HKSAR v. Andaya Jasmin Marquez

HCMA 99/2021

[2022] HKCFI 3730

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 40 OF 2020)

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Before:  Hon Campbell-Moffat J in Court

Date of Judgment:  15 December 2022

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J U D G M E N T

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Introduction

1.On 16 February 2021, the appellant was convicted after trial before Ms Frances Leung, Magistrate, sitting at the Shatin Magistrates’ Courts, of two charges of breach of condition of stay, contrary to s41 of the Immigration Ordinance, Cap 115 (“the IO”). She was sentenced to 12 months’ imprisonment on Charge One and 3 months’ imprisonment on Charge Two, to be served wholly concurrently with her sentence of imprisonment on Charge One. By her Notice of Appeal dated 17 February 2021, she seeks to appeal against conviction only. The appellant was granted bail pending appeal on 16 March 2021

The Prosecution Case

2.On 2 January 2020, an Immigration Department operation was mounted at ‘Palki’ Restaurant (“Palki”), situated at G/F, Fook Wah Mansion, No 4 Tsing Fung Street, Tin Hau. The appellant was approached inside the restaurant by PW1, who asked to check her identity documents[1]. In response, she said she did not have them in her possession at that time[2]. Instead, she wrote down her personal particulars on P1, which were then checked with the Immigration Department database, as a result of which, it was understood by PW1 that the appellant was an over-stayer. PW1 arrested and cautioned the appellant for working illegally and overstaying[3], after which she orally admitted that she worked at the restaurant as a waitress and said she had done so for less than a year. She maintained that she was paid $400 per day[4].

3.The Record of Interview [P5][5], took place on the same date with the assistance of an Ilocano interpreter. In the interview, the following questions and answers are of relevance:

Q7:	What is your knowledge of your status in Hong Kong?
A7:	When the Immigration refused my application for dependant visa, I became a visitor in Hong Kong and my limitation of stay was until October 2005. I knew I cannot work in Hong Kong. I should leave before October 2005[6].
Q8:	Why you remain in Hong Kong if you know your condition of stay?
A8:	I loved Hong Kong and I was hoping that we would get back together with my husband in Hong Kong therefore I did not leave Hong Kong since 2005.
Q9:	How can you support your living before we arrested you?
A9:	I had some money saved while working as a domestic helper and before I split up with my husband he gave me money to spend. Sometimes my friends would invite and they provide me food and place to stay, however I cannot recall now the details of my friends and the places I stayed.
Q10:	What is your knowledge of this document?
A10:	This is a copy of my Philippine passport[7]. The name, photo and the date of birth are true and they belong to me. Page 2 is a copy of my visa as a domestic helper in 2002, but I have lost my passport and my HKID card in Hong Kong.
Q11:	Have you leave Hong Kong after 13 August 2002?
A11:	Yes, I left Hong Kong between 2002 and 2005, during that time. I forgot the exact dates and I forgot which document I used to depart in Hong Kong. After October 2005 I have never left Hong Kong until now.
…
Q13:	On 02-01-2020, Immigration officers found you at G/F, Fook Wah Mansion, No 4 Tsing Fung Street, Tin Hau, HK PALKI during anti-illegal work operation. Please explain.
A13:	It was because I run out of money, so I worked in that restaurant as a waitress. I have been working there for less than a year now.
…
Q15:	What is the reward of the job?
A15:	As I do not need to work every day, I would receive $400 Hong Kong dollars every day if I worked.
…
Q22:	Did you try applying for a replacement of your lost passport and HKID card?
A22:	No
Q23:	Do you know why the Immigration refused your application for dependant?
A23:	At that time, I was separated with my husband and he did not continue to sponsor me therefore the Immigration did not accept my application.

4.The appellant was then charged under Charge One with overstaying from October 2005 and for taking up employment as an odd job worker under Charge Two. Both charges related to a breach occurring on 2 January 2020.

The Defence Case

5.The appellant objected to the post record [PP3] and record of interview [P5] on the basis that the former was a record of what was said by her in English at a time when no interpreter was present and the latter was obtained by means of threats and inducements. The appellant did not give evidence upon the Special Issue. The learned magistrate gave the benefit of the doubt to the appellant in respect of the post record because of possible language difficulties between the appellant and PW1 (whose own English was not strong) but did not accept that there had been any inducements or threats made. Accordingly, P5 was properly before the Court and found to be voluntarily given in the presence of and with the benefit of an interpreter.

6.The appellant did not give evidence on the main issue. The Admitted Facts[8] were drafted by the defence after the close of the prosecution case in order to adduce Exhibits D1-3, which purported to show that the appellant had been assessed for salaries tax for the period 2014/2015 to 2018 by the Commissioner for Inland Revenue and that the relevant Employee and Employer Returns had been properly filed. There was no other admissible evidence adduced by the defence.

7.Under cross-examination, PW1 agreed that the appellant had been married at some point in time but was unable to say what the current status of her marriage was[9]. He did not accept that she was still married. There was therefore no evidence as to the current status of her marriage before the Court other than the appellant’s Answer 23 above, in which she admitted that on her return to Hong Kong in 2005, her dependent visa application had been refused as she was separated from her husband and he had refused to sponsor her and under Answer 9, when she said “…before I split up with my husband he gave money to spend”.

8.PW2 and PW3 did not advance the defence case in any way and are not relevant to this appeal. PW4 was an officer from the Inland Revenue Department who, for the reasons given below[10], could not assist the Court.

9.In his half-time submission[11], which was adopted for the purposes of closing without more, it appears that the appellant’s case was that the prosecution relied solely upon the Record of Interview [Exhibit P5] and the admissions made therein. It was submitted that P5 should not be relied upon because the appellant was recorded at Answer 13 as stating that she had been working at the restaurant for less than a year. This, it was suggested, was in conflict with the Admitted Facts [Exhibits P7, P8 and P9], which proved she had been working at the restaurant between 2014 and 2018. It was submitted that Answer 13 was a lie and therefore the Court could not rely upon the veracity of anything else which the appellant had said in interview. Defence Counsel did not refer in his half-time or closing submissions to the appellant’s answers to questions 7-10 or 23, in which the appellant unequivocally admitted knowing that she was not allowed to work and that she was required to leave Hong Kong by October 2005. Nor did Defence Counsel refer to the applicable law upon the use of any lies found to have been made by the appellant in order to make good his implied argument that a finding as to one lie should result in a finding that everything was a lie (as opposed to being of less weight). He submitted that no one who believed themselves to be in breach of a condition of stay would openly work, file tax returns and pay tax. There was no direct evidence as to the appellant’s state of mind and Defence Counsel did not make clear whether he was asking the Court to infer that the appellant did not know she was in breach of her conditions of stay despite her unequivocal admissions, or whether he was asking the court to infer that she believed she could work and remain in Hong Kong even though she knew she was in breach of such terms or whether he was asking the Court to draw some other undefined inference. He made no submissions as to the Court’s approach to what must have been, on the appellant’s own case, her lies as to her status, length of employment at Palki and salary. It was left to the learned magistrate to pick the wheat from a considerable amount of chaff.

Statement of Findings

10.The learned magistrate understood the defence case to be that the Admitted Facts [Exhibits P7-P9] conclusively proved the appellant had worked at Palki since 2014. She had therefore lied in the record of interview when she said she had worked there for less than a year. She understood that the defence case was that she had therefore also lied when she said that she knew she was not allowed to work and that she must leave Hong Kong by October 2005[12]. Further, and by inference, that the defence were suggesting that the probability was that if she had filed tax returns then she must have believed that she could remain in Hong Kong and work legally.

11.The learned magistrate analysed the evidence in a simple and straightforward manner on that basis. The appellant, was, as a matter of fact, an over-stayer who was not allowed to work. There was no evidence before her to suggest otherwise. She found, contrary to the defence case, that the appellant, on her own admission, knew that she had been a visitor in Hong Kong but had overstayed and that she was not allowed to work[13]. The argument that she had paid salaries tax did not affect her status as a visitor nor her conditions of stay. She remained in breach of them. In respect of the Inland Revenue documents, she noted that there was no evidence before the Court as to how it had come to pass that she was liable to pay salaries tax. Nor was there evidence before the court as to the appellant’s state of mind i.e. that she believed she could lawfully work or that she was lawfully allowed to remain beyond October 2005. At paragraph 46[14] the learned magistrate stated:

“The defendant should not be remaining in Hong Kong after October 2005. The defendant knows her status. The defendant knows that she is not allowed to work in Hong Kong given her visitor status”.

Grounds of Appeal

12.In the Perfected Grounds of Appeal, dated 11 March 2022, the appellant submits:

Ground 1

The learned magistrate erred in law in her Statement of Findings dated 3 March 2021 and was wrong in law, in her findings at paragraph 46 and 47 in that the learned magistrate assumed at paragraph 46 and 47 in her findings this was a case of strict liability and further in her findings at the aforesaid paragraphs 46 and 47 wrongly reversed, the burden of proof onto the applicant/Appellant. The learned magistrate erroneously stated in her findings at paragraph 46 and 47:

“46. The Defendant should not be remaining in Hong Kong after October 2005. The Defendant knows her status. The Defendant knows that she is not allowed to work in Hong Kong given her visitor status. I find no evidence that shows that the Defendant would think otherwise; and she has an honest and reasonable belief that her status as a visitor has somehow changed and she can remain in Hong Kong after October 2005, or that the Immigration Department has allowed her to work in Hong Kong given her status and during the time when she overstayed in Hong Kong.

47. Even if the defence tries to raise a reasonable doubt about the defendant’s knowledge about her status in Hong Kong and conditions of stay, I find that with the admissions contained in the record of interview, upon which I place full weight, is sufficient to prove the actual knowledge of the Defendant and she has no mistake or misunderstanding of her status in Hong Kong and conditions of stay.”

Ground 2

The learned trial magistrate erred in her Statement of Findings in that she failed and/or omitted to consider properly at all, in her Findings, the vital fact that the appellant had for some years been filing tax returns and had actually paid tax to the Hong Kong Inland Revenue Department for her work as a waitress at the Palki Restaurant. This was conclusively proved with the signed Admitted facts under s65C of the Criminal Procedures Ordinance, Cap 221 between the prosecution and the defence.

Further, the learned trial magistrate failed to consider properly or all the fact, the said tax forms and the tax paid were real and genuinely in the Appellant’s name and all the particulars, contained in the many years of tax returns were accurate and real in particular, the appellant’s name and her HKID card.

In addition, the learned magistrate had failed to consider that the appellant had actually paid tax to the Hong Kong Inland Revenue in her real name, despite the fact it was alleged by the immigration department that the appellant was not permitted to take up employment for many years filing tax returns in her real name was a real doubt as to whether the appellant had the necessary mens rea for the charges to be proved.

Ground 3

The learned trial magistrate erred in law in that she failed and or omitted to give herself in her Findings and/or direct herself properly or at all in respect of obvious lies and/or untruths, contained in the appellant’s record of interview.

Ground 4

The learned trial magistrate erred when she made improper comment during the trial giving an unfair indication which was improper and ought not to have been stated in respect of key prosecution witness Mr Ng Ping-kwong [PW4] from the Inland Revenue Department [see TP 41J-V; TP42A-N]

Ground 5

In the circumstances the convictions recorded against the appellant are unsafe and unsatisfactory.

The Law

13.The applicable law is trite. Section 41 of the IO, Cap 115 (“s41”), requires the prosecution to prove that the appellant was subject to a condition of stay which was contravened and that the appellant knew of the relevant condition[15].

The Evidence

14.The evidence from PW1 and P5 satisfy s41. There was no issue before the Court that the appellant had overstayed since October 2005 or that she had worked in breach of her condition of stay and was working on 2 January 2020. She volunteered those facts. The true issue was as to her state of mind. There was no direct evidence as to that save for P5. As is her right, the appellant chose not to give evidence upon an issue which was directly within her own knowledge. There was therefore no direct evidence of knowledge before the Court and the learned magistrate, as does this Court, must infer her state of mind from the admissible proven facts.

15.From the very beginning of the trial, and at every opportunity thereafter, the issue raised by the defence was that the appellant had lied when she had made the admissions within P5. That argument was premised upon the fact that the appellant had lied about the length of her employment. If the Court accepted she had lied about the length of her employment, Defence Counsel submitted that the Court must find she had also lied when she answered other questions in interview including the relevant admissions against interest as to her conditions of stay. If the Court found she had also lied as to those admissions, then he submitted, knowledge of breach of condition of stay is not made out by the prosecution. All of this was premised upon the veracity of the Inland Revenue documents admitted under Exhibits P7, P8 and P9. The issue was never crystallised by Mr Allan as being that she held an honest belief from the outset that she could remain and work or that there came a point in time when she held such belief, rather his argument appeared to be that the Court could infer she held such belief because a normal person who was in breach of condition of stay would not declare their employment for the purposes of salaries tax. That argument was dependent upon him being able to show that she did in fact knowingly declare her status as an employee. The issue of her overstaying from October 2005 onwards, as opposed to working illegally, was lost in the argument as to the latter and was never properly addressed evidentially by the defence at any stage, in evidence or submissions. This was fatal to the defence case.

