9 (1) Lam Wu Nam and Others v. The Queen
Read the full judgment text of CACC 187/1976 on BabelCite. This Court of Appeal judgment.
1. The first appellant was convicted of two charges of conspiracy to evade the control on persons landing in Hong Kong imposed under the Immigration Ordinance (Cap. 115), of two charges of making a false statement in a document furnished to an immigration officer, of one charge of being the captain of a ship from which a person lands in contravention of s.38(1)(a) of the Immigration Ordinance and one charge of being the captain of a ship from which a person was seeking to land in contravention o
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CACC000187/1976
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----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 3rd June 1976. ----------------- JUDGMENT ----------------- Pickering, J.A.: 1. The first appellant was convicted of two charges of conspiracy to evade the control on persons landing in Hong Kong imposed under the Immigration Ordinance (Cap. 115), of two charges of making a false statement in a document furnished to an immigration officer, of one charge of being the captain of a ship from which a person lands in contravention of s.38(1)(a) of the Immigration Ordinance and one charge of being the captain of a ship from which a person was seeking to land in contravention of that same sub-subsection. The second appellant, a crewman on the same ship, was convicted of the same two conspiracy charges as the first whilst the third appellant, a limited company, was convicted of being the agent of a ship from which a person lands in contravention of s.38(1)(a) of the Immigration Ordinance. All appellants appeal against their convictions whilst the first and second appellants appeal also against the sentences of imprisonment imposed upon them. 2. The brief facts are that on 8th December 1975 the police found eight persons in a secret compartment aboard a vessel which arrived in Hong Kong from Taiwan and of which vessel the first appellant was captain and the second a crew member. The police were led to the secret compartment by the eighth prosecution witness who was a Taiwanese prostitute now living in Hong Kong and who gave evidence that she herself had arrived in Hong Kong upon the same ship in September 1975. The charges relate to those two voyages in September and December respectively. It was the evidence of the second appellant that during the two voyages passengers remained concealed in the secret compartment but it was the evidence of the passengers that the compartment was only used shortly before the arrival of the ship in Hong Kong and that for the greater part of the 3o-hour voyage they had unrestricted access to various areas of the vessel. 3. I will deal first with the charges of conspiracy. Section 38(1) of the Immigration Ordinance reads in part:
That subsection takes us to s.7 which is in the following terms:
Section 7(b) does not concern us since it refers to ss.9(1) and 10(1) which relate to the crews of aircraft and to servicemen respectively. Section 7(a) however leads us to s.8 which reads:
I will say no more about s.20(6) than that it does not here concern us. 4. It is apparent, therefore, that the offence contemplated by s.38(1)(a) is the landing in Hong Kong, without permission of an immigration officer, by a person who does not possess the right to land by virtue of s.8(1). 5. During the course of the appeal we asked Mr. Caird, for the Crown, as to upon whom lay the onus of proving that the ship's passengers alleged to have landed or to have sought to land in Hong Kong did or did not have the right to land under s.8(1). Mr. Caird conceded that despite the onus of proof imposed by s.64 of the Immigration Ordinance, where the alleged conspirators were not themselves the persons who had landed or sought to land, the onus was upon the Crown to prove that the persons landing or seeking to land did not have the right to do so as being members of one of the three classes referred to in s.8(1). As a corollary to that concession counsel further conceded, for the purposes of this appeal at this stage, that seven of the nine individuals who were alleged to have landed or sought to land either were or might well have been entitled so to do. He urged however that in respect of the remaining two of the nine, one being a Chinese lady who had travelled alone on the ship from Taiwan, arriving in December, and the other being the prostitute who had travelled on the same ship from Taiwan but who had arrived in Hong Kong in September, the Crown had discharged the onus of proof. The question of their right to land, Mr. Caird contended, had never been in issue throughout the evidence in the court below and the fact that they had no right to land was evidenced by the clandestine nature of their arrival and by their own assertion to that effect; from a practical point of view if full enquiry had to be made into the background of each of the nine, many more witnesses would have to be called including the Director of Immigration or his representative: but on the unchallenged evidence these two women did not fall within s.8 and it was not necessary to prove that fact it not being challenged. It seems to us that it is not necessary for the defence to challenge what is in fact a mere assertion by the Crown as to a material ingredient of the offence, but rather is it for the Crown to prove that assertion. 6. Mr Eddis, for the first and second appellants, said that it was an essential element of the conspiracy that the persons landing in Hong Kong should be persons who had no right so to land. All the nine, however, with the exception of the prostitute had claimed that their journey and its object were lawful. The prostitute had carried no passport and had given no evidence as to her nationality or as to where she or her parents had been born. For all the Crown had shown to the contrary she could have been a British subject or the child of British subjects and so entitled to land in Hong Kong under s.8(1). It was true that the other woman whose right to land remained disputed by the Crown, was in possession of a Taiwanese re-entry permit but even if that document were admissible in evidence it was not evidence of nationality or of her parents' nationality. 