HKSAR v. Li Qingbin (李慶彬)

Press Summary (English)

Press Summary (Chinese)

FACC NO. 7 OF 2024

[2025] HKCFA 9

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2024 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 372 OF 2019)

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J U D G M E N T

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Chief Justice Cheung:

1.I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

2.In this appeal, it falls to the Court to consider the essential elements of two offences under the Immigration Ordinance (“IO”).[1] The first is the offence of making a false statement or representation to an immigration officer (“the representation offence”) contrary to section 42(1)(a) (“IO s 42(1)(a)”).  And the second is using a false travel document (“the document offence”) contrary to section 42(2)(b) (“IO s 42(2)(b)”).[2]

A.     The charges

3.The appellant, who was a Mainland resident, presented himself for immigration clearance for entry into Hong Kong at the Lok Ma Chau Control Point on 19 September 2018.  He used his Mainland passport (E30914590) which stated his date of birth as 10 September 1978 (the “978 DOB”).  He was, however refused entry because on being examined, he failed to dispel the doubts of immigration officers as to the purpose of his visit. 

4.A few months later, on 3 May 2019, he sought to enter Hong Kong via the automated immigration clearance facilities at the West Kowloon Express Rail Link Station, using his Mainland Exit-Entry Permit (“EEP”) (C76036774) which stated his date of birth as 4 July 1973 (the “773 DOB”).  However, the system detected an irregularity, matching his facial image to that of a person who had been refused entry when using his aforesaid Mainland passport containing the 978 DOB.  

5.The appellant was consequently subjected to a secondary examination by immigration officers.  In a cautioned statement, he admitted that the 773 DOB and 978 DOB were both wrong and stated that he was actually born in 1978 on the 9^th day of the tenth month according to the lunar calendar, being 9 November 1978 by the Gregorian Calendar. 

6.He explained that he was born in a rural area where no official records of his birth were available. The wrong dates of birth in his travel documents were the result of a series of errors by various Mainland officials including census enumerators and those compiling household registration records, complicated by his moving from rural to urban residences and maintaining dual registrations.  Although his mother had sought to have the mistakes rectified, the errors were not eliminated and his own efforts to have corrections made were also unsuccessful.[3]

7.On 6 May 2019, four charges were laid against the appellant.  Charges 1 and 2 related to his attempted entry on 19 September 2018.  Charge 1 alleged that he had committed the document offence by using his Mainland passport containing the 978 DOB which he knew to be false; and Charge 2 alleged that he had committed the representation offence, knowingly making a false representation regarding his date of birth.  Charges 3 and 4 related to his use on 3 May 2019 of the EEP containing the false 773 DOB and the representations made to the immigration officers, alleging that this conduct constituted the document and representation offences.

8.While the charges laid were confined to those two incidents, the evidence revealed that the appellant had in fact made numerous crossings, entering and leaving the HKSAR using travel documents bearing incorrect dates of birth.  Thus, between 17 August 2014 and 5 January 2018, he had cleared immigration 18 times using EEP (W80719725) which bore the 978 DOB.  Then in February and April 2018, he had cleared immigration on four occasions using his EEP (C76036774) bearing the 773 DOB.  On 19 September 2018, using his passport (E30914590) which bore the 978 DOB, he was refused entry, as mentioned above.  He then reverted to using his EEP (C76036774) and cleared immigration on six occasions in November 2018 and in February and March 2019 without any irregularity being detected.  He was eventually stopped on 3 May 2019 while using that EEP.  He had therefore cleared immigration a total of 28 times using a travel document bearing a date of birth which he knew to be inaccurate.

B.     The proceedings below

9.The appellant was convicted after trial at the Shatin Magistrates’ Court before Ms Lydia Lau, Deputy Magistrate, and sentenced to a total of six months’ imprisonment.[4] It appears that the magistrate considered it a possible defence for the defendant to provide “a reasonable excuse to explain why he used the documents concerned”.[5] However, she held that difficulties with getting his documents corrected did not amount to a reasonable excuse.[6]  She concluded that: “The Defendant was fully aware that the dates of birth were wrong, but still used the documents concerned... He adopted the wrong dates of birth on the documents as his own personal particulars. Such acts already constituted making a false representation.”[7]

10.The appeal came before A Wong J.[8]  The appellant’s application for bail pending appeal having been refused[9] he had served his sentence by the time of the hearing.  His appeal against sentence was therefore not pursued. 

11.He was unrepresented (as he had been before the magistrate) and his main submissions were that he had been frank and had made no false representations; that his documents were genuine and valid; that the mistakes were those of the Mainland authorities and not his own; and that circumstances in rural areas, where most people were born at home with no official records, ought to be taken into account in the context of reasonable excuse.[10]

12.Those arguments were rejected.  The Judge endorsed the magistrate’s view that presentation of a document containing false information amounted to making a false representation to the immigration officer.[11]  He pointed out that the appellant admitted that the dates of birth were incorrect and that he knew of their falsity.[12] The Judge also held that a date of birth is a material particular since it is an important matter relied on by immigration authorities to ascertain the identity of the holder of a travel document.[13]  His Lordship rejected the appellant’s argument that he had believed the documents to be genuine noting that he was admittedly fully aware that they contained incorrect dates of birth.[14]  His defence of reasonable excuse was also rejected.[15]

C.     Leave to appeal

13.After the Judge refused certification,[16] leave to appeal was granted by the Appeal Committee[17] in respect of five certified questions formulated as follows:

Is the principle of automendacity discussed in HKSAR v Chan Kam Ching(2022) 25 HKCFAR 48 applicable in respect of a charge of using a false travel document under Section 42(2)(b) of the Immigration Ordinance Cap 115; (Question 1)

In considering if a traveller’s use of a travel document with an inaccurate date of birth constituted a contravention of Section 42(1)(a) or 42(2)(b) of the Immigration Ordinance Cap 115, especially in the context of verification by automated means under Section 4A of the Ordinance, whether the Court should pay regard to his contemporaneous explanation to immigration officer or assistant or any other officer of the Immigration Department that the date of birth recorded on the travel document was incorrect; (Question 2)