16.As to Ground 1, the complaint that the learned magistrate considered this charge to be one of strict liability, has no merit. One must read the whole of the trial transcript to understand the approach of the Court. At no stage in the trial was it ever suggested that this offence was one of strict liability. When the learned magistrate used the phrase “honest and reasonable belief”, it was clearly not intended to be a reference to strict liability. If that was what the learned magistrate intended, she would have said so. The learned magistrate appears to have done her best to comprehend the appellant’s defence in trial. That was no mean feat. She did not state, nor did she imply, that the offence before her was one of strict liability. There would have been very little point in Mr Allan’s lengthy and circuitous submissions throughout the trial if that had indeed been the case. At no point did defence counsel make a clear and unambiguous submission as to what the defence case was and the learned magistrate’s reference to reasonable and honest belief was simply a linguistic reaction to the manner in which Mr Allan advanced the appellant’s case on knowledge. It may have been better to have simply said the appellant “held no such belief” rather than “reasonable and honest belief”, but it is clear that this is an issue of semantics.

17.As to Ground 2, this is wholly without merit. The learned magistrate took proper account of Exhibits P7-P9 insofar as she was able to do so, given the manner in which they were placed before her. She could not have done otherwise given that they were referred to by defence counsel at every opportunity. As will be explained in detail below[16], there was no evidence that the appellant had ever personally filed a tax return. The status of the documents admitted under P7 and P8 do not prove she did so. The fact that her name and HKID number appear upon them takes the matter no further. As for whether they are genuine documents, that is canvassed below. Even so, the fact that the appellant may have paid salaries tax did not alter her status. The learned magistrate had admissible evidence before her in Exhibit P5 that the appellant had admitted she was an over-stayer and not entitled to work. In addition, there was no evidence to indicate how it had come to pass that the Inland Revenue were alerted to her being employed by Palki and no evidence to show that it had come about by reason of a voluntary act of the appellant, quite the opposite. There was no evidence to rebut or undermine the admissions made by the appellant in interview save for the suggestion that the appellant had lied when informing PW1 that she had worked at Palki for less than a year. Given that the tax returns cover the period 2014-2018, and omit 2018/2019, it is entirely possible that she had a break from work in that period and recommenced working for Palki in the 2019/2020 tax year. We do not know. The learned magistrate found that the appellant had knowledge of her breaches of condition of stay as of 2 January 2020.

18.As to Ground 3, Mr Allan made no such submission to the learned magistrate at half time (as adopted at the close of the case), that the single lie as to her length of employment could or should be used to support his argument that everything else she said should also be found to be a lie. Nor did he seek to assist the Court with how that, in law, would be applied on the facts of this case. It is unfortunate that Counsel considers it proper to criticise the learned magistrate for failing to do something which he did not see fit to raise before her. Exhibit P5 was a mixed statement, which was acknowledged by the learned magistrate. The Court noted the possibility of a false answer in Exhibit P5[17] and stated:

“42. Part of her answers in the record of interview may be false given the information revealed in the tax documents, and even if the defendant may not be telling the whole truth, such as she had only been working at PALKI for less than a year (to which I give no weight), would not confer guilt.”

19.Where the Court finds that a defendant has lied, the relevant legal principles should be considered and applied in a common sense manner depending upon the circumstances of the case[18]. The Court is not always required to give itself a Lies direction. Lies affect credibility only. A lie itself can never prove guilt. As best can be understood, Mr Allan wished the learned magistrate to find that the appellant had lied as to working at the Palki Restaurant for ‘less than a year’. As such a lie went to credibility, it would undermine any other answer given by the appellant in interview and it would follow none of her answers could be relied upon. It follows, on Mr Allan’s argument, that all of her admissions against interest could not be held against her. The learned magistrate rightly found her admissions against interest prima facie admissible before the Court under Exhibit P5 and, so far as she admitted working on the day of her arrest, it was an admission sufficient to render her guilty of Charge 2 given that the operative date for that charge was 2 January 2020. The length of the appellant’s employment was not a principle issue in the case. The fact of employment at the time of her arrest was.

20.In order for a Lucas direction to be appropriate, the lie in question must be at risk of being erroneously relied upon by the tribunal of fact to prove the guilt of a defendant. It commences with the basic principle that a lie can never be evidence of guilt without more. It does not cover situations where it is submitted that a lie should be considered evidence of innocence (as opposed to raising a doubt). The alleged “lie” in this case was never going to be used by the tribunal to prove guilt. It was said to be a lie as to length of employment and not as to the fact of employment. This underlines the fallacy of the defence argument both below and on appeal. There was no issue as to the appellant being employed on 2 January 2020. The length of that employment was not a material issue although it would have been a secondary issue relevant to the overall facts of the case. A Lucas direction was not required.

21.There is no basis in law for the proposition of defence counsel in trial that the learned magistrate should not only reject the lie in its entirety but also reject all other admissions made at the same time. If the Court rejects or places little weight upon part of a statement made by the appellant, it does not follow that the Court should reject or place little weight upon the remainder of such admissions. This exercise is a common one in respect of records of interview. Courts are often faced with mixed statements. The applicable direction is that relating to mixed statements[19] and the learned magistrate correctly directed herself to such[20] and to the legal principles within R v Sharp [1988] 1 WLR 7[21].

22.As to Ground 4, this appears to be a standalone point, which defence counsel has not made good. It appears that Mr Allan is submitting that the learned magistrate stated that the defence had raised a reasonable doubt. However, he does not indicate to what that reasonable doubt refers in his reference to the transcript (which I have found at T264S-265Q). It would further appear that Mr Allan is submitting that the learned magistrate had indicated that the defence had successfully raised a reasonable doubt on knowledge and therefore the defence would succeed at trial.

23.On the basis that this is what Mr Allan is suggesting, one needs to look at the transcript from T229I onwards. This is the point at which the learned magistrate is asking why PW4 was being called at all. PW4 was a tax assessment officer for the Inland Revenue. The defence wished to rely upon several tax returns connected to the appellant and complained that it was the duty of the prosecution to disclosure such. The prosecution clearly had no such duty but eventually sought to assist by calling PW4. He formed no part of the prosecution case. The prosecution tendered him for cross-examination by the defence because they were not in a position to agree the defence exhibits under s65C of the Criminal Procedure Ordinance, Cap 221[22] (albeit that in the end, they did so). PW4’s evidence commences at T243T. In chief, he simply explained that each year the department required employers to complete information in respect of all employees[23]. No reference was made to any exhibits. Cross-examination commenced at T245H. Defence Counsel put each document under PD1-5 before him and asked him to confirm what was written upon it rather than to confirm the truth or accuracy of the contents. After several questions to this effect, and answers confirming that the witness could see what was written upon the document without more, the learned magistrate quite rightly questioned why defence counsel was simply asking the witness to confirm what was written on the documents[24]. There ensued a lengthy debate about which party should be calling the witness and whether the witness was constrained from answering questions in any event as a result of the Inland Revenue Ordinance and legal advice given to the Inland Revenue Department. The result of which was the exchange now relied upon by defence counsel in which the Court indicated that if the defence sought to raise a reasonable doubt then it was for the prosecution to rebut it[25].

“Court:	…when I come to think of it, it seems to me that, when you wish this witness to produce these documents or to affirm some facts you wish him to, you are trying to prove something but, as far as the right of the defence, the duty is on the prosecution…
Defence Counsel:	Exactly
Court:	…to remove any reasonable doubt
Defence Counsel:	Exactly
Court:	…raised by the defence. Therefore, it seems to me that, even if this witness cannot produce the documents or affirm the facts, you would already have raised…
Defence Counsel:	The reasonable doubt
Court:	…something
Defence Counsel:	Yes Madam
Court:	It would be for them to think of a way to remove.
Defence Counsel:	Exactly. Madam, I’m with you totally. So, if you don’t wish -- I don’t want -- if we don’t --
Court:	I do not wish to put this witness in a difficult position…
Defence Counsel:	Yes, Madam.
Court:	…but I think the way how you raise a reasonable doubt…
Defence Counsel:	Yes. It’s already raised.
Court:	Yes
Defence Counsel:	Yes. So, Madam, if a doubt is already reasonable raised…
Court:	It seems to me, yes, if that is what you are trying to raise.
Defence Counsel:	Exactly Madam. Thank you Madam. So, I don’t want to upset Mr Ng. He’s a very nice man, coming here…
Court:	So I think you have no further questions for him?
Defence Counsel:	No further question.

24.What is missing from that line of argument at that stage of the trial was that the documents were not yet properly before the Court. They had been produced provisionally by the defence and not accepted as true by PW4 and therefore a reasonable doubt had not yet been raised. PW4 had made it clear that he could not speak to the documents. This misunderstanding was soon corrected by the learned magistrate shortly thereafter at T268L-M, when there was a further exchange as to what the Court meant:

Defence Counsel:	… as I understand what you said earlier, that we’ve raised a reasonable doubt? Otherwise, we have to -- we’re going back again.
COURT:	Well. Hold on. PD4, 5, 6…There are some matters that still over my head about raising of doubt by the defence. If these documents are still being provisional, then they cannot be regarded as evidence that can raise a doubt.

25.This issue was raised again before the Court but at no time did Mr Allan make an application to recall PW4. Even if he had done so, PW4 could not personally speak to the documents. Thereafter, the prosecution indicated that the documents could be produced as real evidence but would be of little evidential value as their authenticity and truthfulness was in question[26].

26.The appellant was not ultimately prejudiced by this exchange and indication given at a time when the learned magistrate thought that the documents would be produced by the defendant, who was the one person who could have lawfully adduced them. Defence Counsel was alive to the issue. Mr Allan went on to persuade prosecution counsel to agree some of the documents under s65C. Thereafter, it was a matter for the learned magistrate to consider the significance of the documents to the issues in dispute and to give them what weight she found appropriate given that there was no evidence as to how they had come about. She did so at §14-15 and 38-41, which concludes with:

“39. First, I do not find there to be the necessary correlation between the defendant’s filing of tax returns/paying for tax and her honest and reasonable belief that she could remain in Hong Kong and work legally. She must have been aware of her status in Hong Kong, especially when she had before remained in Hong Kong on a working visa when she worked as a domestic helper, and subsequently on a dependant visa when she married a Hong Kong male. I am certain that the defendant is familiar with her status at each point of time and condition of stay, as admitted in the record of interview.

40. She is fully aware of her status in Hong Kong as a visitor and she was aware that she could only stay in Hong Kong until October 2005 and that she was not allowed to work in Hong Kong with her visitor status. However, as to why the Inland Revenue would have issued to those tax documents to the defendant, there could be other reasons, such as PALKI had reported to the Inland Revenue their expenses, which included what salary they had given to their employees. In fact, a restaurant would be required to disclose and file to the Inland Revenue in relation to their employees’ expenses. It is just plain logic why the Inland Revenue would have issued tax returns and demand tax payments from the defendant after knowing. It is not something that one could avoid not to file a tax return or evade tax, unless one wants to get into trouble with the Inland Revenue Department.

41. As to why the Inland Revenue would issue those tax documents to the defendant despite her actual status in Hong Kong would not change the fact that she is, indeed, a visitor and she is only permitted to remain in Hong Kong until October 2005 and one of the conditions is not to take up employment in Hong Kong.”

The Test on Appeal

27.An appeal from the Magistrates’ Courts to the High Court under s113 of the Magistrates Ordinance, Cap 227, is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court might admit under its statutory power to do so: HKSAR v Ip Chin Kei & Ors [2012] 4 HKLRD 383. Although the appellate court does not have the benefit of receiving the evidence first hand[27], it does have the benefit of calling for a transcript of that evidence. Where no issue is taken as to the veracity of the prosecution witnesses, such evidence may be said to be on a par with that before the trial court. This Court is required to come to its own view upon the contested issues of fact and law and to assess whether the evidence proves the essential elements of the offences beyond reasonable doubt.

Analysis

28.The evidence of the main witness, PW1, was properly before the Court, as was Exhibit P5, the Record of Interview. There was clear and unequivocal evidence that the appellant knew that she was not allowed to remain after October 2005 and that she was working unlawfully on the day of arrest. Exhibit P5 was a mixed statement. It contained both inculpatory and exculpatory parts. It was open to the learned magistrate, as it is to this Court, to place less weight upon the exculpatory parts and greater weight upon the inculpatory parts of that interview but this does not assist the appellant in respect of Charge Two in any event as she admitted working on the day in question. The ‘lie’ relied upon by the appellant went to how long she had been in breach under Charge Two rather than whether she was in breach.

29.The Admitted Facts, Exhibits P7-P9, seek to adduce D1(1) and D1(2); D2(1-7) and D3 respectively. They were admitted to address the issue of knowledge. They do not assist.

30.D1(1) and D1(2) under Exhibit P7, are ‘estimated’ salaries tax demands in the name of the appellant covering the period 2014/15 and 2015/16. They do not support the suggestion that the appellant had personally filed any returns or personally declared her work status to the Inland Revenue Department nor that any payments upon those estimated demands had been made. These documents were issued by the Inland Revenue Department on 20 January 2020, post arrest. Their production in this manner cannot support a suggestion that the appellant either knew of the demands or that she received them. They were addressed to the Palki Restaurant and not to the appellant’s home address.

31.Exhibit P8 adduces D2(1-7). D2(1), dated 12 November 2020, is an Inland Revenue generated record of the employer’s declarations for the years 2014/15-2017/18. The employer’s returns at D2/4-7 indicated that the appellant was paid a salary of $132,000 per annum for each year. I note the payment of HK$132,000 p.a. allegedly paid by Palki to the appellant under D2(4-7) is the same amount as the deductible annual personal allowance which is in conflict with the admissions made after arrest as to her salary. D2(2) is a copy of D1(2) already adduced under Exhibit P7, which is an estimated demand for salaries tax and payment vouchers. D2(3) is a copy of D1(1) already adduced under Exhibit P7. D2(4)-(7) purport to be the related employer’s handwritten returns for 2014/15-2017/18, which reflect the record in D2(1) above. According to the chop on the bottom right hand corner of each return, they were received by the Inland Revenue Department on 12 November 2020, which is the same date that the Inland Revenue Department issued D2(1). No witness was called to speak to these documents.

