Li Tim-fuk v. The Queen
Read the full judgment text of CACC 908/1980 on BabelCite. This Court of Appeal judgment.
1. The appellant was convicted at the Fanling Magistracy on the 14th of August 1980 of aiding and abetting the remaining of illegal immigrants. His appeal was reserved for the consideration of this court under s.118(1)(d) of the Magistrates Ordinance, Cap. 227.
Cited by 2 cases
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CACC000908/1980 [Section 38(1)(b) of the Immigration Ordinance - interpretation - a continuing offence.]
----------------- Coram: Roberts, C.J., Huggins, V.-P., and Leonard, J.A. Date of Judgment: 21st January, 1981. ----------------- JUDGMENT ----------------- Leonard, J.A.: 1. The appellant was convicted at the Fanling Magistracy on the 14th of August 1980 of aiding and abetting the remaining of illegal immigrants. His appeal was reserved for the consideration of this court under s.118(1)(d) of the Magistrates Ordinance, Cap. 227. 2. The statement of the offence of which he was convicted reads:
and the particulars:
3. There was ample evidence upon which the magistrate could find that TAM Kun-wah and LIU Lam-chow landed in this Colony unlawfully in the evening of the 15th June, 1980. Early on the following morning they travelled in the direction of Kowloon in a private car driven by this appellant. On their way they were stopped and the two illegal immigrants and the appellant were arrested. A fourth occupant of the car ran away. 4. The defendant's case in the court below was that he had driven the car under duress. This was regarded as disproved by the trial magistrate and we think there was ample reason for his having so regarded it. 5. Consequently the sole ground of appeal with which we need to deal reads:
6. Section 38(1) reads as follows:
7. Subsection (2) is irrelevant to our considerations. 8. Section 89 of the Criminal Procedure Ordinance reads:
9. Having regard to the wording of the grounds of appeal under consideration it is necessary, firstly, to point out that s.38(1)(b) of the Immigration Ordinance does not prohibit "landing and remaining"; it prohibits persons remaining in Hong Kong without the authority of the Director they "having landed in Hong Kong unlawfully". The question for decision is whether a person having so landed who remains without such permission is guilty of an offence continuing from day to day during the period in which he remains without such permission or whether the offence is complete and ends on the day on which he lands. 10. Local authority on the question is somewhat in disarray but it is necessary to refer to the cases in which the point arose in order to appreciate the history of the Immigration Ordinance as it stood in August 1980 and in order to do full justice to the argument advanced on behalf of the appellant. 11. In Attorney General v. LO Pui-linq(1) the respondents were charged with an offence under this section. It was common case that they had landed unlawfully in Hong Kong in 1968. In November 1971 they applied for registration under the Registration of Persons Regulations and the matter was referred to the Director of Immigration. Nothing was done about them for almost three years. On the 13th September 1974 they were visited by representatives of the Immigration Department and as a consequence they were charged with remaining here on the 13th September 1974 having landed unlawfully in 1968. They sought to rely on s.46 of the Immigration Ordinance which then read:
The Attorney General contended that the offence was a continuing one and that the matter of the complaint or information arose on the 13th September 1974, the date of offence specified in the information, and therefore was in time. The judge considered that s.38(1)(b) referred to two factors: an unlawful landing in Hong Kong and remaining without the authority of the Director. He inferred from that that a person might land in Hong Kong unlawfully but would not be guilty of an offence under paragraph (b) of the subsection if he obtained permission to remain. He went on to say that it was only when the two elements co-existed that an offence had been committed but, when they did, a "complete offence" had been established and matter had arisen in respect of which an information might be laid. He observed:
The last sentence we do not entirely follow for if it may grow larger it must necessarily persist. The judgment concluded that the offence of remaining with which the respondents in that case had been charged was not a continuing offence since there is no clear language in the Immigration Ordinance making it so. 12. In LEE Ma-leung v. The Attorney General(2) an applicant for certiorari had pleaded guilty to and been convicted of, a charge in precisely the same form as that in this case. Counsel in LEE Ma-leung contended that the conviction should be quashed on the ground that the applicant had pleaded guilty to an offence which was not an offence known to the law. The facts were on all fours with those in the instant case. The application for certiorari was refused. The Full Bench held that:
This passage presents difficulties. If the offence persisted de die in diem, the limitation period would not start running till the remaining ceased or the authority of the Director of Immigration was granted. This difficulty was appreciated in The Attorney General v. CHEUNG Kam-ping(3), as yet unreported. That was an appeal by the Attorney General from a declaration that a removal order made by the Governor under s.19(1)(b) of the Immigration Ordinance against the respondent was ultra vires. Mr. Cheung had entered Hong Kong illegally on the 31st July 1970 and had remained without the authorisation of the Director. McMullin, J.A. commented on his own judgment in LEE Ma-leung as follows -