When a travel document issued by an official authority contained an inaccurate date of birth and it could not be rectified due to lack of official register of date of birth, whether the date of birth is a false material particular and the use of such travel document constituted offences under Section 42(1)(a) and/or 42(2)(b) of the Immigration Ordinance Cap 115; (Question 3)

When considering whether a traveller has the mens rea for the offences under Section 42(1)(a) and/or 42(2)(b) of the Immigration Ordinance Cap 115 in the scenario set out in Question (3), does the Court need to find that the traveller knew that the date of birth was a material particular when he used the travel document; (Question 4)

If the answer to Question (4) is “No”, is there an implied defence of reasonable excuse for the offences under Section 42(1)(a) and/or 42(2)(b) of the Immigration Ordinance Cap 115? (Question 5)

14.These questions raise issues concerning the element of falsity (Q1 and Q3); the mens rea requirement (Q4); a possible defence of reasonable excuse (Q5); and the court’s approach to evidence in a case involving use of both automated means and subsequent examination by an immigration officer (Q2). 

D.     The main provisions

15.The main offence-creating provisions materially state as follows:

IO s 42(1)(a)

(1)     Any person who makes or causes to be made—

(a)     to an immigration officer, immigration assistant or any other person lawfully acting under or in the execution of Part IB, II, III, IV or VIIC of this Ordinance; ...

any statement or representation which he knows to be false or does not believe to be true shall be guilty of an offence.

IO s 42(2)(b)

(2)     Any person who—

(b)     uses for the purposes of Part IB, II, III, IV or VIIC of this Ordinance any forged, false or unlawfully obtained or altered travel document, ... entry permit, re-entry permit, ... or other document;

shall be guilty of an offence.

IO s 42(5)

In this section, false ... means false in a material particular and forged ... has the meaning assigned to that term by Part IX of the Crimes Ordinance (Cap 200).

16.The appellant was charged in each case with making a falserepresentation and using a falsetravel document.  At the core of those offences is the element of falsity.  Before turning to each of the five certified questions, it is appropriate to consider two issues of construction bearing on the element of falsity.

D.1   Does actual falsity have to be proved?

17.The first issue relates to the actus reus of the representation offence.  Under IO s 42(1)(a), it is an offence to make to an immigration officer “any statement or representation which [a person] knows to be false or does not believe to be true”.  Does this mean that, quite apart from the maker’s knowledge or belief, the statement or representation constituting the actus reus must in fact be false? In my view, the answer is “Yes”. 

18.As a matter of language, a person can only be said to know that a statement is false if it is in fact false.  Construed purposively, the same requirement of objective falsity ought equally to apply where a person does not know that the statement is false but does not believe it to be true.  The statement’s objective falsity remains a requirement of the actus reus on either variant of the mens rea.The statutory intention cannot plausibly have been to penalise a person for making a statement which is not shown to be false in a material particular and which accordingly could be true.  It serves no discernible purpose to impose criminal liability simply because of a belief held by the statement’s maker, regardless of the truth or falsity of the statement made.  I return to this issue at Section K.2 of this judgment when considering the respondent’s proposed concessions.

D.2   The requirement of falsity in a material particular

19.As noted above, at the core of the offences charged is the requirement that the representation and the document must be “false”.  IO s 42(5) stipulates that in this context, “false ... means false in a material particular”.  The second issue of construction concerns the meaning and effect of those words: When is a false particular “material”?  (A separate issue regarding falsity and “automendacity” is addressed in Question 1 and dealt with in Section E below).

20.IO s 42(5) makes it clear that merely making a statement or using a document containing a particular that is inaccurate does not mean that such statement or document is “false” so as to constitute an offence.  It is part of the offence’s actus reus that the falsity must relate to a particular which is “material”.  How then is such materiality determined?  Material to what?  The answer is provided by construing IO s 42(5) in the context of the offence-creating provisions. 

21.Hence, the representation offence is committed by someone making a “false” statement – ie, a statement “false in a material particular” – to an immigration officer “lawfully acting under or in the execution of Part IB, II, III, IV or VIIC of [the IO]”. Similarly, the document offence is committed by using a false document “for the purposes of” the same Parts of the IO.  The inescapable construction is that the false particular must be material to immigration officers carrying out duties or exercising powers and functions in those areas of statutory regulation.

22.Thus, for instance, IO Part IB deals with establishing a person’s status as a permanent resident and IO s 2AA lists documents needed for that purpose.  One therefore asks, in relation to a false particular contained in such a document, whether such falsity is material to that statutory function.

23.Of immediate relevance are IO Parts II and III which concern Immigration Procedure and Control of Immigration and provide a framework for immigration clearance.  Thus, IO s 4 empowers an immigration officer to examine persons on their arrival or landing in or prior to their departure from Hong Kong; and IO ss 7 and 11 provide generally for control over entry and conditions of stay regarding persons not having the right of abode or a right to land.  The materiality of false particulars will depend on how such particulars bear on the exercise of such immigration control.[18]

24.It will be apparent from the foregoing that the materiality of any false particular is necessarily case-specific, depending on what the particular consists of, the nature of its falsity and how it relates to the relevant statutory function.  Unless such materiality is obvious, it must be established as a matter of evidence.  I return in Section J of this judgment to consider materiality and whether the false dates of birth furnished by the appellant rendered his representations to the immigration officers and the documents used false in a material particular. 

25.Against this background, I turn now to the five certified questions.  I shall deal first with Questions 1 and 3 concerning falsity; followed by Question 4 on mens rea; then Question 5 regarding a reasonable excuse defence; and finally with Question 2, on cases involving both automated means and examination by an immigration officer.

