區域法院（刑事）Deputy District Judge Terence Wai25/1/2026[2026] HKDC 161
DCCC496/2024
A A
B B
DCCC 496/2024
C [2026] HKDC 161 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 496 OF 2024
F F
G ------------------------------ G
HKSAR
H H
v
I YUNG WING YAN I
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J J
K Before: Deputy District Judge Terence Wai in Court K
Date: 26 January 2026
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Present: Ms Whitfort Amanda, Counsel on Fiat, for HKSAR
M Mr Allan William G., Counsel instructed by Messrs Mohnani M
& Associates, for the defendant
N N
Offence: Assisting the passage within Hong Kong of unauthorized
O entrants (協助未獲授權進境者在香港境內的旅程) O
P P
Q Q
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R REASONS FOR VERDICT R
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1. The defendant was on trial for one charge of “assisting the
C passage within Hong Kong of unauthorised entrants”, contrary to C
s.37D(1)(a) of the Immigration Ordinance, Cap.115.
D D
E 2. Hong Wang Lan (PW2) was working as a cleaner on the East E
Dam of High Island Reservoir in the vicinity of a pavilion (“the pavilion”)1
F F
on the morning of 13 October 2023. She arrived for work around 9 am that
G morning. There was no one in the pavilion at that time. While she was G
working, she saw a lone man wandering around in the pavilion. This man
H H
was between 20 to 30 years old, about 1.65 to 1.7 metres tall, wearing a
I white short-sleeved top, dark coloured trousers and a black cap (“the man I
in white”). Around 9:30 to 9:45 am, about 10 South Asians walked out in
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two groups from Biu Tsim Kok Road. PW2 referred to the trail shown in
K photos #14 and #15 of Exh.P9 as the route along which these South Asians K
were coming out. These people then entered the pavilion where the man
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in white was. When the South Asians were in the pavilion, the man in
M white was at times sitting, standing, and chatting with them. M
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3. Then a red taxi arrived and stopped near the pavilion, in a
O position which was slightly ahead of the green taxi shown in Photo #11 of O
P9. PW2 did not notice the time of this taxi’s arrival, but she estimated
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that it arrived about an hour and a half after she had started work there.
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When this taxi arrived, the man in white took out a few pieces of what
R
looked like hundred-dollar bills and gave them to someone in the pavilion. R
Some of the South Asian people in the pavilion boarded the taxi, which
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then drove away at around 10:30 am. PW2 did not pay attention to how
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1
Witness pointed at the pavilion shown in photo #11 of Exh.P9.
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many people boarded the taxi. The rest of the South Asians sat for a while
C and then went back to where they had come. C
D D
4. After the taxi drove off, the man in white remained in the
E pavilion, sitting and standing as if waiting for someone. E
F F
5. Another taxi arrived about 10-odd minutes after that taxi had
G left, but PW2 could not recall if anyone got in this taxi. G
H H
6. About 20 minutes after the first taxi had left, PW2 had a
I conversation with a man in plainclothes who revealed himself to be a I
marine police officer. She told this officer that she saw a group of South
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Asians “coming in and out” which she found quite strange, that the man in
K white who was still in the pavilion had chatted with the South Asians and K
passed them some money. She also told the officer that some of the South
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Asians had boarded a taxi, while the others had walked back to where they
M had come. Then this officer walked over to the man in white to talk to him. M
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7. PW2 said the weather that day was nice and sunny.
O O
8. Under cross-examination, PW2 admitted that her memory of
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these events faded with the passage of time. She admitted that she could
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not see the face of the man in white clearly because of her distance from
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him, which varied during the course of her work. She estimated that when R
she was closest to him, the distance between them was about the distance
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between the witness box and the courtroom exit.
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9. She confirmed that she did not know this man, and that she
C described this man in her statement as aged 25-30, medium build, 1.7 C
metres in height. She said the group of South Asians, which consisted of
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more or less 10 people, had dark complexion except for a woman who had
E lighter complexion. She admitted that her observation of the events was E
broken as she was working at the time and she only looked at the man in
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white and the South Asian people from time to time. She also did not
G remember the number of people who got into the first taxi. G
H H
10. Under re-examination, she said that when she told the marine
I police officer at the East Dam about these events, it was still clear in her I
mind about what she had observed and about the interaction between the
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man in white and the South Asians. She was confident that the man she
K had told this officer about was the same man she had seen interacting with K
the South Asians earlier.
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M 11. SGT 58909 (PW1) was on duty in plainclothes on the morning M
of 13 October 2023. He was attached to the marine police region. Around
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10:55 am, he was on the East Dam not far from where the pavilion was
O when he came across PW2. He had a conversation with her, during which O
she pointed out a man to him. As a result of what PW2 told him, he took
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an interest in that man who was still in the vicinity of the pavilion. Around
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11:00 am, he approached that man, revealed his police identity, and started
R
searching and questioning him. He was the only officer who made enquiry R
of this man. During his enquiry, SSGT NGAN (PW4) approached him and
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told him something about the man he was questioning. The man that he
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had stopped for questioning was later arrested in his presence by PC 9031 T
(PW5).
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C 12. Around 10 am on the morning of 13 October 2023, taxi driver C
NG Ping-keung (PW3) dropped off 4 female Singaporean tourists at a
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roundabout near the abovementioned pavilion on the East Dam of High
E Island Reservoir, Sai Kung. With reference to photo #11 of P9, he E
indicated that he had dropped off his passengers close to where the green
F F
taxi is. He was then approached by a Cantonese-speaking local man about
G 1.6 to 1.7 metres tall, medium build and around 30 years old (“the local G
man”) who asked him if he could drive him to Hung Hom. As PW3 had
H H
promised the Singaporean tourists to pick them up around 11:30 am at the
I same place, he refused the local man’s request. He then drove his taxi and I
parked it near the exit of the same roundabout with a view to taking a rest
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in his taxi while waiting for the tourists.
K K
13. With reference to photo #11 of P9, he pointed to a spot slightly
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beyond the right edge of the photo as the spot where he parked his taxi. He
M estimated that this spot was about 10 metres from where he had dropped M
off his Singaporean passengers. A sketch drawn by PW3 indicating the
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respective positions of his taxi when his tourist passengers got off and
O when he parked his taxi for a rest was marked Exh.P11. O
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14. Shortly after he parked his taxi, the local man approached him
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again and asked him if he could drive him to Sai Kung Town Centre.
R
Thinking that he would have enough time for the job, he accepted the offer. R
At first PW3 thought that the local man was alone. However, once PW3
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indicated his agreement to drive him to Sai Kung, the local man gestured
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to a group of people in the pavilion. Some of those people came over in a T
hurry. Eventually, 4 of those people, consisting of 2 males and 2 females,
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got into his taxi. One female sat in the front passenger seat, the 2 males sat
C in the left and middle rear seats, while another female sat in the rear seat C
directly behind PW3. Before PW3 drove off, the female sitting behind him
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was replaced by a male.
E E
15. Before he drove off with these passengers, PW3 asked the
F F
local man if he could transfer the passengers to another taxi if he came
G across one on his way. The local man said no, indicating that he had other G
people who needed to head to the urban area and that they would gather
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together in the town centre.
I I
16. PW3 then started driving in the direction of Sai Kung Town
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Centre with the 3 males and one female passengers on board. After driving
K for about 3 km, his taxi was stopped by a police vehicle. None of his K
passengers were able to produce any Hong Kong Identity Cards to the
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police.
M M
17. PW3 was allowed by the police to leave the scene of the
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interception to head back to the East Dam to pick up his tourist passengers.
O When he arrived back at the Dam, he was met by a police officer whom he O
had seen when his taxi was intercepted and was asked by this officer to
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walk around the pavilion to see if he could identify anyone. PW3 told this
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police officer that the man was not among the 8 to 10 people sitting in the
R
pavilion. R
S S
18. When he kept on walking, PW3 told this police officer who
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was accompanying him that a man who was who talking with the police T
officer was the man who had arranged for him to drive his 4 passengers to
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Sai Kung. When he made the identification, he was about 10 metres from
C that man. C
D D
19. He told the court that he was 90% certain that the man that he
E identified to the police at the scene was the man who had made the driving E
arrangement with him for the 4 passengers.
F F
G 20. PW3 explained that when the local man spoke to him for the G
first time, he was in the driver’s seat of his taxi while that man was outside
H H
the nearside front of his taxi. The passenger window was rolled down and
I he was looking at the man when he was talking with him. This I
conversation, which lasted for 10-odd seconds, resulted in his refusal to
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drive the local man to Hung Hom.
K K
21. When he talked with the local man for the second time, he was
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facing that man who was standing outside the taxi right next to him. They
M had spoken for one-odd minutes with the driver’s window rolled down. M
During this conversation, the local man asked PW3 to drive him to Sai
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Kung, and PW3 agreed to do so. The weather at the time was good.
O O
22. Under cross-examination, PW3 admitted that in his statement
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to the police, he described the man as 1.7 metres in height, thin build, about
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30 years old, and that his statement contained no other descriptions of the
R
man or his clothing. He admitted that there is no mention in his statement R
that the local man had gestured or waved, and explained that the lack of
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mention was because he was not asked about it when giving his statement.
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23. In re-examination, PW3 said apart from the people who had
C gotten into his taxi, there were other people including the local man outside C
the taxi.
D D
E 24. SSGT NGAN (PW4) was one of the officers who took part in E
stopping PW3’s taxi on Man Yee Road, Sai Kung around 10:15 am. The
F F
taxi was carrying one female and 3 male passengers who were all later
G found to be illegal immigrants. He later went to the East Dam where he G
saw PW3 again around 11:30 am. PW3 pointed out to him a man in a white
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top and told him what the man had done. At that time, that man was being
I questioned by SGT 58909 (PW1). PW4 relayed to PW1 what he had been I
told by PW3. PW4 identified the defendant in court as the man who had
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been pointed out by PW3 at the scene.
K K
25. PW5, who was on duty in plainclothes2, arrived at the East
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Dam around 11:25 am on 13 October 2023 and was briefed by PW1. At
M 11:40 am, based on the results of investigation by PW1 and PW4, he M
declared arrest on a man for the offence of aiding and abetting illegal
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immigrants. PW5 identified the defendant in court as the man he arrested
O that day. O
P P
26. The edited English translation of a statement made by PW5
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on 13 October 2023 is produced as Exh.P13 under s.65B of Cap.221.
R R
27. The edited English translation of a statement made by PC
S S
8623 on 20 October 2023 is produced as Exh.P14 under s.65B of Cap.221.
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2
See Exh.P13.
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The gist of this statement is that the 3 male and one female passengers on
C board PW3’s taxi when it was stopped by the police on Man Yee Road on C
13 October 2023 were all Vietnamese nationals who only had records of
D D
entry to China on 6 October 2023 but no records of entry to Hong Kong.
E These Vietnamese were arrested by this PC and his colleague SPC 48633 E
at 10:25 am on the same day.
F F
G 28. A further admitted fact (Exh.P1A) was made that “the four G
persons the defendant was arrested for assisting with the passage of were
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unauthorised entrants to Hong Kong.”
I I
29. At the close of the prosecution case, the defence had no
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submission to make.
K K
30. Upon the court’s ruling that there is a case to answer, the
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defendant elected not to give evidence or to call witnesses.
M M
Reasoning
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O 31. According to PW2’s evidence, not long after she started her O
work, she saw the man in white alone in the pavilion, wandering about.
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The weather was nice and sunny. Her distance from this man was such
Q Q
that she could not see his face clearly.
R R
32. However, she was able to give a clear description of his
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clothing, his estimated height, build and age. Up to PW1’s arrival at the
T
scene, she had been working in the vicinity of the pavilion since shortly T
after 9 am when she arrived for work.
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C 33. She was not looking at this man the whole time during that C
morning, but she saw him when she looked in the direction of the pavilion
D D
from time to time while she was working.
