In quashing D5’s conviction of “assisting an unauthorized entrant to remain in Hong Kong”, the Court of Appeal (“𝐂𝐀”) held that the earlier CA decision of 𝒀𝒆𝒖𝒏𝒈 𝑲𝒂𝒎 𝒀𝒖𝒆𝒏 was per incuriam (𝑣𝑖𝑧 wrong in law).

The prosecution’s case was that D5 procured sexual services from D1. To do so, D5 booked a hotel room for 16 days and paid for it. The Prosecution’s case was that D1 was an unauthorized entrant (“𝐔𝐄”). Having pleaded not guilty, D5 (together with another defendant, D4) stood trial before HH Judge E Yip. The Judge rejected D5’s evidence and said that D1 could not have so easily deceived him. The Judge found that D5 had reasonable grounds to suspect D1 to be a UE but failed to exercise reasonable diligence to discover her status and booked a room for D1. D5 was sentenced to 8 months’ imprisonment. Bail pending appeal was granted in 2023 by Hon Anthea Pang JA.

CA took the chance to review the statutory defence and considered the nature of the offence. CA found that the offence fell under the 4th Alternative under Court of Final Appeal’s judgments of 𝑯𝒊𝒏 𝑳𝒊𝒏 𝒀𝒆𝒆 and 𝑲𝒖𝒍𝒆𝒎𝒆𝒔𝒊𝒏 – where by a defendant has an evidential burden to raise as an issue that all three conditions under the ordinance do not apply, and the prosecution has to fulfil the persuasive burden to prove the subsistence of any of the three conditions: [43]. In reaching that decision, CA also considered whether the earlier decision (differently constituted) of 𝒀𝒆𝒖𝒏𝒈 𝑲𝒂𝒎 𝒀𝒖𝒆𝒏 (dealing with the offence of “assisting the passage to Hong Kong of a conveyance which carried UE”) was correct. CA considered Simon So’s text 𝑳𝒂𝒘 𝒐𝒇 𝑬𝒗𝒊𝒅𝒆𝒏𝒄𝒆 𝒊𝒏 𝑯𝒐𝒏𝒈 𝑲𝒐𝒏𝒈 (2nd edition) and, citing with agreement, found that 𝒀𝒆𝒖𝒏𝒈 𝑲𝒂𝒎 𝒀𝒖𝒆𝒏 was 𝑝𝑒𝑟 𝑖𝑛𝑐𝑢𝑟𝑖𝑎𝑚: [46]-[49].

CA concluded that the Judge’s reasoning in rejecting D5’s version was flawed: [64]-[70]. In particular, the Judge had, in strong terms, criticised D5 to be “lying” of which CA was not convinced by the reasons provided. Further, CA considered there was a danger that D5’s perceived lies became a substitute that D5 knew/suspected D1 was an UE: [69]. CA further sounded an additional observation that this offence required the Secretary for Justice’s consent and that such consent is more than a mere formality: [73]. It added that, should the evidence before the court be the entirety of the evidence available to the prosecution, careful thought should have been given to whether prosecution for this specific offence was appropriate and justified: [74].

Simon So appeared with Jack Hui before the rolled-up hearing for D5 in the Full Bench of the Court of Appeal. The full judgment was published on https://lnkd.in/g7zMbGST. They also applied for bail pending appeal in 2023 before Hon Anthea Pang JA, which was granted by Her Ladyship.