E.     Question 1

26.Question 1 asks:   

Is the principle of automendacity discussed in HKSAR v Chan Kam Ching (2022) 25 HKCFAR 48 applicable in respect of a charge of using a false travel document under Section 42(2)(b) of the Immigration Ordinance Cap 115?

27.In HKSAR v Chan Kam Ching,[19]the Court was concerned with forgery-related offences under the Crimes Ordinance (“CO”).[20]   The appellant was charged inter alia under CO s 73 with using an instrument (a sale and purchase agreement) which he knew or believed to be false, with the intention of inducing a finance company to accept it as genuine, and consequently to grant a mortgage loan on the strength of the putative underlying transaction, to the finance company’s prejudice. 

28.CO s 69(a)(vii) relevantly defined falsity for the purposes of CO s 73, stating:

“For the purpose of this Part - (a) an instrument is false if it purports to have been ... (vii) made or altered on a date on which or place at which or otherwise in circumstances in which it was not in fact made or altered...”

29.The argument in Chan Kam Ching turned on the true construction of CO s 69(a)(vii).  The contest was between a wide construction which treated an instrument as false if it contained a lie about some extraneous fact or circumstance, such as the existence or date of an underlying transaction on the one hand; and a construction reflecting the traditional requirement in the law of forgery that the document must “tell a lie about itself” – the “automendacity principle” – on the other.[21]

30.Chan Kam Ching held in favour of the latter construction:

“A purposive and contextual construction ... is needed. The statutory purpose is to target the perpetration of frauds using instruments of spurious authenticity, documents which tell lies about themselves. That purpose is implemented by the statutory scheme's focus on the making, alteration, copying and use of such instruments intending others to accept them as genuine. The core emphasis is on what the instruments purport to convey as to the circumstances of their making or alteration. Section 69(a)(vii) does not create an exception. The words at the end of that provision should be construed ejusdem generis with the preceding words; and s 69(a)(vii) should be construed ejusdem generis with the other sub-paragraphs of s 69(a), leading to the conclusion that sub-paragraph (vii), like the other provisions, is directed against lies which relate to the circumstances of the document's making or alteration. Forgery offences are centred on the bogus qualities of the instrument itself, and not on the truth or falsity of representations made as part of its contents assessed against any extraneous facts which may expressly or impliedly be referred to.”[22]

31.Question 1 raises the issue whether the falsity required for the purposes of the document offence under IO s 42(2)(b) should similarly be construed as including a requirement that the document must tell a lie about itself and not merely contain a false statement, such as regarding the holder’s date of birth.  In other words, must IO s 42(2)(b) effectively be construed so as to equate “falsity” with “forgery” in respect of a travel document? 

32.Mr David Leung SC,[23] for the appellant, sought to argue that the automendacity principle[24] should be adopted on the basis of an ejusdem generis construction of the phrase “any forged, false or unlawfully obtained or altered [travel document]” in IO s 42(2)(b).  With respect, that argument is unsustainable.

33.By that phrase, IO s 42(2)(b) creates several variants of the document offence.  It caters for different factual bases for impugning the document used: it may have been forged, or unlawfully obtained or altered, or it may contain materially false particulars.  

34.If the appellant had been charged with using a forged passport or EEP, then the automendacity principle, as explained in Chan Kam Ching,would apply.  The prosecution would have had to prove that the document was of spurious authenticity and not what it purported to be.  However, he was not charged with using a forged document but with “using a false travel document”.   

35.As we have seen, “false” is specified by IO s 42(5) to mean “false in a material particular”.  This militates strongly against the automendacity approach since IO s 42(5) does not require the falsity to relate to inauthenticity or spuriousness of the document itself but only to the falsity of a material particular which it contains.

36.There is no room for an ejusdem generis construction to the contrary.  As pointed out in HKSAR v Chan Chun Kit,[25] such a construction results in cutting down a general expression where that expression occurs with other words which together form a single genus, giving a meaning to that expression which is limited by that genus.

37.IO s 42(5) expressly provides that “false” and “forged” are to be given different meanings.  They are not to be treated as concepts within the same genus.  Thus, the width of the word “false” is not to be cut down by the scope of the word “forged”.  IO s 42(5) directs us to look to Part IX of the CO for the meaning of “forged” – which would entail adopting an automendacity approach – and to look elsewhere for the meaning of “false”: asking whether the document is “false in a material particular”. 

38.The answer to Question 1 is thus plainly “No”.

F.     Question 3

39.Question 3 is formulated as follows:

When a travel document issued by an official authority contained an inaccurate date of birth and it could not be rectified due to lack of official register of date of birth, whether the date of birth is a false material particular and the use of such travel document constituted offences under Section 42(1)(a) and/or 42(2)(b) of the Immigration Ordinance Cap 115?

40.The issue raised is whether inability to get an inaccurate date of birth rectified by the issuing authorities in an outside jurisdiction may affect characterisation of that wrong date of birth as a false material particular for the purposes of the representation or document offences. 

41.As discussed in Section D.2 above, the materiality or otherwise of a false particular depends on how it may affect the carrying out of duties, powers and functions allotted to immigration officers for the statutory purposes set out in the relevant Parts of the IO. In the present context, the materiality of the false dates of birth depends on how such particulars bear on issues arising in relation to immigration control.

42.Thus, it is the potential effect of a false particular on the operational functions of the immigration authorities in Hong Kong that determines its materiality.  Where such materiality is established, the position is not altered by explaining that circumstances outside Hong Kong led irremediably to such falsity being inserted in the travel document. 

43.Such an explanation may be relevant to mens rea or to mitigation as touched on in Section I below. But apart from those considerations, the answer to Question 3 is “Yes”, if the materiality of the incorrect date of birth is established, rendering the document false in a material particular, that remains the document’s status notwithstanding any difficulties that may have been posed by the issuing authorities.

G.     Question 4

44.The query raised by Question 4 is as follows:

When considering whether a traveller has the mens rea for the offences under Section 42(1)(a) and/or 42(2)(b) of the Immigration Ordinance Cap 115 in the scenario set out in Question (3), does the Court need to find that the traveller knew that the date of birth was a material particular when he used the travel document?

