Hon Yeun JA (giving the Reasons for Judgment of the Court):
上訴法庭法官袁家寧頒發上訴法庭判案理由書：

The applicant, Yeung Kam Yuen, was the 2nd defendant in the case. He was charged with three counts of assisting the passage to Hong Kong of a conveyance which carried unauthorized entrants. (Emphasis added).
申請人楊錦源是本案第二被告人，他被控3項「 協助載有未獲授權進境者的運輸工具前來香港的旅程」罪。(橫線後加，以示強調) 。

He pleaded not guilty and was tried before Deputy District Judge Sham. On 31 December 2009, he was convicted of the three charges and sentenced to 4 ½ years of imprisonment.
他否認控罪, 案件由區域法院沈小民暫委法官審理。, 法官裁定他3項控罪罪名成立, 及將他判處4年半監禁。

The applicant applied for leave to appeal against conviction and sentence. Upon considering the submissions from both parties, we dismissed his application for leave to appeal against conviction. Leave was granted to him for application to appeal against sentence, and treating the application as the appeal, the appeal was allowed and the total sentence on the applicant was reduced from 4 ½ years to 4 years, to be served concurrently in respect of the three charges. The following are our reasons for the judgment.
申請人提出許可申請, 就定罪及判刑提出上訴。經考慮雙方陳詞後，本庭駁回申請人就定罪的上訴許可申請，批准他就判刑的上訴許可申請，並視其申請為正式上訴，判上訴得直，申請人的總刑期由4年半減至4年，三項控罪同期執行。本庭的判案理由如下。

The prosecution alleged that at around 1 a.m. on 13 June 2009, 15 unlawful entrants arrived Hong Kong by boat and were received by a woman (the 1st defendant) after landing on a beach at Tung Chung. Several minutes later, three taxis arrived at an unnamed road near the beach. The applicant was the driver of one of the taxis while the 3rd and the 4th defendants were the drivers of the other two taxis. The unlawful entrants came out from a water channel and boarded the three taxis separately. PW4 was one of the unlawful entrants. He testified in court that the applicant had urged him to get in the vehicle quickly and therefore, he, together with others, boarded the applicant’s taxi. The taxi drove in the direction of Kowloon. The 1st defendant did not get into any taxi and was arrested by the police who were laying in ambush at the scene. Later, the police intercepted those taxis. At that time, the applicant’s taxi was carrying two men and three women who were unlawful entrants. The police arrested all the passengers and the driver. From the person of the applicant, the police seized six mobile phones, five of which had SIM cards installed. Evidence showed that over thirty phone calls had been made in that night between the applicant and the other two taxi drivers.
控方證據指，凌晨1時左右, 15名非法入境者乘船抵港，在東涌一沙灘登陸，由一名女子(案中第一被告)接待。幾分鐘後，有3部的士到達沙灘附近一條無名路。申請人駕駛其中1部的士，案中第三及第四被告則駕駛另外兩部的士。非法入境者從水渠處走出來，分別登上3部的士。控方第四證人是非法入境者之一，他在庭上作供說申請人曾催促他上車，他便與其他人登上申請人那部的士。的士駛往九龍方向。第一被告沒有上的士，被在場埋伏的警員拘捕。後來，警員截停該幾部的士，當時申請人的士載有兩男三女非法入境者。警員將全部司機及乘客拘捕。警員從申請人的身上撿獲6部手提電話，其中有5部安裝了SIM 卡，證據顯示當晚申請人與另外兩名的士司機互相有30多次電話聯絡。

In his cautioned statement and testimony in court, the applicant said that he always gave 20% off to customers who called to hire his taxi. On the day in question, before 7 p.m., he received a phone call from someone who called herself “Miss Lee”. He said he did not know her nor her phone number. Since she had taken his taxi before, she got his name card. Miss Lee at first asked him to arrange a taxi to pick up passenger(s) at 1 a.m. However, she did not specify the pickup point or the destination. The applicant did not accept her request. Within the next six hours, she called the applicant time and again, asking for three taxis in total. However, the pickup point and the destination were still unconfirmed. The applicant said that eventually, at around 1 a.m., Miss Lee called him on the phone again, asking for taxis to go to a power station in the vicinity of Discovery Bay. The applicant said that since he happened to reach Tung Chung while he was driving, he accepted the request and also found two other taxis for Miss Lee. When he drove to the vicinity of the power station, five men and women got in his taxi. He said that he did not find them suspicious in any way, because he had picked up customers in that vicinity before, for example, people who went fishing, construction site workers, Discovery Bay staff, etc.
申請人在警戒供詞及庭上作供說，他做八折收費的士，接受客人的電話傳召。案發當晚的7時前，他接到一名自稱「小姐」的電話，他說他並不認識對方，也不知道她的電話號碼，她因乘搭過他的的士，所以有他的卡片。小姐最初要求他於凌晨1時安排1部的士接客，但沒有說明接客地點或目的地。申請人沒有應承她。在其後的6小時內，她再多次致電申請人，要求加到3部的士，但仍然沒有落實接客地點或目的地。申請人說後來到凌晨1時左右，小姐又再打電話給他，要求的士往愉景灣附近一發電站。申請人稱他剛巧駛到東涌，所以答應前往，另外他又替小姐找了其他兩部的士。他駛到發電站附近，有5名男女坐上的士，他說不覺得他們有甚麼可疑，因為他以前在附近都有接載客人, 例如是釣魚人仕，地盤工人，及愉景灣員工等。

