A A
B DCCC 576/2019 B
[2020] HKDC 552
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 576 OF 2019
F ----------------- F
HKSAR
G G
v
H RITA OTGON (also known as BATAA OTGON and Otgon BATAA) H
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I I
J Before : District Judge Clement Lee in Court J
Date of Verdict : 15th July 2020 at 9:30 a.m.
K K
Present : Mr. Trevor Beel, Counsel on fiat, for HKSAR/
L Director of Public Prosecutions L
Ms. Munira Moosdeen, instructed by Messrs. Jal N.
M M
Karbhari & Co. assigned by Department of Legal Aid
N for the defendant N
Offences : (1) to (10) Breach of deportation order
O O
P ------------------------------------------- P
REASONS FOR VERDICT
Q Q
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R R
S
Background S
T T
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A A
B B
1. The defendant faces ten charges of breach of deportation
C order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115. C
She has denied all charges.
D D
2. As the defendant speaks Outer Mongolian, an Outer
E E
Mongolian interpreter was made available to her throughout the
F proceedings. F
G
3. There were 4 prosecution witnesses. At the conclusion of the G
Prosecution’s case, no submission of no case to answer in respect of the
H H
charges was made by the defence. I found that there was a case to answer
I
on all charges. Having had her rights explained to her by her Counsel, the I
defendant elected to give evidence but called no witnesses. I must stress
J J
that even if the defence version is not accepted, it remains the
K prosecution’s duty to prove the charges. After hearing final submissions K
from Counsel, I adjourned the matter to deliver my verdict. I have carefully
L L
considered all the evidence adduced before me as well as the submissions
M of Counsel for the Prosecution and defence. I have borne in mind at all M
times that the burden of proof remains throughout upon the Prosecution to
N N
prove guilt beyond all reasonable doubt against the defendant.
O O
Issue
P P
4. The defendant did not challenge the identity, including she
Q was being handled by PW1 on the material date on 3 rd December 2015. Q
She was intercepted by the immigration officer at the arrival hall of Lo Wu
R R
Control Point on 18th May 2019. She did not challenge that on the 10 dates
S as mentioned in the charges (between 8th April 2017 and 18th May 2019), S
she was in Hong Kong. She came to Hong Kong on 8th April 2017 with the
T T
changed name of Rita Otgon. Her main complaint is that she did not
U U
V V
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A A
B B
understand what had been served on her on 3rd December 2015 nor the
C main witness explained to her the nature of the document in question. She C
was not aware that a deportation order was made against her. The main
D D
issue at trial is whether the defendant has been given notice of a
E deportation order was against her under section 43 of the Ordinance. E
F Prosecution’s evidence F
G
5. Facts admitted by the Prosecution and the Defence at the G
outset under Section 65C of the Criminal Procedure Ordinance, Cap. 221,
H H
were produced and marked as Exhibit P91. I set out the agreed facts as per
I
Annex 1 herein. I
6. The subsidiary questions turn on what language did the
J J
immigration officers and the defendant exchange on two material dates, i.e.
K K
on 3rd December 2015 and 18th May 2019, so as to assess the English
L
language ability of the defendant. L
PW1
M M
7. On the 23rd November 2015, a deportation order
N N
(SF(D)15580) was issued under section 20 (1)(a) of the Immigration
O Ordinance, Cap. 115 requiring a female with the surname Bataa and given O
name Otgon to leave Hong Kong and from then thereafter prohibiting her
P P
2
from being in Hong Kong .
Q Q
8. The main witness is immigration officer ASIO Li Chun Ho
R (PW1) who purported to serve and explain the deportation order on the R
defendant. On the 3rd of December 2015, he was responsible for
S S
T T
1
Annex 1
2
Exhibit P1
U U
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A A
B B
explaining and serving the deportation order 3 on the defendant. He
C testified that the process of explaining the proforma form of service of C
deportation order took about 5 minutes. He read and explained to the
D D
defendant as per the said document. He also served one of them on the
E defendant. He communicated with the defendant in English. He did not E
find it necessary to attempt to contact the Mongolian interpreter because
F F
either from the defendant’s facial expression or her feedback, she appeared
G to understand what he said. Apart from the said document, he did not have G
additional notes to record what happened that day. Had there been signs of
H H
language barrier, he would have withheld the deportation process. Even if
I the defendant seemed to understand the process, had the defendant I
requested for an interpreter, he would have also withheld the deportation
J J
process. PW1 knew that there was only one registered Mongolian
K interpreter at the time. He denied he did not care whether the defendant K
understood what he said. He did explain to the defendant as per the
L L
proforma document and asked her to sign to acknowledge receipt a copy
M and she understood the deportation order. On the same day Bataa Otgon M
was escorted to depart Hong Kong.
N N
PW2
O O
9. On the 18th May 2019, a female (the defendant) presented
P P
two Mongolian passports E2486063 under the surname of Rita and given
Q name of Otgon to SIA Lau Wing Yi (PW2) at the immigration arrival Q
counter at the Lo Wu Control Point. The defendant explained in simple
R R
English why she had two valid passports because one of them was fully
S chopped. They communicated in simple English and PW2 seemed to S
understand. However, the facial recognition system of the Immigration
T T
3
Exhibit P2
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A A
B B
Department alerted PW2 that the defendant might be violating the laws.
C PW2 then informed her supervisor of the system’s alert. C
D
PW3 D
10. On 18th May 2019, the defendant was then handed to PW3 for
E E
preliminary enquiry. Amongst other items found on the defendant, PW3
F F
found a Mongolian driving license issued on the 1st July 2014 with the
G
surname Bataa and given name Otgon. The defendant claimed that her G
identity was Rita, Otgon but remained silent when asked by PW3 whether
H H
she had any other identities.