45.In my view, the answer to Question 4 is “No”.  The prosecution is not required to prove, and the court is not required to find, that a defendant is aware of the materiality of the false particular contained in his representation or document.  It must be proved that the particular is in fact false and the defendant knows that it is false or does not believe it to be true.  But whether such falsity is “material” to immigration officers carrying out their duties and exercising their powers under the IO involves an objective evaluation by the immigration authorities and ultimately, on any review, by the court.  That evaluative judgment rests in the first instance on the immigration authorities’ assessment as to what effective immigration control requires, in the light of their expertise and experience of processing travellers from around the world. 

46.Promoting effective immigration control is self-evidently the statutory purpose of the offences under consideration.  It would be antithetical to that statutory purpose to relieve a traveller of liability under the IO provisions simply because he or she is subjectively ignorant of how the false particular proffered is or could be operationally material to effective immigration control.

47.One point of construction should be noticed in this context.  Reading IO s 42(1)(a) and IO s 42(5) together, it might be suggested that the element of materiality attracts a mens rea requirement.  Thus, IO s 42(1)(a) makes it an offence to make a “statement or representation which [a person] knows to be false or does not believe to be true”.  Since IO s 42(5) defines “false” to mean “false in a material particular”, it might be argued that the words “knows to be false” should be construed to mean “knows to be false in a material particular”, hence attaching a requirement of knowledge to the element of materiality.

48.That construction cannot be accepted.  The above-mentioned phrase from IO s 42(1)(a) must be taken as a whole.  It prescribes that the offence is committed where the person either knows that the representation is false or does not believe it to be true.  It therefore addresses the mens rea requirement which embraces the defendant’s knowledge or belief.  The definition of falsity in IO s 42(5) cannot be read into that IO s 42(1)(a) phrase since that definition does not engage with the words “does not believe to be true”.  Thus, while the IO s 42(1)(a) phrase deals with the alternative knowledge or belief mens rea elements,IO s 42(5) serves the distinct purpose of defining the actus reus element of falsity and, in that context, introduces the requirement of materiality.  Thus, this point of construction does not lead to the conclusion that the actus reus element of materiality must be accompanied by knowledge or by any other form of mens rea.

H.     Question 5

49.Question 5 follows on Question 4 and asks:

If the answer to Question (4) is “No”, is there an implied defence of reasonable excuse for the offences under Section 42(1)(a) and/or 42(2)(b) of the Immigration Ordinance Cap 115?

50.The offence-creating provisions certainly do not expressly cater for such a defence.  And where the legislative intent is to exclude liability on the basis of reasonable excuse, the IO expressly so provides. 

51.Thus, IO s 44 lists numerous contraventions that constitute offences only if committed without reasonable excuse.[26]  Sometimes, the defence is spelt out in detail, as for instance, in IO s 17C which states:

“(3) Any person who fails to produce proof of his identity for inspection as required by subsection (2) commits an offence and is liable on conviction to a fine at level 2: Provided that it shall be a defence in proceedings for an offence under this subsection for the person charged to prove that he had reasonable excuse for failing to produce proof of identity.”

52.IO s 17C(4) goes on to specify circumstances which would constitute such a defence:

“... it shall be reasonable excuse for the purposes of subsection (3) if at the date of the alleged offence the defendant had no proof of identity with him because all proof of identity of which he was the holder ... had been lost or destroyed and — (a) he had reported the loss or destruction to a police officer at a police station or, in the case of an identity card, to a registration officer; or (b) he had had no opportunity so to report the loss or destruction.”

53.Closer to home, in section 42 itself, IO s 42(2)(a)(ii) makes it an offence for a person to transfer to another “without reasonable excuse” any travel document, etc, issued, kept or made under or for the purposes of the above-mentioned Parts of the IO.  In the context of the aforesaid express provisions, there is little room for implying a reasonable excuse defence in respect of the representation and document offences. 

54.Mr Leung SC sought to argue for such an implication[27] by putting forward the second alternative mental state discussed in Kulemesin v HKSAR.[28]  That argument is misplaced.  Kulemesin addresses the position where the offence-creating provisions are silent or ambiguous as to the intended mental requirements of the offence and charts a course based on common law authority for ascertaining the legislative intent appropriate for filling the gap.[29]  Taking the strong presumption in favour of mens rea as the starting-point, the Court considered when that presumption might be displaced and identified five alternative mental states spanning full mens rea to strict liability, that might reflect the legislative intention.[30]  That exercise has no place in the present case.  The central mens rea elements of the representation and document offences are not in doubt and there is no need to attempt to locate them on a spectrum of alternative possibilities.  Particular aspects of the mens rea may require construction of the provisions in the usual way, but this does not engage issues addressed in Kulemesin.

I.     Question 2

55.Question 2 asks:

In considering if a traveller’s use of a travel document with an inaccurate date of birth constituted a contravention of Section 42(1)(a) or 42(2)(b) of the Immigration Ordinance Cap 115, especially in the context of verification by automated means under Section 4A of the Ordinance, whether the Court should pay regard to his contemporaneous explanation to immigration officer or assistant or any other officer of the Immigration Department that the date of birth recorded on the travel document was incorrect?

56.This Question invites consideration of how the representation and document offences apply where a person uses the automated clearance facilities and then makes disclosures to immigration officers regarding the inaccuracy of the date of birth shown on his or her travel document.

57.These are matters which arise in the context of immigration control.  By IO s 7, persons are prohibited from landing in Hong Kong without the permission of an immigration officer unless they enjoy the right of abode or otherwise have a right to land.  IO s 11 provides that such permission may be granted subject to imposing a limit and conditions of stay.  For the purposes, inter alia, of deciding whether to grant permission, IO s 4 authorises immigration officers to examine any person on arrival in, or prior to departure from, Hong Kong.

