Michael William G. Taylor v. The Queen

CACC000501/1976

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Coram: McMullin J.

Date of Judgment: 26th May, 1976.

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JUDGMENT

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1. The appellant in this case is an Australian business man who was upon a visit to Hong Kong. The agreed facts were that he arrived on the 10th of February 1975 and upon being asked the intended period of his stay he said he would be staying for four days. The immigration officer imposed a limit of stay of three months under the visitor conditions indicated by an immigration stamp placed upon the passport. On that same day the name of the defendant was given to the Companies Registrar by a representative of a firm incorporated in Hong Kong known as Holiday Magic Limited. The purpose of furnishing the defendant's name was to have him registered as a director of that company in place of a retiring director called Lettala Limited. The defendant left Hong Kong on the 21st of February 1975 and there is no evidence of the nature of his activities between the date of his arrival and the date of his departure.

2. On these facts he has been charged with an offence under Regulation 2(1)(b) of the Immigration Regulations 1972. The burden of the charge is that he contravened a condition of stay in force in respect of his visit in that, being permitted to enter and remain as a visitor, he did "join in" Messrs. Holiday Magic Limited as a director without the permission of the Director of Immigration. The only evidence introduced as to the nature of Holiday Magic Limited appears to have been the putting in by the prosecution of the Articles and Memorandum of Association of that company. Mr. Fairbairn who appeared for the defendant in the court below argued that since there was no evidence that that company was doing any business in Hong Kong and no evidence that the defendant had engaged in any activities related to any such possible business in Hong Kong the prosecution had failed to prove a vital element of the charge. To my mind this objection was a substantial one and should have succeeded. Indeed, upon the hearing of this appeal Mr. Amey, who appeared for the Crown, conceded that the magistrate was mistaken in assuming that once it was shown that there was such a company upon the companies register and once evidence was given that the person charged had caused himself to be placed upon the register as a director that meant, by necessary implication, that he had joined in some business done by that company. This conclusion which to my mind is not a valid one, led the magistrate to make a further expression of principle which I cannot but regard as quite erroneous. This is shown in the record of his ruling where at page 9 of the present record he is recorded as follows :

"There is no doubt that the firm was on business and on the evidence and the circumstances of this case, I find that the Crown has established its case and has shifted the burden of proof on the defendant. It is for him to prove that he did not join in the business carried out by the firm."

It is clear that there is no provision in the relevant law which would pass the onus of proving any such matter to a defendant so charged. The magistrate appears to assume that if a company is registered it follows that it is not only "alive" but must also necessarily be doing business and that thus the evidential burden must pass to the defendant. To my mind this point, the short point made for the defendant upon the appeal, must succeed. I am satisfied that the prosecution must prove that a company is carrying on business in order to implicate the charged person in the activities which are forbidden by virtue of the circumstances attached to his entry permit.

3. A very much wider question of principle has appeared upon the horizon in this case and it would appear that it was this question of principle which occasioned the Crown's opposition to the appeal, Mr. Amey, perhaps understandably, hoping that this court was prepared to deal with it. That is the question whether, upon its being shown that there is a functioning business in Hong Kong, and upon its being shown that the charged person has caused himself to be registered as a director thereof, it must necessarily follow that such a person, being as a visitor in the Colony upon terms similar to those upon which Mr. Taylor was present in Hong Kong, must thereby be held to have joined in the business of that company. To my mind that is a point of some importance which would merit consideration at the highest level. Had I been disposed to consider that this was an appropriate case for exploring the possibilities of that argument I would have felt compelled to refer the appeal for decision to the Court of Appeal. It is a point which may well have to be settled on some occasion. Mr. Amey has indicated that he takes the view that it is sufficient to prove a charge of this kind if it be shown that the company is doing business and that a person who is not a resident in Hong Kong but is only a visitor therein has caused himself to appear upon the register of companies as a director of a local company. It has been pointed out on the other side that if that be the case there will be many business men who for purposes of commercial convenience have either caused companies of which they are directors, and which function principally elsewhere, to be incorporated in Hong Kong or else have permitted incorporated companies functioning in Hong Kong to name them directors, who may find themselves in unexpected difficulties when they come here as visitors. There may be, it is said, various quite legitimate purposes relating to tax relief and so on which, in the special circumstances of Hong Kong, induce foreign business men to these courses. Such persons upon the view which Mr. Amey has expressed, must then find themselves at risk of prosecution when they come to Hong Kong as visitors. I say no more about that for the moment. On the short point to which I have referred the appeal must be allowed and the conviction set aside. By order of the magistrate the defendant was ordered to pay costs of $300. That order will of course also be set aside and if those costs have been paid the sum will have to be returned to Mr. Taylor.

Representation: