HKSAR v. Rita Otgon (also known as Bataa Otgon and Otgon Bataa)

DCCC 576/2019

[2020] HKDC 552

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 576 OF 2019

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REASONS FOR VERDICT

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Background

1.The defendantfaces ten charges of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance,  Cap. 115.  She has denied all charges.

2.As the defendant speaks Outer Mongolian, an Outer Mongolian interpreter was made available to her throughout the proceedings.

3.There were 4 prosecution witnesses. At the conclusion of the Prosecution’s case, no submission of no case to answer in respect of the charges was made by the defence. I found that there was a case to answer on all charges. Having had her rights explained to her by her Counsel, the defendant elected to give evidence but called no witnesses.  I must stress that even if the defence version is not accepted, it remains the prosecution’s duty to prove the charges.   After hearing final submissions from Counsel, I adjourned the matter to deliver my verdict. I have carefully considered all the evidence adduced before me as well as the submissions of Counsel for the Prosecution and defence. I have borne in mind at all times that the burden of proof remains throughout upon the Prosecution to prove guilt beyond all reasonable doubt against the defendant.

Issue

4.The defendant did not challenge the identity, including she was being handled by PW1 on the material date on 3^rd December 2015.  She was intercepted by the immigration officer at the arrival hall of Lo Wu Control Point on 18^th May 2019.  She did not challenge that on the 10 dates as mentioned in the charges (between 8^th April 2017 and 18^th May 2019), she was in Hong Kong.  She came to Hong Kong on 8^th April 2017 with the changed name of Rita Otgon.  Her main complaint is that she did not understand what had been served on her on 3^rd December 2015 nor the main witness explained to her the nature of the document in question.  She was not aware that a deportation order was made against her.  The main issue at trial is whether the defendant has been given notice of a deportation order was against her under section 43 of the Ordinance.

Prosecution’s evidence

5.Facts admitted by the Prosecution and the Defence at the outset under Section 65C of the Criminal Procedure Ordinance, Cap. 221, were produced and marked as Exhibit P9[1].   I set out the agreed facts as per Annex 1 herein.

6.The subsidiary questions turn on what language did the immigration officers and the defendant exchange on two material dates, i.e. on 3^rd December 2015 and 18^th May 2019, so as to assess the English language ability of the defendant.

PW1

7.On the 23rd November 2015, a deportation order (SF(D)15580) was issued under section 20 (1)(a) of the Immigration Ordinance, Cap. 115 requiring a female with the surname Bataa and given name Otgon to leave Hong Kong and from then thereafter prohibiting her from being in Hong Kong[2].

8.The main witness is immigration  officer ASIO Li Chun Ho (PW1) who purported to serve and explain the deportation order on the defendant.  On the 3rd of December 2015, he was responsible for explaining and serving the deportation order[3] on the defendant.  He testified that the process of explaining the proforma form of service of deportation order took about 5 minutes.  He read and explained to the defendant as per the said document.  He also served one of them on the defendant.  He communicated with the defendant in English.  He did not find it necessary to attempt to contact the Mongolian interpreter because either from the defendant’s facial expression or her feedback, she appeared to understand what he said.  Apart from the said document, he did not have additional notes to record what happened that day.  Had there been signs of language barrier, he would have withheld the deportation process.  Even if the defendant seemed to understand the process, had the defendant requested for an interpreter, he would have also withheld the deportation process.  PW1 knew that there was only one registered Mongolian interpreter at the time.  He denied he did not care whether the defendant understood what he said.  He did explain to the defendant as per the proforma document and asked her to sign to acknowledge receipt a copy and she understood the deportation order.  On the same day Bataa Otgon was escorted to depart Hong Kong. 

PW2

9.On the 18th May 2019, a female (the defendant) presented two Mongolian passports E2486063 under the surname of Rita and given name of Otgon to SIA Lau Wing Yi (PW2) at the immigration arrival counter at the Lo Wu Control Point.  The defendant explained in simple English why she had two valid passports because one of them was fully chopped.  They communicated in simple English and PW2 seemed to understand.  However, the facial recognition system of the Immigration Department alerted PW2 that the defendant might be violating the laws.  PW2 then informed her supervisor of the system’s alert.

PW3

10.On 18^th May 2019, the defendant was then handed to PW3 for preliminary enquiry.  Amongst other items found on the defendant, PW3 found a Mongolian driving license issued on the 1st July 2014 with the surname Bataa and given name Otgon.  The defendant claimed that her identity was Rita, Otgon but remained silent when asked by PW3 whether she had any other identities.

PW4

11.Subsequently, the defendant was handed to PW4, IA Ms Lau to conduct a formal interview.  She informed the defendant that she was now detained under section 26(a) of the Immigration Ordinance.  PW4 took a record of interview from the defendant in English.  The defendant indicated that she understood both the spoken and written English used by PW4 and answered PW4’s questions in English.

