FACC No. 9 of 2009
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 9 OF 2009 (CRIMINAL)
(ON APPEAL FROM CACC NO. 177 OF 2008)
Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ
Date of Judgment: 11 February 2010
J U D G M E N T
Chief Justice Li:
1. The judgment of the Court will be given by Mr Justice Chan PJ.
Mr Justice Chan PJ:
The Mok Kin Kau procedure
2. This case is disposed of under the procedure laid down by this Court in Mok Kin Kau v HKSAR (2008) 11 HKCFAR 1. As we stated in that case, this procedure can be adopted in cases where (i) an uncontested appeal can be allowed without puttingany party to the expense of an oral hearing if it can be seen, even without the assistance of oral argument, that the appeal shouldbe allowed, and (ii) the question of costs, if it remains in issue, can be dealt with on written submissions. This is such a case.
3. The appellant was, on 18 April 2008, convicted after trial in the District Court of two offences: the first, jointly with his brother,of wounding with intent to cause grievous bodily harm; and the second, that having landed in Hong Kong unlawfully, the appellanthad remained in Hong Kong without the authority of the Director of Immigration, contrary to s.38(1)(b) of the Immigration Ordinance, Cap 115 (“the Ordinance”). Upon appeal to the Court of Appeal, the conviction on the wounding charge was quashed but his appeal on the s.38(1)(b) chargewas dismissed, the court applying the proviso against him.
4. After the Court of Appeal had handed down its judgment, certain information was brought to the attention of the prosecution. Inthe light of such information, at the hearing before the Appeal Committee, the prosecution did not oppose the appellant’s applicationfor leave to appeal to this Court on the substantial and grave injustice ground and also indicated that should the Court grant leave,the appeal would not be contested. Leave to appeal was granted and it was suggested to the parties that they could consider adoptingthe Mok Kin Kau procedure. This suggestion was taken up by the parties who have filed a Joint Case for the purpose of this appeal.
The facts leading to the s.38(1)(b) charge
5. The appellant was a Bangladesh national. He first came to Hong Kong on 11 June 2006. Upon arrival, he was permitted by an ImmigrationOfficer to stay for 14 days. He left Hong Kong at the end of this period. This was followed by a succession of arrivals and departures.According to the records kept by the Immigration Department, his travel pattern showed that each time, he travelled out of Hong Kongto the Mainland on or before the last day which he was allowed to stay, and then returned to Hong Kong on the same day or shortlyafterwards, and was given permission to stay for another 14 days. The last entry in the immigration records was a departure at 5.16p.m. on 24 October 2006 by a person using his passport.
6. On 25 July 2007, the appellant was arrested in Hong Kong in connection with the wounding charge with which we are no longer concerned.Not surprisingly, investigations on the wounding charge also led to the s.38(1)(b) charge.
Proceedings in the courts below
7. In respect of this latter charge, the prosecution’s case was that since there was no record of his re-entry into Hong Kong afterthe 24 October 2006 departure, an irresistible inference could be drawn that the appellant must have entered Hong Kong unlawfullybetween that day and 25 July 2007 when he was arrested and must have remained here without the authority of the Director of Immigration,contrary to s.38(1)(b) of the Ordinance. The inference, the prosecution alleged, was reinforced by the fact that he was found tobe in possession of a letter dated 4 June 2007 which was purportedly issued by the Immigration Department referring to an applicationfor extension of stay, but,as admitted by the appellant, no such application had in fact been made. The letter was thus a false document.There was however no evidence that the appellant knew it was false.
8. The appellant’s defence was that since his last entry on 11 October 2006, he had not left Hong Kong; that it was not he who departedat 5.16 p.m. on 24 October 2006 using his passport; that he had made a report to the police on 1 November 2006 for the loss of hispassport at about “2 p.m. on 24 October 2006 in the vicinity of Chung King Mansion”. The explanation he gave for the false letterwas that he had engaged and paid someone who had undertaken to secure an extension of his visa unlawfully.
9. At the trial, in convicting the appellant, the judge placed reliance on the presumption provided in s.62(1) of the Ordinance andthe appellant’s failure to produce an identity card relating to himself when required to do so upon arrest. On appeal, the Courtof Appeal held that the judge was wrong to rely on s.62(1) since it was notfree from doubt that the appellant who was admittedlynot proficient with either English or Chinese could understand the request made by the arresting officer for the production of hisidentity. However, in applying the proviso and dismissing the appeal, the court placed no weight on his credibility in view of theadmittedly false immigration letter and further found that his report to the police of the alleged loss of his passport only 8 daysafter he had known about it was suspect. The court considered that the only conclusion was that he had unlawfully entered Hong Kongafter 24 October 2006 and remained until his arrest on 25 July 2007 without the authority of the Director.
