HKSAR v. LI LI MUA

FACC No. 7 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2000 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 290 OF 2000 )

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J U D G M E N T

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Mr Justice Bokhary PJ:

The certified point of law

1. The prosecution appeals against a judgment of the High Court (Gall J) which quashed the respondent Madam Li Li Mua's conviction in the Magistrate's Court (K.A. Browne Esq.) on a charge of breach of condition of stay contrary to s.41 of the Immigration Ordinance, Cap. 115. The condition of stay concerned was a limit of stay. In other words, it was a limit on the period for which Madam Li was permitted to stay in Hong Kong. This flows from s.2(1) of the Immigration Ordinance which defines "limit of stay" to mean "a condition limiting the period during which a person may remain in Hong Kong". So the offence concerned was the one commonly called "overstaying". Madam Li's conviction was upon her change of plea to one of guilty following the magistrate's ruling against her on a point of law. Her conviction was quashed by the judge on the basis of his decision in her favour on that point. On the prosecution's application, the judge certified such point as one of great and general importance. And the Appeal Committee has granted the prosecution leave to pursue it before this Court.

2. In the courts below, it was common ground that overstaying is a continuing offence. Before us, it is contended on Madam Li's behalf that overstaying is not a continuing offence. So we have to determine whether or not it is. If we hold that it is, then the certified point arises. And the certified point is the one raised by the question which I would re-formulate thus. Is a prosecution for overstayingtime-barred under s.46 of the Immigration Ordinance where (i) the prosecution is not initiated until three years after the time when the commission of the offence first became known to the prosecuting authority but (ii) the commission of the offence continued up to a time within three years of the initiation of the prosecution?

The facts

3. There is no dispute as to the facts. It is convenient to take

them from the judge's judgment where he outlined the primary facts in the following way:

4. A little later on in his judgment, the judge dealt with the prosecuting authority's knowledge, saying this:

The judge's view of the law

5. Upon an analysis of the statutory provisions and cases which he considered relevant, the judge formed a view of the law which he expressed thus:

Conditions of stay

6. Section 41 of the Immigration Ordinance (headed "Breach of condition of stay") is the provision creating the offence of breach of condition of stay. This section provides that:

7. Conditions of stay may take the form of a limit of stay (as in the present case) or some other form. This is because s. 11(2) of the Immigration Ordinance provides that:

As to what such conditions of stay may be, reg. 2 of the Immigration Regulations provides:

The time limit

8. The time limit for initiating a prosecution for breach of condition of stay is laid down by s.46(2) of the Immigration Ordinance which provides that:

Continuing offence

9.InvokingPepper v. Hart [1993] AC 593, counsel for Madam Li sought to place reliance on some legislative material for the purpose of furthering his argument that overstaying is not a continuing offence. But I see no warrant for a Pepper v. Hart exercise in the present case. For there is no ambiguity in the relevant provisions as far as overstaying is concerned. Nor is there any absurdity in the reading of them proposed by the prosecution. In any event, the legislative material in question only shows that the legislature was against an amendment which would expressly make all breaches of conditions of stay continuing offences. I can readily understand the view that certain breaches of conditions of stay apart from the limit of stay condition ought not to be regarded as continuing offences. But in the present case we are not concerned with any condition of stay apart from the limit of stay condition.

10. The present case does not call for a decision on whether the offence is a continuing one where a condition of stay is breached by taking employment, establishing or joining a business or becoming a student. The question is whether overstaying is a continuing offence. The courts are slow to conclude that an offence is a continuing one, but will do so if such a conclusion is plain from express words, compelling implication or the nature of the offence concerned. In my judgment, it is plain that overstaying is a continuing offence. For overstaying involves the situation where the material condition of a person's permitted stay in Hong Kong is a limit on the period for which he may lawfully stay here. And if he exceeds that limit by remaining here beyond that period, the offence of breach of condition of stay which he commits is, by its very nature, an offence committed continuously from the time when the overstaying commences to the time when it comes to an end.

11. There are several ways in which the overstaying can come to an end. The two most obvious ways are these. One, it would end upon the overstayer leaving Hong Kong of his own accord. Or two, it would end upon his presence in Hong Kong ceasing to be due to his own act or omission and becoming due instead to his detention here by the authorities, pending removal or trial or pursuant to a custodial sentence.

12. In my view, overstaying would also end upon the overstayer surrendering to the authorities. This is the footing on which the present charge was formulated. Thus the particulars of offence set out in the charge on which Madam Li was convicted read:

Obviously Madam Li was charged on the basis that she had overstayed from the time when her limit of stay expired until the time when she surrendered to the authorities on 7 October 1999.

Time for initiating a prosecution

13. As to the time for initiating a prosecution, the general position may be stated as follows. Where a non-continuing offence is concerned, a prosecution may be initiated as soon as the commission of the offence has been completed or, subject to any time limit for initiating a prosecution, at any time thereafter. And any such time limit runs from such completion.

