HKSAR v. Yung Wing Yan

DCCC 496/2024

[2026] HKDC 161

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 496 OF 2024

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REASONS FOR VERDICT

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1.The defendant was on trial for one charge of “assisting the passage within Hong Kong of unauthorised entrants”, contrary to s.37D(1)(a)  of the Immigration Ordinance, Cap.115.

2.Hong Wang Lan (PW2)  was working as a cleaner on the East Dam of High Island Reservoir in the vicinity of a pavilion (“the pavilion”)[1] on the morning of 13 October 2023.  She arrived for work around 9 am that morning.  There was no one in the pavilion at that time.  While she was working, she saw a lone man wandering around in the pavilion.  This man was between 20 to 30 years old, about 1.65 to 1.7 metres tall, wearing a white short-sleeved top, dark coloured trousers and a black cap (“the man in white”).  Around 9:30 to 9:45 am, about 10 South Asians walked out in two groups from Biu Tsim Kok Road.  PW2 referred to the trail shown in photos #14 and #15 of Exh.P9 as the route along which these South Asians were coming out.  These people then entered the pavilion where the man in white was.  When the South Asians were in the pavilion, the man in white was at times sitting, standing, and chatting with them.

3.Then a red taxi arrived and stopped near the pavilion, in a position which was slightly ahead of the green taxi shown in Photo #11 of P9.  PW2 did not notice the time of this taxi’s arrival, but she estimated that it arrived about an hour and a half after she had started work there.  When this taxi arrived, the man in white took out a few pieces of what looked like hundred-dollar bills and gave them to someone in the pavilion.  Some of the South Asian people in the pavilion boarded the taxi, which then drove away at around 10:30 am.  PW2 did not pay attention to how many people boarded the taxi.  The rest of the South Asians sat for a while and then went back to where they had come.

4.After the taxi drove off, the man in white remained in the pavilion, sitting and standing as if waiting for someone.

5.Another taxi arrived about 10-odd minutes after that taxi had left, but PW2 could not recall if anyone got in this taxi.

6.About 20 minutes after the first taxi had left, PW2 had a conversation with a man in plainclothes who revealed himself to be a marine police officer.  She told this officer that she saw a group of South Asians “coming in and out” which she found quite strange, that the man in white who was still in the pavilion had chatted with the South Asians and passed them some money.  She also told the officer that some of the South Asians had boarded a taxi, while the others had walked back to where they had come.  Then this officer walked over to the man in white to talk to him.

7.PW2 said the weather that day was nice and sunny.

8.Under cross-examination, PW2 admitted that her memory of these events faded with the passage of time.  She admitted that she could not see the face of the man in white clearly because of her distance from him, which varied during the course of her work.  She estimated that when she was closest to him, the distance between them was about the distance between the witness box and the courtroom exit.

9.She confirmed that she did not know this man, and that she described this man in her statement as aged 25-30, medium build, 1.7 metres in height.  She said the group of South Asians, which consisted of more or less 10 people, had dark complexion except for a woman who had lighter complexion.  She admitted that her observation of the events was broken as she was working at the time and she only looked at the man in white and the South Asian people from time to time.  She also did not remember the number of people who got into the first taxi.

10.Under re-examination, she said that when she told the marine police officer at the East Dam about these events, it was still clear in her mind about what she had observed and about the interaction between the man in white and the South Asians.  She was confident that the man she had told this officer about was the same man she had seen interacting with the South Asians earlier.

11.SGT 58909 (PW1)  was on duty in plainclothes on the morning of 13 October 2023. He was attached to the marine police region.  Around 10:55 am, he was on the East Dam not far from where the pavilion was when he came across PW2.  He had a conversation with her, during which she pointed out a man to him.  As a result of what PW2 told him, he took an interest in that man who was still in the vicinity of the pavilion.  Around 11:00 am, he approached that man, revealed his police identity, and started searching and questioning him.  He was the only officer who made enquiry of this man.  During his enquiry, SSGT NGAN (PW4)  approached him and told him something about the man he was questioning.  The man that he had stopped for questioning was later arrested in his presence by PC 9031 (PW5).