The fresh information in question
10. The present appeal based on the ground of substantial and grave injustice is founded on fresh information acquired after the judgmentof the Court of Appeal. It appears that when the appellant was serving his sentence, he heard that a person had been arrested forpossession of his passport. An enquiry was made of the police but yielded no result as it was then considered that there were notsufficient details to pursue the matter. After the Court of Appeal’s judgment and the appellant’s release from prison, the matterwas followed up and it was later confirmed by the Immigration Department that on 24 October 2006, it was another person, not theappellant, who had made use of the appellant’s passport to successfully leave Hong Kong but had failed to enter the Mainland. Thatperson was detained on the same day as the appellant reported the loss of his passport. The Immigration Department had earlier mistakenlytaken this exit entry as the appellant’s departure.
11. The above information is now accepted by the prosecution and appears as an agreed statement of fact in the Joint Case of the Appellantand the Respondent. It is sought to be placed before this Court as fresh evidence without the need of calling any live witness orfiling any affirmation.
12. In an appeal where there is also an application to receive fresh evidence, the appellate court has to undertake two tasks: first,to decide whether or not to receive the evidence; and second, to decide how to dispose of the appeal, that is, whether to allow ordismiss the appeal or remit the case to the lower court. See R v Pendleton  1 Cr.App.R. 34, Lord Bingham of Cornhill, paras 9 to 11.
This Court’s power to receive fresh evidence
13. There is no express power provided in the Hong Kong Court of Final Appeal Ordinance, Cap 484 or the Rules made thereunder for receivingfresh evidence. However, s.17(2) of that ordinance empowers the Court to exercise,for the purpose of disposing of an appeal, any of powers of the court from which the appeal lies. Under s.83V(1)(c) of the Criminal Procedure Ordinance Cap 221, the Court of Appeal, at the hearing of an appeal before it, may, if it thinks it is necessary or expedient in the interestof justice, receive the evidence, if tendered, of any witness. The conditions to be satisfied before receiving such evidence areprovided in s.83V(2): the fresh evidence is likely to be credible; it would have been admissible in the courts below; it is relevant to an issue in theappeal; there is a reasonable explanation for the failure to adduce it in the courts below; and the court is satisfied that it wouldafford a ground of appeal. See also Chan Tung Cheung v HKSAR  1 HKLRD 36; HKSAR v Cheng Sui Wa  4 HKC 571; HKSAR v Cheng Wui Yiu, CACC No. 532 of 2004.
Admission of the fresh evidence in this case
14. It is accepted that the appellant entered Hong Kong lawfully on 11 October 2006 and was given permission to stay for 14 days. Tosubstantiate the s.38(1)(b) charge, the prosecution has to prove beyond reasonable doubt that he had left Hong Kong and re-entered unlawfully, there being nodispute that he had remained without the authority of the Director. The critical issue is thus whether it can be established thatthe appellant had left Hong Kong on 24 October 2006; for if he had, he must have re-entered unlawfully, since there was no otherrecord of his re-entry. On the other hand, if, as the appellant asserts, he had not left Hong Kong, the prosecution would have failedto prove he had entered unlawfully and the case against him would have fallen away. The fresh information which is accepted by theprosecution as a fact shows that it was not the appellant but another person who had left on 24 October 2006. It was not availableto the trial judge and the Court of Appeal and was only confirmed after the Court of Appeal’s decision. It is obvious that theconditions stipulated in s.83V have been satisfied and it is necessary and expedient in the interest of justice to receive such new evidence for the purpose ofthis appeal.
15. It is worth pointing out that if the appellant had not left Hong Kong since his last arrival on 11 October 2006, he must have, onhis own admission, overstayed since 24 October 2006 when he was arrested on 25 July 2007. He would have been guilty of a differentoffence but that is an offence with which he was never charged. This is accepted by the parties.
Effect of the fresh evidence
16. Having received such fresh evidence, the second task for the Court is to decide what effect it has in the present appeal. If suchinformation had been placed before the trial judge, it is most unlikely that he would have been satisfied that the s.38(1)(b) charge was proved beyond reasonable doubt. And if the fresh information had been adduced before the Court of Appeal, it would haveno doubt concluded that the conviction on the s.38(1)(b) charge was unsafe and unsatisfactory (which is the test to be adopted after an appellate court has received the fresh evidence).See, for example, R v Pendleton  1 Cr.App.R. 34; Stafford & Luvaglio v DPP (No.2)  AC 878; R v Hakala  EWCA Crim 730; R v Cheung Tse Pan & another  2 HKLR 370.) We are thus of the opinion that it would have been a substantial and grave injustice if the conviction were to be upheld in thesecircumstances. It must be quashed.
17. For the reasons stated above, the appeal is allowed; the conviction on the s.38(1)(b) is quashed.
Written materials supplied by Mr Phillip Ross (instructed by Messrs David Ravenscroft & Co. and assigned by the Legal Aid Department)for the appellant and by Mr David Leung (of the Department of Justice) for the respondent