the following grounds of appeal:-

(1) the prosecutor did not cross-examine the appellant when the appellant gave evidence and yet submitted in closing submission that her evidence should be disbelieved;

(2) the magistrate erred in finding that section 41 of the Immigration Ordinance (Cap. 115) is an offence of strict liability and as a result failed to consider the defence raised by the appellant fairly; 

(3) the magistrate failed to stay the proceedings against the appellant; 

(4) the magistrate has given an undue weight in (i) the appellant’s consent to continuing to work for Leung throughout the period of the charge of overstaying and (ii) the appellant’s voluntarily handed over the passport to Leung and erred in concluding that the appellant was not a victim of human trafficking;

(5) the magistrate erred in failing to consider that the appellant was a victim of forced labour under Article 4(3) of the Hong Kong Bill of Rights; and

(6) the magistrate erred in finding that a stay of proceedings would only be justified in highly exceptional circumstances when the Prosecution Code contemplates discontinuing a prosecution merely when a credible claim is made that an accused is a victim of human trafficking.

The respondent’s reply

22.Ms. Christal Chan, Senior Public Prosecutor, submitted that the magistrate was proper to refuse the application for stay of proceedings.  As to the verdict, the magistrate had fully considered all the evidence of the case and she also took great care to consider all the relevant law and authorities relied on by counsel from both sides.  It is submitted that the magistrate was correct to reach the verdict as she did and the appellant’s appeal against conviction should be dismissed.

Discussion

23.As can be seen, the nature of complaints by the appellant againstthe magistrate’s findings is twofold.  The first two grounds of appeal focus mainly on the magistrate’s finding that the appellant was not an honest and reliable witness and her refusal to accept the appellant’s explanations as to why she would be working for Leung for years without a proper working visa causing her to overstay in Hong Kong.  The remaining grounds of appeal (3) to (6), however, revolve around the magistrate’s refusal to stay the proceedings and the defence contentions that the appellant is a victim of human trafficking for forced labour.

24.I shall first deal with the issue of whether the appellant should be considered as a victim of human trafficking for forced labour because in my judgment, it is the central core of all the arguments for the stay application advocated by the defence in the trial. 

25.Mr. Ross submitted that appellant was the victim of unlawful human trafficking, and also a victim of one aspect of such trafficking, forced labour.  By her evidence, she has made a credible claim to being such a victim, and under the Prosecution Code, the prosecution should have taken appropriate measures to prevent the appellant from being prosecuted.  When the prosecution did not do this, the magistrate should have but did not stay proceedings against the appellant.

26.The magistrate has correctly set out the definition of human trafficking in her Statement of Findings which I shall adopt as follows:

“ Definition of Trafficking in Persons

36. Under Article 3 of the Palermo Protocol, there are three elements that should be present in a case of trafficking, referred to as action, means and purpose.  Firstly, the act of trafficking, which is ‘the recruitment, transportation, transfer, harbouring or receipt of persons’.  Secondly, the means by which it is achieved, which is ‘the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person’.  Thirdly, the purpose for which it is done, which is exploitation, including the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or similar practices, servitude or the removal of organs.”

27.In refusing the application to stay the proceedings, the magistrate found the appellant’s behaviour did not support her allegation that she was the victim of human trafficking.  She emphasised that the appellant had not been deprived of her liberty to leave the premises and her freedom to communicate with her sister and friends during the period of employment and also the appellant’s conscious decision to place trust on Leung even she has all along failed to pay her wages in full and did not process her working visa as promised.  (See paras 38 – 40 of the Statement of Findings.)

28.In order to make out a case that the appellant was a victim of human trafficking for forced labour, she must satisfy the Court on the balance of probabilities that:

(1) she was brought to Hong Kong by the employer in circumstances involving deception as to her conditions of work; and

(2) once in Hong Kong she was forced to work for the employer by means of menaces of penalties and that she did not do it voluntarily. 

29.In my judgment, despite the repeated efforts by Mr. Ross to submit that what the appellant had described fit in with the “identifiers” of human trafficking, I really fail to see how the appellant was subjected to trafficking to begin with when, like any ordinary foreign domestic helper, she came to Hong Kong to work as a domestic helper back in 2003 completely on her own volition without suggestion of any force, threat, coercion or deception. According to the appellant, by the time her employer Chow passed away in 2009, she had already worked for Leung (Chow’s daughter) for nearly six years under three separate contracts of employment.  Although Mr. Ross emphasised that Chow turned out did not reside at the residential address as stated in the contract, this arrangement never seems to bother the appellant and affected her employment at all. As the matter stands, the appellant decided to renew her contract with Chow for two times since her arrival.

