R. v. Wong Hing Tong

HCMA000813/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 813 OF 1996

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Coram : Hon Gall, J. in Court

Date of Hearing : 5 November 1996

Date of Judgment : 15 November 1996

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J U D G M E N T

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1. The appellant was convicted of one charge of aiding and abetting an illegal immigrant, who had landed in Hong Kong unlawfully, to remain in Hong Kong without the authority of the Director of Immigration.

2. The facts were that on 11th May 1996, a party of police went to premises in Sham Shui Po with a search warrant and on entering the premises found in the premises four men and three women. The women were inside one room. Those three women were unable to produce identity cards and admitted to being illegal immigrants from China.

3. The appellant admitted that he was a tenant of the cubicle where the women were found, and when asked if he knew the status of the females, replied "he knew that they had sneaked into Hong Kong". This quotation is repeated a number of times in the evidence and Mr Watson, based upon it, his first complaint concerning the conviction. His argument being that since that quotation is in direct speech in the transcript, the appellant is replying to the query by saying that somebody else knew that the women had sneaked into Hong Kong.

4. I do not accept that argument. At p.20 of the transcript in the cross-examination of the police inspector who spoke to the appellant appears this passage :

"Q : At this time, he knew they were illegal immigrants as they had already declared themselves?

A : But at the time he said he knew they had sneaked into Hong Kong."

In my view, this answer indicates that the words in direct speech in the transcript ought more properly be in narrative form. Mr Watson also argues that the answer made by the appellant to the police officer only came after the police officer had asked the illegal immigrants as to their status. I do not accept that this detracts from the admission made by the appellant as to the status of the illegal immigrants.

5. The second ground of appeal which is of substance is the argument by Mr Watson that the Certificate produced pursuant to s.63A of the Immigration Ordinance and accepted by the magistrate does not establish that the illegal immigrants had remained in Hong Kong without the authority of the Director of Immigration. He argues that the Certificate establishes that the women did not enjoy the right of abode in Hong Kong, did not have the right to land in Hong Kong, were not persons who may land in Hong Kong without the permission of an immigration officer or immigration assistant, and had not been granted permission to land in Hong Kong under s.11 of the Immigration Ordinance, but fails to certify that the women, having landed in Hong Kong unlawfully, were not authorised to remain in Hong Kong pursuant to s.13 of the Immigration Ordinance which reads :

"The Director may at any time authorise a person who landed in Hong Kong unlawfully to remain in Hong Kong subject to such conditions of stay as he thinks fit, whether or not he has been convicted of that offence s.11(5)(a) & (6) shall apply to him as it applies to a person who has been given permission to land in Hong Kong under s.11(1)."

6. I accept on the face of the Certificate it does not specifically cover the case where a person has landed in Hong Kong unlawfully and is subsequently authorised by the Director of Immigration to remain in Hong Kong notwithstanding the unlawful manner of his entry.

7. However, the learned magistrate had before him evidence that the three women in the flat had admitted to being illegal immigrants from China. Whilst this is not evidence as to the truth of the contents of that statement, it is evidence of a claim by those women to be illegal entrance at the time of the arrest of the appellant. There is an admission by the appellant that he knew the women had sneaked into Hong Kong which can only be an admission that he knew that they had entered Hong Kong unlawfully.

8. Thirdly, there is an inference to be drawn from the issue by the Director of Immigration, for the purposes of these proceedings, of the Certificate pursuant to s.63A of the Ordinance that no consent had been given to remain pursuant to s.13 of the Ordinance.

9. In all the circumstances, I am satisfied that the learned magistrate was entitled to come to the decision that he did and that he has in no way been remiss in his consideration of the facts or of the law. The appeal against conviction is dismissed.

Representation:

Mr Francis Lo, A.P.C.C., for Crown

Mr Geoffrey Watson, inst'd by M/s Chu, Chan & Tsu, for Appellant