The trial judge found that the applicant knew that the passengers were unlawful entrants based on the following factors: the applicant, in the small hours and at a remote place, picked up people who were not waiting at the road side but came out from a water channel; the three taxis arrived almost at the same time, yet there were over thirty phone calls between the drivers, which showed that it was not a normal pickup arrangement; moreover, according to the applicant, Miss Lee kept calling him on the phone to make the pickup booking several hours in advance, yet the location was not disclosed, which again, was unusual. The trial judge found that the only inference to be drawn was that the applicant knew full well that that group of people came to Hong Kong illegally.
原審法官是基於以下因素裁定申請人知道接載的人士是非法入境者:  申請人是在凌晨時份，在偏僻的地方，接載一些並非在路邊等候，而是從水渠處走出來的人; 3部的士是差不多同一時間到達，而司機之間事前竟有30多次通電，這顯示非是正常的接載客人的安排; 再者, 據申請人說，小姐不斷打電話給他，預約在幾小時後的接載, 但又沒有披露地點，這也並不尋常。原審法官裁定，唯一的推斷，是申請人清楚知道那群人是偷渡來港的。

Regarding the sentence, after referring to the decision in HKSAR v Chan Lai Choi, CACC166/1997,the trial judge took three years of imprisonment as the starting point. However, since the applicant was the middleman of the organization who summoned the other taxi drivers to carry unlawful entrants, his culpability was greater. The trial judge thus sentenced him to four years of imprisonment. Further, since the case involved 15 unlawful entrants, parts of the sentence had to be served consecutively. The applicant was sentence to a total of four and a half years of imprisonment.
判刑方面，原審法官參考過上訴法庭在HKSAR v Chan Lai Choi (陳禮財) CACC166/1997案例的判決，認為3年監禁是量刑基凖，但基於申請人是組織的中間人，召集其他的士司機去運載非法入境者，刑責較大，所以法官判處他4年監禁，再因為案件涉及15名非法入境者，所以部份刑期要分期執行，申請人被判監禁共4年半。

The first ground of appeal put forward by the applicant was that the charge and particulars of offence faced by him accused him of “assisting the passage to Hong Kong of a conveyance which carried unauthorized entrants”. However, the prosecution evidence only consisted of those unlawful entrants’ passage within Hong Kong.
申請人的上訴理由是，第一，他所面對的控罪及詳情，都是指他犯了「 協助載有未獲授權進境者的運輸工具前來香港的旅程」罪，但控方所提出的證據，只是有關非法入境者在香港境內的旅程。

We are of the view that:
本庭認為:

According to HKSAR v Huynh Bat Muoi, CACC28/2000, the Court of Appeal has the power to amend the charge on an appeal. Section 23(1) of the Criminal Procedure Ordinance, Cap. 221 provides that:
根據HKSAR v Huynh Bat Muoi CACC28/2000案例, 上訴法庭有權在上訴過程中修訂控罪 (amend the charge) 。根據「香港法例」第221章「刑事訴訟程序條例」第23(1) 條:

“Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.”
「凡在審訊前或在審訊的任何階段，法庭覺得公訴書欠妥，法庭須作出其認為符合案件情況所需的命令以修訂公訴書，但如在顧及案件的是非曲直後，覺得作出所需的修訂必會造成不公正，則屬例外。」

