Re Lee Ma Leung
Read the full judgment text of HCMP 166/1979 on BabelCite. This High Court CFI judgment was delivered on 12 April 1979.
1. The applicant, LEE Ma-leung, pleaded guilty before a magistrate on the 16th May 1978 to a charge of aiding and abetting the remaining of an illegal immigrant contrary to the provisions of section 38(1)(b) of the Immigration Ordinance and section 89 of the Criminal Procedure Ordinance. He was convicted and sentenced to six months' imprisonment suspended for two years and he was fined $1,000. The Crown subsequently applied for a review of the sentence. On the day fixed for the hearing of the Cr
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HCMP000166/1979
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----------------- Coram: Full Bench (McMullin & Li, JJ.) Date of Judgment: 12 April 1979 ----------------- JUDGMENT ----------------- McMullin, J. : 1. The applicant, LEE Ma-leung, pleaded guilty before a magistrate on the 16th May 1978 to a charge of aiding and abetting the remaining of an illegal immigrant contrary to the provisions of section 38(1)(b) of the Immigration Ordinance and section 89 of the Criminal Procedure Ordinance. He was convicted and sentenced to six months' imprisonment suspended for two years and he was fined $1,000. The Crown subsequently applied for a review of the sentence. On the day fixed for the hearing of the Crown's application before the Court of Appeal the applicant was unrepresented but Mr. Lucas for the Crown intimated to the court that there was a point of law which might be available to the applicant arising from the decision of Trainor, J. in the case of The Attorney General v. LO Pui-ling(1). The court adjourned the hearing of the review to enable the applicant to apply for legal aid, The case now comes before the Full Bench by way of an application for certiorari to remove and quash on the basis that the applicant had pleaded guilty to an offence which is not an offence known to the law. No point has been made from the side of the Crown concerning the propriety of seeking an order of certiorari under such circumstances. In any event, assuming that the applicant did plead guilty to a non-existent offence, the case of In Re CHAN Hing-to(2) is authority for the power of this court to set the matter right by means of prerogative order. In that case there had been a plea of guilty founded, in effect, upon a misapprehension on the part of a defendant as to the nature and effect of such a plea. The present case is stronger inasmuch as a conviction upon a charge disclosing no offence would involve either want or excess of jurisdiction. 2. Originally there were three defendants upon this charge before the magistrate. The principal witness was a man called CHENG Shek-bun formerly a citizen of the People's Republic of China. He told the court that on the night of the 23rd April 1978 he had crossed the border into Hong Kong when he encountered the first defendant and told him that he had just come from China. The first defendant hid the witness in a shed belonging to him nearby and fed him and gave him clothing. The first defendant got in touch with the second defendant who obtained from the immigrant address of the brother-in-law of the latter in Hong Kong. This would have been in the early hours of the 24th of April. The second defendant then telephoned the brother-in-law and arranged to meet him at a certain restaurant in Fanling between 8 and 9 p.m. the following evening. At this meeting it was agreed that the brother-in-law of the immigrant would pay a sum of $1,250 to the second defendant. The second defendant is the applicant in the present proceedings. They then went with another man in a taxi driven by the third defendant to Sha Tau Kok the intention being, presumably, to put the brother-in-law in touch with the recently entered illegal immigrant. By this time, however, some Gurkha soldiers had discovered and arrested the first defendant and the illegal immigrant. After some further manoeuvres which it is needless to recount the first and second defendants were also taken into custody and were later brought before the court charged with the offence described and all were convicted. The cases of the other two defendants have already been dealt with upon appeal, but if the point made upon these proceedings on behalf of the second defendant is a valid one it would of course enure to their benefit as well. 3. Mr. Huggins for the applicant candidly admits that the point he has to make has little in the way of moral or practical merit to recommend it. He enlists the judgment of Trainor J. (referred to above) for the proposition that remaining in Hong Kong without the authority of the Director of Immigration is not a continuing offence but one that becomes complete immediately after illegal entry. What he makes of that proposition will presently appear. The case before Trainor J. concerned a charge under the very section which we are now considering, section 38(1)(b) of the Immigration Ordinance. The facts of that case are, however, significantly different from those in the present case. Two men had landed in Hong Kong illegally in 1968 and had brought themselves to the attention of the relevant authorities in 1971 with a view to having themselves registered under the Registration of Persons Regulations. The matter was referred to the Director of Immigration and the defendants were asked to call at the Immigration Department upon a certain date. They did not call again at the Department and nothing further was done about them for another three years. In September 1974 they were charged before a magistrate under section 38(1)(b). The defence contended that the prosecution was barred by virtue of the provisions of section 46 of the Immigration Ordinance. Subsection two of that section reads as follows :