7. As it seems to us it was for the Crown to show that these two women were not members of one of the classes of persons described in s.8(1) as having the right to land in Hong Kong. The issue was a very technical one involving status and the lack of such status is not a matter which can, in a criminal case, be left to the opinion of unsophisticated witnesses themselves. It is true that the courts accept statements as to status every day. Thus if the victim of a robbery says that she is married, her status as a married woman will be accepted by the court without further question because it is irrelevant to the charge. But where status is an essential feature of the case it must be properly proved even in civil cases. Still more in a criminal case is it for the Crown to prove status. The statement of the prostitute that she entered Hong Kong illegally was no more than a statement of opinion upon a question of mixed law and fact for had she been asked who were the persons having the right to land in Hong Kong she would have been unable to answer the question still less to say whether or not she was a member of one of those classes. 8. It follows, upon the concessions made by Mr. Caird and upon the conclusion to which we have come in regard to the two women in respect of whom no concession was made, that the "conspiracy" has not been shown to be a conspiracy to do something unlawful. The applications of the first and second appellants in respect of the two conspiracy charges which they face, must therefore be allowed and the sentences set aside. Since these are the only two charges which the second appellant faces he must be released. 9. The first appellant however faces the four further charges to which I referred at the beginning of this judgment. It is at once apparent that the conspiracy charges having failed upon the grounds which they did, he cannot be convicted of being the captain of a ship from which a person lands or seeks to land in contravention of s.38(1)(a) of the Ordinance so that his application in regard to Charges (2) and (5) must also be allowed and the sentences thereon set aside. 10. There remain Charges (3) and (6) which were of making a false statement in a document furnished to an immigration officer. The statement was to the effect that the ship carried no passengers and was patently untrue. The question is did the captain know that they were on board or not? On the evidence we are entirely satisfied that the passengers were not herded into the secret compartment for the whole of the journey and that for most of the time they had access to the deck, the canteen, to toilet facilities and cabins. We are wholly unable to accept that on a vessel of this size the captain was unaware of their presence. Quite apart from the inherent unlikelihood of the captain never chancing to see any of the passengers, it is contrary to all common sense to imagine that had crow members been smuggling passengers aboard without the knowledge of the captain, they would have taken the appalling risk of allowing those passengers access to parts of the ship which were not hidden from general view. We are of the opinion that the written statements made by the first appellant were not only false but deliberately so. His application for leave to appeal against those further two charges is accordingly dismissed. 11. I turn to the case of the third appellant, the limited company charged with being the agent of a ship from which a person lands in contravention of s.38(1)(a) of the Ordinance. Mr. Jackson-Lipkin, for the company, having cited the cases of Boon v. Hart(1), Reg. v. Overseers of Tonbridge(2) and Simms v. Registrar of Probates(3) as authority for the proposition that if words are susceptible of a reasonable and also of an unreasonable construction the former must prevail and that where great harshness is produced by one construction the mind may legitimately incline to the other, also cited s.19 of the Interpretation and General Clauses Ordinance (Cap. 1) which provides that an ordinance shall be deemed remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the objects of the ordinance according to its true intent, meaning and spirit. The sole question, counsel continued, is whether the word "agent" in s.38(4)(b) of the Immigration Ordinance is to be construed in its broadest and most literal sense or in a sensible and appropriate manner in the context of sub-s.(4). The company's agency arose by virtue of a written contract which was before the court and which did not constitute the appointment of an owner's or ship's agent in the ordinary sense of the word but which was restricted to the appointment of the company as agent of the ship "in Hong Kong for matters concerning import and export of cargo and cargo freight"; the agents had no authority over the ship and its crew and in those circumstances could not be liable under the subsection. Were it otherwise a mere coalage and bunkering agent or even a travel agent accepting reservations aboard the ship but having no other functions whatever in regard to the vessel would also be criminally liable if anybody landed from the ship in contravention of s.38(1)(a). 12. We think that this is the correct view and that the learned judge erred in construing the word "agent" in the subsection in its widest possible sense. In construing this subsection the starting point must be that the Legislature did not intend that it should be read so as to produce injustice which here would be the effect of holding the company criminally liable in respect of a matter over which it neither had nor was intended to have even the remotest control. To hold otherwise would be to construe the subsection with that extreme literalism against which s.19 of the Interpretation and General Clauses Ordinance is aimed. The appeal of the third appellant in respect of the one conviction against it must be allowed and the fine of $10,000, if paid, be returned to the company. 13. One final matter remains for mention. Mr. Caird invited us, should the applications be allowed, to hear further argument in regard to the application of the proviso to s.83(1) of the Criminal Procedure Ordinance or to the possibility of ordering a new trial. We cannot contemplate the application of the proviso in a situation in which the Crown has not discharged the onus of proof lying upon it. Nor do We consider, since the first appellant remains convicted upon two charges and sentenced in respect thereof, that it would be appropriate to order a new trial. Representation: Eddis (P.H. Sin & Co.) for 1st and 2nd Appellants. Jackson-Lipkin, Q.C., and Robert Tang (W.I. Cheung & Co.) for 3rd Appellant. Caird for Crown. (1) 1874 L.R. 9 C.P. 277, 308 (2) 1884 13 Q.B. 339, 342 (3) 1900 A.C. 333, 335. |