E E
34. The man in white was in the pavilion when about 10 South
F F
Asians walked out in two groups from Biu Tsim Kok Road and entered the
G pavilion. PW2 saw this man chatting with the South Asians. When a red G
taxi arrived, the man in white gave a few pieces of what looked like
H H
hundred-dollar bills to someone amongst the group of South Asians in the
I pavilion. Then some of the South Asians got into the taxi, and the taxi I
drove away. The rest of the group headed back to where they had come.
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The man in white remained in the pavilion, sitting and standing as if
K waiting for someone. K
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35. During her conversation with PW1, she told this officer about
M the incident involving the man in white and the South Asians and that the M
man was still in the pavilion. Then she saw the officer approach the man
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and talk to him.
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36. She was confident that the man she told the officer about was
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the same man who she had seen earlier interacting with the South Asians.
Q Q
R
37. Defence counsel Mr. Allan said in his closing submissions R
that PW2 was an honest but unreliable witness. He pointed out that the
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witness admitted in evidence that she did not see the man’s face clearly,
T
that she did not attend any identification parade, that her memory was T
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fading with the passage of time, and that she made no mention of any
C Vietnamese-looking people. C
D D
38. Despite her inability to see the man’s face clearly, PW2 was
E able to tell the court about the man’s clothing, his height and build and her E
estimate of his age. It has not been shown that this witness’s description
F F
of the man in her police statement is materially different from the
G description she gave in her evidence. G
H H
39. PW2’s description of the man’s clothing and feature is just
I ordinary everyday evidence. It has been said that “the danger of an honest I
witness being mistaken as to distinctive clothing, or the general description
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of the person he saw (short or tall, black or white etc., or the direction in
K which she was going) are [sic] minimal. So the jury can concentrate on the K
honesty of the witness in the ordinary way.” 3
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M 40. I agree with Mr. Allan’s observation that PW2 was an honest M
witness.
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O 41. One of Mr. Allan’s criticisms of the unreliability of this O
witness’s evidence is the discrepancy between her estimate of the man’s
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age and the defendant’s actual age as alleged by Mr. Allan in his
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submission. However, no evidence has ever been adduced about the
R
defendant’s age. As criticism of this aspect of this witness’s evidence was R
not grounded on evidence, it will not be given any weight.
S S
T T
3
R v Gayle [1999] 2 Cr App R 130 at 135.
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42. In any event, it should be borne in mind that on the one hand,
C what the witness said about the man’s age was just an estimate; on the other C
hand, some people do look younger or older than their actual age.
D D
According to my observation of the defendant’s appearance, PW2’s
E estimate of the man’s age is not far off the mark at all. E
F F
43. Mr. Allan pointed out that PW2 only mentioned seeing South
G Asians appearing on the East Dam and subsequently getting into a taxi, but G
she made no mention of seeing any Vietnamese-looking people. This
H H
would seem inconsistent with PW3’s evidence that the passengers who got
I on board his taxi were found to be Vietnamese. I
J J
44. I do not agree that such difference between PW2’s and PW3’s
K evidence can be described as inconsistency. K
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45. According to PW2’s evidence, the South Asians got into a red
M taxi about 1 ½ hours after she started work. As she started her work shortly M
after her arrival at the Dam around 9 am, this would mean that the South
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Asians boarded the taxi around 10:30 am. At that time this taxi was
O stopped in about the same place as the green taxi shown in photo #11 of O
P9.
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Q Q
46. However, according to PW3, the 4 passengers that he was
R
carrying when his taxi was stopped by the police around 10:15 am at Man R
Yee Road had boarded his taxi shortly after 10 am when the local man
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gestured to them to do so. At that time, his taxi was parked at a place which
T
is not shown in photo #11 of P9. T
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47. According to their evidence, not only is the ethnicity of the
C taxi-boarding passengers different. The time and place of the boarding are C
different as well. There is therefore no conflict between the evidence of
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these two witnesses.
E E
48. While the same man was identified by these two witnesses to
F F
the police at the scene, the evidence shows that the man they saw had been
G engaged in activities with two different groups of people at different times G
during that morning.
H H
I 49. While what PW2 saw made PW1 take an interest in the man I
in white and stop him for questioning, what PW3 did with the local man
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and his passengers led to the discovery and arrest of the man who had
K arranged the passage of his passengers from the East Dam to Sai Kung K
Town Centre.
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M 50. PW3 pointed out the local man to PW4 at the scene. He said M
at the time he made this identification, he was about 10 metres from that
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man. He told the court that he was 90% certain that the man he identified
O to PW4 was the same man who had made the driving arrangement with O
him.
P P
Q
51. Mr. Allan made several criticisms of PW3’s evidence and his Q
R
identification of the man. One of the criticisms is that PW3 never gave a R
description of the man’s clothing either in his police statement or in his
S S
evidence. In his evidence, he described the man as around 30 years old,
T
1.6-1.7 metres tall, medium build, and spoke Cantonese. In his statement, T
he described the man as a local Chinese male of about 30 years of age, thin,
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1.7 metres in height. I do not see any serious discrepancies between the
C two sets of descriptions. C
D D
52. I also do not regard his lack of mention of the local man’s
E clothing as a cause for concern. The witness was not cross-examined about E
the reason for his not mentioning the man’s clothing. There is nothing to
F F
suggest that this lack of mention has anything to do with the quality of his
G observation or the reliability of his recollection. G
H H
53. As to Mr. Allan’s remark that this witness never attended any
I identification parade, it should be noted that this witness was not asked to I
make a dock identification either.
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K 54. Nevertheless, I warn myself of the special need for caution K
when considering PW3’s identification of the man to the police. I also
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remind myself that an honest and convincing witness may nevertheless be
M mistaken. M
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55. PW3 had two encounters with the local man in the same
O morning. The first encounter was when the man asked this witness if he O
could drive him to Hung Hom. This encounter, which lasted for 10-odd
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seconds, ended with PW3 refusing the man’s request. PW3 was in his
Q
taxi’s driver seat, while the man was on the passenger side outside the front Q
R
part of his taxi. The front passenger window was rolled down while they R
were talking. PW3 was looking at this man during this encounter in good
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weather.