58.To cope with the huge volume of travellers requiring immigration clearance,[31] facilities have been installed to automate the aforesaid process.  IO s 4A provides:

(1)     For the purposes of this Ordinance, the Director may provide automated means—

(a)     to verify the identity of a person to whom this subsection applies;

(b)     to give permission to land in Hong Kong to any person referred to in paragraph (a) who by virtue of section 7(1) may not land in Hong Kong without the permission of an immigration officer or immigration assistant; and

(c)     to impose a limit of stay and such other conditions of stay, if permission is given to a person to land in Hong Kong under paragraph (b).

(2)     Subsection (1) applies to a person who—

(a)     is approved by the Director to use the automated means for the purposes set out in subsection (1); and

(b)     voluntarily submits himself to have his identity verified by the automated means—

(i)     on his arrival or landing in Hong Kong; or

(ii)     prior to his departure from Hong Kong.

59.The automated process therefore seeks to eliminate or dramatically reduce the time-consuming process of travellers being individually examined by immigration officers.  IO s 4B deems permission to land and any limit of stay or other conditions of stay obtained or imposed by automated means to be the equivalent of the same issued under IO s 11.  There is a fall-back provision providing for examination of a person who used the automated facilities should any queries arise.  IO s 4C provides:

“Notwithstanding that a person has submitted himself voluntarily for verification of identity by an automated means provided under section 4A, any immigration officer or immigration assistant may examine the person under section 4(1)(a).”

60.Since IO ss 4 and 4A, and IO ss 7 and 11, are to be found in IO Parts II and III respectively, they come within the purview of the statutory functions covered by IO s 42(1)(a) and IO s 42(2)(b).  How then are the representation and document offences applicable in the automated context? 

61.To take the representation offence first, IO s 42(1)(a) makes it an offence for any person to make or cause to be made to an immigration officer a statement or representation which he knows to be false or does not believe to be true.  Where a traveller is processed entirely via the automated facilities, no statement or representation is ever made, at least directly or in person, to an immigration officer. Thus, IO s 42(1)(a) would not apply.  In cases like the present, the automated system may detect an irregularity and alert immigration officers monitoring the system, but that would not, in my view, constitute a representation offence involving the making of a statement or representation by the traveller to an immigration officer. 

62.In practice, the inapplicability of IO s 42(1)(a) is unlikely to matter.   Where an irregularity is detected as in the present case, an examination by immigration officers under IO s 4C is likely to ensue, in which case IO s 42(1)(a) comes into play, depending on what representations may expressly or impliedly then be made to such officers. 

63.Secondly, if, as in the present case, the irregularity picked up by the system involves use of a document which is false in a material particular, a document offence is likely to have been committed under IO s 42(2)(b) which does not require any personal communication with an immigration officer. 

64.What then happens if, as a result of the automated system’s alerts, the person is subjected to examination by immigration officers, and when interviewed, he or she admits the inaccuracy of the date of birth shown in the travel document and explains that this occurred because of defects in the issuing authority’s practices?

65.In my view, the person’s willingness, upon being intercepted, to admit the inaccuracy and to proffer an explanation for that inaccuracy may be an important matter for mitigation, but it does not negate the fact that such person has used a false travel document for the purposes of securing entry into Hong Kong.  The candour and explanation only arose, as it were, after being intercepted.

66.It may very well be different where the person has not utilised the automated facilities but queued up to see the immigration officer and volunteered information as to the existence of a false particular in the travel document being proffered together with an explanation for the presence of that false particular.  In such a case, it is likely that any mens rea for the purposes of the representation or document offences would be missing: there would be no intention to make a statement or use a document containing a false particular.  Indeed, there may not even be any actus reus as the person’s conduct may not amount to making a representation or using a travel document containing a false particular.

67.I would accordingly answer Question 2 as follows.  The Court should obviously pay regard to a traveller’s explanation regarding use of a travel document which is false in a material particular.  The legal consequences of such explanation – in terms of criminal liability or mitigation – will depend on the facts and on application of the relevant IO provisions.

J.     Material falsity in the present case

68.The appellant made statements or representations to immigration officers and used his passport and EEP in a manner prima facie constituting the actus reus of each of the two offences, admittedly knowing in each case, that the 978 DOB and 773 DOB particulars they contained were false.

69.The only issue calling for further consideration is the actus reus requirement of materiality.  Were the false dates of birth material to the execution by immigration officers of their duties and powers in connection with immigration control under IO Parts II and III?

70.As noted in Section D.2 above, the materiality of any false particular is necessarily case-specific, depending on what the particular consists of, the nature of its falsity and how it relates to the relevant statutory function.  It was also pointed out that unless such materiality is obvious, it has to be established as a matter of evidence.  In the present case, the false particulars involved the appellant’s dates of birth.  In my view, a person’s date of birth is self-evidently a basic attribute of that person’s identity and, as such, is obviously material to the exercise of immigration control.  The magistrate and the Judge plainly took this to be the case.

71.Accordingly, evidence was not strictly required to establish materiality.  However, with the leave of the Court, the respondent filed the Affirmation of Mr Cheung Yau Leung, Chief Immigration Officer,[32] which helpfully deals extensively with the issue and makes a cogent case for such materiality which may be summarised as follows.    