I PW4 I
J 11. Subsequently, the defendant was handed to PW4, IA Ms Lau J
to conduct a formal interview. She informed the defendant that she was
K K
now detained under section 26(a) of the Immigration Ordinance. PW4
L took a record of interview from the defendant in English. The defendant L
indicated that she understood both the spoken and written English used by
M M
PW4 and answered PW4’s questions in English.
N N
Other evidence
O O
12. According to exhibit P8, ASIO Alice Chung Yuen Han
P retrieved and certified the travel movement records pertaining to the P
defendant. It was established from the movement record that the defendant
Q Q
had from the 8th April 2017 to the 12th of May 2019 entered Hong Kong
R on numerous occasions and in particular on the following dates: R
S -8th April 2017 relating to charge 1, S
-25th December 2017 relating to charge 2,
T T
-6th January 2018 relating to charge 3,
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V V
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A A
B B
-14th February 2018 relating to charge 4,
C -17th March 2018 relating to charge 5, C
-22nd December 2018 relating to charge 6,
D D
-29th December 2018 relating to charge 7,
E -5th January 2019 relating to charge 8, E
-11th May 2019 relating to charge 9,
F F
-18th May 2019 relating to charge10.
G G
13. According to exhibit P3 and P4, on 18th May 2019, IA Hui
H H
Chau Yee took the defendant’s fingerprints. On the 2nd of July 2019
I woman Sergeant 56628 Chiu Ka Yee, a fingerprint expert, examined and I
compared the fingerprints of the defendant with the fingerprints of Bataa
J J
Otgon and determined that the fingerprints of the defendant were the same
K K
as that of Bataa Otgon, who had been using Mongolian Passport
L
E1306238. Exhibit P5 is the photo album of fingerprint comparison. L
Defence case
M M
14. The defendant was a female born in August 1967 in Outer
N N
Mongolia and is now aged 53. She testified that on 3rd December 2015,
O PW1 said something that she did not understand. She was handed a O
document that she did not understand. PW1 then used a ball pen to point to
P P
a position on a document and said “name”, she then put her signature there.
Q Her English standard was “very low”. She thought she was signing on a Q
document to give effect of her release so that she could go home.
R R
15. She explained that why she changed her name from Bataa
S S
Otgon to Rita Otgon shortly before she returned to Hong Kong on the date
T as per the first charge (8th April 2017) was because of her lawyer’s advice. T
She elaborated that her elder sister is also called Rita. However, there was
U U
V V
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A A
B B
disputes on the inheritance of her late mother’s estate. In order to obtain
C some estate from her sister, she changed her name to Rita and she finally C
got an amount equivalent to US$20,000 odd from her sister.
D D
16. She explained the purpose of the 10 visits to Hong Kong was
E E
mainly to accompany her husband to travel to and from Outer Mongolia
F and Shenzhen, and Hong Kong as place of transit where they also bought F
medicine and nutritious food while in Hong Kong. Her husband was
G G
having liver disease at the time. She produced medical documents of her
H husband to show that her husband was having ‘K47 Liver fibrosis and H
cirrhosis’ since 7 August 20184. There are also medical documents dated
I I
27th September 2018 showing the related medical examination results5,
J examination date on 18th February 2019 with report date on 19th February J
2019.6
K K
17. She disagreed with what PW2 and PW3 said regarding their
L L
conversations in English and their observation on the defendant’s English
M proficiency. She said PW3 did not say anything to her. M
N 18. She would not have come into Hong Kong had she known N
that the said document was a deportation order. She could have travelled
O O
directly to Shenzhen from Outer Mongolia had she known that it was a
P deportation order. P
Q Offence Q
19. Section 43 provides as follows:
R R
S S
4
T
D10A T
5
D12A
6
D18A
U U
V V
-8-
A A
B B
Breach of deportation order, and landing from ship or aircraft in
which removal to be effected
C C
(1) Subject to subsection (2), if—
D D
(a) any person in respect of whom a deportation order is in force is in Hong
E Kong in contravention of the order; or E
(b) any person who has been placed on board a ship or aircraft
F F
under section 25(3) lands from the ship or aircraft before it leaves Hong
Kong,
G G
he shall be guilty of an offence and shall be liable—
H (i) on conviction on indictment, to imprisonment for 7 years; and H
I (ii) on summary conviction, to imprisonment for 3 years. I
J (2) A person who has not been given notice— J
(a) of a deportation order made against him;
K K
(b) of the rescission of a suspension of the deportation order made against
L him, L
shall not be guilty of an offence under subsection (1)(a).
M M
N Elements of the offence N
O 20. From the parties’ evidence, it seems that there is no dispute O
that the defendant in respect of whom a deportation order was in force was
P P
in Hong Kong at the material times under section 43(1)(a). The crux of the
Q issue is whether the defendant has been given notice of a deportation order Q
made against her.
R R
21. The defendant contended that the notice was given in the
S S
language that she did not understand. PW1 seemed to accept that despite
T English was not the defendant’s mother tongue, he and the defendant were T
able to converse in simple English, which was sufficient for the defendant
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A A
B B
to understand the true nature of the document.
C C
22. The parties also canvassed on the mens rea of section 43
D
offence. There is no decided authority on the mental elements of the D
offence. This is the first case to identify the mental elements of the offence.
E E
Mr Beel, counsel for the prosecution referred me to a Court of Final
F Appeal case of Kulemesin v HKSAR (2013) 16 HKCRAF 195. Counsel F
for the defendant agreed with the expounded principles there but she
G G
reminded me of the basic principles in Archbold such as “The deed does
H not make a man guilty unless his mind be guilty”. Be there as it may, she H
accepted that in modern world, there are different kinds of offence with
I I
difference requirement on mens rea, including offence with absolute
J liability. J
K 23. Regarding the elements of the offence, I agree and endorse on K
the approach under section 43:-
L L
“Firstly, the prosecution has the burden of proving beyond
M reasonable doubt that there is a deportation order in force and M
that the defendant has contravened that order by entering
N N
Hong Kong.