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56. During the second encounter, which must have happened just
C a short while after the first one, PW3 was still in the driver’s seat, whereas C
this man was standing outside the taxi right beside him. This was the time
D D
when the man asked if PW3 could drive him to Sai Kung. The driver’s
E window was rolled down while they were facing and talking to each other. E
The encounter lasted for one-odd minutes.
F F
G 57. PW3’s two separate face-to-face encounters with the same G
man occurred within a short period of time. During both encounters, his
H H
attention to and his view of the man were unbroken, uninterrupted and
I unobstructed. He made the identification of this man to PW4 about one I
and a half hours after these encounters in broad daylight and in good
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weather condition when he was about 10 metres from this man.
K K
58. Mr. Allan said PW3’s identification was prejudiced by reason
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of the fact that the defendant was at that time being questioned by a police
M officer. However, it should be borne in mind that the officer questioning M
the defendant was in plainclothes, and that he was the only person with
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defendant at the time. Therefore, there is no way that PW3 could have
O known at that time that the local man was conversing with a police officer. O
The reason why he called the man questioning the defendant a police
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officer in his evidence must be because he somehow came to learn about
Q
PW1’s police identity after the event. Q
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59. Mr. Allan pointed out that neither PW2 nor PW3 described
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the man as wearing glasses, whereas PW1 in his statement P104 said the
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4
Admitted under s.65B of the Criminal Procedure Ordinance.
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man he stopped for questioning “was at that time wearing a black cap on
C his head, a pair of eyeglasses, in a white top and a pair of black trousers”. C
Mr. Allan said that by making no mention of eyeglasses, the two civilian
D D
witnesses must have seen a man without eyeglasses, which must be a man
E different from the one PW1 had stopped for questioning. E
F F
60. During Mr. Allan’s submissions, I drew counsel’s attention to
G the fact that the defendant was not at that time and had not been for the G
entire duration of that day’s hearing wearing glasses. Both counsel agreed
H H
with my observation.
I I
61. Clearly, the defendant is not someone who wears glasses all
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the time. There is no evidence to show that the man seen by PW2 and PW3
K respectively was wearing glasses at the time, and none of the prosecution K
witnesses were cross-examined on the eyeglasses issue.
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M 62. From the circumstances in which PW3 made his observation M
of the local man, I accept that on the day in question, he did correctly
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identify the man who had asked with him to carry the 4 passengers to Sai
O Kung Town Centre. O
P P
63. It is through unchallenged dock identifications made by PW4
Q Q
and PW5 and through the identification made by PW3 to PW4 at the scene
R
that the nexus was established between the defendant and the man who had R
made the arrangement with PW3 for the carrying of the 4 passengers who
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were later found to be Vietnamese unlawful entrants.
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64. I find the police and civilian witnesses honest and reliable
C witnesses. I accept their evidence without hesitation. C
D D
65. I am sure that the defendant was the man who had made the
E arrangement with PW3 for the conveyance of the Vietnamese unauthorised E
entrants from the East Dam to Sai Kung Town Centre on the morning in
F F
question.
G G
66. The second point made by Mr. Allan in his closing
H H
submissions is that the prosecution failed to prove beyond reasonable doubt
I that the defendant had knowledge of the status of the four “illegal I
immigrants”.
J J
K 67. Section 37D (2) of the Immigration Ordinance provides, K
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No person shall be convicted of an offence under subsection (1)
if he proves that he did not know, had no reason to suspect and
M could not with reasonable diligence have discovered – M
N (a) that the person whose carriage on a conveyance or whose N
passage is the subject of the charge, was an unauthorised
entrant;
O O
68. In relation to an almost identically worded s.37DA(2), the
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Court of Appeal in HKSAR v Leung Chung Man [2025] 5 HKLRD 121
Q Q
recently decided that the statutory defence under that section required that
R
the accused did not know (subjectively), had no reason to suspect R
(objectively subjective) and could not with reasonable diligence have
S S
discovered (objectively) that the person he was assisting to remain in Hong
T
Kong was not an unauthorised entrant. The requirement of the statutory T
defence did not depend on the applicant’s actual knowledge or belief as to
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the unauthorised entrants’ status. It depended on what objectively each
C applicant could have discovered. The defence fell under the fourth C
5
requirement in Kulemesin and required not merely a subjective
D D
assessment by each of them but an objective assessment to be made by the
E Court. It imposed merely an evidential burden on the applicants to raise as E
an issue that all three conditions did not apply, leaving the prosecution to
F F
fulfil the persuasive burden of proving the subsistence of any of the three
G conditions. G
H H
69. The Court in Leung Chung Man also ruled that the reasoning
I in HKSAR v Yeung Kam Yuen [2011] 5 HKLRD 371, which held that the I
same statutory defence but under s.37D(2) fell within the third alternative
J J
in Kulemesin, was made per incuriam.
K K
70. The defence has failed to adduce or to point to credible
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evidence indicating that the defendant did not know, had no reason to
M suspect and could not, with reasonable diligence have discovered that the M
Vietnamese were unauthorised entrants.
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O 71. The defendant has thus failed to discharge his evidential O
burden under s.37D(2).
P P
Q Q
R R
S S
5
Kulemesin v HKSAR (2013) 16 HKCFAR 195. The fourth alternative in Kulemesin states
that “Fourth, that the presumption [of mens rea] has been displaced and that the accus ed
T T
is confined to relying on the statutory defences expressly provided for, the existence of
such defences being inconsistent with the second and third alternatives…”
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72. I am satisfied that the prosecution has proved the charge
C against the defendant beyond reasonable doubt, and I find the defendant C
guilty of it.