12.Around 10 am on the morning of 13 October 2023, taxi driver NG Ping-keung (PW3)  dropped off 4 female Singaporean tourists at a roundabout near the abovementioned pavilion on the East Dam of High Island Reservoir, Sai Kung. With reference to photo #11 of P9, he indicated that he had dropped off his passengers close to where the green taxi is.  He was then approached by a Cantonese-speaking local man about 1.6 to 1.7 metres tall, medium build and around 30 years old (“the local man”)  who asked him if he could drive him to Hung Hom.  As PW3 had promised the Singaporean tourists to pick them up around 11:30 am at the same place, he refused the local man’s request.  He then drove his taxi and parked it near the exit of the same roundabout with a view to taking a rest in his taxi while waiting for the tourists.

13.With reference to photo #11 of P9, he pointed to a spot slightly beyond the right edge of the photo as the spot where he parked his taxi.  He estimated that this spot was about 10 metres from where he had  dropped off his Singaporean passengers.  A sketch drawn by PW3 indicating the respective positions of his taxi when his tourist passengers got off and when he parked his taxi for a rest was marked Exh.P11.

14.Shortly after he parked his taxi, the local man approached him again and asked him if he could drive him to Sai Kung Town Centre.  Thinking that he would have enough time for the job, he accepted the offer.  At first PW3 thought that the local man was alone.  However, once PW3 indicated his agreement to drive him to Sai Kung, the local man gestured to a group of people in the pavilion.  Some of those people came over in a hurry.  Eventually, 4 of those people, consisting of 2 males and 2 females, got into his taxi.  One female sat in the front passenger seat, the 2 males sat in the left and middle rear seats, while another female sat in the rear seat directly behind PW3.  Before PW3 drove off, the female sitting behind him was replaced by a male.

15.Before he drove off with these passengers, PW3 asked the local man if he could transfer the passengers to another taxi if he came across one on his way. The local man said no, indicating that he had other people who needed to head to the urban area and that they would gather together in the town centre.

16.PW3 then started driving in the direction of Sai Kung Town Centre with the 3 males and one female passengers on board.  After driving for about 3 km, his taxi was stopped by a police vehicle.  None of his passengers were able to produce any Hong Kong Identity Cards to the police.

17.PW3 was allowed by the police to leave the scene of the interception to head back to the East Dam to pick up his tourist passengers.  When he arrived back at the Dam, he was met by a police officer whom he had seen when his taxi was intercepted and was asked by this officer to walk around the pavilion to see if he could identify anyone.  PW3 told this police officer that the man was not among the 8 to 10 people sitting in the pavilion.

18.When he kept on walking, PW3 told this police officer who was accompanying him that a man who was who talking with the police officer was the man who had arranged for him to drive his 4 passengers to Sai Kung.  When he made the identification, he was about 10 metres from that man.

19.He told the court that he was 90% certain that the man that he identified to the police at the scene was the man who had made the driving arrangement with him for the 4 passengers.

20.PW3 explained that when the local man spoke to him for the first time, he was in the driver’s seat of his taxi while that man was outside the nearside front of his taxi.  The passenger window was rolled down and he was looking at the man when he was talking with him.  This conversation, which lasted for 10-odd seconds, resulted in his refusal to drive the local man to Hung Hom.

21.When he talked with the local man for the second time, he was facing that man who was standing outside the taxi right next to him.  They had spoken for one-odd minutes with the driver’s window rolled down.  During this conversation, the local man asked PW3 to drive him to Sai Kung, and PW3 agreed to do so.  The weather at the time was good.

22.Under cross-examination, PW3 admitted that in his statement to the police, he described the man as 1.7 metres in height, thin build, about 30 years old, and that his statement contained no other descriptions of the man or his clothing.  He admitted that there is no mention in his statement that the local man had gestured or waved, and explained that the lack of mention was because he was not asked about it when giving his statement.

23.In re-examination, PW3 said apart from the people who had gotten into his taxi, there were other people including the local man outside the taxi.