32.Exhibit P9 seeks to adduce Exhibit D3, which is a salaries tax confirmation of payment dated 27 November 2020 but related to a payment dated 1 March 2016 for $315. This was issued by the Inland Revenue some months after she had been arrested for these offences and immediately after the Inland Revenue had been asked to provide copies of previous demands, which were also issued on 12 November 2020. There is no demand which correlates with the sum paid under Exhibit D3 as the estimated tax demand for 2014/15 is $300 and for 2015/16 is nil. D2(4) which purports to be the same return for 2014/2015 is different[28]. I have considerable doubts about the veracity of these documents.

33.None of these documents indicate that the appellant filed a tax return as Mr Allan submitted in trial on several occasions (quite the opposite) or that she made any payment of salaries tax other than Exhibit D3. The Court does not have either the return for this payment nor the demand for it. The author of the employee returns was not called to speak to them or to explain why the Inland Revenue received them on the same day it issued the record of the details of income under Exhibit D2(1). There is also no proof that the declared salary was ever paid to the appellant. The appellant stated in interview that she did not have to work every day but when she did work she was paid $400 per day. If she worked 30 days a month throughout each year without a day off, she would earn $12,000 per month and $144,000 per annum. If she worked a 20-day working month, she would earn $8,000 per month and $96,000 per annum. However, the employer declared she earned exactly the same sum for a period of 4 years i.e. $132,000 per annum, which suggests a monthly salary of $11,000 and not an hourly rate. If she had continued to work in the 2018/2019 tax year, I would have expected to see an employer’s return for that, especially as these returns were not submitted to the Inland Revenue until 12 November 2020. This of course could be because she did not work in the intervening period and therefore her statement to PW1 on arrest was correct. I do not know.

34.All of the demands available to the Court are estimated. They were admitted under s65C and the facts contained therein are deemed to be conclusively proved. Defence Counsel submitted on several occasions that they conclusively proved that the appellant had filed tax returns and paid salaries tax between 2014 and 2018. That was patently not the case nor was it what the admitted facts proved.

35.Exhibit P7 states:

“1. The Inland Revenue Department issued a document entitled “SALARIES TAX Assessment Demanding Final Tax 2015/16 and Notice for Payment of Provisional Tax for 2016/17” to the Defendant on 9^th September 2016. A duplicate copy was issued to the Defendant on 20^th January 2020. The accurate duplicate copy is now produced as Exhibit D1(1).

2. The Inland Revenue Department issued a document entitled “SALARIES TAX Assessment Demanding Final Tax 2014/15 and Notice for Payment of Provisional Tax for 2015/16” to the Defendant on 11^th December 2015. A duplicate copy was issued to the Defendant on 20^th January 2020. The accurate duplicate copy is now produced as Exhibit D1(2)”.

36.These two paragraphs are factually incorrect as to a crucial aspect of the defence case. For the purposes of this judgment I assume that it was drafted by Defence Counsel and that he did not intend to mislead the Court. The title of each document is SALARIES TAX Estimated Assessment Demanding Final Tax for 2015/16 and Notice for Payment of Provisional Tax for 2016/2017. The two documents are estimated assessments for salaries tax and do no more than show that the Inland Revenue had not received a tax return from the appellant but that it had information upon which it based the assessments. These two estimated demands purport to have been issued on 11 December 2015 and 9 September 2016 and were addressed to Palki. That does not prove that the appellant received them. Nor do they prove that the appellant paid any sums due. They are evidence that no return was filed and that this was an ‘estimate’. They do not therefore advance the issue of the state of mind of the appellant between 2014 and 2016 but more importantly, as to her state of mind on 2 January 2020.

37.Exhibit P8 contains a number of documents as outlined above, two of which duplicate those in P7. Paragraph 3 purports to adduce D2(1) which is a document issued by the Inland Revenue to the appellant in person on 12 November 2020. It reflects the contents of the Employers Return of Remuneration and Pension submitted to the Inland Revenue on the same date under D2(4-7). It depends for its veracity upon the veracity of D2(4-7). Paragraphs 4 and 5 adduce the same documents as under paragraphs 1 and 2 of Exhibit P7 and yet again fail to identify them as estimated assessments for salaries tax. Paragraphs 6-9 of Exhibit P8 state the Inland Revenue Department ‘issued’ a copy of a document relating to an Employers Return of Remuneration and Pension on 12 November 2020, whereas the document shows the Inland Revenue ‘received’ this document on that date according to the stamp thereon. Exhibit P8 does not purport to accept the truth of the contents of the documents nor does it prove that the Employers Returns were ever submitted in that form prior to 12 November 2020.

38.Exhibit P9 merely states D3, the confirmation of payment of salaries tax in the sum of $315 was issued on 27 November 2020. It does not assist the appellant as to her state of mind on 2 January 2020.

39.I make these points to emphasise that the production of these documents under s65C proves no more than what is stated and in some instances is factually incorrect for which both parties are to blame. They certainly do not conclusively prove that the appellant had any personal dealings with the Inland Revenue Department prior to arrest nor that she filed returns or paid any tax (other than D3) for which we do not have the relevant demand. Given that assessment, this Court may attribute to these documents whatever weight it considers appropriate in all the circumstances of the case and it chooses to give them very little weight.

Conclusion upon Appeal

40.I find, as did the learned magistrate, that the admissions made by the appellant that she had overstayed since 2005 and that she had been working in breach of her condition of stay on 2 January 2020, were voluntarily made, unequivocal and that there was no admissible evidence to undermine those admissions to raise a reasonable doubt. Accordingly, she was rightly convicted upon both counts. This appeal is dismissed and the appellant must return to serve the remainder of her sentence forthwith.

Additional Comment

41.There were a number of areas indicated within the various transcripts which have caused the Court some concern and considerable time.

The Voluntariness of Admissions and Grounds of Objection – The Alternative Procedure

42.Before an admission against interest is admitted into evidence, the burden is upon the prosecution to prove that the statement was made voluntarily[29]. It will usually be self-evidence upon the papers which witnesses will speak to that fact. Where the defence wish to challenge the voluntariness of any statement against interest made by a defendant, it has become practice to indicate this to the prosecution and to the court so that adequate court time can be allocated to it and, if necessary, other witnesses can be called who were not originally relied upon by the prosecution. The advent of more proactive case management now requires defence counsel to liaise with the prosecution in this respect in advance of trial to ensure court time is not wasted. The fact that such an objection is to be taken should be indicated to the court in any case management hearing (CMH) or pre-trial review (PTR) but at the latest, it should be confirmed with the court at the outset of trial. The latter was done in this case.

43.Grounds of Objection to the admissibility of evidence were provided to the Court by defence counsel in hand-written form[30] and were barely legible. This was done only after a request by the court. Defence counsel had intended to indicate the Grounds of Objection orally. Where counsel has been instructed to represent a defendant for trial before any court, and would have taken instructions in order to do so, Grounds of Objection should be in typed form, properly intitulated and served upon the prosecution and upon the court in good time, save in exceptional circumstances. This practice enables the court to have a proper record of the objection; focuses the minds of the defence on what exactly it objects to and upon what grounds; allows the prosecution to know which witnesses to call out-with those intended to be relied upon in any event and for the court to manage the court’s time effectively. The production of written Grounds of Objection brings discipline to proceedings and should be a practice in all levels of court.

44.It has become clear that the practice of how to manage the alternative procedure (if adopted) in the Magistrates’ Courts and District Court has become somewhat ill-defined. This Court is aware of a number of approaches which have been adopted by the Courts dependent upon the nature of the case. Even so, there should be some discussion at the outset as to which practice is to be adopted so that all parties know what is to happen and when. The more usual practice is as follows:

i.  The parties indicate at any CMH or PTR that there will be an objection raised by the defence as to the admissibility of evidence.

ii.  Written Grounds of Objection should be provided to the court and the prosecution in good time and, in any event, at the beginning of trial. They can at that stage be marked for identification (“MFI”) and any subsequent amendment should be formally notified to the court.

iii.  The Grounds of Objection should indicate a proper basis for the application in fact and in law such that the court can properly reflect upon whether the application is a proper one and upon how the objection should be dealt with before the court[31]. General particulars sufficient to identify the factual and legal basis for the application are therefore required.

iv.  The court decides in what manner it wishes to deal with the objection dependent upon its nature i.e. by the holding of a Voire Dire prior to the beginning of the trial or by way of the alternative procedure (“the calling of evidence upon the special issue”).

v.  The witnesses required for the special issue are identified and if necessary, arrangements are made to bring them to court.

vi.  Prosecution counsel, with the leave of the court, decides in what order he/she wishes to call witnesses e.g. chronologically or by issue and whether to deal with witnesses relevant to the special issue first and then to recall them as to the general issue.

vii.  In the majority of cases, a witness will be called in the normal way but at the point that his evidence impinges upon the special issue, defence counsel will indicate that is the case and the witness will be asked to leave court. The Grounds of Objection will be formally read into the record and handed up to the Court as MFI. The special issue is then confined to the Grounds of Objection.

viii.  The witness is recalled and reminded he/she is on oath.

ix.  Thereafter, prosecution counsel will restrict their questioning to the special issue only i.e. not as to the truth of the admission against interest but as to whether it was made and if it was, whether it was made voluntarily. He/She will do so in general terms and will not refer to the specifics of allegations outlined within the Grounds of Objection.

x.  The burden of proof being upon the prosecution to the criminal standard.

xi.  Once the witness has been examined in chief upon the special issue, defence counsel may then cross-examine as to the special issue only and the prosecution may thereafter re-examine. The remainder of that witness’s evidence will not be adduced at this stage.

xii.  Any other witnesses as to the special issue are called and examined in the same way upon the special issue only.

xiii.  When the prosecution indicate they have called all of their witnesses as to the special issue, the court will decide if there is a case to answer upon the special issue after any relevant submissions.

xiv.  If there is no case to answer, the Court will make a ruling and the trial will return to the evidence upon the general issue.

xv.  If there is a mixed case to answer, the Court will identify which evidence, if any, has been rendered inadmissible and which, if any, remains provisionally admissible at that stage.

xvi.  If there is a case to answer then the defendant may elect to give evidence and be examined, as to the special issue only, in the usual way[32]. This evidence is therefore interposed into the prosecution case.

xvii.  The defence may then call witnesses limited to the special issue.

xviii.  The application is that of the defence and therefore they make their submissions as to admissibility and voluntariness first because the prosecution has already shown a prima facie case. The prosecution reply subject to the defence having the last word.

xix.  The tribunal of law rules upon the impugned evidence and it is either inadmissible or entered into evidence as a provisional or a full exhibit depending upon the circumstances. The ruling does not require the giving of reasons.

xx.  The trial upon the general issue remains in the normal way with the remainder of the prosecution evidence.

45.Following this or some other pre-agreed format is crucial to the proper carriage of justice. The debate over the grounds of objection, the fact they should be in written form and that there should be copies of the same for the court, took up over 14 pages of transcript and was indicative of difficulties to come in respect of the production of documentary exhibits by the defence.

46.The hand-written Grounds of Objections[33] identified the admissions made within Exhibit PP3, the post record, and Exhibit P5, the record of interview, as having been made involuntarily. It reads as follows:

“1. The Defendant is legally married to a Hong Kong resident. The marriage is real and has not been dissolved.

2. The Defendant has all along been working at the restaurant in question, namely PALKI and filed tax returns to the HKSAR Inland Revenue Department. She [D] has been assessed to pay income tax to the HKSAR government.

3. On the day in question immigration officers went to Palki restaurant where the Defendant has all along been working. The Defendant has been working there for some years.

4. The Defendant challenges the Record of Interview and Notebook entry as not voluntary.

5. The notebook is challenged as not accurate and is in English even though the Defendant’s mother tongue is Ilocano. The notebook was signed in English at Skylight Tower before the record of interview.

6. The Defendant objects to the admissibility of the record of interview in that there was no lawyer present. In addition, she was scared and frightened as the statement-taker in a room at Skylight Tower, not in the presence of the interpreter threatened and induced the Defendant to give a record of interview after office hours.

7. The statement taker said words to this effect: “Just admit and plead guilty and it would be easier for you”. And further said, “If I admit, the prison sentence would be short”. Finally, “If you plead guilty you would only receive 3-4 months’ imprisonment at most”.

8. As a result of the above threats and inducements, the D was very scared and she just did as the officer statement-taker instructed her to do. She did the Record of Interview not voluntarily. In any event, the Record of Interview itself lies in the face of the fact the D has for years filed correctly tax returns using her real name.