72.Mr Cheung explains that a basic function of immigration control involves the officer seeking to establish the identity of the person applying for permission to enter.  This is reflected in IO s 2’s definition of “travel document” as a document “establishing to the satisfaction of an immigration officer ... the identity and nationality, domicile or place of permanent residence of the holder.”  Similarly, IO s 4A(1)(a) authorises use of automated means inter alia “to verify the identity of a person” using such means.  Determining a traveller’s identity is necessary for ascertaining, for instance, who has a right of abode and who are apparently bona fide visitors, as well as for intercepting wanted criminals and denying entry to persons deemed undesirable.[33]

73.The practices adopted in the HKSAR reflect international standards and recommendations for clearance formalities.  Evidence has been filed setting out extracts from various publications issued by the International Civil Aviation Organisation (“ICAO”).[34] They show that it is generally recognised that identity is of basic importance and aimed at countering identity fraud which enables criminal activities ranging from organised crime to terrorism.  The ICAO defines identity to mean “The collective set of distinct personal and physical features, data and qualities that enable a person to be definitively identified from others.”[35] 

74.A person’s date of birth, along with one’s name and place of birth, is regarded as a core identity attribute and a foundational component in the identification process:

“A person’s identity is defined by their combined biometric and biographic attributes that apply uniquely to that person. Identity establishment is the process of verifying and associating identity attributes with a particular person, which can then be enrolled into an identity management system. Identity is commonly established in a relatively linear way, with a foundational document or record (such as a birth certificate) forming the first link in an identity chain....”[36]

75.While the materiality of a person’s date of birth to immigration clearance under the IO may properly be viewed as obvious, the evidence filed convincingly explains in detail why that is so.  Combined with other identity attributes, a date of birth may anchor the entire process of verification, demonstrating consistent use of the identity over time or falsifying a claimed identity. 

76.It follows, in my view, that all the actus reus and mens rea requirements of the offences charged were duly established against the appellant.

K.     The respondent’s concessions

77.It was therefore surprising to see from its Written Case that the respondent was proposing to concede the appeal (i) in relation to the appellant’s convictions under IO s 42(2)(b); and (ii) his convictions under IO s 42(1)(a) in so far as they rested on the allegation that he knew the representations made were false (ie, under the “knowledge limb”).  The respondent was seeking to uphold the convictions only in respect of the charges under IO s 42(1)(a) based on the allegation that the appellant did not believe the particulars as to his date of birth to be true (ie, under the “belief limb”). 

78.Prior to the hearing, the Court informed the parties that notwithstanding those proposed concessions, it would wish to hear argument as to whether those convictions should nevertheless be sustained.

79.The intended concessions were put forward on two grounds, the first being based on the hearsay doctrine and the second, based on a specific construction of IO s 42(1)(a), plus the hearsay argument.  I shall deal first with hearsay in relation to the document offence under IO s 42(2)(b).

K.1   Proposed concession based on the hearsay rule

80.As noted above, IO s 42(2)(b) makes it an offence to use “any ... false ... travel document”. Plainly, as part of the actus reus,the document must in fact be false.  That was the respondent’s premise and is not controversial.  However, the respondent went on to submit that the appellant’s conviction cannot stand because “the only evidence that can prove the falsity of the appellant’s dates of birth comes from his admission which was inadmissible hearsay evidence”.[37]

81.Elaborating, the respondent stated:

“The only evidence that can prove the falsity of the dates of birth in the appellant’s Passport and EEP comes from his admissions. However, his admission as to his own genuine date of birth is inadmissible hearsay evidence because he could not have had independent memory of his true date of birth, and he must have only been told of the same by others...

As such, it is accepted that for the purpose of the s 42(2)(b) offence, as one of the elements required to be proved is that the dates of birth in the Passport and the EEP used in Charges 1 and 3 respectively were ‘false in a material particular’ as a matter of fact which the respondent accepts cannot be proved, the appellant’s convictions on Charges 1 and 3 cannot stand and should be quashed.”[38]

82.With respect, that reasoning is unsound.  The respondent wrongly focuses on the appellant’s avowed date of birth as the relevant fact and considers it necessary for the prosecution to prove the truth of that fact.  Taking the view that such proof depends on inadmissible hearsay as to when the appellant was born, the respondent concludes that the offence under IO s 42(2)(b) cannot be established.  But the appellant’s avowed birth date was not a fact in issue.  Proof of that date was not required to prove the IO s 42(2)(b) offence.  The question for the court was whether the dates of birth stated in each travel document, ie, the 978 DOB and the 773 DOB, were false so as to render each document false in a material particular.  Evidence of their falsity was supplied by the appellant’s admission that they were indeed false.  It was not necessary for the prosecution to prove some other date as the date when he was in fact born.  Thus, the hearsay rule regarding the appellant’s actual date of birth was not engaged.

83.Furthermore, the respondent overlooks the fact that the appellant admitted all the dates concerned.  Even if the avowed actual date of birth was relevant and even if the hearsay doctrine was engaged, the appellant’s admission regarding that date would have been admissible on the basis of the common law exception to the hearsay rule in respect of admissions against interest, as noted by this Court in HKSAR v Zhou Limei.[39] The hearsay rule therefore did not stand in the way of sustaining the conviction.    

K.2   Concession based on construction of IO s 42(1)(a) and application of the hearsay rule

84.As explained in Section D.1 above, on the true construction of IO s 42(1)(a), objective falsity of the relevant particular is a requirement of the actus reus on both variants of the mens rea, ie, whether the representation offence is charged on the basis of the knowledge or the belief limb.

85.For the purposes of the IO s 42(1)(a) concessions, the respondent postulated a different construction. It sought to differentiate between the two mens rea limbs of the offence and submitted that objective falsity of the relevant particular only needed to be proved under the knowledge limb.  It follows, so the respondent argued, that conviction under the knowledge limb of IO s 42(1)(a) could not be sustained since the hearsay rule precluded proof of the appellant’s actual date of birth – the same hearsay argument as discussed in relation to IO s 42(2)(b).  Since no such falsity needs to be established under the belief limb of IO s 42(1)(a), the respondent submitted that there is no hearsay barrier to sustaining the convictions thereunder.

86.The respondent’s differentiating construction cannot be accepted.   For the reasons given in Section D.1 above, objective falsity must be proved in all IO s 42(1)(a) cases, not just those prosecuted under the knowledge limb.  Moreover, as explained above in relation to IO s 42(2)(b), the hearsay rule has no application (and would give way to a common law exception even if it did apply).

87.While Mr Raymond Cheng SADPP acting for the respondent,[40] did not expressly seek to withdraw the respondent’s concessions, it is fair to say that he acknowledged the shortcomings in the underlying reasoning.