O O
Secondly, under s.43(2) a statutory defence arises when a
P P
person who has not been given notice of a deportation order
Q against him/her shall then be not guilty of an offence under Q
s.43(1)(a). Hence, the prosecution has to prove the actus reus
R R
but does not have to prove the mens rea. However, if there
S was evidence capable of raising a reasonable doubt that the S
defendant might have acted or omitted to act in the honest and
T T
reasonable belief that the circumstances or likely
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A A
B B
consequences of his conduct were such that, if true, liability
C would not attach, he must be acquitted unless the prosecution C
proved beyond reasonable doubt the absence of such
D D
exculpatory belief or that there were no reasonable grounds
E for such belief.7” E
F 24. In other words, in the present case, if the defendant from the F
evidence can establish that she was not given notice (statutory defence)
G G
then she must be acquitted unless it can be shown by the prosecution the
H absence of such exculpatory belief or there were no reasonable grounds for H
I
such belief. I
J J
Evidence analysis
K K
25. The facts at issue rely upon the credibility of witnesses and
L the weight to be attached to evidence. The 4 prosecution witnesses each L
gave their account of what happened at the material time. Neither was
M M
shaken in cross-examination. The defendant also gave evidence. This is
N akin to one to one situation and I remind myself of the danger of relying on N
PW1’s version alone.
O O
P P
7
HKSAR v Kulemesin (2013) 16 HKCFAR 195, in view that breach of s.43 is an
Q offence that carries a severe penalty (7 years’ imprisonment) a reverse onus might be Q
regarded as making excessive inroads into both the presumption of mens rea and the
R R
constitutionally protected presumption of innocence, hence the five Hin Lin Yee
S
alternatives on construing statutory offences in regard to the mens rea were S
reformulated.
T T
U U
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A A
B B
26. PW1 described his normal practice and what did he in fact do
C on the defendant. He was criticised of not caring whether the defendant C
understood what she signed. He admitted that he did not attempt to contact
D D
the only Mongolian interpreter at the time. He just carried out the work as
E usual. He explained that given his experience, whenever there were any E
signs of language barrier, showing no response or “not understanding” or
F F
even a deportee seemed to understand but requested an interpreter, he
G would withhold the deportation process and then get the interpreter’s G
assistance.
H H
27. For comprehensiveness sake, I shall refer to the deportation
I I
order. The document is a simple document in English which, with extracts
J read as follows: J
[P2, page 1] DEPORTATION ORDER
K K
WHEREAS Madam Otgon BATAA
L L
(a) is a person who is not a Hong Kong permanent resident; and
M M
(b) has been found guilty in Hong Kong of an offence punishable with
N imprisonment for less than two years. N
O
[P2, page 2] I hereby certify that at [handwritten as 1020] hours on [chopped with O
-3 Dec 2015] at [handwritten as CLS] I served a copy and explained the contents of
P this deportation order to Madam Otgon BATAA and satisfy that she understood. P
Q Signed: [a signature] Q
Name: [handwritten as CH LI]
R R
Rank: [handwritten as IO (DS) D4]
S S
Date: [chopped with -3 Dec 2015]
T T
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A A
B I, Madam Otgon BATAA, certify that at [handwritten as 1022] hours on [chopped B
with -3 Dec 2015] at [handwritten as CLS] I received a copy of this deportation
C C
order and that I understood.
D D
Signed: [the defendant’s signature]
E (Madam Otgon BATAA) E
F I hereby certify that Madam Otgon BATAA mentioned within this deportation F
order was seen to leave Hong Kong for [handwritten as Ulaanbaatar] by
G [handwritten as OM 298] at [handwritten as 1322] hours on [handwritten as G
3-12-2015]
H H
28. In my views, with hindsight, it is desirable to have an
I I
interpreter of a deportee’s language present throughout the issuance of
J deportation order process. Unfortunately, PW1 failed to do so. On all J
fairness, I accepted the defence’s suggestion that PW1’s preparation for
K K
issuance of the deportation order was inadequate to ensure the defendant
L knew the brief nature of the order. L
M 29. However, that’s not the end of the matter on the main issue of M
whether or not notice has been given to the defendant. I accepted PW1’s
N N
evidence that he and the defendant were able to converse in simple English
O that enabled the defendant to understand the brief nature of P2. There are O
also other evidence relevant to the defendant’s knowledge of the nature of
P P
the document she signed. For example, had the defendant thought she was
Q signing document effecting her release and then go home, she did not need Q
to reserve or to pay for air ticket. The defendant agreed that she needed not
R R
reserve or pay for the air ticket. She was also escorted to the flight on the
S same day. S
T 30. Secondly, I accepted that defendant’s own copy similar to P2 T
was served on her. I do not accept the defendant’s version to the contrary.
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A A
B B
Simply put, it is crystal clear that explanation of P2 and the service of a
C copy to the defendant is important. However, PW1’s evidence on service C
of a copy was not challenged at his cross examination, though the
D D
defendant denied a copy was served on her during her cross examination.
E It is to be noted that under cross-examination the defendant had initially E
agreed that she had been given a copy of the order then she changed her
F F
evidence to say that she hadn’t been given a copy of the order.
G G
31. As a result, as she had been served a copy, there is ample
H opportunity for her to find out what was it between 3rd December 2015 and H
8th April 2017 (1st date she returned to Hong Kong after she was sent back
I I
to Outer Mongolia). If she chose not to do so, she deliberately shut her
J eyes to the obvious, that she knew the nature of document and irresistible J
inference on her guilty knowledge can be drawn accordingly.