There is precedent of amending the charge in this type of cases. In HKSAR v Cheng Chi Yung, CACC338/2003, the Court of Appeal, by virtue of section 23 (1) mentioned above, amended the Statement of Offence, so that “to Hong Kong” was replaced with “within Hong Kong”. Counsel for the applicant in our case submitted that in Cheng Chi Yung, only the Statement of Offence was wrong, whereas the Particulars of Offence did aver that the crime was committed within Hong Kong (paragraph 14). Therefore, the indictment in Cheng Chi Yung was defective and could be amended by virtue of s. 23(1). However, in the present case, both the Statement of Offence and the Particulars of Offence used the same wordings “to Hong Kong” and thus s. 23(1) did not apply. We do not accept this argument. We do not see any reason to restrict the power of amendment in s. 23 (1) to the narrow scope of the above circumstances or to cases involving typographical error, as suggested by counsel for the applicant. Such restriction cannot be found in the letter of the Ordinance. Counsel for the applicant also indicated that a magistrate could amend the charge in the circumstances of the present case according to the Magistrates Ordinance. That being the case, what is the legal basis for a District Court case to be dealt with differently? Counsel for the applicant was unable to come up with sufficient legal basis in support of his argument. We are of the view that there is no distinction in principle between the circumstances of the present case and those of Cheng Chi Yung, and that this court may amend the indictment by virtue of s. 23(1).
於這類案件中對控罪作出修改是有先例的。在HKSAR v Cheng Chi Yung (鄭智勇) CACC338/2003一案, 上訴法庭便根據上述第23 (1) 條, 就罪行陳述內容，將「前來香港」改為「在香港境內」。本上訴申請人代表大律師陳詞說，在鄭智勇案，只是罪行陳述出錯，而罪行詳情是確有指出罪行是在香港境內干犯的(第14段) ，所以在鄭智勇案，公訴書欠妥，可以根據第23(1) 條修訂，但在本案中，無論罪行陳述抑或罪行詳情，都是只用「前來香港」字眼，所以第23(1) 不適用。本庭不接納這觀點。本庭看不到有任何理由，需把第23(1) 條的修訂權利，狹窄地局限於上述的情況，或如申請人代表大律師所提議的手民之誤的情況。條例文字上沒有任何顯示須有這種局限。申請人代表大律師曾表示，根據《裁判官條例》，裁判官應可以在本案情況下修訂控罪。既然如此，為何在法理上，區域法院的案件是需要另一種方法處理? 申請人代表大律師未能提出充份的法理依據來支持他的觀點。本庭認為本案與鄭智勇案的情況在原則上沒有分別，本庭可以根據第23(1) 條修訂公訴書。

As pointed out by this court in HKSAR v Wong Kim Fai [2001] 1 HKLRD 424, if there was insufficient evidence to support a charge in an indictment, but there was other ample evidence to support other charges, the court should not neglect such evidence and was entitled to amend the charge sheet; nevertheless, whether the court should do so in individual cases depends on whether any injustice would be caused to the defendant. In this regard, the court will take into consideration factors such as the position of the defence, the grounds of the defence, whether witnesses can be recalled for the defence to cross-examine and so on.
誠如本庭在香港特別行政區 訴 黄劍輝 [2001] 1 HKLRD 424 案例中指出，如果公訴書所指的罪行證據不足，但案中存在其他充分證據以支持其他控罪，法庭是不可以漠視該些證據，法庭是有權修訂控罪書; 但在個别案件中，法庭應否這樣做，便要視乎是否對被告人造成不公，而法庭這方面的考慮包括辯方的立場，抗辯理由，可否重召證人供辯方盤問，等等因素。

At the trial, the relevant issue about the charge was raised and discussed. The then legal representative of the applicant had already stated that the defence would not be inflexible about the wordings of the charge. He stated the position expressly:
在本案原審時，相關控罪的問題也被提出過討論。申請人當時的法律代表已說明不會執著於控罪的字眼，他表明立場說:

“Court:But would you argue the point about “to”?
「 官：但係你會唔會拗係嗰個「前來」嗰度呢？

MR WONG:I believe (we) would not be too inflexible about this point. It is because it seems that “to” could have a wider definition which includes passage after his arrival—had reached the territory, to his destination; it may also be included in the scope of his (passage) “to”. Therefore, I do not intent to waste the court’s time to dwell on this point.”
MR WONG：我相信唔會太過執著嗰點，因為似乎「前來」可能係會比較闊啲嘅嗰個定義係包含埋佢落咗--到咗境之後嘅旅程，去佢嘅目的地，可能都係包含埋佢「前來」嗰個範疇裡面，所以我唔打算浪費法庭嘅時間去斟酌嗰一點。」

(See page 309 of the Appeal Bundle, i.e., page 259 I-K of the Transcript.)
(參考上訴宗卷第309頁，即謄本第259頁I-K) 。

Based on the above reasons, we are of the view that an amendment of the charge now to delete the words “to Hong Kong” and substitute them with “within Hong Kong” would not cause any injustice to the applicant. On this basis, there is no substantive arguable issue in the first ground of appeal.
基於以上理由，本庭認為在現時修改控罪，即删除「前來香港」字眼而改為「在香港境內」，不會對申請人造成不公。在這基礎上, 有關第一項的上訴理由並無實質可供爭議之處。

