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)
||MOHAMMAD MAHABOBUR RAHMAN
||HONG KONG SPECIAL ADMINISTRATIVE REGION
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 putting any party to the expense of an oral hearing if it can be seen, even without the assistance of oral argument, that the appeal should be 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 appellant had 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) charge was 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. In the light of such information, at the hearing before the Appeal Committee, the prosecution did not oppose the appellant’s application for 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 adopting the 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 Immigration Officer 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 Kong to 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 shortly afterwards, and was given permission to stay for another 14 days. The last entry in the immigration records was a departure at 5.16 p.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 after the 24 October 2006 departure, an irresistible inference could be drawn that the appellant must have entered Hong Kong unlawfully between 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 to be in possession of a letter dated 4 June 2007 which was purportedly issued by the Immigration Department referring to an application for 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 departed at 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 his passport at about “2 p.m. on 24 October 2006 in the vicinity of Chung King Mansion”. The explanation he gave for...