Attorney General v. Lau Lai Fong
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Magistracy Appeal No. 586/87 HEADNOTE Criminal law and procedure – immigration - offence created by section 38(1)(b) of Immigration Ordinance Cap. 115 is one of remaining in Hong Kong after landing unlawfully - there is an exemption to the offence if one remains with the authority or the Director - onus of proving such authority rests ca the person seeking to avail himself thereof - section 94A of Criminal Procedure Ordinance Cap. 221 applies. IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION MAGISTRACY APPEAL NO. 586 OF 1987 _____________ BETWEEN
_____________ Coram: Hon. O'Dea, J. in Court Date of hearing: 7th October, 1987 Date of handing down judgment: 27th October, 1987 _____________ JUDGMENT _____________ 1. This is an appeal by way of case stated following a ruling by the learned trial magistrate that in an offence of aiding and abetting the remaining in Hong Kong of an illegal immigrant contrary to Section 38(1)(b) of the Immigration Ordinance it was for the Crown to prove that the illegal immigrant remained without the authority of the Director of Immigration. 2. The question of law posed is that once it is proved that the illegal immigrant landed in Hong Kong unlawfully, does the respondent bear the burden of establishing that the immigrant had acquired a right to remain in Hong Kong by reason of Section 94A of the Criminal Procedure Ordinance. 3. Section 94A, of course, is the statutory provision which introduces negative averments into criminal proceedings in the District Court and magistrate’s courts in Hong Kong. 4. Two English authorities were cited at some length to show the evolution of the common law on the question of negative averments. The first R. v. Edwards[1] was concerned with who had the burden of proving the absence of authority in an offence of selling liquor without a justices' licence. The Court of Appeal held that the exception to the fundamental rule that the prosecution must prove every element of the offence charged “is limited to offences arising under enactments which prohibit the doing of an act save ………… with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisoes, exemptions and the like, then the prosecution can rely upon the exception. In our judgment its application does not depend upon either the fact or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment.” 5. The second and more recent authority which Mr. Allman-Brown, for the respondent, suggests is now the controlling authority on negative averments is the House of Lords case of R. v. Hunt[2]. In particular I was referred to a passage in the judgment of Lord Griffiths which tends towards the view that in determining the intention of Parliament as to where the burden lies there should be taken into account "practical considerations affecting the burden of proof and, in particular, the ease or difficulty the respective parties would encounter in discharging the burden. I regard this last consideration as one of great importance, for surely Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case, and a court should be very slow to draw any such inference from the language of a statute." 6. Mr. Allman-Brown relied heavily on this when introducing his argument that an aider and abettor should be distinguished from the principal because the former has no direct or actual knowledge of any licence granted or authority given. That to impose on a secondary Offender the duty of proving something has been granted to the principal is too onerous and should not be inferred as being the intention of the legislature. This is an imaginative, and not unappealing contention and one that I will touch on later in my judgment. 7. The other matter which was the subject of some argument was whether the essence of the offence was "remaining without the authority of the Director of Immigration" or, as Mr. Harris for the Crown, urged "remaining after landing unlawfully". To quote once more from the judgment of Lord Griffiths :-
8. The learned magistrate in giving his reasons appears to have found himself bound by a decision of the Court of Appeal in Lam Wu Nam and ors. v. R.[3] where the Court was concerned with the onus of proof in offences created by the first part of the same provision now being considered, namely Section 38(l)(a) of the Immigration Ordinance. In the judgment of Pickering J.A. he said:
9. The Court then went on to consider upon whom rested the onus of proving that the persons landing did not possess the right to do so as members of three classes referred to in S.8(1). The question was considered to be one of status and it was held that where status is an essential feature of the case it must be properly proven even in civil cases. 10. The learned magistrate in his findings states as follows :
11. With respect I cannot agree. The question of whether a person falls within one of the classes referred to in S.8(1) and thereby determines that person's status as either a Hong Kong belonger or other category is, as the Court's judgment, stated :-
12. There seems to me to be a clear distinction between that situation and the one that pertains in S.38(1)(b). There is nothing either technical, or complex about whether a person who has landed in Hong Kong unlawfully, remains here without the authority of the Director of Immigration. The authority of the Director has either been given or it hasn't and it seems to be timely, at this point, to consider more closely the statutory provision concerned with negative avertments in criminal cases in Hong Kong namely S.94A which provids :
13. In my view the essence of the offence created by s. 38(1)(b) is the act of an illegal immigrant in remaining in Hong Kong after having landed unlawfully. The legislature has provided for an exception or exemption to the offence if after having unlawfully landed the immigrant is given authority to remain. It is in my opinion an outstanding example of a case where S.94A applies, and the burden of proving the necessary authority to remain lies on the person seeking to avail himself thereof. 14. The argument put forward, to which I have earlier referred, that an aider and abettor should be distinguished from the principal offender on the grounds that the former lacks the peculiar knowledge of the latter as to the existence of any licence, authority or otherwise might well have some validity if the common law had not been overtaken by -statute. It is notable that both the English authorities, R. v. Hunt and R. v. Edwards, were appeals from the Crown Court and no similiar statutory provision to that in force in Hong Kong existed and, therefore, common law principals were applied. In my view S.9.4A of Cap. 221 demonstrates a clear intention on the part of the legislature that it should apply to more than just the principal offender when it provides :-
15. I am satisfied that on any construction of this section any possible distinction to be drawn between secondary and principal offenders is effectively removed. For the reasons given I have to answer the question stated by ruling that once the Crown have proved that an illegal immigrant has remained in Hong Kong after landing here unlawfully, S.94A applies and it is for the defendant to prove that the illegal immigrant has acquired a right to remain in Hong Kong by virtue of being so authorised by the Director of Immigration. 16. Having allowed the appeal by way of case stated I would, in the normal course of events, remit the matter back for retrial. The respondent was first brought before a magistrate in early April 1987. She appeared in person and pleaded guilty to the charge. The learned magistrate refused to accept her plea for the reason that the Crown had no certificate to show that the illegal immigrant did not have a right to remain in Hong Kong and the hearing was adjourned. The information was subsequently dismissed after a trial held on 11th May, 1987. The facts were that the respondent was contacted by her nephew after he had entered Hong Kong illegally and was asked if she would allow him to stay in her home. She had no prior knowledge of her nephew's arrival and at first refused his request before finally relenting. This was one of those cases which are treated as exceptional and a non-custodial penalty is normally imposed. 17. In view of the history of this matter I indicated that I did, not propose to require this respondent to undergo further distress by ordering a retrial and she will simply be convicted and discharged without penalty.
Mr. Christopher Harris S.C.C. for Crown Mr. Allman-Brown inst'd by D.L.A. for Respondent [1] [1975] Q.B. 27 [2] (1987) 1 A.E.R. 1 [3] [1976] H.K.L.R. 423 |