The Queen v. Li Sui Pui

HCMA000479A/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 479 OF 1991

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BETWEEN

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Coram: Hon. Barnes J. in Court

Date of Hearing: 6 August 1991

Date of Delivery of Judgment: 6 August 1991

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JUDGMENT

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1. The appellant pleaded not guilty in the Magistrate's court to two charges, one of making a false representation to an Immigration Assistant lawfully acting under Part 11 of the Immigration Ordinance, an offence contrary to Section 42 (1) (a) of the Immigration Ordinance, and the other of Counselling or procuring the furnishing of false particulars to a Registration Officer, an offence under the provisions of the Registration of Persons Ordinance.

2. He was convicted on both charges. On this appeal, he appeals against his conviction on the 1st Charge only. fir. Alexander Wong of Counsel has advanced five major grounds of appeal with substantial particulars in support of each ground. Having had the advantage of looking at his perfected grounds of appeal beforehand. I suggested that one particular ground be dealt with first, because if I were against him on that ground, the other grounds would automatically fail. Mr. Wong agreed with that view and tile result was that submissions have been limited to this particular ground.

3. To put this ground in its context, the full wording of the charge need to be set out. The particulars read as follows :

"LI Sui pui you are charged that on the 6th November 1990 at Lowu Terminal in Hong Kong, you did Make a representation knowing the same to he false or not believing the same to true, to an Immigration Assistant lawfully acting under Part II (Immigration Arrival Examination) of the Immigration Ordinance in that you represented that you were LI Hiu-yeung born on 3th May 1979."

4. The evidence was that the appellant enroute to Hon Kong from China presented his travel documents to an Immigration Assistant at the Lowu Terminal. The travel document he presented stated his name e LI Hiu-yeung. and his date of birth to be the 8th May 1979. Pausing there, it is to be noted, as the Magistrate noted, that if that representation were true, then the 21 year. old appellant was representing himself as an eleven year old boy. In the course of the appellant's evidence before tae learned Magistrate, he said this in evidence-in-chief :

"I know when I was born, I was born on 5th April 1969. The documents says I was born on 8th May 1979. When it was given to us, we already saw the birth date was wrong, but my maternal uncle said, according to the rule, a person would not be granted permission to come, if he or she was more than 15."

A little later, he said:

"Apart from the date of birth the particulars in this document are true."

5. It is Mr. Wong's submission that since the charge alleges that the false representation was that the appellant was a person named LI Hiu-yeung, who was born on the 8th May 1979 that the prosecution had to prove (a) that he was not named LI Hiu-yeung, and (b) that ire was not born on tare 8th May 1979, that a failure to prove both those matters, meant a failure to prove the allegation is the charge, and therefore a failure to prove the charge which was brought against him, and therefore he should not have been convicted.

6. The prosecution contention is that, if one part of a dual representation be shown to be false then the representation is shown to be false. I agree with the prosecution proposition. It seems to me that it was one representation which the appellant was making, namely are presentation as to his identity.

7. The representation was that he was an eleven year old boy named X. And in fact he was a 21 year old man. I thin : that the learned Magistrate was right to say although this did not form the basis of his decision because he did come to the conclusion that the representation as to name was false but I think he was right to hold that proof of falsity regarding the date of birth was sufficient to prove that the representation alleged in the charge was false. Having come to that conclusion there is no point in considering the other grounds of appeal.

8. Accordingly, therefore, the appeal against conviction cannot succeed and must be dismissed.

Representation:

Mr. A. Sham, S. C. C. for Crown.

Mr. A. Wong (Chan & Kong) for Appellant : Ll Sui pui.