Other evidence

12.According to exhibit P8, ASIO Alice Chung Yuen Han retrieved and certified the travel movement records pertaining to the defendant.  It was established from the movement record that the defendant had from the 8th April 2017 to the 12th of May 2019 entered Hong Kong on numerous occasions and in particular on the following dates:

-8th April 2017 relating to charge 1,

-25th December 2017 relating to charge 2,

-6th January 2018 relating to charge 3,

-14th February 2018 relating to charge 4,

-17th March 2018 relating to charge 5,

-22nd December 2018 relating to charge 6,

-29th December 2018 relating to charge 7,

-5th January 2019 relating to charge 8,

-11th May 2019 relating to charge 9,

-18th May 2019 relating to charge10.

13.According to exhibit P3 and P4, on 18th May 2019, IA Hui Chau Yee took the defendant’s fingerprints.  On the 2nd of July 2019 woman Sergeant 56628 Chiu Ka Yee, a fingerprint expert, examined and compared the fingerprints of the defendant with the fingerprints of Bataa Otgon and determined that the fingerprints of the defendant were the same as that of Bataa Otgon, who had been using Mongolian Passport E1306238.  Exhibit P5 is the photo album of fingerprint comparison.

Defence case

14.The defendant was a female born in August 1967 in Outer Mongolia and is now aged 53.  She testified that on 3^rd December 2015, PW1 said something that she did not understand.  She was handed a document that she did not understand.  PW1 then used a ball pen to point to a position on a document and said “name”, she then put her signature there.  Her English standard was “very low”.  She thought she was signing on a document to give effect of her release so that she could go home. 

15.She explained that why she changed her name from Bataa Otgon to Rita Otgon shortly before she returned to Hong Kong on the date as per the first charge (8^th April 2017) was because of her lawyer’s advice.  She elaborated that her elder sister is also called Rita.  However, there was disputes on the inheritance of her late mother’s estate.  In order to obtain some estate from her sister, she changed her name to Rita and she finally got an amount equivalent to US$20,000 odd from her sister.   

16.She explained the purpose of the 10 visits to Hong Kong was mainly to accompany her husband to travel to and from Outer Mongolia and Shenzhen, and Hong Kong as place of transit where they also bought medicine and nutritious food while in Hong Kong.  Her husband was having liver disease at the time.  She produced medical documents of her husband to show that her husband was having ‘K47 Liver fibrosis and cirrhosis’ since 7 August 2018[4].  There are also medical documents dated 27^th September 2018 showing the related medical examination results[5], examination date on 18^th February 2019 with report date on 19^th February 2019.[6]

17.She disagreed with what PW2 and PW3 said regarding their conversations in English and their observation on the defendant’s English proficiency.  She said PW3 did not say anything to her. 

18.She would not have come into Hong Kong had she known that the said document was a deportation order.  She could have travelled directly to Shenzhen from Outer Mongolia had she known that it was a deportation order.   

Offence

19.Section 43 provides as follows:

Breach of deportation order, and landing from ship or aircraft in which removal to be effected

(1) Subject to subsection (2), if—

(a) any person in respect of whom a deportation order is in force is in Hong Kong in contravention of the order; or

(b) any person who has been placed on board a ship or aircraft under section 25(3) lands from the ship or aircraft before it leaves Hong Kong,

he shall be guilty of an offence and shall be liable—

(i) on conviction on indictment, to imprisonment for 7 years; and

(ii) on summary conviction, to imprisonment for 3 years.

(2) A person who has not been given notice—

(a) of a deportation order made against him;

(b) of the rescission of a suspension of the deportation order made against him,

shall not be guilty of an offence under subsection (1)(a).

Elements of the offence

20.From the parties’ evidence, it seems that there is no dispute that the defendant in respect of whom a deportation order was in force was in Hong Kong at the material times under section 43(1)(a).  The crux of the issue is whether the defendant has been given notice of a deportation order made against her.  

21.The defendant contended that the notice was given in the language that she did not understand.  PW1 seemed to accept that despite English was not the defendant’s mother tongue, he and the defendant were able to converse in simple English, which was sufficient for the defendant to understand the true nature of the document. 

22.The parties also canvassed on the mens rea of section 43 offence.  There is no decided authority on the mental elements of the offence.  This is the first case to identify the mental elements of the offence.  Mr Beel, counsel for the prosecution referred me to a Court of Final Appeal case of Kulemesin v HKSAR (2013) 16 HKCRAF 195.  Counsel for the defendant agreed with the expounded principles there but she reminded me of the basic principles in Archbold such as “The deed does not make a man guilty unless his mind be guilty”.  Be there as it may, she accepted that in modern world, there are different kinds of offence with difference requirement on mens rea, including offence with absolute liability.