K.3   The authorities relied by the respondent

88.The respondent had relied on two first instance decisions which do appear to provide support for the differentiating construction and application of the hearsay rule. 

89.The first is Queen v Hussain Sharif,[41]where, on a charge under IO s 42(1)(a), the magistrate found that the defendant had on four occasions represented that he was born in 1951 in Gujarat, Pakistan but in a later interview, under caution, stated that he was born on 6 December 1953 in Lahore, Pakistan.  The magistrate “found that this latter statement was true” and, on that basis, convicted the defendant for making the statements during immigration clearance not believing them to be true.

90.On appeal, Leonard J stated:

“The perfected grounds of appeal contain two main grounds. The first is that in the absence of documentary proof a person’s knowledge and belief as to his date and place of birth is hearsay. That is so. Indeed, even a birth certificate only recites what someone has told the Registrar of Births. If, however, a person is told by his mother where and when he was born and he believes it, and if he tells an Immigration Officer that he was born on another date in another place, he is clearly saying something he does not believe to be true. S 42(l)(a) of the Immigration Ordinance Cap. 115 makes it an offence to make a statement or representation ‘which he knows to be false or does not believe to be true’.”[42]

91.Thus, Leonard J held that even if proof of the defendant’s actual birthday was only supported by inadmissible hearsay, that difficulty did not stand in the way of a conviction under the belief limb.  By confessing to his belief regarding his actual date of birth, he provided proof that he did not believe the truth of his earlier representations.  This implies that even if proof of his true date of birth was required under the knowledge limb, such proof was not required under the belief limb, adopting what I have called the differentiating construction on the basis of the two mens rea limbs. 

92.For the reasons developed above, I do not accept that differentiating construction.  Moreover, it was, with respect, misdirected to base conviction on the apparent falsity merely of the defendant’s avowed belief, regardless of the truth or falsity of the statements made. 

93.Very similar questions arose in connection with Mackintosh J’s judgment in HKSAR v Ma Michael,[43] another case brought under IO s 42(1)(a).    There, the defendant had dual Australian and Thai nationality and two genuine passports which stated different names and dates and places of birth.  The Judge held that the knowledge limb implicitly required proof of actual falsity: “... if someone knows that such a representation is false, it follows that the representation is in fact false; and if the prosecution can prove such knowledge, it would inevitably prove that it was false.”  I agree. 

94.However his Lordship went on to say:

“On the other hand, if someone believes a representation he makes to be false, whether or not it is false is immaterial: he has told a lie about it by representing to be true that which he did not believe to be true; and in those circumstances, the actual falsity of the representation is not an element of the charge which the prosecution has to prove.”[44]

“It should be emphasised that the issue here is as to the appellant’s belief, not his knowledge. The prosecution was not seeking to prove when or where the accused was in fact born, only that he did not believe that he had been born in Nong Khai on 3rd October 1966. They were able to do so by reference to his clear admission in interview that he was born in Vientiane, Laos on 3rd September 1967, as well as aspects of his evidence, which established what his belief was.”[45] (Italics supplied)

95.As indicated in Section D.1 above, I cannot accept that this construction of IO s 42(1)(a) reflects the statutory intent.  It serves no purpose to impose criminal punishment simply because of a belief held by the statement’s maker, regardless of the truth or falsity of the statement made, and thus where the statement could in fact be true.  

96.The actus reus of the offence involves the making of a statement which is false in a material particular, such materiality relating to the immigration officer’s statutory immigration control functions.  The relevant facts in Ma Michael were the statements contained in the defendant’s travel documents used concerning his place and date of birth.  Were those statements in respect of his biographical details in fact false in a material particular?  If no such falsity could be shown, what he personally may have believed, rightly or wrongly, to be his actual place and date of birth was not material to immigration control. 

97.I therefore conclude that the approach adopted in these two decisions is flawed and should not be followed.  The concessions made by the respondent, relying in part on those cases, are not soundly based and cannot be accepted by the Court.

L.     Disposition

98.For the foregoing reasons, I would dismiss this appeal. 

99.I would direct that the appellant’s costs be taxed in accordance with the Legal Aid Regulations.

Mr Justice Fok PJ:

100.I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Lam PJ:

101.I have the benefit of reading the judgment of Mr Justice Ribeiro PJ in draft and I agree that this appeal should be dismissed.

102.When the appellant sought leave to appeal and acted on his own, he apparently laboured under the belief that immigration control should only be concerned about whether the travel documents he used were authentic ones issued by the relevant authorities in the mainland. That was a misconception because the immigration officers also had a duty to ensure that foreigners with doubtful identity should not be admitted into Hong Kong. 

103.The additional evidence placed before us explained the potential materiality of a date of birth contained in a travel document and its relevance in establishing the identity of a foreign traveller notwithstanding the use of modern technology in fingerprint templates and facial recognition for identification purposes in immigration control.

104.This is of particular importance in the present context as the appellant is not a person who has the right of abode in Hong Kong. He had, at the time of the relevant incidents, two different travel documents bearing different dates of birth and used them for seeking permission to enter Hong Kong on different occasions. Against such background, the immigration officers had legitimate concerns as to his true identity and whether his use of another identity (bearing a different date of birth) in May 2019 was to conceal the fact that he had previously been refused permission to enter in September 2018.

105.I fully agree with Mr Justice Ribeiro PJ that the test of materiality for the purposes of section 42 of the Immigration Ordinance is case-specific, depending on how it relates to the function of immigration control. I also agree that materiality of the dates of birth, in the circumstances of the present case highlighted in the preceding paragraph, is objectively self-evident.

106.When leave was granted by the Appeal Committee, I took into account other possible scenarios where a person’s travel document bore an inaccurate date of birth. Since it is now decided by this Court that materiality of a date of birth is case-specific, it cannot be assumed that the same conclusion on materiality would be reached in a case with different factual matrixes. For example, I can readily see that one may come to a different view on materiality in respect of a person who has the right of abode in Hong Kong using his identity card bearing an inaccurate date of birth for the purpose of travelling when the date of birth was the only officially recorded date of birth since an identity card was issued to him in Hong Kong.

