The Attorney General v. Lo Pui-ling Alias Lo Pui-ching and Another
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CACC000991/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 991 OF 1974. -----------------
----------------- Coram: Trainor J. in Court. Date of Judgment: 24th January, 1975. ----------------- JUDGMENT ----------------- 1. This is an appeal by the Attorney General by way of case stated and the facts are as follows: 2. The respondents arrived in Hong Kong unlawfully in 1968 and have since remained without the authority of the Director of Immigration. 3. On the 8th November, 1971 each applied to the Commissioner for Registration to be registered pursuant to the Registration of Persons Regulations, (Cap.177) and the matter was referred to the Director of Immigration. 4. On the 17th December, 1971 the respondents were asked to call at the Immigration Department office at Des Voeux Road and on doing so were invited to call again. They did not call again, and nothing further occurred until almost three years later. 5. On the 13th September, 1974 the respondents were visited by representatives of the Immigration Department and as a result of the visit they were charged on the information of an Immigration Officer: "that on the 13th September, 1974, having landed in Hong Kong unlawfully in 1968 (they) did remain in Hong Kong without the authority of the Director of Immigration"; an offence contrary to Section 38(1)(b) of the Immigration Ordinance. 6. When the case was called before the Magistrate's Court on the 27th September, 1974 Section 46 of the Immigration Ordinance was invoked by the respondents. It was contended on their behalf that the Court had no jurisdiction to hear the matter as the information was laid out of time. 7. Section 46 of the Immigration Ordinance reads:
8. It was argued on behalf of the respondents that the offence with which the respondents were charged is punishable summarily, and that the matter of the charge arose when the fact that the respondents entered Hong Kong illegally first came to the knowledge of the Immigration Department namely in November, 1971. 9. It was contended on behalf of the appellant that the offence, though punishable on summary conviction, was a continuing offence, and that the matter of the charge arose on the 13th September, 1974, the date specified in the information, and, therefore, was in time. 10. It was the opinion of the learned Magistrate that although the offence charged in the information was a continuing offence "the matter of the information" arose not on the 13th September, 1974, the date specified in the information, but three years previously, that is, to say, when the fact that the two respondents had unlawfully arrived in Hong Kong first came to the knowledge of the Immigration Department. He held that the proceedings were out of time and that he had no jurisdiction to entertain the case. 11. The case stated by the learned Magistrate, and agreed by the parties, raises the following question of law:
12. The section of the Immigration Ordinance under which the respondents were charged is, so far as it is relevant, as follows:
13. It will be noted that there are two separate and distinct offences created by that section:
14. It is provided elsewhere in the Ordinance that a person who would not otherwise be entitled to enter Hong Kong may do so with the permission of, and subject to conditions imposed by, an immigration officer. Section 41 makes it an offence to contravene any condition so imposed. It is clear therefore that the legislature contemplated different types of offences and set out the constituents of each. 15. The respondents were charged under paragraph (b) of subsection (1) of Section 38. That paragraph sets out the ingredients which constitute the offence viz:
16. There is no dispute concerning the unlawful entry of the respondents; it is conceded by them What is in dispute however is was the offence completed when the respondents entered Hong Kong in 1968 and remained here (as now contended by the respondents) or when the authorities knew of their presence; as found by the learned Magistrate or is the offence one that continues from day to day, each day a new offence being committed and, consequently Section 46 does not operate so long as the respondents are here. 17. It is the contention of the appellant that it is the latter interpretation that is applicable. 18. In support of the appellant's contention Mr. Hanson, cited the case of Arif v. Merryweather (1970) C.L.R., 221, a case argued before the Queens Bench Divisional Court (Parker C.J. Willis and Bridge JJ). In that case the defendant was admitted into the United Kingdom on condition that his stay did not exceed six months. More than twelve months later he was still present, and an information was preferred charging an offence under Section 4(1)(b) of the Commonwealth Immigrants Act, 1962. The defendant was convicted and appealed, contending that the information was laid in disregard of the provision of Section 104 of the Magistrates Act, 1952 that an information must be laid within six months of an offence being committed. It was held, dismissing the appeal, that the offence was a continuing one and each day the defendant remained in the country constituted an offence and Section 104 of the Magistrates Act 1952 was no bar to prosecution. 19. Mr. Hanson argued that the word "remains" in S.38(1)(b) of the Immigration Ordinance connotes continuity and, therefore, the offence, as in Arif v. Merryweather, is a continuing one being committed on each day, consequently when the respondents arrived in Hong Kong or when their presence here became known to the authorities is immaterial. He would go so far as to say that however long a period had elapsed from the unlawful arrival, or knowledge of their arrival, the respondents are liable to be prosecuted so long as they remain in Hong Kong and for two years after they depart. 20. I think in view of Arif v. Merryweather it is necessary to appreciate the section of the Act under which the appellant in that case was prosecuted. It reads:
21. There, without doubt, the legislature expressly created a continuing offence as was held in Arif v. Merryweather and as was held again in Ozam and Others v. Secretary of State for Home Department and Another (1973) 2 A.E.R., 765, which was not cited. 22. The position in England changed before the case of Singh (Gurder) v. The Queen (1974) 1 A.E.R., 26 was decided. That case is referred to by the learned Magistrate in stating the case and is relied on by Mr. Sin, the solicitor appearing for the respondents. In 1971 new immigration laws were introduced by the Immigration Act, 1971. In it the time for proceeding summarily for certain offences was extended beyond that provided for in Section 104 of the Magistrates Act, 1952 and no reference was made to offences similar to those in the 1962 Act being deemed to be continuing. 23. Section 24(1)(b) provides:
24. It was pursuant to that section that Singh was prosecuted. He was not a patrial, and he entered the United Kingdom in January, 1969 with leave to remain for one month on condition that he did not engage in employment for reward. In that month he did engage in such employment and remained so until 1973. An information was preferred against him for that offence and another and he appealed to the Crown Court on the ground that the prosecutions were out of time. His appeal was dismissed on the ground that the offence was a continuing offence. On appeal by way of case stated (Widgery C.J., Bridge and May JJ.) it was held that on the true construction of the Act, in particular having regard to the fact that the time for summarily prosecuting such an offence was made subject to an extended limit, the offence was not a continuing offence despite the use of the verb "remain". 25. Mr. Hanson pointed out that the limiting times in the English Act i.e. within six months from the Commission of the offence or three years after its commission if proceeding are commenced within two months of the offence being discovered, are very different to the position here and that respondents can get no support for their contention that the proceeding against them are statute barred. 26. Mr. Sin argued to the contrary. He maintained that penal legislation must be strictly construed; that on a proper interpretation of Sections 38 and 46 of the Immigration Ordinance the offence with which the respondents are charged was not a continuing offence but was completed in 1968; and, therefore, the Court below had no jurisdiction to hear the charge in 1974. He cited The London County Council v. Cross, 66 L.T.R., 731; Vestry of Paddington v. Snow, 35 L.T. (N.S.) 475; and Hull v. London County Council (1901) 1 Q.B. 580. Those cases were all concerned with the offence of erecting buildings projecting beyond the general line of buildings in streets. The offence was one triable summarily and, therefore, Section 11 of the Summary Jurisdiction Act, 1848 which provided, that, if no other time be fixed by statute for prosecuting a summary offence, the information must be laid within six months from the time "when the matter of such complaint or information arose". In each case the information was laid more than six months after the erection first projected beyond the general line of buildings and it was held that the prosecution was barred by lapse of time. 27. Mr. Sin cited Vaughan v. Biggs, (1960) 2 A.E.R., 473. In that case the defendant was charged under Section 1(1) of the Litter Act, 1958 which provides:
The defendant was charged that he deposited and left a derelict car on a public open space on or before the 2nd April 1959. The charge was preferred on the 3rd July, 1959. 28. It was held that the section "did not create a continuing offence, because the offence included both of two elements, the depositing and the leaving of litter, the former of which was an act that was fixed in point of time; accordingly, as it was not shown that the car had been deposited within six months before the date when the information was laid, the justices had no jurisdiction to hear the information". 29. Two other cases were cited by Mr. Sin: Chepstow Electric Light and Power Company Ltd. v. Chepstow Gas and Coke Consumers Company Ltd. (1905) 1 K.B.D. 198; and R. v. Chertsay Justices (1961) 1 A.E.R.825. In both of those cases the offence with which the Courts were concerned was held to be a continuing offence but they differed from the instant case in that the legislation involved provided for day to day fines during the continuance of the offence. But Mr. Sin cited the former because Ridley J. at 211, distinguished it from Hull v. The London County Council in that "In Hull's case the offence was completed when the projection was extended." 30. Mr. Sin also cited the Chertsay Justices case by reason of the observation of Wodgery J., as he then was:
31. The idea of limiting the time within which penal proceedings might be commenced is of long standing. The principle that an offender should not have a charge for certain less serious offences, and indeed some relatively serious offences hanging indefinitely over his head has long been established. 32. In Hong Kong in the case of any offence, other than an indictable offence, where no time is limited by legislation for making a complaint or laying an information in respect of the offence, the complaint must be made or the information laid within six months from the time when the matter of the complaint or information arose (Section 26 of the Magistrates Ordinance, Cap. 227). Thus, the general rule is that penal matters of summary jurisdiction must be prosecuted within six months from the time when the offence was committed. Where, therefore legislation appears to depart from the general rule courts must be particularly careful to ensure that it is the intention of the legislature to depart from the general position before so holding, and also to ensure that a departure beyond that specially created limit is not permitted. If, for example, this court were to accept the argument of counsel for the appellant then there would be no limit to the time in which an information might be laid for the offence with which the respondents are charged so long as the offender is still in Hong Kong. Such an interpretation would certainly be opposed to the general antipathy of the legislature to idea of "stale" charges. 33. It is quite true, however, that the legislature has from time to time enacted just such legislation, legislation whereby an offender may be pursued indefinitely for an offence. This happens in cases of offences such for example as offences under the Bankruptcy or Companies' legislation. But it is with hesitation, and only on the clearest language, that a court will consider that the legislature intended an offence to be a continuing one. The intention of the legislature is easily ascertainable in legislation which provides for a daily penalty so long as the offence continues, such as in the Bankruptcy or Companies legislation; likewise is it easily ascertainable where, as in Section 4(1) of the Commonwealth Immigration Act, 1962 the act provides that the offence shall be deemed to continue throughout the period the offender remains in the United Kingdom. But, as Croom-Johnson J. said in the Wimbledon Justices case at 394:
34. Section 46 is the section of the Immigration Ordinance which extends the normal time for laying an information for an offence from six months to two years. The time is to commence to run from the time "when the matter of such an information arose". 35. The question in the instant case then is when did the matter of the information arise. Was it in 1968 when the respondents unlawfully entered and remained, or is the position that having unlawfully entered and remained they have daily committed an offence and that an information may be laid with respect to any day subsequent to arrival that the informant cares to select. 36. To answer the question one must decide what constitutes the offence. 37. Section 38(1)(b) refers to two factors: an unlawful landing in Hong Kong; and remaining without the authority of the Director of Immigration. It may be implied from that that a person might land in Hong Kong unlawfully but would not commit an offence under part (b) of the sub-section if he obtained permission to remain. In my opinion, therefore, it is only when the two elements exist that an offence has been committed; but when they do a complete offence has been established and a matter has arisen in respect of which an information may be laid. One of the elements is the remaining, but I am satisfied that that element is entire the moment it comes into existence. It may grow larger with the passing of time, but that is beside the point. 38. It follows from what I have just said that I do not consider the offence with which the respondents were charged to be a continuing offence. It has always been a matter of policy that lesser offences should be disposed of before they became stale. It has on the other hand long been the practice because of social policy to keep other offences fresh to ensure that people will comply with it. This has been done, as I said earlier by fixing penalties for each day of an infringement; hence the continuing penalty sections of the Bankruptcy and Companies Ordinances. 39. In the absence of clear language I would not hold an offence, otherwise subject to a time limit for prosecution, to be a continuing offence. No such language exists in the Immigration Ordinance. Indeed having regard to the powers given to His Excellency the Governor to deport a person who has committed, or is committing, an offence under Section 38(1) or Section 41 whether he has been convicted or not one might find some support there for the argument that it was not the intention of the legislature to create a continuing offence. 40. I hold the offence with which the respondents were charged was complete in 1968, from whence time began to run. This being so, a fortiori, the learned Magistrate's dismissal of the information was correct even though his decision as to when time commenced to run was not. 41. I have been asked by Mr. Sin to allow the respondents the costs they have incurred. 42. This is a case where the respondents might have been dealt with under other provisions of the Ordinance. In 1971 the Immigration authorities were aware of the position. They might then have taken appropriate action but they did nothing and, certainly in 1974, the respondents, having been to see an immigration officer in 1971 on his invitation might well have concluded that they were to be allowed to stay. Even after the decision in the Court below the Immigration Department might have drawn the attention of His Excellency the Governor to the position so that he might consider taking action under Section 19(1)(b). The respondents have been put to the expense of defending the charge and this appeal, an expense that they might well have been spared. 43. I dismiss the appeal and I allow the respondents their costs incurred in the Court below and before this Court.
Representation: Hanson, C.C. for Appellant. Sin of P.H. Sin & Co., for Respondents. |