D D
E E
F F
G G
( Terence Wai )
H H
Deputy District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
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A A
B B
DCCC 496/2024
C [2026] HKDC 161 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 496 OF 2024
F F
G ------------------------------ G
HKSAR
H H
v
I YUNG WING YAN I
------------------------------
J J
K Before: Deputy District Judge Terence Wai in Court K
Date: 26 January 2026
L L
Present: Ms Whitfort Amanda, Counsel on Fiat, for HKSAR
M Mr Allan William G., Counsel instructed by Messrs Mohnani M
& Associates, for the defendant
N N
Offence: Assisting the passage within Hong Kong of unauthorized
O entrants (協助未獲授權進境者在香港境內的旅程) O
P P
Q Q
----------------------------------------
R REASONS FOR VERDICT R
----------------------------------------
S S
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1. The defendant was on trial for one charge of “assisting the
C passage within Hong Kong of unauthorised entrants”, contrary to C
s.37D(1)(a) of the Immigration Ordinance, Cap.115.
D D
E 2. Hong Wang Lan (PW2) was working as a cleaner on the East E
Dam of High Island Reservoir in the vicinity of a pavilion (“the pavilion”)1
F F
on the morning of 13 October 2023. She arrived for work around 9 am that
G morning. There was no one in the pavilion at that time. While she was G
working, she saw a lone man wandering around in the pavilion. This man
H H
was between 20 to 30 years old, about 1.65 to 1.7 metres tall, wearing a
I white short-sleeved top, dark coloured trousers and a black cap (“the man I
in white”). Around 9:30 to 9:45 am, about 10 South Asians walked out in
J J
two groups from Biu Tsim Kok Road. PW2 referred to the trail shown in
K photos #14 and #15 of Exh.P9 as the route along which these South Asians K
were coming out. These people then entered the pavilion where the man
L L
in white was. When the South Asians were in the pavilion, the man in
M white was at times sitting, standing, and chatting with them. M
N N
3. Then a red taxi arrived and stopped near the pavilion, in a
O position which was slightly ahead of the green taxi shown in Photo #11 of O
P9. PW2 did not notice the time of this taxi’s arrival, but she estimated
P P
that it arrived about an hour and a half after she had started work there.
Q Q
When this taxi arrived, the man in white took out a few pieces of what
R
looked like hundred-dollar bills and gave them to someone in the pavilion. R
Some of the South Asian people in the pavilion boarded the taxi, which
S S
then drove away at around 10:30 am. PW2 did not pay attention to how
T T
1
Witness pointed at the pavilion shown in photo #11 of Exh.P9.
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many people boarded the taxi. The rest of the South Asians sat for a while
C and then went back to where they had come. C
D D
4. After the taxi drove off, the man in white remained in the
E pavilion, sitting and standing as if waiting for someone. E
F F
5. Another taxi arrived about 10-odd minutes after that taxi had
G left, but PW2 could not recall if anyone got in this taxi. G
H H
6. About 20 minutes after the first taxi had left, PW2 had a
I conversation with a man in plainclothes who revealed himself to be a I
marine police officer. She told this officer that she saw a group of South
J J
Asians “coming in and out” which she found quite strange, that the man in
K white who was still in the pavilion had chatted with the South Asians and K
passed them some money. She also told the officer that some of the South
L L
Asians had boarded a taxi, while the others had walked back to where they
M had come. Then this officer walked over to the man in white to talk to him. M
N N
7. PW2 said the weather that day was nice and sunny.
O O
8. Under cross-examination, PW2 admitted that her memory of
P P
these events faded with the passage of time. She admitted that she could
Q Q
not see the face of the man in white clearly because of her distance from
R
him, which varied during the course of her work. She estimated that when R
she was closest to him, the distance between them was about the distance
S S
between the witness box and the courtroom exit.
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9. She confirmed that she did not know this man, and that she
C described this man in her statement as aged 25-30, medium build, 1.7 C
metres in height. She said the group of South Asians, which consisted of
D D
more or less 10 people, had dark complexion except for a woman who had
E lighter complexion. She admitted that her observation of the events was E
broken as she was working at the time and she only looked at the man in
F F
white and the South Asian people from time to time. She also did not
G remember the number of people who got into the first taxi. G
H H
10. Under re-examination, she said that when she told the marine
I police officer at the East Dam about these events, it was still clear in her I
mind about what she had observed and about the interaction between the
J J
man in white and the South Asians. She was confident that the man she
K had told this officer about was the same man she had seen interacting with K
the South Asians earlier.
L L
M 11. SGT 58909 (PW1) was on duty in plainclothes on the morning M
of 13 October 2023. He was attached to the marine police region. Around
N N
10:55 am, he was on the East Dam not far from where the pavilion was
O when he came across PW2. He had a conversation with her, during which O
she pointed out a man to him. As a result of what PW2 told him, he took
P P
an interest in that man who was still in the vicinity of the pavilion. Around
Q Q
11:00 am, he approached that man, revealed his police identity, and started
R
searching and questioning him. He was the only officer who made enquiry R
of this man. During his enquiry, SSGT NGAN (PW4) approached him and
S S
told him something about the man he was questioning. The man that he
T
had stopped for questioning was later arrested in his presence by PC 9031 T
(PW5).
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C 12. Around 10 am on the morning of 13 October 2023, taxi driver C
NG Ping-keung (PW3) dropped off 4 female Singaporean tourists at a
D D
roundabout near the abovementioned pavilion on the East Dam of High
E Island Reservoir, Sai Kung. With reference to photo #11 of P9, he E
indicated that he had dropped off his passengers close to where the green
F F
taxi is. He was then approached by a Cantonese-speaking local man about
G 1.6 to 1.7 metres tall, medium build and around 30 years old (“the local G
man”) who asked him if he could drive him to Hung Hom. As PW3 had
H H
promised the Singaporean tourists to pick them up around 11:30 am at the
I same place, he refused the local man’s request. He then drove his taxi and I
parked it near the exit of the same roundabout with a view to taking a rest
J J
in his taxi while waiting for the tourists.
K K
13. With reference to photo #11 of P9, he pointed to a spot slightly
L L
beyond the right edge of the photo as the spot where he parked his taxi. He
M estimated that this spot was about 10 metres from where he had dropped M
off his Singaporean passengers. A sketch drawn by PW3 indicating the
N N
respective positions of his taxi when his tourist passengers got off and
O when he parked his taxi for a rest was marked Exh.P11. O
P P
14. Shortly after he parked his taxi, the local man approached him
Q Q
again and asked him if he could drive him to Sai Kung Town Centre.