30.In reality, it made no difference to the appellant whether she was paid by Leung or whether Chow was residing in the premises.  In a way, the appellant was even better off having to serve less family members as expected.  The fact that the appellant voluntarily remained in the same employment in the subsequent contracts militated against the contention that it was a material deception which enticed her to come to work in Hong Kong.

31.I should also add that that the present case does not even come close to the kind of situation as disclosed in the ZN case as relied by Mr. Ross: the applicant (ZN) stated that he had no knowledge of the employment contract and did not even sign it and when he travelled to Hong Kong, he was accompanied by the employer’s sister who retained his passport and his other identification documents; he was made to work in the office as well as a domestic helper for 7 days a week and from 10 am until 1 am night; he was made to sleep on the floor of the office and he was not paid his monthly salary but being told his money will be saved for him and he would only be paid a single lump-sum at the end of the contract.

32.As for the claim that the appellant was a victim of forced labour, Mr. Ross prayed in aid the case of Siliadin v France (2006) 43 EHRR 287 where the European Court of Human Rights held that the applicant, a girl who was brought from Togo, West Africa to work in France at the age of 15, was subjected to forced labour:

“ The Court notes that, in the instant case, although the applicant was not threatened by a ‘penalty’, the fact remains that she was in an equivalent situation in terms of the perceived seriousness of the threat.

She was an adolescent girl in a foreign land, unlawfully present in French territory and in fear of arrest by the police.  Indeed, Mr and Mrs B nurtured that fear and led her to believe that her status would be regularised.”

33.The case referred to by the appellant is fact-sensitive and the facts are extremely serious and can be readily distinguished from the facts ofthe present case: the applicant (Siliadin) was a minor and she was required to perform forced labour which lasted almost 15 hours a day and 7 days a week; she was brought to France by a relative of her father and she has not chosen to work for Mr. and Mrs. B; she had no freedom of movement and no free time and she was not even permitted to leave the house.

34.Mr. Ross was absolutely correct when he submitted that “there must be a relevant act, and a means for the purpose of exploitation”, referring to the definition of human trafficking.

35.In his written submission, Mr. Ross set out what he considered as the relevant act in this case:

“ Relevant Act

57. The Appellant was recruited by Miss Leung to work in Hong Kong.

58. The Appellant was transported to Hong Kong away from her home in the Philippines, leaving her potentially vulnerable.

59. The Appellant was received by Miss Leung to work further for her.”

36.As can be seen, the above acts were no more than what is happening to every foreign domestic helper travelling from her home country to work in a family in Hong Kong.  They just do not fit into the relevant act of trafficking.  I also fail to see how the appellant could now possibly relate back what has happened to her between 2009 and 2015 to the purpose of recruiting her to work in Hong Kong by Chow in 2003.  I therefore agree that, to a certain extent, the appellant was conflating her situations with the kind of exploitation that was intended to be captured by the definition of trafficking in the Palermo Protocol.

37.Based on the definition of human trafficking and the testimony by the appellant, I am not satisfied that she was a victim of human trafficking for forced labour.  It is so clear that such a contention was totally misconceived and the core argument for stay application has fallen apart completely.

38.For the same reason, the reference by Mr. Ross to the Prosecution Code as a further ground to stay the proceedings based on the alleged failure on the part of the prosecution to consider a credible claim that a defendant or intended defendant is a victim of trafficking has again no merit as clearly what the appellant told the immigration officers could not in any sense be reasonably considered as a true case of human trafficking.

39.Furthermore, even if the appellant’s allegations against her employer was established, the court is still capable of conducting a fair trial and that these are matters which can be raised by the appellant as a defence to the charge.

40.I therefore find no basis to interfere with the magistrate’s decision not to stay the proceedings.

41.Grounds (3) to (6) fails. 

42.I now turn to Grounds (1) and (2).  The appellant’s complaints on these two grounds take the arguments to a different level and merit a totally different consideration.  The two grounds can conveniently be dealt with together.

43.In Ground (1), Mr. Ross pointed out that during the trial, the prosecuting counsel did not cross-examine the appellant neither when she gave evidence on the stay application, nor when she gave evidence on the general issue.  Specifically, the prosecuting counsel never challenge the appellant’s credibility when she was in the witness box.  However, the prosecuting counsel contended in his closing submission and the magistrate also found in her verdict that the appellant was not a credible witness.  This is contrary to the rule in Browne v Dunn (1894) 6 R 67 and has led to an unfair trial.