Dissenting from the majority Li, J.A. thought that s.38(1)(b) did not create a continuing offence and hoped that the case of LEE Ma-leung might be re-considered by this court in future. Power, J. came to the conclusion that this section and a similar section in an earlier enactment:
He observed:
We take it that by this is meant that the "having landed" is the static element. It is, perhaps, less open to misunderstanding to regard the "having landed" as a pre-condition. That was how McMullin, J.A. expressed it in Attorney General v. CHEUNG Kam-ping. For the remaining to be unlawful it must be preceded by an unlawful landing. The section does not prohibit, as the ground of appeal we have quoted suggests, "landing and remaining": it prohibits remaining, the immigrant having landed unlawfully. The remaining therefore must either be a continuing offence or it must be regarded as completed at the time of landing, as the appellant before us contends. He suggests that had the Legislature intended to create a continuing offence it should have done so by words clearer than were used in the section. 13. Was the offence as originally created a continuing offence? If so, did the amending Ordinance of 1976 make any difference. 14. In Gurdev Singh v. The Queen(4) the Court of Appeal had to consider whether or not s.24(1)(b)(i) and (ii) of the Immigration Act 1971 created continuing offences. The relevant words of that section read:
15. It was held that the section did not create continuing offences and, since the prosecution was out of time, that the appellant was entitled to be acquitted. The material differences between that section 24(1) and section 38(1)(b) of Cap. 115 are that before a person might fall within the ambit of s.24(1), it had to be proved (a) that he was not patrial; (b) that he had a limited leave to enter or remain in the United Kingdom; (c) that he remained beyond the time limited by the leave or, to put it another way, that he overstayed his leave. As is the case with Cap. 115, the 1971 Act contained a power of administrative deportation of illegal immigrants. 16. The appellant had entered the United Kingdom with limited leave for one month but remained there continuously until the date of the offences alleged against him. It was a condition of the leave to enter for one month that he should not engage in employment, but he did so: he not only overstayed his leave but also otherwise disobeyed its terms. Bridge, J. observed:
17. In Gurdev Singh, the court found that such indications were present. These were found in extended time limits for prosecutions provided by the Act and in the administrative powers of deportation which were to be found in the English Act, as they are in ours. In addition, there had in earlier legislation in England been a "deeming provision". This had been omitted from the Immigration Act when the immigration control legislation came to be recast. Bridge, J. observed:
18. The main ground on which Bridge, J. appears to have reached his conclusion that remaining illegally in the United Kingdom was not a continuing offence was that while he accepted the possibility of an immigrant being prosecuted for up to three years after he had ceased to remain, in other words, after he had left the country or had received the Director's authority to stay, he regarded this as so improbable and artificial in practical terms that he was unable to suppose that the draftsman had that possibility in mind. 19. We are not persuaded that this attitude is correct in Hong Kong circumstances. It is surely a matter of common knowledge that for many years illegal immigrants have been passing in and out of Hong Kong. It would be understandable if the Legislature had decided that it should still be possible to prosecute an immigrant who left Hong Kong after remaining illegally and subsequently returned, for a period of up to three years after his original offence had ceased. 20. The enactment of such a provision, though it may not be commonly used, does not seem to us to provide a remedy so theoretical that it should be assumed that the Legislature was not bearing those circumstances in mind when the section was enacted. 21. Nor is there anything unusual in the concept that there should be a limitation period applicable to a continuing offence. In many such offences there obviously is a limitation. 22. For instance, we were referred to L.C.C. v. Worley(5), a prosecution for illegal structures which carried with it a daily penalty. This made it a continuing offence. The relevant section also provided that a prosecution must be brought within six months after the completion of the illegal work or the discovery of the offence. 23. We have pointed out that the section under consideration there differed in one essential particular from s.38(1) of Cap. 115. Our s.38(1)(b) creates two offences, (a) landing without permission and (b) remaining without the authority of the Director. If the second of these offences is not a continuing one, there was no need for the creation of two offences, for the remaining would be complete within moments of the completion of the act of landing. What is forbidden is remaining by one who has already landed unlawfully. Remaining, as Bridge, J. recognised, is a continuing activity. 24. In contrast to section 38(1)(b) of Cap. 115, s.24(1) of the U.K. 1971 Act forbids remaining after a day specified in a limited leave. In the United Kingdom the immigration authorities know the date from which the limitation period runs. But under our s.38(1)(b) our authorities do not. 25. Lastly, s.19(1)(b) of the Ordinance empowers the Governor to make a removal order against a person