R
Thinking that he would have enough time for the job, he accepted the offer. R
At first PW3 thought that the local man was alone. However, once PW3
S S
indicated his agreement to drive him to Sai Kung, the local man gestured
T
to a group of people in the pavilion. Some of those people came over in a T
hurry. Eventually, 4 of those people, consisting of 2 males and 2 females,
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got into his taxi. One female sat in the front passenger seat, the 2 males sat
C in the left and middle rear seats, while another female sat in the rear seat C
directly behind PW3. Before PW3 drove off, the female sitting behind him
D D
was replaced by a male.
E E
15. Before he drove off with these passengers, PW3 asked the
F F
local man if he could transfer the passengers to another taxi if he came
G across one on his way. The local man said no, indicating that he had other G
people who needed to head to the urban area and that they would gather
H H
together in the town centre.
I I
16. PW3 then started driving in the direction of Sai Kung Town
J J
Centre with the 3 males and one female passengers on board. After driving
K for about 3 km, his taxi was stopped by a police vehicle. None of his K
passengers were able to produce any Hong Kong Identity Cards to the
L L
police.
M M
17. PW3 was allowed by the police to leave the scene of the
N N
interception to head back to the East Dam to pick up his tourist passengers.
O When he arrived back at the Dam, he was met by a police officer whom he O
had seen when his taxi was intercepted and was asked by this officer to
P P
walk around the pavilion to see if he could identify anyone. PW3 told this
Q Q
police officer that the man was not among the 8 to 10 people sitting in the
R
pavilion. R
S S
18. When he kept on walking, PW3 told this police officer who
T
was accompanying him that a man who was who talking with the police T
officer was the man who had arranged for him to drive his 4 passengers to
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Sai Kung. When he made the identification, he was about 10 metres from
C that man. C
D D
19. He told the court that he was 90% certain that the man that he
E identified to the police at the scene was the man who had made the driving E
arrangement with him for the 4 passengers.
F F
G 20. PW3 explained that when the local man spoke to him for the G
first time, he was in the driver’s seat of his taxi while that man was outside
H H
the nearside front of his taxi. The passenger window was rolled down and
I he was looking at the man when he was talking with him. This I
conversation, which lasted for 10-odd seconds, resulted in his refusal to
J J
drive the local man to Hung Hom.
K K
21. When he talked with the local man for the second time, he was
L L
facing that man who was standing outside the taxi right next to him. They
M had spoken for one-odd minutes with the driver’s window rolled down. M
During this conversation, the local man asked PW3 to drive him to Sai
N N
Kung, and PW3 agreed to do so. The weather at the time was good.
O O
22. Under cross-examination, PW3 admitted that in his statement
P P
to the police, he described the man as 1.7 metres in height, thin build, about
Q Q
30 years old, and that his statement contained no other descriptions of the
R
man or his clothing. He admitted that there is no mention in his statement R
that the local man had gestured or waved, and explained that the lack of
S S
mention was because he was not asked about it when giving his statement.
T T
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23. In re-examination, PW3 said apart from the people who had
C gotten into his taxi, there were other people including the local man outside C
the taxi.
D D
E 24. SSGT NGAN (PW4) was one of the officers who took part in E
stopping PW3’s taxi on Man Yee Road, Sai Kung around 10:15 am. The
F F
taxi was carrying one female and 3 male passengers who were all later
G found to be illegal immigrants. He later went to the East Dam where he G
saw PW3 again around 11:30 am. PW3 pointed out to him a man in a white
H H
top and told him what the man had done. At that time, that man was being
I questioned by SGT 58909 (PW1). PW4 relayed to PW1 what he had been I
told by PW3. PW4 identified the defendant in court as the man who had
J J
been pointed out by PW3 at the scene.
K K
25. PW5, who was on duty in plainclothes2, arrived at the East
L L
Dam around 11:25 am on 13 October 2023 and was briefed by PW1. At
M 11:40 am, based on the results of investigation by PW1 and PW4, he M
declared arrest on a man for the offence of aiding and abetting illegal
N N
immigrants. PW5 identified the defendant in court as the man he arrested
O that day. O
P P
26. The edited English translation of a statement made by PW5
Q Q
on 13 October 2023 is produced as Exh.P13 under s.65B of Cap.221.
R R
27. The edited English translation of a statement made by PC
S S
8623 on 20 October 2023 is produced as Exh.P14 under s.65B of Cap.221.
T T
2
See Exh.P13.
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The gist of this statement is that the 3 male and one female passengers on
C board PW3’s taxi when it was stopped by the police on Man Yee Road on C
13 October 2023 were all Vietnamese nationals who only had records of
D D
entry to China on 6 October 2023 but no records of entry to Hong Kong.
E These Vietnamese were arrested by this PC and his colleague SPC 48633 E
at 10:25 am on the same day.
F F
G 28. A further admitted fact (Exh.P1A) was made that “the four G
persons the defendant was arrested for assisting with the passage of were
H H
unauthorised entrants to Hong Kong.”
I I
29. At the close of the prosecution case, the defence had no
J J
submission to make.
K K
30. Upon the court’s ruling that there is a case to answer, the
L L
defendant elected not to give evidence or to call witnesses.
M M
Reasoning
N N
O 31. According to PW2’s evidence, not long after she started her O
work, she saw the man in white alone in the pavilion, wandering about.
P P
The weather was nice and sunny. Her distance from this man was such
Q Q
that she could not see his face clearly.
R R
32. However, she was able to give a clear description of his
S S
clothing, his estimated height, build and age. Up to PW1’s arrival at the
T
scene, she had been working in the vicinity of the pavilion since shortly T
after 9 am when she arrived for work.
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C 33. She was not looking at this man the whole time during that C
morning, but she saw him when she looked in the direction of the pavilion
D D
from time to time while she was working.