44.It is true that the prosecution, in his final address, attacked the credibility of the appellant and submitted that she would have known that on the death of her employer, the contract would automatically terminate. It is also true that the prosecution submitted that it was not believable that the appellant would have believed Leung’s assurances that she could continue working for Leung without signing a new contract.

45.Mr. Ross complained that the magistrate just adopted the prosecution submission and found it incredible that the appellant would have believed Leung’s assurances that she could continue working for Leung without signing a new contract.  The magistrate went on to find it unbelievablethat the appellant agreed in August 2015 to continue to work for Leung up toDecember 2015.  The magistrate further found it incredible that the appellant did not approach the Immigration Department when she discovered her documents while cleaning Leung’s handbag.  Finally, the magistrate concluded that the appellant did not impress her as an honest and reliable witness.  By that finding, the magistrate went on to find that the appellant did not honestly believe she had a valid employment visa, or that the Director of Immigration was processing her papers and would ultimately give her a visa to the extent that she was not overstaying, a defence open to her if section 41 of the Immigration Ordinance (Cap. 115) is not an offence of strict liability.

46.In Ground (2), Mr. Ross submitted that section 41 of the Immigration Ordinance (Cap. 115) is an offence requiring proof of mens rea.  The magistrate erroneously found that section 41 was an offence of strict liability.  It is submitted that the prosecution is not in a position to displace the presumption that section 41 is an offence requiring proof that accused intended to overstay.  Had the appellant been believed, she intended at all material times to obtain a visa.  Mr. Ross pointed out that a backdated visa can be granted enlarging the term of the visa to include a period of residence that had been without a visa (see section 11(5A)(c) of Cap. 115).  Thus, even though the appellant may in fact not had an employment visa from the death of Chow onwards, her evidence was that she always intended to be lawfully in Hong Kong and in law an Immigration officer was in a position to grant a visa so that she would still be a lawful resident at all times.

47.On behalf of the respondent, Ms. Chan submitted that the prosecuting counsel was perfectly entitled in a situation like the present case to invite the court to reject the evidence of the appellant where her evidence was so incapable of belief to adopt a ‘raised eyebrow’ approach (R v Lovelock [1997] Crim LR 821 (CA) at p. 822). The respondent submitted that the quality of the evidence of the appellant was such that cross examination was not necessary.

48.As for Ground (2), Ms. Chan submitted that it was not the finding of the magistrate that section 41 was a strict liability offence.  She referred to the first sentence of paragraph 65 of the Statement of Findings which reads“Even that section 41 offence was one of strict liability…” (emphasis added). Further, the magistrate further held in the same paragraph that:

“ I was not satisfied that she honestly and reasonably believed that she either had a valid employment visa or that the Director of Immigration was processing her papers and would ultimately give her a visa to the extent that she was not overstaying. In my view, she had no reasonable ground for such a belief. On the evidence before me, I found the Appellant also did not take any effective measures or steps to prevent contravention of the law.” (emphasis added)

49.It is the submission of the respondent that the magistrate has made her findings regarding the mens rea and the actus reus of the appellant in commission of the offence.  The first sentence of paragraph 65 should be read in context.

50.Given the position adopted by the respondent, Ground (2) can be disposed of without the need to discuss whether section 41 is an offence of strict liability.  In fact, according to the written closing submission by  counsel-on-fiat for the prosecution, it was his considered submission, after referring himself to the second alternative of construing statutory offence regarding mental requirements as laid down in Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142, that for the present offence, the magistrate should decide whether or not the defendant had an honest and reasonable belief that she didnot remain in Hong Kong in breach of her condition of stay.  It was obviouslyupon this invitation that the magistrate considered and found that the appellant did not have such a belief as stated in paragraph 65 of her Statement of Findings.

51.The basis of the magistrate’s conviction in this case, whatever the mental requirement as required by law, must be the failure on the part of the appellant to impress the court as a credible witness.  In paras 15 – 20 above, I have already set out the negative findings of the magistrate on the credibility of the appellant.