K K
32. Further, I also carefully observe the evidence of the
L L
defendant’s background as to whether the defendant is a village lady of
M little education or a business lady with frequent travelling experience, M
hence with both spoken and written ability on English language. The
N N
defendant testified that she completed her secondary education in
O Mongolia (though she said medium of instruction is in both Russian and O
Mongolian language). However, she often assisted her daughter’s
P P
handbag business by going to China. She said she did not speak English or
Q Mandarin. When she shipped cargoes from China to Outer Mongolia, she Q
only signed document in Mongolian language. It seems to me incredible
R R
that how could a person assist in dealing with handbag business in China
S without English/Mandarin speaking ability. Nonetheless, from what the S
defendant said could have the effect that she would not sign anything that
T T
she did not understand. But she denied the suggestion. In my views, the
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A A
B B
defendant is not a person who is simply pliant and obedient; in that it
C should be noted that when asked whether she would take part in a video C
record of interview she refused. She is a business lady with frequent
D D
travelling experience, hence at least possess spoken ability on English
E language. E
F 33. In respect of the reasons for changing her name so that she F
would have the same surname as her sister by which she could receive
G G
inheritance left by her mother. In my views, her version is incredible. The
H defendant had initially stated that as her sister had looked after her mother, H
she was entitled to receive the inheritance but wished her sister to give her
I I
financial support. When she was put that a birth certificate can achieve the
J same (showing she is the daughter of her mother) without changing her J
name, she made the excuse of relying on her lawyer,
K K
34. It is to be noted from exhibit P8 that soon after changing her
L L
name she obtained a new passport and then commenced entering into Hong
M Kong under her new identity. The defendant claims that her husband had M
become ill in late 2016 yet all the medical records are dated from 2018.
N N
35. I accept PW1’s explanation that the defendant was able to
O O
converse in simple English with the standard sufficient for her to know the
P nature the document, had there been doubts of her understanding of the P
deportation process, he would withhold it. I find him an honest and
Q Q
reliable witness. Same finding equally apply to PW2 to PW4. On 18th
R May 2019, they all conversed with the defendant in English and the R
defendant replied in English. For example, PW2 asked: “How long you
S S
are going to stay in Hong Kong”. The defendant replied: “Two days”.
T PW3 was responsible for preliminary interview with the defendant, she T
spent 4 hours with the defendant for two sessions of interviews. At the
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A A
B B
outset, they used English as to whether the defendant elected to speak
C Mandarin or English and the defendant elected English. The defendant C
gave her name and date of birth in English. PW4 was responsible for
D D
taking record of interview from the defendant. She explained to the
E defendant that why she was detained and the defendant indicated that she E
understood. They also conversed on whether the defendant chose to have
F F
interview by handwriting or by video.
G G
36. I do not accept the defendant’s version unless there is no
H conflict with the Prosecution’s case. Her exculpatory innocent belief is H
against logic, common sense and the objective evidence. It does not
I I
require to change name to show a mother and daughter relationship when a
J birth certificate is sufficient. I also found as a fact that the only irresistible J
inference is that she changed her name to strike a luck as to whether the
K K
immigration officer might detect Bataa Otgon is the same as Rita Otgon.
L Unfortunately, upon her return for 9 times during which the immigration L
officers were unable to discover the two names were the same person,
M M
hence in breach of the deportation order. It was only on the 10 th time in
N 2019 that facial recognition system alerted the security system and N
discovered the breach.
O O
37. I found as a matter of fact that (i) PW1 and the defendant were
P P
able to converse in simple English that enabled the defendant to know the
Q brief nature of P2; (ii) a copy had been served on the defendant by PW1. Q
R 38. All in all, the prosecution has proved the actus reus of the R
offence. The defendant has tried to raise the statutory defence as set out
S S
under s.43(2) to establish that she did not have the requisite mens rea.
T T
39. However, from all the evidence, the prosecution witnesses
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A A
B B
were all credible and reliable, whereas the defendant’s evidence in contrast
C was in part evasive and incredible. As a result, there can be no reasonable C
doubt that the defendant had been given notice of the deportation order.
D D
The defendant is guilty as charged.
E E
Annex-1: Admitted facts (exhibit P9)
F F
G 1. The defendant was formerly known by the surname Bataa and G
given name Otgon and in 2015 was using Mongolian Passport E1306238.
H H
I 2. On the 11th September 2015 DPC 11579 took the fingerprints I
of the aforementioned Bataa Otgon holder of Mongolian Passport
J J
E1306238. Certified true copy of the Fingerprint Form is produced as
K K
P(3).
L L
3. On the 18 May 2019 IA Hui Chau Yee took the Defendant’s
th
M M
fingerprints. Certified true copy of the Fingerprint Form is produced as
N
P(4). N
O O
4. On the 2nd July 2019 W/Sgt 56628 Chiu Ka Yee, a fingerprint
P expert, examined and compared the fingerprints of the Defendant with the P
fingerprints of Bataa Otgon and determined that the fingerprints of the
Q Q
Defendant were the same as that of Bataa Otgon, who had been using
R Mongolian Passport E1306238. Photo Album of Fingerprint Comparison R
is produced as P(5).
S S
T 5. On the 18th May 2019 the Defendant presented herself at the T
Immigration arrival counter at the Lo Wu Control Point and was
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A A
B B
subsequently arrested and detained.
C C
6. A certified true copy of the Immigration travel records of the
D D
arrival and departure of the Defendant between the 8th April 2017 and 12th
E May 2019 whilst using Mongolian passport E1845962 is produced as E
exhibit P(8).