9. The Notebook and Record of Interview breached Secretary for Security [1992] “Rules and Direction”.

47.Where the defence take objection to admissions against interest, the Grounds of Objection should be restricted to the relevant complaint, the associated facts and legal basis of the application. It should not extend to submissions on the application or upon any other evidence. The Grounds of Objection are not evidence. They are the means by which the parties and the court understand the issue to be decided; the prosecution can ascertain which witnesses to call and it allows the court to ensure that the case is effectively managed. From T28Q, the stage that the special issue first arose within the evidence of PW1, the court had still not been provided with a copy of the Grounds of Objection despite having asked for them. It would not therefore have had an opportunity to read them and to note the irrelevant and objectionable nature of part of its contents. Paragraphs 1 and 2 are wholly improper and should not have been included in Grounds of Objection. That error was compounded by the fact that defence counsel must have known that he was not going to adduce admissible evidence in trial of the current status of the marriage and that he had no evidence to show that the appellant had personally filed any tax returns. Paragraphs 4 to 8 of the Grounds of Objection indicate the basis of the application, which in this case was simply an objection to the post record [Exhibit PP3] and to the record of interview [Exhibit P5]. The last sentence of paragraph 8 was at best misleading and at worst a deliberate misstatement. In any event it should not have been included.

48.It should be obvious to counsel at what point in time that the issue was live before the Court and both counsel should have indicated to the Court that the appropriate time had come to formally read the Grounds of Objection into the record. This is what actually happened[34]:

Q.	After cautioning the defendant, did you and the defendant have any dialogues?
A.	Yes. After I cautioned her, I ask her if she understood the contents of my caution. She answered me she understood and I asked her three questions.
Q.	Which were? Sorry, start -- we go through them one-by-one. What was your first question?
MR ALLAN:	This is in English, isn’t it? Forget it, I…(inaudible)…
A.	The first question was, “What are you doing here?”
PUNTI INTERPRETER:	“…was, “What were you doing here?”
Q.	Did you say that in Chinese or English or any other language?
MR ALLAN:	Madam, this is all challenged, what we call a “verbal”, so they’re all part of the -- there’s…
COURT:	So would this be a good time to read out your…
MR ALLAN:	Yes.
COURT:	…Grounds of Objection? All right.
MR ALLAN:	Yes.
COURT:	Witness, can, please, step out first? Meanwhile, please, don’t look at any materials or speak to anybody about the case.
WITNESS LEVAES – 10.59AM
MR ALLAN:	Do you have the note -- can you give that one to the court?
MR HUI:	Now?
MR ALLAN:	Yes. Then she’ll understand what we’re talking about.
MR HUI:	Right now?
MR ALLAN:	Yes, I…
MR HUI:	The admission, …
MR ALLAN:	…suggest you…
MR HUI:	…we haven’t…
MR ALLAN:	…put…
MR HUI:	…submit it to the court.
MR ALLAN:	I know but -- right,…
COURT:	Yes?
MR ALLAN:	…well, Madam, I’m not going to waste a lot of time. Again, this is back-to-front. Prosecutor’s going to go into a verbal so this is a Thongjai situation, R. v. Thongjai. We are objecting to any verbal conversations. Prosecutor’s got the burden, I don’t have to do anything. He hasn’t established whether the conversation was English but I believe, Madam, this so-called conversation was put into a note --his notebook later on, a post-recorded notebook. I still quite clear but it was in English; okay? So that is the first ground.
	And, please, I’m not wasting time here…
COURT:	Are you reading out from your grounds of objection?
MR ALLAN:	No, I just want to -- because I invited the prosecutor -- he’s now going to ask this witness to -- what is called the post-record notebook; bad practice but, if he’s going to do that, I invited him to give you a copy of that and he said, “No, I don’t have to do it now.” Yes, I suggest that you can follow it, what I’m talking about.
COURT:	Well, I…
MR ALLAN:	He has a copy, the English -- it’s pages 14, 15…
COURT:	Well, let the witness speak first.
MR ALLAN:	Yes.
COURT:	Maybe, you would read out…
MR ALLAN:	Yes, I’ll read out…
COURT:	…the grounds of objection first.
MR ALLAN:	Madam, “Grounds of Objection to the admissibility of the defendant’s post-recorded notebook and record of interview…” – and I’ll add in the verbal, what he’s going to say now, this is objected to. This is a very key point:
	“The defendant is legally married to a Hong Kong resident. She has an ID card. The marriage is real and has not been dissolved; (2) the defendant has all along been working at the restaurant in question, namely, the Palki Restaurant located at G Floor, Fook Wah Mansion, and she has been working there for a number of years. She has filed tax returns…”
	which I have here, since -- we have…
COURT:	Can you, please, read as to what is…
MR ALLAN:	But…
COURT:	…inside the document?
MR ALLAN:	Madam, she…(indistinct) “…and filed tax returns to the Hong Kong Inland Revenue Department.” That’s part of …
COURT:	Just stick to it; …
MR ALLAN:	Yes, all right
COURT:	…otherwise, it will be difficult…
MR ALLAN:	All right.
COURT:	for your defendant’s interpreter.
MR ALLAN:	“The defendant has been assessed by Inland Revenue to pay income tax to the Hong Kong SAR Government.” And she’s paid the tax. So, on the day in question, “The Immigration officer went to the Palki restaurant…” where the defendant has all along been working, for a number of years. The defendant has been working there for some years for the defendant -- the government knows about this. The defendant challenge…
COURT:	Please, stick to what is written there.
MR ALLAN:	Okay.
COURT:	…please.
MR ALLAN:	“(4) The defendant challenges the record of interview and notebook entry as not voluntary.” The first ground, the notebook is challenged that they’re going to produce the so-called verbal conversation, was in…
COURT:	Can you, please, read; …
MR ALLAN:	…is…
COURT:	…otherwise, I’ll ask…
MR ALLAN:	“The notebook is…”
COURT:	…somebody else…(inaudible)…
MR ALLAN:	“…challenged as not accurate as it is in English when the defendant’s mother tongue is Ilocano. The notebook was signed in English at Skyline Tower before the record of interview. (6) The defendant objects to the admissibility of the record of interview in that there was no lawyer present. In addition, she was scared and frightened as the statement-taker, in a room at Skyline Tower, not in the presence of the interpreter, threatened and induced the defendant to give a record of interview after office hours, at 6.30 on 2 January.”
COURT:	Is this difficult? If you cannot read…
MR ALLAN:	Okay, “The statement-…”
COURT:	…from what you wrote, …
MR ALLAN:	“…-taker said to the defendant on which to this effect: (1) ‘Just admit…’”
	or words to this,
	“Just admit and plead guilty and it would be easier for you.’ And further said, ‘If I admit, the prison sentence would be short.’ Finally, she said…” -- “…he said to her, “If you plead guilty, you will only receive three to four months’ imprisonment, at most.’ (8) As a result of the above threats and inducements, the defendant was very scared and she just did as the officer statement-taker instructed her to do. She did the record of interview not voluntarily.
	In any event, the record of interview itself flies in the face of the fact that the defendant has, for years, filed, correctly, tax returns to the Hong Kong Inland Revenue using her real name and ID card and the correct restaurant; this is a fact.
COURT:	Those words were not in there. Do you have...
MR ALLAN:	Ma’am, …
COURT:	…a difficulty in reading what…
MR ALLAN:	Madam, …
COURT:	…you wrote?
MR ALLAN:	I’m reading that but I…
COURT:	You cannot just add in something.
MR ALLAN:	I’m not straightjacketed. I can add -- I can always amend, add any…
COURT:	If you amend it, you amend it…
MR ALLAN:	All right, all right.
COURT:	…before you read out.
MR ALLAN:	All right. I’ll keep it to the -- I will just read that part.
COURT:	Please.
MR ALLAN:	Okay, so that you understand the background.
	“(9) The notebook of record of interview breached the Secretary for Security…”
	I call them the “…1992 Rules and Directions.” Madam, that’s it. It’s as simple as that.
COURT:	All right, thank you.

49.This was an unfortunate exchange which added to the general lack of focus of the trial despite the considerable efforts of the learned magistrate to rein in Counsel for the defence. Counsel should have read the Grounds of Objection into the record verbatim. There should have been no additions, asides or submissions. As the learned magistrate correctly pointed out, if Mr Allan had wished to amend his Grounds of Objection, he should have sought to do so formally before he read them into the record.

50.Thereafter, prosecution counsel took PW1 through the impugned evidence. At the end of his evidence, and before cross-examination upon the special issue, defence counsel made a wholly uncalled for speech to the court[35] which had nothing whatsoever to do with the voluntariness of PP3 or PP5:

“Firstly, Madam, can I say this? I am very, very concerned about what I’m seeing on this side of the bar table. Now, I haven’t tried to attack the prosecution; I tried to show humility, and so forth.

I have -- for the record, so the record will be recorded, I served on the prosecution the tax returns of my client for the last few years. Now, it is -- if the prosecution doesn’t understand its duties, then I am very, very concerned. There is a load of authorities that clearly state the Immigration Department is not a little compartment on itself. The prosecution in this case is the Hong Kong Government, so the Hong Kong Government has a duty to disclose and discover all the relevant documents in this case. And this is why I don’t understand what they are doing. They’re trying to put up to you this is their case and they’re not -- the prosecution is not the Immigration Department, it is a whole of the government’s departments.

And there’s authorities and I think they’d better read Archbold because it clearly states that; doesn’t say, “the duty of the prosecution and we’re only the Immigration Department.” If another department has documents that contradict their case, it is the duty of the prosecution to disclose and discover the same to the defence.

Mr Prosecutor keeps asking me, “Do you have this?”, “Do you have that?” I mentioned it at the bail application some months ago and it is not us -- for us. Since they didn’t bother to disclose and discover -- just shows you, Madam, they’re breaching their duty as discovery and disclosure.

HKSAR is the government of Hong Kong; it is the Inland Revenue; it is the Immigration Department; it could be a health department. Every government department is represented by the overall Hong Kong Government.

They have been given -- Madam, for the record, for the past few years, we had to disclose it to them because they took no steps whatsoever to disclose it to us, which they should’ve because we did raise this point at the bail review. They could’ve -- they could easily contact the Inland Revenue and say, “Mr Allan, we have got a duty to be fair”: Lee Ming-tee (No.2), all the Court of Appeal -- Final Appeal’s judgments of Patrick Chan PJ, Bokhary PJ and all the five judges that were sitting are, clearly -- if you read it, it’s so simple. If the prosecution cannot understand that -- they are not the Immigration Department. It is their duty to disclose and discover.

Those documents are clearly relevant, (1) because they show that my client filed tax returns and she paid tax, I think, in 2015, 2016, 2017, 2018, 2019 -- sorry, 2018 when she filed. And I’m looking at - signed by my client, she filed the tax returns with the name of the restaurant in question; she paid tax to it.”

51.This too should not have happened. Counsel should have cross-examined PW1 on the special issue. This was not the time for a submission and certainly not a submission as to a wholly different matter. This was a general and oft repeated complaint by Mr Allan about disclosure. The next 13 pages of the transcript were taken up with a discussion about disclosure even though no formal application was made at any stage.

52.When defence counsel finally cross-examined on what should have been the special issue[36], he concentrated initially upon the use of English by PW1 but quickly returned to the issue of the Inland Revenue documents which had nothing at all to do with the issue of voluntariness. He then moved on to the marital status of the appellant[37], which was also part of the general issue, before returning to the Inland Revenue documents[38] and back to the appellant’s marital status[39]. He only cross-examined upon the alleged inducements and threats made between T141R-142F.

53.It appears from the transcript that all parties assumed that the cross-examination upon the special issue would be followed by cross-examination on the general issue and re-examination on both. This did not assist the court, as defence counsel went to and fro between issues without focus. If counsel have no focus, it is exceedingly difficult for the Court to do so. PW2, the other immigration officer, and PW3, the interpreter were called next as the prosecution called them upon the special issue. Their evidence within the general issue was negligible. Defence counsel did not examine either witness and therefore did not put his case on the special issue to them. The prosecution closed its case on both the special and general issue[40] prior to any submissions.

54.A half-time submission upon the special issue was made by defence counsel[41]. The learned magistrate found it necessary from time to time to remind counsel at that stage that his submission was to be restricted to the special issue[42]. That submission was limited by Mr Allan to the first ground of objection as to the use of English. No submission at all was made as to threats and inducements. The court ruled that there was no case on PP2 and PP3 but that there was a case to answer as to PP4, PP5 and PP6.

55.This ruling should have been wholly distinct from any half time submission on the general issue, which is why the learned magistrate thought it necessary to remind defence counsel of that. Mr Allan indicated at this stage that the appellant would not be giving evidence upon the special issue[43] but later, after a short adjournment, said that she would give evidence[44]. In the intervening break, defence counsel had indicated some of the Inland Revenue documents he wishes to rely upon for that purpose, which then resulted in prosecuting counsel seeking an adjournment[45], in order to assist the defence, which was then somewhat surprisingly opposed by Mr Allan[46].

56.This application was unfortunate and misconceived. The documents in question had nothing whatsoever to do with the special issue and the trial was still at that stage. It arose because of the errors made by Defence Counsel within the Grounds of Objection. Prosecution counsel should simply have sat back, waited for the appellant to seek to speak to the Inland Revenue documents which were in her possession and then objected to them as being irrelevant to the special issue currently before the court. Instead, and motivated by a misdirected, albeit laudable, desire not to be seen to be obstructive, he applied for an adjournment to resolve the issue on disclosure which had been made much of by Mr Allan. As a result, the trial was adjourned from 3 July to 11 November 2020 to deal with matters which played no part in the special issue. Had the parties focused on evidence admissible to the special issue, this would not have occurred.

Treatment of the Court, Prosecuting Counsel and the Witness

57.It is understandable that in trial emotions may run high and things may be said that should not be said but Defence Counsel’s treatment of the Court, Prosecution Counsel and PW1 was disrespectful. On multiple occasions, Defence Counsel did not extend the courtesy one would expect of any barrister in Hong Kong towards parties in legal proceedings. This ranged from simple discourtesy to open criticism and rudeness.