24.SSGT NGAN (PW4)  was one of the officers who took part in stopping PW3’s taxi on Man Yee Road, Sai Kung around 10:15 am. The taxi was carrying one female and 3 male passengers who were all later found to be illegal immigrants. He later went to the East Dam where he saw PW3 again around 11:30 am. PW3 pointed out to him a man in a white top and told him what the man had done.  At that time, that man was being questioned by SGT 58909 (PW1).  PW4 relayed to PW1 what he had been told by PW3.  PW4 identified the defendant in court as the man who had been pointed out by PW3 at the scene.

25.PW5, who was on duty in plainclothes[2], arrived at the East Dam around 11:25 am on 13 October 2023 and was briefed by PW1. At 11:40 am, based on the results of investigation by PW1 and PW4, he declared arrest on a man for the offence of aiding and abetting illegal immigrants. PW5 identified the defendant in court as the man he arrested that day.

26.The edited English translation of a statement made by PW5 on 13 October 2023 is produced as Exh.P13 under s.65B of Cap.221.

27.The edited English translation of a statement made by PC 8623 on 20 October 2023 is produced as Exh.P14 under s.65B of Cap.221.  The gist of this statement is that the 3 male and one female passengers on board PW3’s taxi when it was stopped by the police on Man Yee Road on 13 October 2023 were all Vietnamese nationals who only had records of entry to China on 6 October 2023 but no records of entry to Hong Kong.  These Vietnamese were arrested by this PC and his colleague SPC 48633 at 10:25 am on the same day.

28.A further admitted fact (Exh.P1A)  was made that “the four persons the defendant was arrested for assisting with the passage of were unauthorised entrants to Hong Kong.”

29.At the close of the prosecution case, the defence had no submission to make.

30.Upon the court’s ruling that there is a case to answer, the defendant elected not to give evidence or to call witnesses.

Reasoning

31.According to PW2’s evidence, not long after she started her work, she saw the man in white alone in the pavilion, wandering about.  The weather was nice and sunny.  Her distance from this man was such that she could not see his face clearly.

32.However, she was able to give a clear description of his clothing, his estimated height, build and age.  Up to PW1’s arrival at the scene, she had been working in the vicinity of the pavilion since shortly after 9 am when she arrived for work.

33.She was not looking at this man the whole time during that morning, but she saw him when she looked in the direction of the pavilion from time to time while she was working.

34.The man in white was in the pavilion when about 10 South Asians walked out in two groups from Biu Tsim Kok Road and entered the pavilion. PW2 saw this man chatting with the South Asians.  When a red taxi arrived, the man in white gave a few pieces of what looked like hundred-dollar bills to someone amongst the group of South Asians in the pavilion.  Then some of the South Asians got into the taxi, and the taxi drove away.  The rest of the group headed back to where they had come.  The man in white remained in the pavilion, sitting and standing as if waiting for someone.

35.During her conversation with PW1, she told this officer about the incident involving the man in white and the South Asians and that the man was still in the pavilion.  Then she saw the officer approach the man and talk to him.

36.She was confident that the man she told the officer about was the same man who she had seen earlier interacting with the South Asians.

37.Defence counsel Mr. Allan said in his closing submissions that PW2 was an honest but unreliable witness.  He pointed out that the witness admitted in evidence that she did not see the man’s face clearly, that she did not attend any identification parade, that her memory was fading with the passage of time, and that she made no mention of any Vietnamese-looking people.

38.Despite her inability to see the man’s face clearly, PW2 was able to tell the court about the man’s clothing, his height and build and her estimate of his age.  It has not been shown that this witness’s description of the man in her police statement is materially different from the description she gave in her evidence.

39.PW2’s description of the man’s clothing and feature is just ordinary everyday evidence.  It has been said that “the danger of an honest witness being mistaken as to distinctive clothing, or the general description of the person he saw (short or tall, black or white etc., or the direction in which she was going)  are [sic] minimal. So the jury can concentrate on the honesty of the witness in the ordinary way.”[3]

40.I agree with Mr. Allan’s observation that PW2 was an honest witness.

41.One of Mr. Allan’s criticisms of the unreliability of this witness’s evidence is the discrepancy between her estimate of the man’s age and the defendant’s actual age as alleged by Mr. Allan in his submission.  However, no evidence has ever been adduced about the defendant’s age.  As criticism of this aspect of this witness’s evidence was not grounded on evidence, it will not be given any weight.

