R v. Iu Tsz Ning

IN THE COURT OF APPEAL

1994, No. 428
(Criminal)

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Coram : Hon. Macdougall, V.-P., Nazareth, V.-P. & Penlington, J.A.

Date of hearing : 17 March 1995

Date of handing down of judgment : 7 April 1995

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against a conviction by Judge Kilgour in the District Court on a charge of being a member of the crew of a ship which entered Hong Kong with unauthorised entrants on board. There was also an application for leave to appeal against the sentence passed but this has now been abandoned.

2. The facts of the matter were substantially not in dispute. On 23rd March 1994 at 11:05 p.m. officers of the Royal Hong Kong Police Marine Division saw a vessel approaching the Castle Peak Bay typhoon shelter. It was stopped and, in addition to the applicant and his brother Iu Tsz-cheung (D1), six persons were found on board whom inquiries revealed were unauthorised entrants (U.E.s). The licence book for the vessel purported to show that those on board were seamen including one Lit Wai-keung, (PW2), who subsequently gave evidence. It was not disputed that the documents were false.

3. There was no dispute that the applicant was a member of the crew of a vessel which brought illegal immigrants into Hong Kong. The sole issue to be decided by the judge was whether the applicant knew that they were such.

4. S.37C under which the applicant was charged provides in sub-section (1) that each member of the crew of a vessel which enters Hong Kong with an unauthorised entrant on board commits an offence. But sub-section (2)(b) provides as follows:

"A person who is a member of the crew of a ship other than the captain shall not be convicted of an offence under subsection (1) if he proves that prior to the commencement of the voyage on which the unauthorised entrant was brought into Hong Kong, he did not know and had no reason to suspect that any unauthorised entrant would be carried on the ship."

5. The applicant, following his arrest, made a statement which was before the judge. In this he said that the vessel was owned by his younger brother, D1, and that on 23rd March he had lunch with PW2 and then boarded the vessel. There were six other persons on board, five males and one female. He had met them in the past but he did not know their names. He said he was responsible for steering the vessel to Zhuhai but that on the way he found that there were problems with the engine and he suggested to D1 that they steer the vessel into Castle Peak Bay typhoon shelter for repair. He understood that PW2 was on board the vessel because he wanted to see how they caught fish.

6. The applicant then made a further statement, which was also before the judge, in which he said that he did not know that the seaman cards carried by the illegal immigrants were false because he had just had a glance at them when he had been shown them by D1. D1 had told him that these six persons were employed by him, D1, to assist in fishing.

7. Substantial reliance was placed by the Crown on the evidence of PW2. In chief he said that, on 23rd March 1994, he had lunch with the applicant and D1 and also a man called Ah Ngau. He said that Ah Ngau was the one who arranged for the illegal immigrants to be brought to Hong Kong and that the applicant and his brother were present when these arrangements were made. He went on to say that the applicant told him that he would be coming to Hong Kong as his brother was a boat-man and he would drive the boat to Hong Kong. In cross-examination it was put to PW2 that the applicant was not present when arrangements were made for PW2 to come to Hong Kong, and his answer was "I agree". He also agreed that discussions as to the departure time of the vessel were with D1. Before boarding the boat the only brother with whom he had any contact was D1. He did however confirm that the applicant was present at the restaurant where they had a meal on the day before departure.

8. The applicant and D1 gave evidence but the trial judge found them unconvincing. He also found that there was conflict between their testimony. In particular the applicant, having been taken on board by his brother as crew, gave evidence that the illegal immigrants were doing chores on deck whereas D1 said they were not so engaged and that they had remained sleeping in the cabin until the vessel was intercepted by the police.

9. The judge found that he could accept the evidence of PW2 that both D1 and the applicant were present at the meal in the restaurant, that the applicant had said that PW2 would come to Hong Kong on his brother's boat and that they had walked from the restaurant to the boat together, the other illegal immigrants being already on board. He went on to say that he was quite unable to find from PW2's evidence that the applicant did not know, let alone have no reason to suspect, that the six persons on board the vessel were illegal immigrants. He did not, however, deal with the specific answer made by PW2 in cross-examination that the applicant was not present when arrangements were made for PW2 to come to Hong Kong and that, before boarding the vessel, the only brother with whom he had any contact was D1. These answers are of course heavily relied upon by Mr. Leung who appeared here for the applicant. He also contends that PW2 was an accomplice and that his evidence was uncorroborated. He placed reliance on R. v. Leung Pik-shan and another, Crim. App. No. 441/84 where Sir Alan Huggins giving the decision of the court held that witnesses who were themselves illegal immigrants were accomplices in the crime alleged, which was of assisting unauthorised entrants to remain in Hong Kong. That proposition appears to have been accepted in R. v. Ma Shing, Crim. App. No. 292/85.

10. Mr. Zervos, Senior Crown Counsel, who appeared for the Crown, contended that PW2 was not an accomplice and relied on the decision in R. v. King, The Law Times, September 12th, 1914 where Lord Reading, C.J., in considering a charge of living upon the earnings of prostitution, held that the women concerned were not accomplices. Corroboration of their evidence was not therefore essential but the jury should have been warned against accepting such evidence without corroboration.

11. We are satisfied that this Court is bound by the decision in R. v. Leung Pik-shan and that PW2 was an accomplice. While the judge has not referred to this matter, we are satisfied that there was corroboration of PW2's evidence in the form of the applicant's own statement in which he said that he had lunch with PW2 prior to departing for Hong Kong with the other illegal immigrants.