14. The general position is different where a continuing offence is concerned. A prosecution may be initiated on any day during the period over which the offence is continuously committed or, subject to any time limit for initiating a prosecution, at any time after that period. And any such time limit will not start to run until after such period has ended. Put in terms of a provision like s.46(2) of the Immigration Ordinance (which uses the word "arose"), a sufficient basis for prosecuting arises each and every day falling within such period. In Attorney General v. Cheung Kam-ping [1980] HKLR 602 (a decision to which Gall J referred and would have been bound) the Court of Appeal held that the word "first" is to be read into s.46(2) so that the time limit which it sets runs from the time when the matter of complaint or information first arose. I see no warrant for reading in the word "first". And I would overrule the Court of Appeal's decision that it is to be read in.

15. None of the foregoing involves the running of a time limit for initiating a prosecution for a continuing offence being triggered by the prosecuting (or any other) authority's knowledge of its continuance so that such time limit starts to run during the period when the offence is still being continuously committed. For that, a special provision is needed.

16. A prime example of such a special provision is to be found in s.46(3) of the Air Pollution Control Ordinance, Cap. 311, where the running of a time limit for initiating a prosecution is triggered by "notice". In order that subsection be seen in context, it is necessary to set out the whole of the section in which it appears. This section reads:

17. Examples of the running of time limits triggered by "knowledge" or "discovery" are to be found in: s.140(2) of the Bankruptcy Ordinance, Cap. 6; s.351A(1) of the Companies Ordinance, Cap. 32; s.58 of the Insurance Companies Ordinance, Cap. 41; s.33 of the Gas Safety Ordinance, Cap. 51; and s.17U of the Television Ordinance, Cap. 52.

18. There is no provision like any of those where prosecutions for breach of condition of stay contrary to s.41 of the Immigration Ordinance are concerned.

Not time-barred

19. For the foregoing reasons, the prosecution brought against Madam Li was not time-barred. On the certified point of law, I hold as follows. Even though a prosecution for overstaying is not initiated until three years after the time when the commission of the offence first became known to the prosecuting authority, such prosecution is not time-barred under s.46 of the Immigration Ordinance if the commission of the offence continued up to a time within three years of the initiation of the prosecution.

Conviction restored

20. Accordingly I would allow the prosecution's appeal so as to restore Madam Li's conviction.

Sentence reduced from imprisonment to fine

21. Madam Li was sentenced to one month's imprisonment. That sentence was passed one year ago on 1 March 2000. Madam Li has been on bail since then. The stance adopted by the prosecution in regard to Madam Li's sentence in the event of her conviction being restored is set out in the concluding paragraph of its printed case, which reads:

22. The circumstances of this case are wholly exceptional. To begin with, the situation which has arisen has resulted from an appeal by the prosecution, which is an exceptional thing in itself. Further, the quashing of the conviction by the judge left no sentence to appeal against until the restoration of the conviction, and therefore the sentence, by this Court. And before the judge quashed the conviction, only for it eventually to be restored by this Court, the ground on which I think that the sentence ought to be varied from custodial to financial simply did not exist. For this ground is that serving a term of imprisonment now would be a much harsher penalty than it would have been before her conviction was set aside. The prosecution supports Madam Li's submission that we ought to grant her leave to appeal against sentence out of time and entertain such appeal. This case being wholly exceptional, it is not to be taken as a precedent in regard to other circumstances.

23. I am satisfied that the Court ought in the present circumstances to set aside Madam Li's prison sentence and substitute for it a fine. This implies no criticism of the magistrate's sentence at the time when it was passed. Such substitution is made in recognition of the fact that Madam Li (who has never denied the facts, did eventually surrender to the authorities, is now married with two children, and is now staying lawfully in Hong Kong with her husband and children) has since gone through the harrowing experience of having her conviction quashed in the High Court on an erroneous view of the law and then restored in this Court. As I have said, serving a prison sentence now would be a much harsher penalty than it would have been if she had not had success, since undone, in the High Court. The prosecution's interest is to clarify the law rather than to see Madam Li imprisoned.

24. Accordingly, in the wholly exceptional circumstances of the present case, it is appropriate to substitute for the custodial penalty imposed by the sentencing court a financial penalty.

25. As we have seen, this offence is punishable by a fine at level 5 and imprisonment for two years. A fine at level 5 is (as s.113B of and Schedule 8 to the Criminal Procedure Ordinance, Cap. 221, provides) one of up to $50,000. Counsel for Madam Li indicated that if a fine were to be imposed, he would offer no argument on its amount, accepting that even the maximum fine could be imposed. I think that a substantial fine, but one short of the maximum, is appropriate.

26. I would grant Madam Li leave to appeal against sentence out of time, and allow such appeal so as to reduce her sentence from one month's imprisonment to a fine of $30,000, giving her seven days to pay.

Mr Justice Chan PJ:

27. I agree with the judgment of Mr Justice Bokhary PJ and the orders proposed by him regarding sentence.

Mr Justice Ribeiro PJ:

28. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Litton NPJ:

29. I agree with the judgment of Mr Justice Bokhary PJ and the orders proposed by him.

Sir Anthony Mason NPJ:

30. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ:

31. The Court unanimously allows the prosecution's appeal so as to restore Madam Li's conviction. The Court also unanimously grants Madam Li leave to bring an appeal against sentence out of time, and allows such appeal so as to set aside her prison sentence and substitute for it a fine of $30,000, giving her seven days to pay.