The provision under consideration by Trainor J. was in identical terms save that the limitation period was then two years. The magistrate at first instance had held that the "matter of the information" had arisen not on the 13th of September 1974, the date specified in the information, as the prosecution maintained, but three years prior to that upon the occasion when the two defendants had made themselves known to the Immigration Authorities. At page 151 the learned judge said :
Counsel on both sides read this passage as meaning that the offence of entering is completed as soon as the immigrant steps across the border into Hong Kong and the offence of remaining is completed immediately thereafter. Mr. Huggins would, I think, demur to the word "immediately" for, to put his contention more precisely, he would maintain that where the charge identifies the date upon which the remaining commences, then because the offence becomes a completed offence upon that day the accused cannot be convicted of a fresh offence of remaining on the following day. He has shaped his argument in this way because the evidence showed that the immigrant had entered the Colony on the 23rd of April close to midnight and the assistance given to him by the applicant was not given until the following day, the 24th. Since by then the immigrant's offence of remaining was completed no one thereafter, counsel says, cound be guilty of aiding or abetting him to commit that offence. 4. Mr. Lucas for the Crown was not slow to point out that there was no logic in identifying the day after the entry by the immigrant as being the time when the offence became complete. He interpreted the words of Trainor J. in precisely the same way as did his opponent but he pressed the principle thus understood to the inescapable conclusion that no arbitrary division of time could be assigned to identify the moment at which the intent to remain supervened upon the intent to enter. He maintained that in such a case as this, where the immigrant is arrested a very short time after entering, then the only distinguishing mark between the illegal entry and the illegal remaining resided in this question of intent. He argued that such a subjective test of what constitutes remaining as distinct from entering cannot reasonably be imputed to the legislature and he pressed this as an indication that a continuing offence had been created by section 38(1)(b). Apart from this difference as to the time when the offence (on the non-continuing view) can be said to be completed both counsel maintained that if the reasoning of Trainor J. is correct in coming to the conclusion that section 38(1)(b) does not create a continuing offence the distinction between the offences of entering illegally and remaining illegally is rendered largely academic. On Mr. Lucas's view it is wholly abolished and on that of Mr. Huggins it is virtually abolished. Mr. Huggins asks us to say that Trainor J. was right. Mr. Lucas that he was wrong. 5. It appears to this court, however, that this consensus between counsel is based upon a mistaken apprehension as to the effect of the decision in The Attorney General v. LO Pui-ling & Another(1) as also of the effect of the judgment of Bridge J. in Gurdev Singh v. The Queen(3) a decision relied upon by Trainor J. and strongly urged upon us by Mr. Huggins in the present case. In the case of Singh there were provisions in an English Act somewhat similar to those in section 38(1)(b) making it unlawful for a person who is not a "patrial" (as defined in the Act) to remain in the United Kingdom after the expiry of a limited leave to enter and remain therein. These provisions were contained in section 24 of the Act (the Immigration Act of 1971). There was also a provision (section 28) which established an extended time limit for prosecutions under the Act just as in our legislation section 46 provides a time limit for the taking of proceedings against offenders under the Ordinance. But both Trainor J. and Bridge J. in the cases taken before them were dealing with offenders who had succeeded in remaining in the respective territories for periods exceeding the period of the time limit provided in each case by the relevant legislation. There is nothing is the decisions of either of those learned judges which can be interpreted as saying or implying that the offence of remaining within the territory illegally did not persist de