F F
G G
(Clement Lee)
H District Judge H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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A A
B DCCC 576/2019 B
[2020] HKDC 552
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 576 OF 2019
F ----------------- F
HKSAR
G G
v
H RITA OTGON (also known as BATAA OTGON and Otgon BATAA) H
-----------------
I I
J Before : District Judge Clement Lee in Court J
Date of Verdict : 15th July 2020 at 9:30 a.m.
K K
Present : Mr. Trevor Beel, Counsel on fiat, for HKSAR/
L Director of Public Prosecutions L
Ms. Munira Moosdeen, instructed by Messrs. Jal N.
M M
Karbhari & Co. assigned by Department of Legal Aid
N for the defendant N
Offences : (1) to (10) Breach of deportation order
O O
P ------------------------------------------- P
REASONS FOR VERDICT
Q Q
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R R
S
Background S
T T
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A A
B B
1. The defendant faces ten charges of breach of deportation
C order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115. C
She has denied all charges.
D D
2. As the defendant speaks Outer Mongolian, an Outer
E E
Mongolian interpreter was made available to her throughout the
F proceedings. F
G
3. There were 4 prosecution witnesses. At the conclusion of the G
Prosecution’s case, no submission of no case to answer in respect of the
H H
charges was made by the defence. I found that there was a case to answer
I
on all charges. Having had her rights explained to her by her Counsel, the I
defendant elected to give evidence but called no witnesses. I must stress
J J
that even if the defence version is not accepted, it remains the
K prosecution’s duty to prove the charges. After hearing final submissions K
from Counsel, I adjourned the matter to deliver my verdict. I have carefully
L L
considered all the evidence adduced before me as well as the submissions
M of Counsel for the Prosecution and defence. I have borne in mind at all M
times that the burden of proof remains throughout upon the Prosecution to
N N
prove guilt beyond all reasonable doubt against the defendant.
O O
Issue
P P
4. The defendant did not challenge the identity, including she
Q was being handled by PW1 on the material date on 3 rd December 2015. Q
She was intercepted by the immigration officer at the arrival hall of Lo Wu
R R
Control Point on 18th May 2019. She did not challenge that on the 10 dates
S as mentioned in the charges (between 8th April 2017 and 18th May 2019), S
she was in Hong Kong. She came to Hong Kong on 8th April 2017 with the
T T
changed name of Rita Otgon. Her main complaint is that she did not
U U
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A A
B B
understand what had been served on her on 3rd December 2015 nor the
C main witness explained to her the nature of the document in question. She C
was not aware that a deportation order was made against her. The main
D D
issue at trial is whether the defendant has been given notice of a
E deportation order was against her under section 43 of the Ordinance. E
F Prosecution’s evidence F
G
5. Facts admitted by the Prosecution and the Defence at the G
outset under Section 65C of the Criminal Procedure Ordinance, Cap. 221,
H H
were produced and marked as Exhibit P91. I set out the agreed facts as per
I
Annex 1 herein. I
6. The subsidiary questions turn on what language did the
J J
immigration officers and the defendant exchange on two material dates, i.e.
K K
on 3rd December 2015 and 18th May 2019, so as to assess the English
L
language ability of the defendant. L
PW1
M M
7. On the 23rd November 2015, a deportation order
N N
(SF(D)15580) was issued under section 20 (1)(a) of the Immigration
O Ordinance, Cap. 115 requiring a female with the surname Bataa and given O
name Otgon to leave Hong Kong and from then thereafter prohibiting her
P P
2
from being in Hong Kong .
Q Q
8. The main witness is immigration officer ASIO Li Chun Ho
R (PW1) who purported to serve and explain the deportation order on the R
defendant. On the 3rd of December 2015, he was responsible for
S S
T T
1
Annex 1
2
Exhibit P1
U U
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A A
B B
explaining and serving the deportation order 3 on the defendant. He
C testified that the process of explaining the proforma form of service of C
deportation order took about 5 minutes. He read and explained to the
D D
defendant as per the said document. He also served one of them on the
E defendant. He communicated with the defendant in English. He did not E
find it necessary to attempt to contact the Mongolian interpreter because
F F
either from the defendant’s facial expression or her feedback, she appeared
G to understand what he said. Apart from the said document, he did not have G
additional notes to record what happened that day. Had there been signs of
H H
language barrier, he would have withheld the deportation process. Even if
I the defendant seemed to understand the process, had the defendant I
requested for an interpreter, he would have also withheld the deportation
J J
process. PW1 knew that there was only one registered Mongolian
K interpreter at the time. He denied he did not care whether the defendant K
understood what he said. He did explain to the defendant as per the
L L
proforma document and asked her to sign to acknowledge receipt a copy
M and she understood the deportation order. On the same day Bataa Otgon M
was escorted to depart Hong Kong.
N N
PW2
O O
9. On the 18th May 2019, a female (the defendant) presented
P P
two Mongolian passports E2486063 under the surname of Rita and given
Q name of Otgon to SIA Lau Wing Yi (PW2) at the immigration arrival Q
counter at the Lo Wu Control Point. The defendant explained in simple
R R
English why she had two valid passports because one of them was fully
S chopped. They communicated in simple English and PW2 seemed to S
understand. However, the facial recognition system of the Immigration
T T
3
Exhibit P2
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A A
B B
Department alerted PW2 that the defendant might be violating the laws.
C PW2 then informed her supervisor of the system’s alert. C
D
PW3 D
10. On 18th May 2019, the defendant was then handed to PW3 for
E E
preliminary enquiry. Amongst other items found on the defendant, PW3
F F
found a Mongolian driving license issued on the 1st July 2014 with the
G
surname Bataa and given name Otgon. The defendant claimed that her G
identity was Rita, Otgon but remained silent when asked by PW3 whether
H H
she had any other identities.