52.In Browne v Dunn (supra) Lord Herschell LC said:

“ Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questionsput in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. …” (emphasis added)

(at p. 70)

53.Lord Morris was nevertheless cautious of the rule. His Lordship pointed out in the same case that:

“…But I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box.”             (at p. 79)

54.In his submission, Mr. Ross referred to R v Hart (1932) 23 Cr App R 202, in which three alibi witnesses for the defence were not cross-examined.  If the jury accepted their evidence, it appears to be physically impossible for the appellant could have been at the crime scene.  Nevertheless,the jury were invited by the prosecutor to disbelieve these witnesses.  On appeal, the conviction was held to be unsatisfactory and was quashed.

55.In support of his proposition, Mr. Ross has also referred me to a passage in Lo Chun Nam v HKSAR (2001) 4 HKCFAR 1 at p. 7 where Silke NPJ said:

“ There are cases where the ‘raised eyebrow’ approach can discharge the duty of counsel but, as was stated in the commentary to R v Lovelock [1997] Crim LR 821 at p.823:

… in a criminal trial it is better, and less likely to lead to confusion, to take issue more obviously.”

56.The ultimate question to be decided in order to resolve the first two grounds of appeal therefore is whether the evidence testified by the appellant in this case was so incredible to the extent that no cross-examination was necessary and would not be unfair to her?

57.The prosecuting counsel chose not to cross-examine the appellant at the stay application as he thought it would be improper for him to impeach her credibility at that stage even before the trial commenced.  In his written closing submission, he made it plain to the magistrate that the appellant has a defence available to her that she has the requisite honest and reasonable belief that she was not in breach of her visa condition.  No cross-examination of the appellant, however, was ever conducted after the appellant had elected to go to the witness box and adopted what she had testified under oath earlier in the stay application.  As a result, it has never been put to the appellant by the prosecuting counsel that what she had said was untrue and unconvincing and how was it that her explanations would be regarded as unreasonable.  Applying the Browne v Dunn rule, while there might be credible explanations offered by the appellant in the individual point relied by the prosecuting counsel to hammer her in his closing submission, the stark fact of reality was that the appellant was effectively denied of an opportunity to respond and deal with her criticisms and, with respect, the magistrate just adopted those criticisms as submitted by the prosecution in her statement of findings and reached a negative finding that the appellant was not an honest and reliable witness.

58.This was not a “raised eyebrow” case as contended by the respondent.  I am aware that the period of overstay by the appellant in this case was of course long and also the fact that the tolerance displayed by the appellant for her employer’s misconduct was, on its face, somewhat surprising.  On the other hand, one also has to note however that the fact of the present case is also distinctly different from the usual run-of-the-mill cases in that the defendant did not chose to overstay because she was terminated by the previous employer and she could not find a new job in Hong Kong.  The appellant in this case has all along been working in the same household non-stop for 12 years or more (which was not challenged) and yet she was in breach of her condition of stay only because her employer, for reasons best known to herself, did not process her new employment contract with the Immigration Department as promised.  One cannot but ask the rhetoric question: What good would there be for the appellant to continue her employment in Hong Kong without a properemployment visa?  How she would be able to enforce her right as an employee if it was her intention that her employment contract was not to be approved by the Immigration Department and she was just working here illegally?

59.According to the appellant, Leung repeatedly assured her that she had connections and her working visa could be “back-dated” so that she would not be in breach of her condition of stay.  She also had a very strong emotional tie with the son of Leung who was a mentally disabled and whom she was entrusted to take care for more than 12 years, a factor which seems has not been given sufficient weight when the magistrate dismissed the appellant’s decision to put up with her situation as unreasonable.

60.If what the appellant said was to be believed, the appellant’s evidence would give rise to the defence that at all material times she had an honest and reasonable belief that either she had a valid employment visa, or that the Director of Immigration was processing her papers and would ultimately give her a visa.  In this case, the defence was rejected because the magistrate did not regard her as honest and credible, when unfairly, her credibility was never challenged in the witness box.

Conclusion

61.The failure on the part of the prosecution to cross-examine the appellant in the witness-box and the magistrate’s approach to assess the appellant’s credibility in vacuum without ever considering the need for her explanation is in my judgment, a major deficiency in her assessment of the credibility of the appellant and her conclusion as to whether the appellant has made out her defence of “honest and reasonable belief”.  Accordingly, for this reason, the conviction is unsafe and unsatisfactory and I shall allow this appeal and quash the conviction. 

Ms. Christal Chan, Senior Public Prosecutor of the Department of Justice, for the respondent

Mr. Philip Ross, instructed by K B Chau & Co, assigned by Director of Legal Aid, for the appellant