107.At one stage, I was troubled by section 42(2)(c)(i) of the Immigration Ordinance which provides that a person having in his possession of, amongst other things, a false travel document shall be guilty of an offence. I have now resolved that concern. The meaning of falsity is governed by the same sub-section, viz section 42(5), thus bearing the same meaning for the falsity of a travel document under section 42(2)(b). In the context of travel document, it has to be materially false for the purpose of immigration control.

108.On the mens rea requirement for materiality, I can see the force of Mr Leung SC’s submission based on the principle discussed in Kulemesin v HKSAR[46]. With the greatest respect, I cannot agree that there is no mental requirement in respect of the materiality of a particular for the offences under section 42(1)(a) and (2)(b). These provisions must be read together with the definition of falsity in section 42(5). By that subsection, the legislature confined the offences to particulars which are materially false. In other words, a person does not commit any offence if the particular in question was not material to immigration control even though he knows that it was false. The criminality of these offences lies in the potential impact on the immigration officer’s decision in immigration control.

109.I accept that in terms of actus reus, materiality has to be determined objectively on the facts of the case. This is the same as the element of endangerment in Kulemesin. But it does not follow that the presumption of mens rea in respect of this element is displaced.

110.I do not doubt that the full mens rea requirement has to be satisfied in respect of the other elements of the offences: the making of the representation, the use of the travel document and the knowledge of falsity of the particular. Likewise, in Kulemesin, the prosecution bore the burden of proving that the defendants had the mens rea in relation to the manner of navigation of the vessels which constituted the unlawful or prohibited conduct. Yet, the presumption of mens rea applied to every ingredient of the offence. Thus, it was said in Kulemesin:

“… where the offence-creating provisions are silent or ambiguous as to the mental requirements, the starting-point is that the statute must be construed adopting the presumption that it is incumbent on the prosecution to prove mens rea in relation to each element of the offence. In other words, the court presumes that the prosecution must prove that the accused possessed the state of mind appropriate to each external element of the offence. Thus, if a specified circumstance is required to accompany the defendant’s act or omission as a prescribed ingredient of the offence, the presumption is that the prosecution must prove that the defendant knew of or was reckless as to the existence of that circumstance. And if it is a necessary element of the offence that the impugned conduct causes certain prohibited consequences, it is presumed that the prosecution must prove that when acting or omitting to act, the defendant intended to cause or was reckless as to his causing those consequences.”[47]

111.For the offences under section 42(1)(a) and (2)(b), the element of materiality is a required characteristic of the false particular which is the specified circumstances accompanying a defendant’s act or omission as a prescribed ingredient of the offence. 

112.In Kulemesin, the endangerment element was regarded as a prohibited consequence flowing from the manners of navigation which constituted the prohibited conducts of the defendants. The holding of the Court was that the endangerment element also has a mens rea aspect though it is not a full mens rea requirement given the width and diversity of the offence. It was in such context that the Court observed:

“…when dealing with a serious as opposed to regulatory offence, a court considering whether the presumption of mens rea should be displaced – and if so, replaced by what – is likely to find it more appropriate to infer that the second (rather than the third) alternative best reflects the presumed intention of the legislature since that alternative lies closer to the full mens rea end of the spectrum and does no violence to the presumption of innocence, as befits a serious offence. On the other hand, the third alternative is likely to be more compelling in relation to a regulatory offence.”[48]

113.The fact that the materiality of a particular may not be within the knowledge of some defendants[49] and the difficulty of proving such knowledge can be the justification for not requiring full mens rea for these offences. But it cannot be an adequate justification for dispensing with mens rea altogether. Whilst I acknowledge the importance of giving full effect to section 42(1)(a) and (2)(b) in furtherance of the legislative objective of immigration control, I am not persuaded that it warrants the dispensation with mens rea altogether regarding the materiality of a false particular[50]. These are after all serious offences entailing potentially heavy penalties in prison sentences.  

114.In Hong Kong, some residents from the older generations had obtained Hong Kong identity cards in the past with inaccurate dates of birth. Some of them adopted such inaccurate dates as their dates of birth for all official purposes over many years and have been using their identity cards for travelling purposes. Against such background, it is unlikely that the legislature would penalise such persons even though he or she harboured an honest and reasonable belief that the inaccurate date of birth is not material for the purpose of immigration control. I cannot find any provision in section 42 compelling me to hold otherwise.

115.For my part, I would adopt the second alternative postulated in Kulemesin for the offences under section 42(1)(a) and (2)(b) concerning the element of materiality. In other words, the prosecution needs not set out to prove mens rea for this element, but if there was evidence capable of raising a reasonable doubt that the defendant might have acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proved beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief.

116.However, on the facts of the present case, such analysis could not assist the appellant. He has no right to enter Hong Kong without the permission of the Director of Immigration. In light of his use of dual identities with different dates of birth for travelling to Hong Kong, it cannot be reasonable for him to entertain a belief that the falsity of his dates of birth as stated on the travel documents would not be material for the purpose of obtaining permission to enter Hong Kong.

117.Subject to the above, I agree with the judgment of Mr Justice Ribeiro PJ.         

Mr Justice Gummow NPJ:

118.I agree with the judgment of Mr Justice Ribeiro PJ.

Chief Justice Cheung :

119.The Court unanimously dismisses the appeal and directs that the appellant’s costs be taxed in accordance with legal aid regulations.

Mr David Leung SC and Ms Kelly Cheng, instructed by Vitus Lawyers, assigned by the Director of Legal Aid, for the Appellant

Mr Raymond Cheng SADPP, Ms Janice Cheuk SPP, Ms June Wong SPP and Mr Ivan Sin PP, of the Department of Justice, for the Respondent