42.In any event, it should be borne in mind that on the one hand, what the witness said about the man’s age was just an estimate; on the other hand, some people do look younger or older than their actual age.  According to my observation of the defendant’s appearance, PW2’s estimate of the man’s age is not far off the mark at all.

43.Mr. Allan pointed out that PW2 only mentioned seeing South Asians appearing on the East Dam and subsequently getting into a taxi, but she made no mention of seeing any Vietnamese-looking people.  This would seem inconsistent with PW3’s evidence that the passengers who got on board his taxi were found to be Vietnamese.

44.I do not agree that such difference between PW2’s and PW3’s evidence can be described as inconsistency.

45.According to PW2’s evidence, the South Asians got into a red taxi about 1 ½ hours after she started work.  As she started her work shortly after her arrival at the Dam around 9 am, this would mean that the South Asians boarded the taxi around 10:30 am.  At that time this taxi was stopped in about the same place as the green taxi shown in photo #11 of P9.

46.However, according to PW3, the 4 passengers that he was carrying when his taxi was stopped by the police around 10:15 am at Man Yee Road had boarded his taxi shortly after 10 am when the local man gestured to them to do so.  At that time, his taxi was parked at a place which is not shown in photo #11 of P9.

47.According to their evidence, not only is the ethnicity of the taxi-boarding passengers different.  The time and place of the boarding are different as well.  There is therefore no conflict between the evidence of these two witnesses.

48.While the same man was identified by these two witnesses to the police at the scene, the evidence shows that the man they saw had been engaged in activities with two different groups of people at different times during that morning.

49.While what PW2 saw made PW1 take an interest in the man in white and stop him for questioning, what PW3 did with the local man and his passengers led to the discovery and arrest of the man who had arranged the passage of his passengers from the East Dam to Sai Kung Town Centre.

50.PW3 pointed out the local man to PW4 at the scene.  He said at the time he made this identification, he was about 10 metres from that man. He told the court that he was 90% certain that the man he identified to PW4 was the same man who had made the driving arrangement with him.

51.Mr. Allan made several criticisms of PW3’s evidence and his identification of the man.  One of the criticisms is that PW3 never gave a description of the man’s clothing either in his police statement or in his evidence.  In his evidence, he described the man as around 30 years old, 1.6-1.7 metres tall, medium build, and spoke Cantonese.  In his statement, he described the man as a local Chinese male of about 30 years of age, thin, 1.7 metres in height. I do not see any serious discrepancies between the two sets of descriptions.

52.I also do not regard his lack of mention of the local man’s clothing as a cause for concern.  The witness was not cross-examined about the reason for his not mentioning the man’s clothing.  There is nothing to suggest that this lack of mention has anything to do with the quality of his observation or the reliability of his recollection.

53.As to Mr. Allan’s remark that this witness never attended any identification parade, it should be noted that this witness was not asked to make a dock identification either.

54.Nevertheless, I warn myself of the special need for caution when considering PW3’s identification of the man to the police.  I also remind myself that an honest and convincing witness may nevertheless be mistaken.

55.PW3 had two encounters with the local man in the same morning. The first encounter was when the man asked this witness if he could drive him to Hung Hom.  This encounter, which lasted for 10-odd seconds, ended with PW3 refusing the man’s request.  PW3 was in his taxi’s driver seat, while the man was on the passenger side outside the front part of his taxi.  The front passenger window was rolled down while they were talking.  PW3 was looking at this man during this encounter in good weather.

56.During the second encounter, which must have happened just a short while after the first one, PW3 was still in the driver’s seat, whereas this man was standing outside the taxi right beside him.  This was the time when the man asked if PW3 could drive him to Sai Kung.  The driver’s window was rolled down while they were facing and talking to each other.  The encounter lasted for one-odd minutes.

57.PW3’s two separate face-to-face encounters with the same man occurred within a short period of time.  During both encounters, his attention to and his view of the man were unbroken, uninterrupted and unobstructed.  He made the identification of this man to PW4 about one and a half hours after these encounters in broad daylight and in good weather condition when he was about 10 metres from this man.