die in diem throughout the entire limitation period and up to its conclusion. In each case by referring to the offence as a non-continuing offence what was meant was that the remaining did not continue to be an offence after the elapsing of the limitation period. That proposition has clearly nothing to do with the circumstances in the present case. All the considerations, therefore, which have been urged upon us as showing the anomalies which may arise if the offence under 38(1)(b) be regarded as a continuing offence are strictly speaking immaterial. There is a passage in the judgment of Bridge J. in Singh's Case(3) which conveniently illustrates what he means by saying that the offence of remaining is not a continuing offence and which also exposes the fallacy underlying the example given to him by counsel - similar to the example provided for us by Mr. Lucas - which would sustain a use for the provisions of the limitation section in respect of the offence of remaining even were that to be regarded as an offence of a continuing nature. This passage appears at page 31 where the learned judge says :
The underlined words "after he ceased to remain" in that passage for make it clear that Bridge J. was not suggesting that the offence did not continue so long as the immigrant continued to remain in the territory within the limitation period or that within that time while so remaining he might not be prosecuted therefor. As the learned judge had said earlier (page 31)
The existence of the extended time limit for prosecution in the English legislation was considered by the learned judge in that case to be the strongest of the three factors drawing him to the conclusion that the offence created by the section was not of a continuing nature i.e. did not persist after the elapsing of the limitation period. The other two indications upon which he relied were firstly, absence from the 1971 Act of a provision which had appeared in the predecessor legislation of 1962 whereby the offence of remaining was to be deemed to continue throughout any period during which the offender was in the United Kingdom after entry. This deliberate omission the learned judge took to indicate a change in the intention of the Legislature. The other matter to which he had regard was an anomaly which he discerned as likely to arise if the "remaining" offence was to be considered of a continuing nature when the provision creating that offence was contrasted with the offence of entering dealt with in the same section and which by its nature could not be a continuing offence unless specific provision was made to that effect. He gave the example of the difference that would thus arise between the case of a seaman or other employee aboard a ship who overstayed the limited period of time ashore allowed him under the legislation and that of a stowaway who, unknown to anybody, was aboard the ship and who went ashore without any leave whatsoever. In the absence of a general deeming clause in the section dealing with both of those offences the result would be that the seaman who overstayed his leave would be liable to be prosecuted for that offence even after the three year period had elapsed and the stowaway would not. There is nothing either in the background of the local legislation nor in its existing terms which would give rise to reflections of that kind in the present case and of the three matters resorted to by Bridge J. in coming to his conclusion the only one which is common to the circumstances of the present case is the fact of a limited period for prosecution being provided by the legislation. But on its own we are quite satisfied that that is a sufficient indication that it was not the intention of the Legislature that the offence of remaining should persist indefinitely as would be the case where there was a positive deeming clause as in the English legislation or else provisions allowing for the imposition of a fine for every day during which the period of remaining persisted. 6. On the view we have taken of these two authorities we do not think it is necessary to refer to the several other authorities to which our attention was directed in the course of the argument. Those authorities present marked differences both in relation to the circumstances with which they dealt and in relation to the legislation with which the courts were concerned and thus they do not lie so close to the matter to be determined in the present case as do the authorities to which we have referred. We think there has been, with respect, a fundamental disconception of the effect of the judgment of Trainor J. in The Attorney General v. LO Pui-ling & Another(1). What he said on the subject of continuing offences simply has no application to the circumstances before this court. It should be added, however, that we are in respectful agreement with the view which he expressed at page 151 where he said :
In the result therefor the application must be refused. Representation: A. Huggins, instructed by (D.L.A.) for the Applicant. M. Lucas, for the respondent. (1) (1975) H.K.L.R. 141. (2) (1977) H.K.L.R. 198. (3) (1974) 1 All E.R. 26. |