We regard the use of both past and present tenses in this section as an indication that the Legislature intended the creation of a continuing offence by s.38(1) or s.41. Section 41 deals with persons who contravene a condition of stay. Section 38(1)(a) creates the offences of landing, which is not a continuing offence, so that in relation to s.38(1) the use of the present tense in s.19(1)(b) can apply only to para. (b). Because of the creation of two offences by section 38(1) and because of the use of two tenses in s.19(1)(b) we do not find that "cogent indications to displace the prima facie conclusion suggested by the language" of s.38(1)(b) are to be found. 26. We therefore conclude that the creation of a continuing offence was originally intended and that Attorney General v. LO Pui-ling was wrongly decided. The view that LO was wrong is consistent with the decision of the Full Bench to dismiss the application for certiorari in LEE Ma-leung v. Attorney General (supra) (a case which was approved in Attorney General v. CHEUNG Kam-ping) though some passages in the Full Bench judgment state that it agrees with Trainor, J.'s view that s.38(1) does not create a continuing offence. 27. Once it is established that s.38(1)(b) originally created a continuing offence, it requires very strong evidence that in 1976 the Legislature intended to change it into a non-continuing offence. In 1976 by Ordinance No. 52 s.46 was replaced by the present s.46 which reads:
Counsel for the appellant has pointed out that this subsection 2 did not appear in the original bill which gave rise to Ordinance No. 52 of 1976. That bill as drafted did not become law. It did however contain a provision which, if passed by the Legislature, would have provided expressly that an offence under s.38(1)(b) "shall be a continuing offence". Instead, the period within which a complaint might be made or an information laid in respect of an offence under s.38(1)(b) was extended by one year. 28. Counsel for the appellant argues that this indicates that the Legislature did not regard s.38(1)(b) as creating a continuing offence. It may well be that the Legislature, when enacting s.46(2), assumed that s.38(1)(b) did not create a continuing offence and that the decision in LO Pui-ling was correct. We can only guess at the motives of the Legislature. But even if these were its reasons, the beliefs of the Legislature cannot absolve a court from the obligation of deciding whether or not s.38(1)(b) on its own wording creates a continuing offence. In Smith Kline & French Laboratories v. The Attorney General(6) it was held:
An assumption by the Legislature as to the meaning of an ordinance cannot, therefore, give the ordinance that meaning. 29. In our judgment there is no sufficient evidence that the Legislature intended to change the nature of an offence under s.38(1)(b) into a non-continuing offence. Accordingly, the two unlawful immigrants were on 16th June 1980 committing an offence under s.38(1)(b) and the appellant was properly convicted. 30. We have indicated that we think that LO Pui-ling was wrongly decided and that the Full Bench rightly refused the application for certiorari in LEE Ma-leung but erred in approving LO Pui-ling and in holding that
While also holding that it persisted de die in diem throughout the limitation period and ceased to be an offence after the lapsing of the limitation period. The decision that the application for certiorari should be refused is as we see it, sustainable only on the basis that the "remaining" was a continuing offence. If it was not a continuing offence it could not have been aided and abetted the day following its commission. To say that the offence persisted only throughout the limitation period cannot be right because a limitation period would not finish in respect of any day on which the illegal immigrant remained until three years had elapsed from that day, a situation which recurred with each day. 31. In Cheung's case the decision in LEE Ma-leung's case and the irreconcilable decision in LO Pui-ling's case were both approved and dicta from LEE Ma-leung's case irreconcilable with its decision were likewise approved. 32. We cannot find in the judgments any clear and certain ratio decidendi, necessary to the decision that the removal order was valid, to the effect that s.38(1)(b) does not create a continuing offence. 33. In Monk v. Warbey(7) Greer, L.J. observed
This court is therefore free to find that the offence created under s.38(1)(b) is a continuing offence recurring daily so long as the remaining continues and we so find and dismiss the appeal. Representation: Mr. John Bleach (T.L. Ip & Co.) for appellant. Mr. G.W. Alderdice, D.P.C.C. for Crown/respondent. (1) (1975) H.K.L.R. 141. (2) (1979) H.K.L.R. 252. (3) Civil Appeal No. 58 of 1980. (4) (1974) 1 All E.R. 26. (5) (1894) 2 Q.B. 826. (6) (1966) H.K.L.R. 498. (7) (1935) 1 K.B. 81. |
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