58.On one occasion, Mr Hui quite rightly pointed out that Mr Allan’s outburst in respect of non-disclosure in the middle of what was clearly the special issue on voluntariness was misplaced:

MR HUI:	…although I’ve noticed that Mr Allan has got into his half-time or closing submission…
MR ALLAN:	No[47].

Defence Counsel did not allow Prosecution Counsel to answer the allegation put before the Court and interrupted him constantly and in an unfortunate manner[48].

MR HUI:	…just now, he made a very serious allegation that we have material non-disclosure, on record, and therefore, I would like to make a very brief point…
Mr ALLAN:	No.
MR HUI:	…on this point. Now, to start with, this is Inland Revenue records, very sensitive. We have tried to communicate with the IRD to get these records but not all law-enforcement agencies can get ...
MR ALLAN:	Don’t give evidence.
MR HUI:	... their hands on these records ...
MR ALLAN:	Absolute nonsense.
MR HUI:	... because of how sensitive ...
MR ALLAN:	Absolute nonsense.
COURT:	Whatever record both parties wish to put in ...
MR ALLAN:	Madam, ...
MR HUI:	And ...
MR ALLAN:	... he’d better read ...
COURT:	Wait, wait.
MR ALLAN:	He’d better read ...
COURT:	Wait.
MR ALLAN:	... the Court of Appeal decisions.
COURT:	Please.
MR ALLAN:	All government departments, all government departments in Hong Kong, unless we’ve completely changed the law, are ...
COURT:	May I get this clear from your side?
MR ALLAN:	Yes.
COURT:	Are you making any application in relation to non-disclosure?
MR ALLAN:	Madam, I am not -- I just want to get onto the issue in this case. I’m saying, Madam, that the prosecution has a duty to disclose and discover. I don’t accept anything that this young prosecutor is saying, that they can’t access the Inland Revenue. Absolute nonsense. In a ...

59.At another point, when Defence Counsel interrupted the prosecution to make a speech in regard of the Inland Revenue documents, the Court sought the following confirmation and also became the target of his lack of courtesy[49]:

COURT:	Well, can I just have a confirmation from the defence that you are not making an application for non-disclosure?
MR ALLAN:	I’m not making any application for stay. I’m not asking for a re-trial, at this stage.
COURT:	And are you -- do I need to make any ruling ...
MR ALLAN:	No.
COURT:	... in relation to non-disclosure?
MR ALLAN:	No. I just said ...
COURT:	All right.
MR ALLAN:	... can I cross-examine PW1. He was the one who’s wanted to make some -- we cannot -- listen, Madam, let me tell you something. I’m recalling, like, 32 years ago was the last time I was sitting on that side of the bar table. We didn’t have the benefit of this wonderful system called the DARTS: amazing. This wasn’t here 32 years ago, ...
COURT:	Mr Allan, please.
MR ALLAN:	…this was a District Court. So, please, don’t anybody tell me what to do. I made it ...
COURT:	I think I can tell you what to do.
MR ALLAN:	I asked to cross-examine PW1.
COURT:	I think I can tell you what to do. I have hear this ...
MR ALLAN:	I said I wanted to cross- ...
COURT:	…repeatedly.
MR ALLAN:	Yes, I want to cross-examine PW1.
COURT:	Yes, I know your wish.
MR ALLAN:	Yes, all right, but ...
COURT:	But I think my wish would be final.
MR ALLAN:	Yes, I said I wasn’t making any application.

60.Shortly after this interruption, PW1 returned to the witness box for cross-examination. Defence Counsel sought to put what he incorrectly referred to on the record as “a tax return” to PW1, the following exchange then took place[50]:

MR HUI:	Objection, I think this is irrelevant.
COURT:	Let me hear ...
MR HUI:	Yes.
COURT:	... the question first.
MR ALLAN:	It’s cross-examination; I can put anything I want.

That proposition is clearly incorrect. He went on[51]:

Q.	Yes, and she has filed a tax return as far back, we have record, nineteen-sixty -- nineteen fifty -- pardon me, 2015 to 2016 salaries tax. Would you please look at ...
COURT:	What do you want to do on -- you want to show him that?
MR ALLAN:	Yes, this is our case.
COURT:	No, no, no, what -- ...
MR ALLAN:	You can’t ...
COURT:	…you want him to comment on it or what?
MR ALLAN:	No, I’m going to show him and I’m going to -- I’m not asking him to comment, I’m just going to show it to him.
COURT:	For the purpose of?
MR ALLAN:	(Chuckles)
COURT:	I know this is your case but is he in a position to ...
MR ALLAN:	It’s -- I’m absolutely got to do this because I would be failing my duty because this is, unless there’s evidence to the contrary, this is the tax return; it is the original.
COURT:	No, no, I just -- I’m just wondering ...
MR ALLAN:	Madam, why are you interrupting me cross-examination on this ...(indistinct)? Please, don’t steal the thunder. I’m putting to him that this is the tax return; this is putting our case. I told you I know what to -- you asked me: I know what to do. I’m putting it -- if there is a jury I’d be doing it in front of the jury; I’d have to. I’d have to put -- the jury has to know the facts. This is not a fake document, this is not fake news, this is real news. This document is the tax return of my client: filed with Inland Revenue, for this restaurant, way back in 2015 that, as I said, directly flies in the face of what he wrote down in the record of interview; that she only worked there for about a year and she only was paid daily $400 when she herself filed a tax return four years ago.
COURT:	No, no, I’m just wondering ...
MR ALLAN:	So why ...
COURT:	…was it the defence case: this witness would know about her filing of tax return?
MR ALLAN:	I don’t -- Madam, I’m just putting my case. It’s my -- Browne v. Dunn. I’m putting the case: is he aware -- I’m going to put this -- because this is has to be exhibited. This has to be -- this is the key document.
COURT:	Through him; you want to?
MR ALLAN:	My client, if necessary, can produce it ...
COURT:	All right.
MR ALLAN:	…but I can show it to him ...
COURT:	Go ahead, show it to him. See if he know anything.
MR ALLAN:	Madam, again, I’m a little bit concerned. If there is a murder weapon or any document that’s helpful to the defence, it is the duty - the case is Browne v. Dunn - to put it to the witness and he can say ...
COURT:	To the appropriate witness.
MR ALLAN:	He can say, “No”. He can say, “I don’t know anything about this”, but you don’t know until we show it to him.
COURT:	Sure, go ahead.
MR ALLAN:	Okay? So, please, if I -- could I just do this without interruption?

61.It is to be noted that at this stage of the proceedings, these documents have not been shown to the Court and therefore the learned magistrate would not have noted the fact that the document to which Mr Allan was referring was not a tax return but an Inland Revenue ‘estimate’ because the appellant had failed to file a tax return. But Mr Allan would have known that as the document was in his hands. At this point therefore, Defence Counsel had misled the Court as to the nature of the document to be put. Not only that, the learned magistrate was correct to question whether this was the appropriate witness to put this document to. This witness could not speak to the estimated salaries tax demand of the appellant for 2015/16 and Defence Counsel knew full well he could not do so. Without the document in front of the learned magistrate, the Court was reliant upon the professionalism of Defence Counsel. This was not a proper way to seek to put such a document before the Court. In the end, the learned magistrate allowed the document before the Court on a provisional basis as D1(1). Defence counsel carried out the same exercise with Exhibit D1(2), which was also provisionally adduced. Mr Hui finally and wholly properly makes an objection, to which the reply is:

MR ALLAN:

How can he -- but the objection is absolutely without merit. It is actually forbidden to do that because I am entitled to put my case. He’s actually preventing me, as a prosecutor, and shows how junior he is because it is our case that -- I have been saying this and he said, “not allowed to ask that question.” How on Earth can a prosecutor -- how dare, with respect, the prosecutor prevent me from putting my case.

62.This was just one of several occasions when Defence counsel is gratuitously rude to Prosecution Counsel. All parties must put their case in cross-examination in accordance with the rule in Browne v Dunn (1893) 6 R. 67, H.L, so that a witness has an opportunity to explain any matter of relevance where the opposing party intends to contradict or discredit that witness in relation to it. It is a rule of professional practice[52] and fairness. In this case, the defence were not seeking to either contradict or discredit PW1. PW1 had no connection with the documents, was not their author or recipient and had no knowledge of them. He did not work for the relevant department. In short, he could not speak to the documents and they should never have been put to him. Prosecution Counsel was correct to object and the learned magistrate would have been correct to have disallowed it. As it was, she found a middle road by allowing the documents in provisionally on the basis of what she was told by Defence Counsel without being afforded an opportunity of seeing their content because Defence Counsel had provided no copies. Mr Allan was being extremely rude to Prosecution Counsel and used language sought to demean him. He followed it up with a wholly uncalled for comment[53]:

MR ALLAN:

…I’m concerned, again, that show’s that he is -- if he doesn’t know what he’s doing or he’s going to make unmeritorious -- just for the sake of objecting to me putting my case then I’m concerned. I’ve got to place it on record that I am trying to put my case.

63.This may have been resolved if the documents were provided to the Court so that it could understand what the defence was seeking to do. At one point, the Court asked for a copy and yet again was the subject of criticism[54]:

COURT:	Do you -- Sorry, do you have a copy of the document?
MR ALLAN:	No, because these are the originals.
COURT:	Do you have a -- ...
MR ALLAN:	You see, ...
COURT:	…that’s why: do you have a copy?
MR ALLAN:	No, I don’t. I don’t have a copy with me in respect of -- I want the originals that we have. And, you see, Madam, ...
COURT:	Is there reason, any reason, why there’s no copy? Any working copy for me?
MR ALLAN:	Well, we can make -- we can certainly make copies. Madam, no doubt this officer is going to say, “I don’t know anything about this”. This is their prosecution case. Despite the fact, Madam, I told them at the bail review, before -- they would have you believe that my client had overstayed for all these years, that she had never -- was not allowed to work here. Yet, we have a prima facie: we actually have the original document, luckily; five years later of the actual, original computation of 2015. I don’t think I’ve -- I’m not sure …
COURT:	Why are we going back to that? We’re in cross-examination now.
MR ALLAN:	So I’m -- can I do it the way I want to do it?
COURT:	Can I ask to have a working copy so that I can follow your question?
MR ALLAN:	We can certainly get those copies made.
COURT:	Now. Do you have it now; no?
MR ALLAN:	Madam, I have to look and search around but I’d like to not waste time, okay? Because if he says …
COURT:	It is wasting ...
MR ALLAN:	Madam, listen, if he says, “Yes, I knew about them”, I’ll drop down dead because his -- he won’t know. He’s going to say, “I didn’t know about it.”
COURT:	Then maybe you should ask that question first ...
MR ALLAN:	Yes, I’m trying to.
COURT:	…before you go into detail.
MR ALLAN:	I’m trying to.
COURT:	You are not. You are reading out the contents of which. Which is long ...
MR ALLAN:	Okay, can -- Okay, I -- let me do it my way.
Q.	Please, read out the back. Just read out the back, there. Can you just read out the figures?
COURT:	Before you answer that witness, have you ever seen this document before?
A.	I’ve never read this document.
MR ALLAN:	Right.
COURT:	So what’s the point of asking him to read it out?
MR ALLAN:	The point of asking him is, Madam, there is a document that shows my client was lawfully -- filed a tax a return with the Hong Kong Government, she paid tax and now she’s being accused ...
COURT:	Yes, but he have not seen this document.
MR ALLAN:	…of that she -- Sorry, Madam, you asked me. Can I finish? This goes on the special issue and the general issue. In her record of interview -- Madam, you keep interrupting me and, Madam, may I say this?
COURT:	It is my duty ...
MR ALLAN:	No, it isn’t your duty ...
COURT:	…to stop any ...
MR ALLAN:	…to interrupt me.
COURT:	…inappropriate questioning.
MR ALLAN:	Well, Madam, I don’t want to argue with the court, okay? He -- she said, here, that she’d only been working there - where is it? - She, according to the notebook in broken English, which you think is proper English ...
COURT:	I did not say so.
MR ALLAN:	“What are you doing in here?”, which is bad grammar. “I’m working here as a waiter”, she’s not a man; she’s a female. “How long have you been working in here?”, “I think, less that one year.” And they’re communicating in broken English.
COURT:	What’s that to do with this document? I’m talking about ...
MR ALLAN:	Sorry, ...
COURT:	…this document.
MR ALLAN:	... she says, here, according to her but my client has been working there since 2015; that is the Inland Revenue, so this piece of notebook belongs in the rubbish bin because on our case, Madam, our case is very simple: my client has always worked in that restaurant for since 2015, legally. She filed a tax return. Madam, I have ...
COURT:	I’ve heard ...
MR ALLAN:	Madam, ...
COURT:	... your position; all right?
MR ALLAN:	…can I just put it this way? If I’m working illegally, whether it be here or any jurisdiction, I will never ever file a tax return because the government know ...
COURT:	Save that to the submission, please.
MR ALLAN:	No, but ...
COURT:	The witness have ...
MR ALLAN:	But you keep ...
COURT:	…already said he have not seen this document before.
MR ALLAN:	Yes, so I’m asking him to read out the figures; that’s all. And then you ...
COURT:	I will not allow that. Next question, please.