12. The other argument raised by Mr. Leung was that the judge was wrong in finding that the applicant had to show, on a balance of probabilities, that he did not know the other persons on the vessel were unauthorised entrants and had no reason to so suspect. He argues that this would be contrary to Article 11 of the Hong Kong Bill of Rights, Cap. 383 which provides in sub-section (1) that every one charged with a criminal offence shall have the right to be presumed innocent until prove guilty "according to law". Mr. Leung argues that the knowledge of the applicant as to the status of the persons on board the vessel was an essential ingredient of the offence charged, and that the applicant should not have been required to discharge the burden on him on a balance of probability but should only have been required to raise a reasonable doubt. Reliance is placed on Attorney General of Hong Kong v. Lee Kwong-kut [1993] AC 951. There the Privy Council held that exceptions from strict application of the fundamental rule that throughout a trial the burden was on the prosecution to prove a guilt of the defendant beyond reasonable doubt were permissible provided that the responsibility for showing the guilt of the defendant remained primarily that of the prosecution. Lord Woolfe in delivering the judgment of the Court referred to the leading Hong Kong decision in R. v. Sin Yau-ming, [1992] 1HKCLR 127 and also to other decisions involving the interpretation of constitutional documents in other Commonwealth jurisdictions such as the Attorney General of Gambia v. Jobe [1984] AC 689. At p.969, Lord Woolfe said with reference to exceptions to the rule that the Crown must prove all elements of a charge beyond reasonable doubt:

"Some exceptions will be justifiable, others will not. Whether they are justifiable, will in the end depend upon whether it remains primarily the responsibility of the prosecution to prove the guilt of an accused to the required standard and whether the exception is reasonably imposed notwithstanding the importance of maintaining the principle which Article 11(1) enshrines. The less significant the departure from the normal principle, the simpler it will be to justify an exception. If the prosecution retains responsibility for proving the essential ingredients of the offence, the less likely as is that an exception will be regarded as unacceptable. In deciding what are the essential ingredients the language of the relevant statutory provision will be important. However what will be decisive will be the substance and reality of the language creating the offence rather than its form. If the exception requires certain matters to be presumed until a contrary is shown, then it will be difficult to justify that presumption unless as was pointed out in the United States Supreme Court in Leary v. United States (1969) 395 U.S.6. "It can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend."

13. Lord Woolfe then referred to the Canadian decisions such as R. v. Oakes 26 DLR (4th) 200.

14. In Lee Kwong Kut, there were two appeals before the Board and each concerned the presumption of innocence. The first was in relation to the section in the Summary Offences Ordinance which provided that if a person was shown to be in possession of recently stolen property, the onus was on him to give a satisfactory explanation as to how he came to be in possession of that property. It was held that such a provision offended against Article 11(1). However, in relation to the second appeal (Lo Chak-man) the Board was considering the provisions of the Drug Trafficking (Recovery of Proceeds) Ordinance. It is provided in s.25(4) of that Ordinance that:

"In proceedings against a person for an offence under this section, it is a defence to prove-

(a) that he did not know or suspect that the arrangement related to any person's proceeds of drug trafficking."

It was held that such a provision did not offend against Article 11 and that where a person is in a position where he might reasonably suspect that funds of which he is being asked to handle may have come from drug trafficking, it was not unreasonable for an onus to be placed on him to make inquiries so as to be satisfied that such is not the case. Similarly, the judge was satisfied in the present case that the applicant must have had a reason to suspect that the persons on board the vessel were unauthorised entrants. However in his statement he said that he just glanced at the seaman cards produced by these six persons and did not perform a check which would have revealed that their China Identity Cards did not correspond. When asked whether he realised that the seaman cards were forgeries, he said he did not know because these cards were kept by D1 and he had "just taken a glance". D1 had told him that the six persons were employed to catch fish at sea.

15. It was said in R. v. Sin Yau-ming that in construing the Hong Kong Bill of Rights the Court should regard any provision which appears to offend against the Bill of Rights on the basis that a provision that a fact shall be presumed must be rational and must realistically follow from what has been proved, and that the presumption is no more than proportionate to what is warranted by the nature of the evil against which society requires protection. There can be no doubt whatever that illegal immigration is a major problem facing the Hong Kong Government. We are also in no doubt that the presumption that a person who is a member of a crew which brings illegal immigrants into Hong Kong knows that the persons on board the vessel are illegal immigrants follows rationally and realistically once it is proved beyond reasonable doubt that he was such a member and the vessel did bring the illegal immigrants into Hong Kong. In the vast majority of cases, it would be well high impossible for the prosecution to establish beyond reasonable doubt that a crew member knew that the persons on board were illegal immigrants. We do not think that a provision whereby an onus is placed on such a person to prove on a balance of probabilities that he did not in fact have that knowledge offends the principles contained in Article 11 of the Bill of Rights.

16. Here, having heard the evidence on both sides the judge was satisfied that on a balance of probabilities the applicant did know that the six persons on board DI's boat were illegal immigrants. There was ample evidence to support that view.

17. For these reasons, the application for leave to appeal against conviction is refused.

Representation:

Mr. Leung Wing Kin instructed by M/s Leung, Chan & Pang for the applicant

Mr. Kevin Zervos, Senior Crown Counsel, for the Crown