E E
34. The man in white was in the pavilion when about 10 South
F F
Asians walked out in two groups from Biu Tsim Kok Road and entered the
G pavilion. PW2 saw this man chatting with the South Asians. When a red G
taxi arrived, the man in white gave a few pieces of what looked like
H H
hundred-dollar bills to someone amongst the group of South Asians in the
I pavilion. Then some of the South Asians got into the taxi, and the taxi I
drove away. The rest of the group headed back to where they had come.
J J
The man in white remained in the pavilion, sitting and standing as if
K waiting for someone. K
L L
35. During her conversation with PW1, she told this officer about
M the incident involving the man in white and the South Asians and that the M
man was still in the pavilion. Then she saw the officer approach the man
N N
and talk to him.
O O
36. She was confident that the man she told the officer about was
P P
the same man who she had seen earlier interacting with the South Asians.
Q Q
R
37. Defence counsel Mr. Allan said in his closing submissions R
that PW2 was an honest but unreliable witness. He pointed out that the
S S
witness admitted in evidence that she did not see the man’s face clearly,
T
that she did not attend any identification parade, that her memory was T
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fading with the passage of time, and that she made no mention of any
C Vietnamese-looking people. C
D D
38. Despite her inability to see the man’s face clearly, PW2 was
E able to tell the court about the man’s clothing, his height and build and her E
estimate of his age. It has not been shown that this witness’s description
F F
of the man in her police statement is materially different from the
G description she gave in her evidence. G
H H
39. PW2’s description of the man’s clothing and feature is just
I ordinary everyday evidence. It has been said that “the danger of an honest I
witness being mistaken as to distinctive clothing, or the general description
J J
of the person he saw (short or tall, black or white etc., or the direction in
K which she was going) are [sic] minimal. So the jury can concentrate on the K
honesty of the witness in the ordinary way.” 3
L L
M 40. I agree with Mr. Allan’s observation that PW2 was an honest M
witness.
N N
O 41. One of Mr. Allan’s criticisms of the unreliability of this O
witness’s evidence is the discrepancy between her estimate of the man’s
P P
age and the defendant’s actual age as alleged by Mr. Allan in his
Q Q
submission. However, no evidence has ever been adduced about the
R
defendant’s age. As criticism of this aspect of this witness’s evidence was R
not grounded on evidence, it will not be given any weight.
S S
T T
3
R v Gayle [1999] 2 Cr App R 130 at 135.
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42. In any event, it should be borne in mind that on the one hand,
C what the witness said about the man’s age was just an estimate; on the other C
hand, some people do look younger or older than their actual age.
D D
According to my observation of the defendant’s appearance, PW2’s
E estimate of the man’s age is not far off the mark at all. E
F F
43. Mr. Allan pointed out that PW2 only mentioned seeing South
G Asians appearing on the East Dam and subsequently getting into a taxi, but G
she made no mention of seeing any Vietnamese-looking people. This
H H
would seem inconsistent with PW3’s evidence that the passengers who got
I on board his taxi were found to be Vietnamese. I
J J
44. I do not agree that such difference between PW2’s and PW3’s
K evidence can be described as inconsistency. K
L L
45. According to PW2’s evidence, the South Asians got into a red
M taxi about 1 ½ hours after she started work. As she started her work shortly M
after her arrival at the Dam around 9 am, this would mean that the South
N N
Asians boarded the taxi around 10:30 am. At that time this taxi was
O stopped in about the same place as the green taxi shown in photo #11 of O
P9.
P P
Q Q
46. However, according to PW3, the 4 passengers that he was
R
carrying when his taxi was stopped by the police around 10:15 am at Man R
Yee Road had boarded his taxi shortly after 10 am when the local man
S S
gestured to them to do so. At that time, his taxi was parked at a place which
T
is not shown in photo #11 of P9. T
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47. According to their evidence, not only is the ethnicity of the
C taxi-boarding passengers different. The time and place of the boarding are C
different as well. There is therefore no conflict between the evidence of
D D
these two witnesses.
E E
48. While the same man was identified by these two witnesses to
F F
the police at the scene, the evidence shows that the man they saw had been
G engaged in activities with two different groups of people at different times G
during that morning.
H H
I 49. While what PW2 saw made PW1 take an interest in the man I
in white and stop him for questioning, what PW3 did with the local man
J J
and his passengers led to the discovery and arrest of the man who had
K arranged the passage of his passengers from the East Dam to Sai Kung K
Town Centre.
L L
M 50. PW3 pointed out the local man to PW4 at the scene. He said M
at the time he made this identification, he was about 10 metres from that
N N
man. He told the court that he was 90% certain that the man he identified
O to PW4 was the same man who had made the driving arrangement with O
him.
P P
Q
51. Mr. Allan made several criticisms of PW3’s evidence and his Q
R
identification of the man. One of the criticisms is that PW3 never gave a R
description of the man’s clothing either in his police statement or in his
S S
evidence. In his evidence, he described the man as around 30 years old,
T
1.6-1.7 metres tall, medium build, and spoke Cantonese. In his statement, T
he described the man as a local Chinese male of about 30 years of age, thin,
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B B
1.7 metres in height. I do not see any serious discrepancies between the
C two sets of descriptions. C
D D
52. I also do not regard his lack of mention of the local man’s
E clothing as a cause for concern. The witness was not cross-examined about E
the reason for his not mentioning the man’s clothing. There is nothing to
F F
suggest that this lack of mention has anything to do with the quality of his
G observation or the reliability of his recollection. G
H H
53. As to Mr. Allan’s remark that this witness never attended any
I identification parade, it should be noted that this witness was not asked to I
make a dock identification either.
J J
K 54. Nevertheless, I warn myself of the special need for caution K
when considering PW3’s identification of the man to the police. I also
L L
remind myself that an honest and convincing witness may nevertheless be
M mistaken. M
N N
55. PW3 had two encounters with the local man in the same
O morning. The first encounter was when the man asked this witness if he O
could drive him to Hung Hom. This encounter, which lasted for 10-odd
P P
seconds, ended with PW3 refusing the man’s request. PW3 was in his
Q
taxi’s driver seat, while the man was on the passenger side outside the front Q
R
part of his taxi. The front passenger window was rolled down while they R
were talking. PW3 was looking at this man during this encounter in good
S S
weather.