Returning to the issue of the rule in Browne v Dunn[55]:

COURT:	In fact, what does -- do you have any knowledge about the defendant’s filing of tax returns in previous years or anything about her tax?
MR ALLAN:	No, no, no, no. Madam, can I do it my way or ...
COURT:	No, because I don’t want to carry on in this area if the witness have no knowledge ...
MR ALLAN:	But, I’m putting it …
COURT:	…of the tax return.
MR ALLAN:	I’m putting my case and you can’t, with respect, ...
COURT:	No.
MR ALLAN:	All right, I’m asking him ...
COURT:	I need to clarify on that, first. If he ...
MR ALLAN:	But, of course he ...
COURT:	… have no knowledge, then all these line of questioning ...
MR ALLAN:	Well, I’m going to put it to him. That he -- that ...
COURT:	You put it to him; to something that he does ...
MR ALLAN:	Let me put it to him.
COURT:	…not know?
MR ALLAN:	All right. Let me put it to him.
Q.	I’m putting it to you that in the year 2016 to 2017 my client filed a tax return, signed by her. That she was the employee of the Palki Indian Restaurant, employed by a Mr Ranna and that, well, I’m putting it to you. I’m putting to you that is the case.
A.	I don’t have any knowledge.
Q.	Well, look at the -- I’m going to put it to you, based on this document here, that this is a -- I’m putting it to you, she filed a tax ...
COURT:	Stop, stop. He have no knowledge.
MR ALLAN:	I’m putting it to him.
COURT:	You don’t put something to somebody who have no knowledge of that.
…
MR ALLAN:	I was going to leave this. I’m just going to move on to the next year. Why are you interrupting?
COURT:	Because, I have ...
MR ALLAN:	Madam, I don’t ...
COURT:	... already told you, ...
MR ALLAN:	Madam, one of the grounds of appeal in any jurisdiction is excessive judicial interruptions. Please, may I put the last question -- this is the critical -- because all of these will have to be exhibited. If you don’t want to see them -- you can’t prevent evidence coming in. These are government documents. Why are you so adamant? I cannot understand the logic when I just want to put him one more document because we have the signature of my client. They will have you believe that my client said she worked there for less than a year, that she -- and in the -- this is the only document without any -- and I’ve got prima facie, which you demanded, written objection. One of my written objection is: that flies in the face of the facts of the tax returns. So, part of our case on the general and the special issue, because we’re doing it in the alternative procedure, I must cross-examine him, even on this issue because he is in the witness-box on the general issue as well. So ...
COURT:	Can you answer me? How can somebody answer anything of value when somebody doesn’t have any knowledge of the document?
MR ALLAN:	Madam, it’s called cross-examination. Madam, can I -- can you -- I’m putting to him -- it’s basic -- Madam, you keep saying I’m experienced; I know what I’m doing.
COURT:	Yes, ...
MR ALLAN:	But, Madam, can I say that ...
COURT:	…but I have my duty to stop any questioning ...
MR ALLAN:	You don’t -- Madam, you don’t have any duties. Madam, with respect, your duty is -- one of your duties is to receive evidence. If there is constant interruptions -- I wanted to put this one question to him, one last question on this year: that she had signed and show it to him and it then goes to the court so you can see that that is materially different; it contradicts the prosecution case. If you can’t see that, Madam, I am very concerned because their case is that she said she was only working there for less than a year; at the Palki Restaurant as a waiter. That’s their case: less than a year. We have government -- this is not something that could be curated, signed. Luckily we’ve kept these documents. I’m not going into the blame game as who has to disclose what but, luckily, we have sufficient ...
COURT:	Mr Allan, this is the third, or fourth, or fifth time I have been hearing this, okay?
MR ALLAN:	Yes, well why don’t -- why can’t put ...
COURT:	Because I trusted you; you know what you are doing.
MR ALLAN:	Yes.
COURT:	That’s why I allow you ...
MR ALLAN:	And I’m putting the last question ...
COURT:	…to put it to him.
MR ALLAN:	I’m putting the last question ...
COURT:	I would not know whether this was to be the last.
MR ALLAN:	This’ll be the last for this year.
COURT:	The eighth question.
MR ALLAN:	Sorry, you can’t ...
COURT:	You have been asking more than ten questions about tax returns of various years ...
MR ALLAN:	Madam, ...
COURT:	…and the witness have already said that he have no knowledge, and you continue to put it to him: ...
MR ALLAN:	Because, Madam, it ...
COURT:	…contents of the document, ...
MR ALLAN:	And I want to ...
COURT:	…which he have no knowledge.
MR ALLAN:	Okay, Madam, I’m making it quite clear: that is to contradict what he had written down and what their case is.
COURT:	Yes, through an appropriate witness. If he does not have any knowledge, ...
MR ALLAN:	Madam, ...
COURT:	…whatever he says ...
MR ALLAN:	…are you -- Madam, this is fundamental cross-examination. In evidence-in-chief, they are not permitted. I can put anything to contradict him.
COURT:	No, I ...
MR ALLAN:	Okay.
COURT:	… -- because of case ...
MR ALLAN:	No, ...
COURT:	…management, and ...
MR ALLAN:	Madam, ...
COURT:	…I will decide what questions, from either party, is appropriate.
MR ALLAN:	You’re going to decide each question? Madam, you’ll have to recuse ...
COURT:	No.
MR ALLAN:	…yourself. You’ll have to recuse yourself.
COURT:	Are you making an application to me now?
MR ALLAN:	You can’t just tell me what questions -- should I write the questions out?
COURT:	No, I don’t do the question but I will determine whether the question is appropriate or not.
MR ALLAN:	Madam, I was making it quite clear: I just want to ask him one last question for this year and then there’s a 2017 and 2018, again. And for your ...
COURT:	How many years do you have?
MR ALLAN:	Madam, it goes from 2014 all the way to 2018.
COURT:	All right, so do you confirm that this would be the last questions in relation to the tax return documents ...
MR ALLAN:	For this one.
COURT:	…filed by the defendant?
MR ALLAN:	Yes, for 2017 and then I’ve got to ...
COURT:	And there will be 2018 and …
MR ALLAN:	And that’s it.
COURT:	Then, can you ask him an overall question as to whether he know anything ...
MR ALLAN:	Madam, please, …
COURT:	…about the tax ...
MR ALLAN:	…you keep on saying, “Mr Allan, you’re very experience, blah, blah, blah”, and then you tell me, “but can you do it in a general-global?” Madam, I don’t want to go back to when Mr Sinclair; to 35 or 25 years. If you’re telling me just to put my case I’ll sit down and you’ve -- you’re going to acquit my client then I’ll sit down. No problem.
COURT:	No, I’m not saying that. I’m just asking ...
MR ALLAN:	But don’t -- then don’t -- be careful -- can I just say: be careful that I don’t get the impression -- I like to question -- I ...
COURT:	All right, I will let you ask your question but if I find the question inappropriate I will stop it there and then; all right?
MR ALLAN:	Madam, I know what the rules are and, Madam, if you are interrupting me constantly, I must indicate that is interrupting my chain of cross-examination. It is, if you read Archbold, it is a very a common ground of appeal; for judges, constantly, “Don’t ask that question.” “Don’t ask that question.” Judicial questioning or interventions are often grounds of appeal. I don’t want to go there.
	I just want to ask very simple questions. If you think, “Mr Allan, you’ve asked six questions about the year 2017”, I don’t think I’ve asked any. I think I’ve only asked -- I’ve asked about 2014-2015, 2015 to 2016. 2017 I’m asking him because this is a different document. This is the one that is, actually, the application. There’s -- this is a different document because it -- the actual document, signed by my client, submitted to the Inland Revenue. And it’s got all the facts there, which is consistent; including all the details and she filed this is in two-thousand-seven -- the date of receiving, the date of chop, is 13 April 2017. So she filed this tax return, because it’s signed by her ...
COURT:	I know what I am supposed to do.
MR ALLAN:	Yes, so, Madam, ...
COURT:	Pause. Let me finish. I don’t want to stop -- I don’t want to continue to interrupt and I don’t intend to do so but if inappropriate questioning keeps arising then I would have to keep interrupting; all right?
MR ALLAN:	Madam, I ...
COURT:	I have let you ask your question but after listening to your question I find it inappropriate. Therefore, I would have to stop then.
MR ALLAN:	All right.
COURT:	All right?
MR ALLAN:	Madam, -- Okay.
COURT:	I keep stopping it and then you are free to ask your next question. If the next question is appropriate I will let the witness answer it.
MR ALLAN:	Madam, ...
COURT:	If I find it inappropriate then I will stop there, then. It is not a counting of how many times I interrupt.
MR ALLAN:	Yes, it is. It is a counting, …
COURT:	It is, in fact, ...
MR ALLAN:	…with respect, it is because ...
COURT:	Let me finish, please.
MR ALLAN:	…in the Court of Appeal they said they counted forty-two times ...
COURT:	Let me finish, please. The Court of Appeal would also look at how many times the questions arise.
MR ALLAN:	No, they look at the relevance of the question.
COURT:	Yes.
MR ALLAN:	if they thought the relevance ...
COURT:	Yes, you got the point.
MR ALLAN:	Okay, Madam. Okay.
COURT:	You got the point.
MR ALLAN:	I don’t want to -- Madam, can I say ...
COURT:	Can you, please, let me ...
MR ALLAN:	I don’t want to argue ...
COURT:	…finish?
MR ALLAN:	... with the courts. I do not ...
COURT:	Then, let me finish.
MR ALLAN:	Look, -- anything else?
COURT:	The witness will come back. You can ask your question, ...
MR ALLAN:	Thank you so much.
COURT:	…but if the witness have no knowledge of the document or about the filing of tax return issue ...
MR ALLAN:	That’s it.
COURT:	…I would not allow further questions; ...
MR ALLAN:	Yes.
COURT:	…be it open question ...
MR ALLAN:	Yes.
COURT:	…or a putting of the question ...
MR ALLAN:	Yes. I ...
COURT:	…of the contents of the document.
MR ALLAN:	But, Madam, I think there’s a misunderstanding. The documents I’ve sent, put before him, are the computations. The computation ...
COURT:	Yes, you want to ask a witness who have never seen a document; ...
MR ALLAN:	Madam, ...
COURT:	…now you give him a document ...
MR ALLAN:	…please, I -- ...
COURT:	... and you read it and you ask him?
MR ALLAN:	... we don’t want to go back-track over this. I am now, actually, showing him the tax remuneration form she filed; signed by her.
COURT:	Yes, ...
MR ALLAN:	So, Madam, ...
COURT:	... you can ask him whether ...
MR ALLAN:	So, for the avoidance of doubt ...
COURT:	... he have seen it.
MR ALLAN:	... the reason I’m doing that is to conflict with him. Putting it to him that what - which is my instructions - what she’s -- what we’re challenging: this is a -- this is absolute nonsense.
COURT:	Yes, whatever ...
MR ALLAN:	All right. Anyway, listen ...
COURT:	... he said, so far, about the documents: he have no knowledge; all right?
MR ALLAN:	Yes, but I’m -- no, but this is an additional document.
COURT:	All right. Please, carry on but I just want to ...
MR ALLAN:	Madam, I -- ...
COURT:	... state my position; all right?
MR ALLAN:	... you’re really confusing me. Can I just call the witness back? Let’s get on with it.
COURT:	Please, call the witness.
MR ALLAN:	Madam, would you, please, let me get on with it without interruption. I am begging this court.
COURT:	I will …
MR ALLAN:	Please.
COURT:	... interrupt when I need to.
MR ALLAN:	You do as you wish but, Madam, if there are constant interruption, I must protest that I cannot do my job properly. Let’s put that clear.

64.Thereafter, there is a long discussion about the proper way to submit documents before the Court. At this stage Defence Counsel had referred PW1 to several documents about which he had absolutely no knowledge but Defence Counsel nevertheless wished to place them before the Court on a provisional basis. However, they had not been properly identified and no copies were available. Where a document is placed before a witness who cannot speak to its provenance or contents, it should not go before the Court as a provisional exhibit. It should be the subject of an MFI. Where a witness has an indirect connection with a document perhaps he has seen it in a file or was present when it was produced by someone else, then it may be given a provisional exhibit number awaiting proper production before the court by a witness who can speak directly to its provenance and content in some material way.

65.The unfortunate exchange above commences at T77A and continues to T80B. Mr Allan had sought to produce PD1 (later D1(1) under P7), the 2015/16 estimated salaries tax demand; PD2 (later D1(2) under P7), the 2014/15 estimated salaries tax demand and PD1(3) (which was not produced within the admitted facts and never became an exhibit) which was addressed to the Palki Restaurant and was attached to six employer’s returns including an unsigned return[56] in which the appellant is named as receiving a salary of $132,000 for the year 2016/17. The five other employer’s returns for other employees enclosed with PD1(3) are all signed by a director of the restaurant whereas the one relating to the appellant is not[57]. There is no Inland Revenue chop upon AB114 as can be seen in D2(4-7)[58]. A comparison of AB114 with AB136, which purports to be the same employer’s return, shows that it was the latter which was submitted to the Inland Revenue but not until 12 November 2020.