I PW4 I
J 11. Subsequently, the defendant was handed to PW4, IA Ms Lau J
to conduct a formal interview. She informed the defendant that she was
K K
now detained under section 26(a) of the Immigration Ordinance. PW4
L took a record of interview from the defendant in English. The defendant L
indicated that she understood both the spoken and written English used by
M M
PW4 and answered PW4’s questions in English.
N N
Other evidence
O O
12. According to exhibit P8, ASIO Alice Chung Yuen Han
P retrieved and certified the travel movement records pertaining to the P
defendant. It was established from the movement record that the defendant
Q Q
had from the 8th April 2017 to the 12th of May 2019 entered Hong Kong
R on numerous occasions and in particular on the following dates: R
S -8th April 2017 relating to charge 1, S
-25th December 2017 relating to charge 2,
T T
-6th January 2018 relating to charge 3,
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A A
B B
-14th February 2018 relating to charge 4,
C -17th March 2018 relating to charge 5, C
-22nd December 2018 relating to charge 6,
D D
-29th December 2018 relating to charge 7,
E -5th January 2019 relating to charge 8, E
-11th May 2019 relating to charge 9,
F F
-18th May 2019 relating to charge10.
G G
13. According to exhibit P3 and P4, on 18th May 2019, IA Hui
H H
Chau Yee took the defendant’s fingerprints. On the 2nd of July 2019
I woman Sergeant 56628 Chiu Ka Yee, a fingerprint expert, examined and I
compared the fingerprints of the defendant with the fingerprints of Bataa
J J
Otgon and determined that the fingerprints of the defendant were the same
K K
as that of Bataa Otgon, who had been using Mongolian Passport
L
E1306238. Exhibit P5 is the photo album of fingerprint comparison. L
Defence case
M M
14. The defendant was a female born in August 1967 in Outer
N N
Mongolia and is now aged 53. She testified that on 3rd December 2015,
O PW1 said something that she did not understand. She was handed a O
document that she did not understand. PW1 then used a ball pen to point to
P P
a position on a document and said “name”, she then put her signature there.
Q Her English standard was “very low”. She thought she was signing on a Q
document to give effect of her release so that she could go home.
R R
15. She explained that why she changed her name from Bataa
S S
Otgon to Rita Otgon shortly before she returned to Hong Kong on the date
T as per the first charge (8th April 2017) was because of her lawyer’s advice. T
She elaborated that her elder sister is also called Rita. However, there was
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A A
B B
disputes on the inheritance of her late mother’s estate. In order to obtain
C some estate from her sister, she changed her name to Rita and she finally C
got an amount equivalent to US$20,000 odd from her sister.
D D
16. She explained the purpose of the 10 visits to Hong Kong was
E E
mainly to accompany her husband to travel to and from Outer Mongolia
F and Shenzhen, and Hong Kong as place of transit where they also bought F
medicine and nutritious food while in Hong Kong. Her husband was
G G
having liver disease at the time. She produced medical documents of her
H husband to show that her husband was having ‘K47 Liver fibrosis and H
cirrhosis’ since 7 August 20184. There are also medical documents dated
I I
27th September 2018 showing the related medical examination results5,
J examination date on 18th February 2019 with report date on 19th February J
2019.6
K K
17. She disagreed with what PW2 and PW3 said regarding their
L L
conversations in English and their observation on the defendant’s English
M proficiency. She said PW3 did not say anything to her. M
N 18. She would not have come into Hong Kong had she known N
that the said document was a deportation order. She could have travelled
O O
directly to Shenzhen from Outer Mongolia had she known that it was a
P deportation order. P
Q Offence Q
19. Section 43 provides as follows:
R R
S S
4
T
D10A T
5
D12A
6
D18A
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A A
B B
Breach of deportation order, and landing from ship or aircraft in
which removal to be effected
C C
(1) Subject to subsection (2), if—
D D
(a) any person in respect of whom a deportation order is in force is in Hong
E Kong in contravention of the order; or E
(b) any person who has been placed on board a ship or aircraft
F F
under section 25(3) lands from the ship or aircraft before it leaves Hong
Kong,
G G
he shall be guilty of an offence and shall be liable—
H (i) on conviction on indictment, to imprisonment for 7 years; and H
I (ii) on summary conviction, to imprisonment for 3 years. I
J (2) A person who has not been given notice— J
(a) of a deportation order made against him;
K K
(b) of the rescission of a suspension of the deportation order made against
L him, L
shall not be guilty of an offence under subsection (1)(a).
M M
N Elements of the offence N
O 20. From the parties’ evidence, it seems that there is no dispute O
that the defendant in respect of whom a deportation order was in force was
P P
in Hong Kong at the material times under section 43(1)(a). The crux of the
Q issue is whether the defendant has been given notice of a deportation order Q
made against her.
R R
21. The defendant contended that the notice was given in the
S S
language that she did not understand. PW1 seemed to accept that despite
T English was not the defendant’s mother tongue, he and the defendant were T
able to converse in simple English, which was sufficient for the defendant
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A A
B B
to understand the true nature of the document.
C C
22. The parties also canvassed on the mens rea of section 43
D
offence. There is no decided authority on the mental elements of the D
offence. This is the first case to identify the mental elements of the offence.
E E
Mr Beel, counsel for the prosecution referred me to a Court of Final
F Appeal case of Kulemesin v HKSAR (2013) 16 HKCRAF 195. Counsel F
for the defendant agreed with the expounded principles there but she
G G
reminded me of the basic principles in Archbold such as “The deed does
H not make a man guilty unless his mind be guilty”. Be there as it may, she H
accepted that in modern world, there are different kinds of offence with
I I
difference requirement on mens rea, including offence with absolute
J liability. J
K 23. Regarding the elements of the offence, I agree and endorse on K
the approach under section 43:-
L L
“Firstly, the prosecution has the burden of proving beyond
M reasonable doubt that there is a deportation order in force and M
that the defendant has contravened that order by entering
N N
Hong Kong.