23.Regarding the elements of the offence, I agree and endorse on the approach under section 43:-

“Firstly, the prosecution has the burden of proving beyond reasonable doubt that there is a deportation order in force and that the defendant has contravened that order by entering Hong Kong.

Secondly, under s.43(2) a statutory defence arises when a person who has not been given notice of a deportation order against him/her shall then be not guilty of an offence under s.43(1)(a). Hence, the prosecution has to prove the actus reus but does not have to prove the mens rea. However, if there was evidence capable of raising a reasonable doubt that the defendant might have acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proved beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief.[7]”

24.In other words, in the present case, if the defendant from the evidence can establish that she was not given notice (statutory defence) then she must be acquitted unless it can be shown by the prosecution the absence of such exculpatory belief or there were no reasonable grounds for such belief.  

Evidence analysis

25.The facts at issue rely upon the credibility of witnesses and the weight to be attached to evidence.  The 4 prosecution witnesses each gave their account of what happened at the material time.  Neither was shaken in cross-examination.  The defendant also gave evidence.  This is akin to one to one situation and I remind myself of the danger of relying on PW1’s version alone.  

26.PW1 described his normal practice and what did he in fact do on the defendant.  He was criticised of not caring whether the defendant understood what she signed.  He admitted that he did not attempt to contact the only Mongolian interpreter at the time.  He just carried out the work as usual.  He explained that given his experience, whenever there were any signs of language barrier, showing no response or “not understanding” or even a deportee seemed to understand but requested an interpreter, he would withhold the deportation process and then get the interpreter’s assistance. 

27.For comprehensiveness sake, I shall refer to the deportation order.  The document is a simple document in English which, with extracts read as follows:

[P2, page 1] DEPORTATION ORDER

WHEREAS Madam Otgon BATAA

(a) is a person who is not a Hong Kong permanent resident; and

(b) has been found guilty in Hong Kong of an offence punishable with imprisonment for less than two years.

[P2, page 2] I hereby certify that at [handwritten as 1020] hours on [chopped with -3 Dec 2015] at [handwritten as CLS] I served a copy and explained the contents of this deportation order to Madam Otgon BATAA and satisfy that she understood.

Signed: [a signature]

Name: [handwritten as CH LI]

Rank: [handwritten as IO (DS) D4]

Date: [chopped with -3 Dec 2015]

I, Madam Otgon BATAA, certify that at [handwritten as 1022] hours on [chopped with -3 Dec 2015] at [handwritten as CLS] I received a copy of this deportation order and that I understood.

Signed: [the defendant’s signature]

(Madam Otgon BATAA)

I hereby certify that Madam Otgon BATAA mentioned within this deportation order was seen to leave Hong Kong for [handwritten as Ulaanbaatar] by [handwritten as OM 298] at [handwritten as 1322] hours on [handwritten as 3-12-2015]

28.In my views, with hindsight, it is desirable to have an interpreter of a deportee’s language present throughout the issuance of deportation order process.  Unfortunately, PW1 failed to do so.  On all fairness, I accepted the defence’s suggestion that PW1’s preparation for issuance of the deportation order was inadequate to ensure the defendant knew the brief nature of the order. 

29.However, that’s not the end of the matter on the main issue of whether or not notice has been given to the defendant.  I accepted PW1’s evidence that he and the defendant were able to converse in simple English that enabled the defendant to understand the brief nature of P2.  There are also other evidence relevant to the defendant’s knowledge of the nature of the document she signed.  For example, had the defendant thought she was signing document effecting her release and then go home, she did not need to reserve or to pay for air ticket.  The defendant agreed that she needed not reserve or pay for the air ticket.  She was also escorted to the flight on the same day.

30.Secondly, I accepted that defendant’s own copy similar to P2 was served on her.  I do not accept the defendant’s version to the contrary.  Simply put, it is crystal clear that explanation of P2 and the service of a copy to the defendant is important. However, PW1’s evidence on service of a copy was not challenged at his cross examination, though the defendant denied a copy was served on her during her cross examination.  It is to be noted that under cross-examination the defendant had initially agreed that she had been given a copy of the order then she changed her evidence to say that she hadn’t been given a copy of the order.

31.As a result, as she had been served a copy, there is ample opportunity for her to find out what was it between 3^rd December 2015 and 8^th April 2017 (1^st date she returned to Hong Kong after she was sent back to Outer Mongolia).  If she chose not to do so, she deliberately shut her eyes to the obvious, that she knew the nature of document and irresistible inference on her guilty knowledge can be drawn accordingly.  