58.Mr. Allan said PW3’s identification was prejudiced by reason of the fact that the defendant was at that time being questioned by a police officer.  However, it should be borne in mind that the officer questioning the defendant was in plainclothes, and that he was the only person with defendant at the time.  Therefore, there is no way that PW3 could have known at that time that the local man was conversing with a police officer.  The reason why he called the man questioning the defendant a police officer in his evidence must be because he somehow came to learn about PW1’s police identity after the event.

59.Mr. Allan pointed out that neither PW2 nor PW3 described the man as wearing glasses, whereas PW1 in his statement P10[4] said the man he stopped for questioning “was at that time wearing a black cap on his head, a pair of eyeglasses, in a white top and a pair of black trousers”.  Mr. Allan said that by making no mention of eyeglasses, the two civilian witnesses must have seen a man without eyeglasses, which must be a man different from the one PW1 had stopped for questioning.

60.During Mr. Allan’s submissions, I drew counsel’s attention to the fact that the defendant was not at that time and had not been for the entire duration of that day’s hearing wearing glasses. Both counsel agreed with my observation.

61.Clearly, the defendant is not someone who wears glasses all the time. There is no evidence to show that the man seen by PW2 and PW3 respectively was wearing glasses at the time, and none of the prosecution witnesses were cross-examined on the eyeglasses issue.

62.From the circumstances in which PW3 made his observation of the local man, I accept that on the day in question, he did correctly identify the man who had asked with him to carry the 4 passengers to Sai Kung Town Centre.

63.It is through unchallenged dock identifications made by PW4 and PW5 and through the identification made by PW3 to PW4 at the scene that the nexus was established between the defendant and the man who had made the arrangement with PW3 for the carrying of the 4 passengers who were later found to be Vietnamese unlawful entrants.

64.I find the police and civilian witnesses honest and reliable witnesses. I accept their evidence without hesitation.

65.I am sure that the defendant was the man who had made the arrangement with PW3 for the conveyance of the Vietnamese unauthorised entrants from the East Dam to Sai Kung Town Centre on the morning in question.

66.The second point made by Mr. Allan in his closing submissions is that the prosecution failed to prove beyond reasonable doubt that the defendant had knowledge of the status of the four “illegal immigrants”.

67.Section 37D (2)  of the Immigration Ordinance provides,

No person shall be convicted of an offence under subsection (1)  if he proves that he did not know, had no reason to suspect and could not with reasonable diligence have discovered –

(a)  that the person whose carriage on a conveyance or whose passage is the subject of the charge, was an unauthorised entrant;

68.In relation to an almost identically worded s.37DA(2), the Court of Appeal in HKSAR v Leung Chung Man [2025] 5 HKLRD 121 recently decided that the statutory defence under that section required that the accused did not know (subjectively), had no reason to suspect (objectively subjective)  and could not with reasonable diligence have discovered (objectively)  that the person he was assisting to remain in Hong Kong was not an unauthorised entrant. The requirement of the statutory defence did not depend on the applicant’s actual knowledge or belief as to the unauthorised entrants’ status.  It depended on what objectively each applicant could have discovered.  The defence fell under the fourth requirement in Kulemesin[5] and required not merely a subjective assessment by each of them but an objective assessment to be made by the Court. It imposed merely an evidential burden on the applicants to raise as an issue that all three conditions did not apply, leaving the prosecution to fulfil the persuasive burden of proving the subsistence of any of the three conditions.

69.The Court in Leung Chung Man also ruled that the reasoning in HKSAR v Yeung Kam Yuen [2011] 5 HKLRD 371, which held that the same statutory defence but under s.37D(2)  fell within the third alternative in Kulemesin, was made per incuriam.

70.The defence has failed to adduce or to point to credible evidence indicating that the defendant did not know, had no reason to suspect and could not, with reasonable diligence have discovered that the Vietnamese were unauthorised entrants.

71.The defendant has thus failed to discharge his evidential burden under s.37D(2).

72.I am satisfied that the prosecution has proved the charge against the defendant beyond reasonable doubt, and I find the defendant guilty of it.