O O
Secondly, under s.43(2) a statutory defence arises when a
P P
person who has not been given notice of a deportation order
Q against him/her shall then be not guilty of an offence under Q
s.43(1)(a). Hence, the prosecution has to prove the actus reus
R R
but does not have to prove the mens rea. However, if there
S was evidence capable of raising a reasonable doubt that the S
defendant might have acted or omitted to act in the honest and
T T
reasonable belief that the circumstances or likely
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A A
B B
consequences of his conduct were such that, if true, liability
C would not attach, he must be acquitted unless the prosecution C
proved beyond reasonable doubt the absence of such
D D
exculpatory belief or that there were no reasonable grounds
E for such belief.7” E
F 24. In other words, in the present case, if the defendant from the F
evidence can establish that she was not given notice (statutory defence)
G G
then she must be acquitted unless it can be shown by the prosecution the
H absence of such exculpatory belief or there were no reasonable grounds for H
I
such belief. I
J J
Evidence analysis
K K
25. The facts at issue rely upon the credibility of witnesses and
L the weight to be attached to evidence. The 4 prosecution witnesses each L
gave their account of what happened at the material time. Neither was
M M
shaken in cross-examination. The defendant also gave evidence. This is
N akin to one to one situation and I remind myself of the danger of relying on N
PW1’s version alone.
O O
P P
7
HKSAR v Kulemesin (2013) 16 HKCFAR 195, in view that breach of s.43 is an
Q offence that carries a severe penalty (7 years’ imprisonment) a reverse onus might be Q
regarded as making excessive inroads into both the presumption of mens rea and the
R R
constitutionally protected presumption of innocence, hence the five Hin Lin Yee
S
alternatives on construing statutory offences in regard to the mens rea were S
reformulated.
T T
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A A
B B
26. PW1 described his normal practice and what did he in fact do
C on the defendant. He was criticised of not caring whether the defendant C
understood what she signed. He admitted that he did not attempt to contact
D D
the only Mongolian interpreter at the time. He just carried out the work as
E usual. He explained that given his experience, whenever there were any E
signs of language barrier, showing no response or “not understanding” or
F F
even a deportee seemed to understand but requested an interpreter, he
G would withhold the deportation process and then get the interpreter’s G
assistance.
H H
27. For comprehensiveness sake, I shall refer to the deportation
I I
order. The document is a simple document in English which, with extracts
J read as follows: J
[P2, page 1] DEPORTATION ORDER
K K
WHEREAS Madam Otgon BATAA
L L
(a) is a person who is not a Hong Kong permanent resident; and
M M
(b) has been found guilty in Hong Kong of an offence punishable with
N imprisonment for less than two years. N
O
[P2, page 2] I hereby certify that at [handwritten as 1020] hours on [chopped with O
-3 Dec 2015] at [handwritten as CLS] I served a copy and explained the contents of
P this deportation order to Madam Otgon BATAA and satisfy that she understood. P
Q Signed: [a signature] Q
Name: [handwritten as CH LI]
R R
Rank: [handwritten as IO (DS) D4]
S S
Date: [chopped with -3 Dec 2015]
T T
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A A
B I, Madam Otgon BATAA, certify that at [handwritten as 1022] hours on [chopped B
with -3 Dec 2015] at [handwritten as CLS] I received a copy of this deportation
C C
order and that I understood.
D D
Signed: [the defendant’s signature]
E (Madam Otgon BATAA) E
F I hereby certify that Madam Otgon BATAA mentioned within this deportation F
order was seen to leave Hong Kong for [handwritten as Ulaanbaatar] by
G [handwritten as OM 298] at [handwritten as 1322] hours on [handwritten as G
3-12-2015]
H H
28. In my views, with hindsight, it is desirable to have an
I I
interpreter of a deportee’s language present throughout the issuance of
J deportation order process. Unfortunately, PW1 failed to do so. On all J
fairness, I accepted the defence’s suggestion that PW1’s preparation for
K K
issuance of the deportation order was inadequate to ensure the defendant
L knew the brief nature of the order. L
M 29. However, that’s not the end of the matter on the main issue of M
whether or not notice has been given to the defendant. I accepted PW1’s
N N
evidence that he and the defendant were able to converse in simple English
O that enabled the defendant to understand the brief nature of P2. There are O
also other evidence relevant to the defendant’s knowledge of the nature of
P P
the document she signed. For example, had the defendant thought she was
Q signing document effecting her release and then go home, she did not need Q
to reserve or to pay for air ticket. The defendant agreed that she needed not
R R
reserve or pay for the air ticket. She was also escorted to the flight on the
S same day. S
T 30. Secondly, I accepted that defendant’s own copy similar to P2 T
was served on her. I do not accept the defendant’s version to the contrary.
U U
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A A
B B
Simply put, it is crystal clear that explanation of P2 and the service of a
C copy to the defendant is important. However, PW1’s evidence on service C
of a copy was not challenged at his cross examination, though the
D D
defendant denied a copy was served on her during her cross examination.
E It is to be noted that under cross-examination the defendant had initially E
agreed that she had been given a copy of the order then she changed her
F F
evidence to say that she hadn’t been given a copy of the order.
G G
31. As a result, as she had been served a copy, there is ample
H opportunity for her to find out what was it between 3rd December 2015 and H
8th April 2017 (1st date she returned to Hong Kong after she was sent back
I I
to Outer Mongolia). If she chose not to do so, she deliberately shut her
J eyes to the obvious, that she knew the nature of document and irresistible J
inference on her guilty knowledge can be drawn accordingly.