32.Further, I also carefully observe the evidence of the defendant’s background as to whether the defendant is a village lady of little education or a business lady with frequent travelling experience, hence with both spoken and written ability on English language.  The defendant testified that she completed her secondary education in Mongolia (though she said medium of instruction is in both Russian and Mongolian language).  However, she often assisted her daughter’s handbag business by going to China.  She said she did not speak English or Mandarin.  When she shipped cargoes from China to Outer Mongolia, she only signed document in Mongolian language.  It seems to me incredible that how could a person assist in dealing with handbag business in China without English/Mandarin speaking ability. Nonetheless, from what the defendant said could have the effect that she would not sign anything that she did not understand.  But she denied the suggestion. In my views, the defendant is not a person who is simply pliant and obedient; in that it should be noted that when asked whether she would take part in a video record of interview she refused.  She is a business lady with frequent travelling experience, hence at least possess spoken ability on English language. 

33.In respect of the reasons for changing her name so that she would have the same surname as her sister by which she could receive inheritance left by her mother.  In my views, her version is incredible. The defendant had initially stated that as her sister had looked after her mother, she was entitled to receive the inheritance but wished her sister to give her financial support.  When she was put that a birth certificate can achieve the same (showing she is the daughter of her mother) without changing her name, she made the excuse of relying on her lawyer, 

34.It is to be noted from exhibit P8 that soon after changing her name she obtained a new passport and then commenced entering into Hong Kong under her new identity. The defendant claims that her husband had become ill in late 2016 yet all the medical records are dated from 2018.  

35.I accept PW1’s explanation that the defendant was able to converse in simple English with the standard sufficient for her to know the nature the document, had there been doubts of her understanding of the deportation process, he would withhold it.  I find him an honest and reliable witness.  Same finding equally apply to PW2 to PW4.  On 18^th May 2019, they all conversed with the defendant in English and the defendant replied in English.  For example, PW2 asked: “How long you are going to stay in Hong Kong”.  The defendant replied: “Two days”.    PW3 was responsible for preliminary interview with the defendant, she spent 4 hours with the defendant for two sessions of interviews.  At the outset, they used English as to whether the defendant elected to speak Mandarin or English and the defendant elected English.  The defendant gave her name and date of birth in English.  PW4 was responsible for taking record of interview from the defendant.  She explained to the defendant that why she was detained and the defendant indicated that she understood.  They also conversed on whether the defendant chose to have interview by handwriting or by video.    

36.I do not accept the defendant’s version unless there is no conflict with the Prosecution’s case.  Her exculpatory innocent belief is against logic, common sense and the objective evidence.  It does not require to change name to show a mother and daughter relationship when a birth certificate is sufficient.  I also found as a fact that the only irresistible inference is that she changed her name to strike a luck as to whether the immigration officer might detect Bataa Otgon is the same as Rita Otgon.  Unfortunately, upon her return for 9 times during which the immigration officers were unable to discover the two names were the same person, hence in breach of the deportation order.  It was only on the 10^th time in 2019 that facial recognition system alerted the security system and discovered the breach.   

37.I found as a matter of fact that (i) PW1 and the defendant were able to converse in simple English that enabled the defendant to know the brief nature of P2; (ii) a copy had been served on the defendant by PW1.

38.All in all, the prosecution has proved the actus reus of the offence. The defendant has tried to raise the statutory defence as set out under s.43(2) to establish that she did not have the requisite mens rea.

39.However, from all the evidence, the prosecution witnesses were all credible and reliable, whereas the defendant’s evidence in contrast was in part evasive and incredible.   As a result, there can be no reasonable doubt that the defendant had been given notice of the deportation order.  The defendant is guilty as charged.

Annex-1: Admitted facts (exhibit P9)

1. The defendant was formerly known by the surname Bataa and given name Otgon and in 2015 was using Mongolian Passport E1306238.

2. On the 11^th September 2015 DPC 11579 took the fingerprints of the aforementioned Bataa Otgon holder of Mongolian Passport E1306238. Certified true copy of the Fingerprint Form is produced as P(3).

3. On the 18^th May 2019 IA Hui Chau Yee took the Defendant’s fingerprints. Certified true copy of the Fingerprint Form is produced as P(4).

4. On the 2^nd July 2019 W/Sgt 56628 Chiu Ka Yee, a fingerprint expert, examined and compared the fingerprints of the Defendant with the fingerprints of Bataa Otgon and determined that the fingerprints of the Defendant were the same as that of Bataa Otgon, who had been using Mongolian Passport E1306238. Photo Album of Fingerprint Comparison is produced as P(5).

5. On the 18^th May 2019 the Defendant presented herself at the Immigration arrival counter at the Lo Wu Control Point and was subsequently arrested and detained.

6. A certified true copy of the Immigration travel records of the arrival and departure of the Defendant between the 8^th April 2017 and 12^th May 2019 whilst using Mongolian passport E1845962 is produced as exhibit P(8).