66.In any event, at the stage of this discussion, the Court still does not have any original or copy documents before it. At T80C, the Court has had enough with chaos and attempting to be polite but firm with Counsel and asks Defence Counsel to get his documents in order which results in yet another inappropriate, discourteous and unprofessional response:

COURT:	No, please, paginate it.
MR ALLAN:	What?
COURT:	Paginate it, if it is more than one piece of paper.
MR HUI:	Madam, and also, we would be grateful if we can also have a full working copy because ...
COURT:	Well, after they have ...
MR HUI:	Yes.
COURT:	... organised it ...
MR ALLAN:	Madam, let me say that we, the defence, do not have to prove our innocence.
COURT:	No, you don’t but you ...
MR ALLAN:	All right.
COURT:	... need to have things ...
MR ALLAN:	All right.
COURT:	... paginated.
MR ALLAN:	All right, can you -- we’ll do that over night.
COURT:	So that when we refer to it we can refer to the page.
MR ALLAN:	Madam, let me make it clear. You told me, “just put the general thing”, he doesn’t know if our ...
COURT:	No, I mean the question not ...
MR ALLAN:	Madam, ...
COURT:	... the document.
MR ALLAN:	... I don’t want to get into argument. I don’t care if it’s A, B, C, D, or E.
COURT:	You don’t care; I do.
MR ALLAN:	But -- let me speak, first, if it pleases the court. The point here is that from 2014 to all the way to 2018 my client was framing tax returns, lawfully. I don’t care if the sequencing or anything like that. We can sequence it, if you want. The point is this: for six years since 2014, my client has been filing a tax return for -- my client, the defendant, with this particular -- lawfully, legally paying tax for those six years. And yet, she’s accused of working there for less than one year. Madam, if you can’t see that I’ve got to ask the witness to leave and raise that with the court.
COURT:	You do not need to go ...
MR ALLAN:	Can I get on with it? Can I just get on?
COURT:	Before we carry on, may I have a paginated file of provisional ...
MR ALLAN:	We’re doing that. I’m not an octopus; I’m in the middle of cross-examination; all right?
COURT:	You should have done that before you ...
MR ALLAN:	Madam, ...
COURT:	... attended court.
MR ALLAN:	... I will -- Madam, with respect, I will do it the way I wish to do it and not be dictated to or ...
COURT:	No, I need them.
MR ALLAN:	Well, if you need it now ...
COURT:	Before you carry ...
MR ALLAN:	... we can do ...
COURT:	... on with your questioning.
MR ALLAN:	All right. We’ll just do it 1, 2, 3.
COURT:	Yes, paginate it.
MR ALLAN:	Paginate it? Right, “1”, just put “1”, “2” -- just number them all.
COURT:	Those are the originals so you may not want to write on the original.
MR ALLAN:	Madam, we’ll do as we wish to do, right?
COURT:	I wish to have a working copy as well.
MR ALLAN:	Madam, ...
COURT:	When would I be having that?
MR ALLAN:	You see -- I’m going to have to ask the witness to leave.
COURT:	For what?
MR ALLAN:	Right, if you continue attacking the defence like this, I am going to object.
COURT:	Well, I ...
MR ALLAN:	We are doing ...
COURT:	... just want a working copy.
MR ALLAN:	You want to do this, you want to do that, and you’ve asked for a written objection. I’ve told the learned court the prosecution has the duty; it’s not us. And I don’t want to argue in front of the witness; it looks very bad. All right?
COURT:	Are you paginating it now?
MR ALLAN:	I’m trying to continue cross-examination and, again, with respect, the court is interrupting. I’m trying to get to the next document, which is the marriage certificate. Can I get on with this because I don’t want to waste a lot of time, right? Can I put this to the witness?

67.That exchange was unfortunate. Defence Counsel has not only tried to put documents to a witness about which the witness would never have been expected to have any knowledge, he did not reference them correctly and did not have working copies for himself, prosecution counsel or the Court. If prosecution counsel and the Court had been provided with copies at this stage, no doubt they would have realised that Mr Allan’s submissions in respect of the filing of returns by his client were fundamentally flawed.

68.There then ensued a ruling by the Court as to what was expected in respect of the handling of documents[59]:

COURT:	Further, there and then, I know this document you don’t -- the next marriage certificate: you may not have a copy but I want to put it on the onset. For either party: whatever documents you wish to show any witness I want to have a working copy so that I can follow it while the questioning and the answering was going on. Not afterwards, to look at the documents.
MR HUI:	Certainly.
COURT:	It will not relate to it.
MR ALLAN:	Madam, I totally understand that but I don’t think you ...
COURT:	I’m sure when you’re in the High Court you would have prepared the bundle.
MR ALLAN:	No, because, Madam, I don’t think you’re understanding our case.
COURT:	I understood whatever you are telling me, okay?
MR ALLAN:	I’m saying, Madam ...
COURT:	I’m talking about exhibits and working copy. It would assist the court ...
MR ALLAN:	All right, okay.
COURT:	... to follow your question.
MR ALLAN:	Yes, but ...
COURT:	It would be effective ...
MR ALLAN:	Madam, all I’m doing is ...
COURT:	... for your questioning ...
MR ALLAN:	All I’m ...
COURT:	... if I can look at the documents ...
MR ALLAN:	All right.
COURT:	... when you are questioning.
MR ALLAN:	Madam, ...
COURT:	All right?
MR ALLAN:	... you’ve got the year. From 2014 to 2018, for six years my client filed lawfully, legally -- it’s not -- there’s been no - silence is thunderous on the outside - they’re not saying, “these are fake documents”. This is not a document they created yesterday; these are documents that were created in 2014.
COURT:	I’m just talking …
MR ALLAN:	Madam, why ...
COURT:	... about have working ...
MR ALLAN:	... are we ...
COURT:	... copies.
MR ALLAN:	... wasting time over this trial? That’s just what I would say. Right. Can I move on?
COURT:	The prosecutor has answered me; he understood what I am saying. I want working copy ...
MR ALLAN:	Yes, I’m not -- I heard ...
COURT:	All right?
MR ALLAN:	... what the court said. Thank you.
COURT:	So, other -- I know the marriage certificate: you don’t have a copy right now so may I have look at the documents, first; ...
MR ALLAN:	Yes, of course.
COURT:	... so that I can follow?
MR HUI:	Madam, may I also have a look at the document? We don’t have that document.
MR ALLAN:	You see?
COURT:	I think it is fair for them to know what you are giving the witness so that they can follow.
MR ALLAN:	Madam, I -- they’ve given us ...
COURT:	Let the prosecution have a look, please.
MR ALLAN:	They’ve given some rubbish, with respect. Some convoluted discovery and disclosure. The marriage certificate: I put the prosecution on notice about -- when I applied for bail, before the principal magistrate, I told them the whole -- nothing has been changed and if anyone accuses me after all my years -- anybody who knows Mr Allan -- I don’t lie, or certainly I don’t ...
COURT:	I don’t hear any ...
MR ALLAN:	All right?
COURT:	... allegation on that ...
MR ALLAN:	I told them that my client was married ...
COURT:	... they are just asking to see the document.
MR ALLAN:	I think I informed them ...
COURT:	(To prosecution) Finish ...
MR ALLAN:	... that the ...
COURT:	Finish reading it?
MR HUI:	Madam, we haven’t seen the documents, the five documents, presented in front of you. We have seen two; we don’t know which two.
COURT:	Have a look, first, …
MR HUI:	Grateful.
COURT:	... before we carry on ...
MR ALLAN:	And, furthermore, Madam ...
COURT:	... and that be given back to the witness.
MR ALLAN:	You see? Again, you see, Madam, with respect. Anyway, can that be shown back to the witness? All of this was informed to the -- months ago. I don’t know when the actual hearing was but way back, some months ago, I informed the prosecution that my client was married -- was still married. She had a dependant; she believed she was here lawfully so it’s a defence in law in respect of her, so-called, overstaying. And nobody has told her she has to leave because she has -- here -- she’s ...
COURT:	Are you giving evidence on behalf of your client?
MR ALLAN:	No, I’m not. I’m giving …
COURT:	No? Then save it to her.

69.At the end of working day, and because the defence had not produced any copies of the documents they knew they were going to seek to adduce, prosecution counsel asked to be allowed to make copies of defence exhibits. Mr Allan did not object and the Court ruled that the prosecution could copy the documents held by the clerk. The next morning, all was not well[60]:

MR HUI:	Madam, before we proceed with continuing the cross-examination of PW1. With regard to PD1 and PD6, yesterday there is a miscommunication ...
COURT:	PD1 and PD2 ...
MR HUI:	Yes. Let’s clarify that. It’s PD1(1) to (5) and PD2.
COURT:	Yes.
MR HUI:	And also, Madam, yesterday, when we tried to make photocopies of it Mr Allan claimed privilege ...
MR ALLAN:	I didn’t.
MR HUI:	... of those documents.
MR ALLAN:	No, don’t make -- can I speak?
MR HUI:	And ...
MR ALLAN:	Can I speak? Can I speak? Because ...
COURT:	Wait.
MR ALLAN:	Can I ...
COURT:	Each one has his turn.
MR ALLAN:	Please. But -- I know ...
COURT:	Each one has his turn.
MR ALLAN:	I know but he’s ...
COURT:	I will let him speak first.
MR ALLAN:	I never claimed privilege over anything.
COURT:	I will listen to him, first.
MR ALLAN:	Right. Don’t -- can you not wave the pen at me.
	Yes, carry on, please.
MR HUI:	Mr Allan claimed privilege.
MR ALLAN:	I did not.
MR HUI:	My OC also heard that and he disallowed us to take those documents from -- actually, we took them but he asked us to return the documents to ...
MR ALLAN:	That ...
MR HUI:	... Miss Clerk. And therefore, we did not ...
COURT:	Pause, pause, pause, pause.
MR HUI:	Yes.
COURT:	In any event, the copies -- do I have the copies now?
MR HUI:	I believe they are with ...
MR ALLAN:	Can I say this? This is a criminal trial and you’ve said, repeatedly, “This is a defence exhibit”.
COURT:	Yes.
MR ALLAN:	Would I take the prosecution exhibit and take it away with me? I would never dare to do that.
COURT:	Then why didn’t you object that yesterday ...
MR ALLAN:	I did.
COURT:	... before we conclude?
MR ALLAN:	Yesterday, I told him - let me put it on record - I have no problem, if he wants to go and photocopy with my instructing solicitors; make a copy, and all I asked for was could he, please - so there’s no allegation of tampering - that could he, please, then give a copy of whatever he’s copied to those instructing me.
	He was obstructive; this young man was being obstructive and difficult and that was also witnessed by my client. He said, “Oh, you have to pay costs. You have to pay the cost of it.” And then he was -- that was intimidation, I would say.
COURT:	All right.
MR ALLAN:	Because, Madam, this is a defence exhibit. Could I ask for the prosecution to give me the prosecution exhibit for me to take that away and copy? He would never -- if he -- Madam, the proper way of dealing with this: if they wish to take it away for photocopy - no problem. So everybody knows what was photocopied because these are original - defence exhibit - I told him this and he doesn’t seem to understand; he’s so junior that he doesn’t understand that is the fair and proper way of doing it because if he wants to a defence exhibit - I don’t know - he could amend it or they could tamper with it, so there’s no suggestion -- I asked those instructing me: please, go and witness the photocopy. Give a copy, so that everybody’s got the same thing, you know? He’s copied it, you’ve got it; it’s from the original. I’ve never heard …
COURT:	Mr Allan.
MR ALLAN:	I’ve never heard for the prosecution to say they wouldn’t assist in that way. So, Madam, I don’t want to waste a lot of time with that. I have no objection for the prosecution to take the document. In fact, Madam, for the record, which is a load of nonsense, I, personally, handed over some of those documents to the prosecutor so when he says I claim privilege, that is absolute nonsense because I gave it to him, some of the copies, yesterday in this courtroom and I placed it on record. So how can I be claiming privilege?
MR ALLAN:	They must have a copy but, since this is now a court exhibit, the proper procedures -- we don’t want any irregularities. If the prosecution is going to take away -- this is not a market place. The proper procedure is the prosecution makes an application and they take it away. My solicitors can witness it - we don’t get involved - and make sure that it is just properly photocopied. We get a copy of whatever they’re copying so that -- I don’t -- I’ve seen -- doing some cases in the district court where there’s been some deletions of figures.
COURT:	All right, Mr Allan, ...
MR ALLAN:	So, I just want to make it clear, ...
COURT:	Mr Allan, ...
MR ALLAN:	... I’m -- I just want to get on with PW1. And this Mr Matthew is, with respect, ...
COURT:	Mr Allan.
MR ALLAN:	... is not getting the picture right.
COURT:	Mr Allan ...
MR ALLAN:	To say I had privilege ...
COURT:	... can I speak? And, please, stand up, I’m speaking to you. Yesterday I said whatever exhibits or provisional exhibits wished to be used, which party wishes to use those documents would have to provide the court with working copy …
MR ALLAN:	Absolutely.
COURT:	... as well as to the other party.
MR ALLAN:	Yes, and so what we ...
COURT:	Now, I don’t see any working copy for me today.
MR ALLAN:	Yes, because I -- when we came in, …
COURT:	Listen, ...
MR ALLAN:	... they were making ...
COURT:	... please.
MR ALLAN:	... they were making such a song and dance ...
COURT:	Yes, so ...
MR ALLAN:	... I said that we should take it back and we’ll make copies.
COURT:	Now, ...
MR ALLAN:	I’d be happy to do that but we couldn’t because it’s now an exhibit and ...
COURT:	No, I will return them to you. I want working copies before we carry on. A working copy to be provided by the defence because it is an exhibit which the defence ...
MR ALLAN:	Absolutely, ...
COURT:	... wants ...
MR ALLAN:	... there’s no problem.
COURT:	... to adduce.
MR ALLAN:	Yes.
COURT:	Now, I will stand this case down for 15 minutes.
MR ALLAN:	Yes, all right, no problem.
COURT:	I want working copies ...
MR ALLAN:	I asked ...
COURT:	... for myself. Let me speak, please. For myself and for the prosecution, okay?
MR ALLAN:	No problem.
COURT:	Very well. And that should have done before ...
MR ALLAN:	That should have been ...
COURT:	... today.
MR ALLAN:	... done yesterday but they did it the wrong way round. They do not ever ask for a different ...
COURT:	Don’t talk about what they have done wrong. I’m talking about: ...
MR ALLAN:	Yes.
COURT:	... you’re so focus …
MR ALLAN:	Can he give it back? Let’s not waste time.
COURT:	Yes.
MR ALLAN:	I’ll get it photocopied but I don’t see why I can’t continue PW1, I’m just putting his -- my case.
COURT:	All right, you’re instructing can do it.
MR ALLAN:	Do it, yes. Those -- we have an assistant; they can take photocopies.
COURT:	Very well.
MR ALLAN:	And I’m putting my case so we’re not wasting time. Because I’m getting concerned. I’ve already agreed the rest of the prosecution case. And let me state this: PW2 and 3 ...
COURT:	Have admitted facts been draft -- been signed?
MR ALLAN:	I’ve already agreed them.
COURT:	No, no, on paper?
MR ALLAN:	Madam, he insists on calling PW2. Let me state this: he doesn’t understand section …
COURT:	No.
MR ALLAN:	... 65B.
COURT:	Please, listen. I’m just asking whether a 65C has been signed and agreed by parties?
MR ALLAN:	I’ve ...
COURT:	“Yes” or “No”?
MR ALLAN:	I have prepared what I would say was an admitted facts and he still refuses to say, “I still have to call the two witnesses.”
COURT:	Well, they ...
MR ALLAN:	Can I -- can I -- can I
COURT:	... are free to call whoever, ...
MR ALLAN:	And I -- ...
COURT:	... even if ...
MR ALLAN:	... yes, so ...
COURT:	... they are admitted facts.
MR ALLAN:	... I said to him: the two witnesses are the interpreter -- there’s no allegation against the interpreter. I said, to avoid any further delay in the case, he can read their statements, which are in English, to the court under section 65B; there’s no allegation. I also, further said, as to the loss -- the complaint loss officer, PW2, I can’t remember which -- I was also prepared to call, to agree, under section 65B, the whole statement. And he said to me, “No I have to call the witnesses, I have to call the witnesses. I’m not telling you.” I said “What do you want me to agree? I’ll agree it” because there’s no allegation against those officers. This is totally improper. For the record, I am saying I will agree those two witnesses to be read under 65B, which is the usual procedure.
COURT:	Pause. Please, let them do their job.
MR ALLAN:	Well, they’re not doing their job because they’re dragging this case ...
COURT:	Let them do their job.
MR ALLAN:	Madam, I’ve -- listen ...
COURT:	I believe you are paid to do the defence case not ...
MR ALLAN:	Yes, I am ...
COURT:	... paid ...
MR ALLAN:	... and I -- can I get on with PW1?
COURT:	Yes. And not paid to do the prosecution case.
MR ALLAN:	I’m not paid here but I’m agreeing their evidence and I don’t want to ...
COURT:	Let them do ...
MR ALLAN:	... waste the time.
COURT:	... what they will.
MR ALLAN:	Can I call PW1?
COURT:	I will call when I think it is the time ...
MR ALLAN:	May I …
COURT:	... to do so.
MR ALLAN:	May -- I asked you: may -- can you listen to what I said? I said “may”. I asked very politely. May I call PW1 back so I can get on with this trial?
COURT:	You may not, for this moment. I need to talk to the prosecutor.
MR HUI:	Ma’am.
COURT:	In view of the case management, upon what was stated by Mr Allan, can part -- at least part of the chief-examination of PW2, at least, be dealt with by 65B? At least, part of it.
MR HUI:	The statement of PW2 is quite short and therefore, ...
COURT:	Then why don’t you ...
MR ALLAN:	Well, read it.
COURT:	... use that by 65B and then further ...
MR HUI:	Because we ...
COURT:	... chief-examine it?
MR HUI:	Because we can have very quick cross -- examination-in-chief with both PW2 and PW3 and we find it unnecessary to do so.
COURT:	Very well.
MR HUI:	And also, after reading the draft admitted facts and the comments by Mr Allan, we find this -- the remain parts of our job is immaterial now because they are, basically, evidence being put to the court yesterday by PW1 and therefore, we will not sign any admitted facts under section 65C.
COURT:	Very well. If you find it quicker or more convenient to do just your chief-examination without doing 65B; I will let you decide on that.
MR HUI:	I’m grateful.
COURT:	Very well.
MR ALLAN:	Madam, can I just say this? For the record, that’s delaying and dragging on. I put on record, I have agreed, under section 65B, both witness statements to be read into record. That -- and you say all my years of experiences. The usual way: if he says it’s a short statement, just read it and he can add questions he wants.
COURT:	Yes, and Mr Allan, I think you are experienced enough ...
MR ALLAN:	Yes, I know but ...
COURT:	... to know that ...
MR ALLAN:	Yes.
COURT:	... I cannot force the prosecution on how they conduct their case.
MR ALLAN:	Yes, you can, in a sense that you can say, “Well, that’s wasting time Mr Hui” I think it’s Mr Choi.
COURT:	Well, Mr Allan, this is the second time, ...
MR ALLAN:	All right.
COURT:	... at least, ...
MR ALLAN:	Let’s get ...
COURT:	... that you are ...
MR ALLAN:	Madam, ...
COURT:	... talking about that.
MR ALLAN:	Look, I think we’re just going to go round in circles. Can I recall PW1 now?
COURT:	Yes. Please, call PW1, the officer.
MR ALLAN:	And I, for the -- also for the record, I won’t object to him leading so he can just put the statement to -- “This is what happened, A, B and C.”
	I’m really concerned about a young prosecutor who comes in and has no experience, with respect. And I say this with the greatest respect, of how to procedure. Some of his objections, yesterday, showed that.

70.This lack of professionalism continued when PW1 returned to continue his evidence. Defence Counsel wished to cross-examine him upon what he referred to as the “Rules and Directions of Taking of Statement”. He asked whether the officer was familiar with all the rules and directions to which the officer answered “right”. He then proceeded to ask him to recite Rule 6. Quite naturally the Court interceded[61]:

COURT:	Is this memory testing ...
MR ALLAN:	No, it isn’t.
COURT:	... exercise?
Q.	Well, I’ll put it to you ...
MR ALLAN:	He says he’s familiar with all the -- Madam, if you can -- if I could just get on with it. I don’t know why police officers or immigration officers say they’re familiar with all the Rules. That is a incorrect answer. He should say, “I actually don’t know all the Rules, I don’t ...” He said it so, as a result of that -- Madam, you keep saying -- I cross-examination on these Rules since 1992 and I dealt with the old judges rules before that, so when officers go into the witness-box and says, “I know all the rules” they are not telling us the truth, obviously. Because they don’t know ...
COURT:	I’m sure ...
MR ALLAN:	I ...
COURT:	... you’re very experienced and I ...
MR ALLAN:	I know but that is something that goes to his credibility. So I’m just going to cut to the chase and could I -- if you let me, I’ll finish in 20 minutes; all right?
COURT:	Well, then can you enlighten me ...
MR ALLAN:	Okay.
COURT:	... as to what is Rule number 6?
MR ALLAN:	The rule that I’m talking about, all right?
Q.	“Statement...” -- are you familiar with the Rules -- sorry, Direction number 6, “Statements in a language other than English”.
A.	“Statement taken in language other than English”?
Q.	Yes, the rule; what is the rule or direction? You said you knew the Rules; what is the direction?
A.	What do you want me to explain in particular? (Punti) ...
Q.	What is the rule?
PUNTI INTERPRETER:	“I just want to know.”
Q.	What is the direction? You said, Officer, that you knew what the -- you knew the Rules and Directions. So what is the specific direction - number 6 - in relation to “Statements in language other than English”
A.	Right, and then?
Q.	What is it? What is it?
A.	(Punti)...
Q.	What is direction number 6, please, Officer?
PUNTI INTERPRETER:	“You want me to tell you ...”
Q.	Yes.
PUNTI INTERPRETER:	“... the whole paragraph?”
Q.	Yes.
A.	Well, if you want me to memorise it and read it all out, I’m not very good at it.
Q.	So why did you tell us that you knew all the rules? Do you know all the Rules and Directions or not? “Yes” or “No”?
A.	Well, when I was executing my duty I would do it by following the directions. Therefore, I think that I know them.
COURT:	I suspect you don’t have a working copy prepared for me?
MR ALLAN:	No, Madam, it’s in Archbold, at the annex.
COURT:	Yes.
Q.	But let me put it to you. Do you, again ...
COURT:	I know it is in ...
MR ALLAN:	Can I ...
COURT:	Pause.
MR ALLAN:	Can you not -- with respect, Madam, I’m asking a question.
Q.	Please, answer questions. Are you ...
COURT:	Can I -- please, I’m speaking to you.
MR ALLAN:	It’s in ...
COURT:	I know it is in Archbold. Then, are you providing me with a copy of Archbold?
MR ALLAN:	I’ll get you a copy -- I don’t have a copy of Archbold. I’m not duty bound to bring a copy for Archbold.
COURT:	I know, that’s why …
MR ALLAN:	You have your own copy and, if respect, we can ask if -- I thought that you would know the Rules but let me ...
COURT:	I know but ...
MR ALLAN:	He’s not answering the …
COURT:	... if you want him to say it out word by word, ...
MR ALLAN:	Can we -- can you ...
COURT:	... I would like to read it.
MR ALLAN:	Can I just put the question?
COURT:	Wait until I have my Archbold then.
MR ALLAN:	All right. Can I just put the question?
COURT:	Wait until I …
MR ALLAN:	All right.
COURT:	... have my Archbold then.
MR ALLAN:	Madam, it’s at page 25-- ...
COURT:	Yes, I’m asking my ...
MR ALLAN:	At annex ...
COURT:	... clerk to take it.
MR ALLAN:	Appendix number 2. But, Madam, he’s just said he knows the Rules and Directions. Madam, you keep saying I’m an experienced -- that is not a true answer. The true answer from every police officer is, “I’m familiar with them but I don’t know the details”
Q.	And I’m saying that in English, which you understand. I suggest that you tell the truth. The fact of the matter, I put to you: you don’t know the rules, do you? And directions.
COURT:	Don’t answer yet until I find the appropriate section.
MR ALLAN:	It’s direction number 6, Madam.
COURT:	Page? What page?
MR ALLAN:	It’s appendix 2, at the back. Right at the back you can look at the back.
COURT:	There’s a page number at the bottom as well can you just tell me the page number?
MR ALLAN:	2542.
COURT:	Sorry?
MR ALLAN:	It starts 2542. Interview.
COURT:	“2542.”
MR ALLAN:	The Rules and Directions. I’m just going to be fast about this because these are …
COURT:	“2542”?
MR ALLAN:	Direction number 6.
COURT:	Are you talking about page 2542?
MR ALLAN:	Direction number 6, Rules and ...
COURT:	Yes, I know, but my 2542 is chapter 47, about companies.
MR ALLAN:	Sorry. That -- it’s an appendix, it’s in appendix 2. Right at the end. Madam, I thought you would know the answers.
COURT:	I would know but I want to look at it.
MR ALLAN:	Appendix 1 is the duties of prosecution, paragraphs 4, 12 and 19 and ones of disclosure and discovery; leading authority on that is Lee Ming-tee and I’m just saying it’s appendix 2. Have you got …
COURT:	It is page 2610.
MR ALLAN:	Sorry, 2- -- okay.
COURT:	I just want to ...(inaudible)...
MR ALLAN:	And direction number 6; all right? “Statements in language other than English”. I didn’t write these rules, this was done by the Secretary of Security in 1992 and I still -- I was practising when these came out; all right? Have you got that?
COURT:	Yes, please, carry on,
Q.	Just answer the question.
COURT:	... if you read out.
Q.	Please, answer the question, Officer. You said to the court that you knew all the Rules and Directions; is that right? Is that right? Is that right, Officer? “Yes” or “No”?
A.	Just now, you said you allow me to add things I want
Q.	No, I didn’t allow -- I’m asking you a question. Did you just say, right now -- a few moments ago, that you knew the Rules and Directions; “Yes” or “No”?
A.	Correct.
Q.	Right. What is direction number 6 then; in relation to “Statements in language other than English”?
A.	I cannot recite them.
Q.	Because you don’t know them, so the true answer is, Officer, that you don’t know the details of the Rules and Directions; is that correct?
A.	No.
Q.	So, again, then what is direction number 6?
A.	Well, I cannot recite them.
Q.	I didn’t ask you to recite them. I asked you what is the direction?

71.This was a wholly discourteous exercise with a witness whom Defence Counsel had no legitimate reason to undermine. The whole point was ill considered and to the extent that Mr Allan simply wished to state that the appellant required the presence of an Ilocano interpreter which was her right under the Rules. He could have done so in one question and not sought to belittle the witness. It was a cheap shot and not worthy of someone of Mr Allan’s experience and of no assistance to his client or the Court.

Conclusion

72.The appeal is dismissed. The sentence of the Magistrate stands. The appellant must return to carry out her sentence forthwith.

73.There will be no order as to costs.

Mr Matthew Hui, PP of the Department of Justice, for the respondent

Mr William Allan, instructed by Mohnani & Associates, for the appellant