K K
32. Further, I also carefully observe the evidence of the
L L
defendant’s background as to whether the defendant is a village lady of
M little education or a business lady with frequent travelling experience, M
hence with both spoken and written ability on English language. The
N N
defendant testified that she completed her secondary education in
O Mongolia (though she said medium of instruction is in both Russian and O
Mongolian language). However, she often assisted her daughter’s
P P
handbag business by going to China. She said she did not speak English or
Q Mandarin. When she shipped cargoes from China to Outer Mongolia, she Q
only signed document in Mongolian language. It seems to me incredible
R R
that how could a person assist in dealing with handbag business in China
S without English/Mandarin speaking ability. Nonetheless, from what the S
defendant said could have the effect that she would not sign anything that
T T
she did not understand. But she denied the suggestion. In my views, the
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A A
B B
defendant is not a person who is simply pliant and obedient; in that it
C should be noted that when asked whether she would take part in a video C
record of interview she refused. She is a business lady with frequent
D D
travelling experience, hence at least possess spoken ability on English
E language. E
F 33. In respect of the reasons for changing her name so that she F
would have the same surname as her sister by which she could receive
G G
inheritance left by her mother. In my views, her version is incredible. The
H defendant had initially stated that as her sister had looked after her mother, H
she was entitled to receive the inheritance but wished her sister to give her
I I
financial support. When she was put that a birth certificate can achieve the
J same (showing she is the daughter of her mother) without changing her J
name, she made the excuse of relying on her lawyer,
K K
34. It is to be noted from exhibit P8 that soon after changing her
L L
name she obtained a new passport and then commenced entering into Hong
M Kong under her new identity. The defendant claims that her husband had M
become ill in late 2016 yet all the medical records are dated from 2018.
N N
35. I accept PW1’s explanation that the defendant was able to
O O
converse in simple English with the standard sufficient for her to know the
P nature the document, had there been doubts of her understanding of the P
deportation process, he would withhold it. I find him an honest and
Q Q
reliable witness. Same finding equally apply to PW2 to PW4. On 18th
R May 2019, they all conversed with the defendant in English and the R
defendant replied in English. For example, PW2 asked: “How long you
S S
are going to stay in Hong Kong”. The defendant replied: “Two days”.
T PW3 was responsible for preliminary interview with the defendant, she T
spent 4 hours with the defendant for two sessions of interviews. At the
U U
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A A
B B
outset, they used English as to whether the defendant elected to speak
C Mandarin or English and the defendant elected English. The defendant C
gave her name and date of birth in English. PW4 was responsible for
D D
taking record of interview from the defendant. She explained to the
E defendant that why she was detained and the defendant indicated that she E
understood. They also conversed on whether the defendant chose to have
F F
interview by handwriting or by video.
G G
36. I do not accept the defendant’s version unless there is no
H conflict with the Prosecution’s case. Her exculpatory innocent belief is H
against logic, common sense and the objective evidence. It does not
I I
require to change name to show a mother and daughter relationship when a
J birth certificate is sufficient. I also found as a fact that the only irresistible J
inference is that she changed her name to strike a luck as to whether the
K K
immigration officer might detect Bataa Otgon is the same as Rita Otgon.
L Unfortunately, upon her return for 9 times during which the immigration L
officers were unable to discover the two names were the same person,
M M
hence in breach of the deportation order. It was only on the 10 th time in
N 2019 that facial recognition system alerted the security system and N
discovered the breach.
O O
37. I found as a matter of fact that (i) PW1 and the defendant were
P P
able to converse in simple English that enabled the defendant to know the
Q brief nature of P2; (ii) a copy had been served on the defendant by PW1. Q
R 38. All in all, the prosecution has proved the actus reus of the R
offence. The defendant has tried to raise the statutory defence as set out
S S
under s.43(2) to establish that she did not have the requisite mens rea.
T T
39. However, from all the evidence, the prosecution witnesses
U U
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A A
B B
were all credible and reliable, whereas the defendant’s evidence in contrast
C was in part evasive and incredible. As a result, there can be no reasonable C
doubt that the defendant had been given notice of the deportation order.
D D
The defendant is guilty as charged.
E E
Annex-1: Admitted facts (exhibit P9)
F F
G 1. The defendant was formerly known by the surname Bataa and G
given name Otgon and in 2015 was using Mongolian Passport E1306238.
H H
I 2. On the 11th September 2015 DPC 11579 took the fingerprints I
of the aforementioned Bataa Otgon holder of Mongolian Passport
J J
E1306238. Certified true copy of the Fingerprint Form is produced as
K K
P(3).
L L
3. On the 18 May 2019 IA Hui Chau Yee took the Defendant’s
th
M M
fingerprints. Certified true copy of the Fingerprint Form is produced as
N
P(4). N
O O
4. On the 2nd July 2019 W/Sgt 56628 Chiu Ka Yee, a fingerprint
P expert, examined and compared the fingerprints of the Defendant with the P
fingerprints of Bataa Otgon and determined that the fingerprints of the
Q Q
Defendant were the same as that of Bataa Otgon, who had been using
R Mongolian Passport E1306238. Photo Album of Fingerprint Comparison R
is produced as P(5).
S S
T 5. On the 18th May 2019 the Defendant presented herself at the T
Immigration arrival counter at the Lo Wu Control Point and was
U U
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A A
B B
subsequently arrested and detained.
C C
6. A certified true copy of the Immigration travel records of the
D D
arrival and departure of the Defendant between the 8th April 2017 and 12th
E May 2019 whilst using Mongolian passport E1845962 is produced as E
exhibit P(8).
F F
G G
(Clement Lee)
H District Judge H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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