T T
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B B
56. During the second encounter, which must have happened just
C a short while after the first one, PW3 was still in the driver’s seat, whereas C
this man was standing outside the taxi right beside him. This was the time
D D
when the man asked if PW3 could drive him to Sai Kung. The driver’s
E window was rolled down while they were facing and talking to each other. E
The encounter lasted for one-odd minutes.
F F
G 57. PW3’s two separate face-to-face encounters with the same G
man occurred within a short period of time. During both encounters, his
H H
attention to and his view of the man were unbroken, uninterrupted and
I unobstructed. He made the identification of this man to PW4 about one I
and a half hours after these encounters in broad daylight and in good
J J
weather condition when he was about 10 metres from this man.
K K
58. Mr. Allan said PW3’s identification was prejudiced by reason
L L
of the fact that the defendant was at that time being questioned by a police
M officer. However, it should be borne in mind that the officer questioning M
the defendant was in plainclothes, and that he was the only person with
N N
defendant at the time. Therefore, there is no way that PW3 could have
O known at that time that the local man was conversing with a police officer. O
The reason why he called the man questioning the defendant a police
P P
officer in his evidence must be because he somehow came to learn about
Q
PW1’s police identity after the event. Q
R R
59. Mr. Allan pointed out that neither PW2 nor PW3 described
S S
the man as wearing glasses, whereas PW1 in his statement P104 said the
T T
4
Admitted under s.65B of the Criminal Procedure Ordinance.
U U
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B B
man he stopped for questioning “was at that time wearing a black cap on
C his head, a pair of eyeglasses, in a white top and a pair of black trousers”. C
Mr. Allan said that by making no mention of eyeglasses, the two civilian
D D
witnesses must have seen a man without eyeglasses, which must be a man
E different from the one PW1 had stopped for questioning. E
F F
60. During Mr. Allan’s submissions, I drew counsel’s attention to
G the fact that the defendant was not at that time and had not been for the G
entire duration of that day’s hearing wearing glasses. Both counsel agreed
H H
with my observation.
I I
61. Clearly, the defendant is not someone who wears glasses all
J J
the time. There is no evidence to show that the man seen by PW2 and PW3
K respectively was wearing glasses at the time, and none of the prosecution K
witnesses were cross-examined on the eyeglasses issue.
L L
M 62. From the circumstances in which PW3 made his observation M
of the local man, I accept that on the day in question, he did correctly
N N
identify the man who had asked with him to carry the 4 passengers to Sai
O Kung Town Centre. O
P P
63. It is through unchallenged dock identifications made by PW4
Q Q
and PW5 and through the identification made by PW3 to PW4 at the scene
R
that the nexus was established between the defendant and the man who had R
made the arrangement with PW3 for the carrying of the 4 passengers who
S S
were later found to be Vietnamese unlawful entrants.
T T
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B B
64. I find the police and civilian witnesses honest and reliable
C witnesses. I accept their evidence without hesitation. C
D D
65. I am sure that the defendant was the man who had made the
E arrangement with PW3 for the conveyance of the Vietnamese unauthorised E
entrants from the East Dam to Sai Kung Town Centre on the morning in
F F
question.
G G
66. The second point made by Mr. Allan in his closing
H H
submissions is that the prosecution failed to prove beyond reasonable doubt
I that the defendant had knowledge of the status of the four “illegal I
immigrants”.
J J
K 67. Section 37D (2) of the Immigration Ordinance provides, K
L L
No person shall be convicted of an offence under subsection (1)
if he proves that he did not know, had no reason to suspect and
M could not with reasonable diligence have discovered – M
N (a) that the person whose carriage on a conveyance or whose N
passage is the subject of the charge, was an unauthorised
entrant;
O O
68. In relation to an almost identically worded s.37DA(2), the
P P
Court of Appeal in HKSAR v Leung Chung Man [2025] 5 HKLRD 121
Q Q
recently decided that the statutory defence under that section required that
R
the accused did not know (subjectively), had no reason to suspect R
(objectively subjective) and could not with reasonable diligence have
S S
discovered (objectively) that the person he was assisting to remain in Hong
T
Kong was not an unauthorised entrant. The requirement of the statutory T
defence did not depend on the applicant’s actual knowledge or belief as to
U U
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A A
B B
the unauthorised entrants’ status. It depended on what objectively each
C applicant could have discovered. The defence fell under the fourth C
5
requirement in Kulemesin and required not merely a subjective
D D
assessment by each of them but an objective assessment to be made by the
E Court. It imposed merely an evidential burden on the applicants to raise as E
an issue that all three conditions did not apply, leaving the prosecution to
F F
fulfil the persuasive burden of proving the subsistence of any of the three
G conditions. G
H H
69. The Court in Leung Chung Man also ruled that the reasoning
I in HKSAR v Yeung Kam Yuen [2011] 5 HKLRD 371, which held that the I
same statutory defence but under s.37D(2) fell within the third alternative
J J
in Kulemesin, was made per incuriam.
K K
70. The defence has failed to adduce or to point to credible
L L
evidence indicating that the defendant did not know, had no reason to
M suspect and could not, with reasonable diligence have discovered that the M
Vietnamese were unauthorised entrants.
N N
O 71. The defendant has thus failed to discharge his evidential O
burden under s.37D(2).
P P
Q Q
R R
S S
5
Kulemesin v HKSAR (2013) 16 HKCFAR 195. The fourth alternative in Kulemesin states
that “Fourth, that the presumption [of mens rea] has been displaced and that the accus ed
T T
is confined to relying on the statutory defences expressly provided for, the existence of
such defences being inconsistent with the second and third alternatives…”
U U
V V
- 19 -
A A
B B
72. I am satisfied that the prosecution has proved the charge
C against the defendant beyond reasonable doubt, and I find the defendant C
guilty of it.
D D
E E
F F
G G
( Terence Wai )
H H
Deputy District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V