The second ground of appeal put forward by the applicant was that the trial judge failed to take into consideration the safeguard offered by the “presumption of innocence”.
申請人的第二項上訴理由是，原審法官未有考慮「無罪假設」的保障。

The applicant was charged with section 37D of the Immigration Ordinance, which provides that:
申請人被控「入境條例」第37D 條。第37D條如下:

“(1) Subject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong-
「 (1)   除第(2)款另有規定外，任何人如自行或代表任何其他人(不論該其他人是否在香港)─

(a)  arranges or assists the passage to, or within, Hong Kong;
(a) 安排或協助未獲授權進境者或載有未獲授權進境者的運輸工具前來香港或在香港境內的旅程；

(b)  offers to arrange or assist the passage to, or within, Hong Kong; or
(b) 要約安排或協助未獲授權進境者或載有未獲授權進境者的運輸工具前來香港或在香港境內的旅程；或

(c)  does or offers to do an act preparatory to or for the purpose of arranging or assisting the passage to, or within, Hong Kong,
(c) 作出或要約作出一項作為，以準備安排或協助，或旨在安排或協助未獲授權進境者或載有未獲授權進境者的運輸工具前來香港的旅程或在香港境內的旅程，

of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable-
均屬犯罪─

(i) on conviction on indictment to a fine of $5000000 and to imprisonment for 14 years; (Amended 82 of 1993 s. 8)
(i) 經公訴程序定罪後，可處罰款$5000000及監禁14年； (由1993年第82號第8條修訂)

(ii) on summary conviction to a fine of $350000 and to imprisonment for 3 years. (Amended L.N. 25 of 1996)
(ii) 經簡易程序定罪後，可處罰款$350000及監禁3年。..(由1996年第25號法律公告修訂)

(2) 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 could not with reasonable diligence have discovered-
(2) 任何人如能證明他不知道，亦沒有理由懷疑，並在合理努力下不能發現─

(a) that the person whose carriage on a conveyance or whose passage is the subject of the charge, was an unauthorized entrant; or
(a) 其被運輸工具運載或其旅程乃構成控罪標的之人，是未獲授權進境者；或

(b) that the conveyance in relation to which he is charged was carrying, or would carry, any unauthorized entrant,
(b) 與其控罪有關的運輸工具，載有或會載有未獲授權進境者，

as the case may be.”
即不得裁定他犯第(1)款所訂的罪行。」

(1) At the beginning of the submission made by counsel for the applicant, he said that the statutory construction of the statutory offence set out in s. 37D required the prosecution to prove the mens rea in relation to each element of the charge beyond reasonable doubt. His argument implied that this statutory offence fell into the first alternative set out by the Court of Final Appeal in paragraph 96 of HKSAR v Hin Lin Yee [2010] 2 HKLRD 826.
(1) 申請人代表大律師陳詞首先說，第37D這項法定罪行 (statutory offence) 的法律釋義 (statutory construction) 是控方必須在「毫無合理疑點」的標準下，證明控罪每一元素的犯罪意圖。他這說法，意味著這項法定罪行是終審法院在HKSAR v Hin Lin Yee [2010] 2 HKLRD 826案例中，第96段所列舉的第一項選擇。

In Hin Lin Yee, the Court of Final Appeal discussed thoroughly  the defendant’s mental state that the prosecution is required to prove in various statutory offences. The Court of Final Appeal explained that when a statutory offence is silent as to the state of mind required, it is incumbent on the prosecution to prove mens rea in relation to each element of the offence (paragraphs 40-41). This is the “presumption of mens rea” (we are of the view that it is the same concept as the “presumption of innocence”).
在Hin Lin Yee 案例，終審法院已全面地討論了控方在控訴不同的法定罪行時，所需證明的被告人心態(defendant’s mental state)。終審法院述明，當某一項法定罪行沒有提到被告人的心態時，那麼法庭的出發點是，應該推定控方必須證明被告人就罪行每個元素的犯罪意圖(mens rea)( 第40-41段) 。這是「犯罪意圖的推定」(“presumption of mens rea”) (本庭認為亦即是「無罪推定」 (“presumption of innocence”) 的同一概念)。

However, the Court of Final Appeal also pointed out that a statute may displace the “presumption of mens rea” expressly or by necessary implication (paragraph 43). The Court of Final Appeal listed out five possibilities that arise in respect of the mental requirement attaches to a statutory offence. The first (the strictest) alternative is that the prosecution must prove mens rea beyond reasonable doubt; the fifth (the loosest) alternative is that the presumption is displaced, so that the prosecution succeeds if the accused is proved to have performed the actus reus, regardless of his state of mind (paragraph 96).
但終審法院亦指出，「犯罪意圖的推定」是可以由法例明示的字眼，或必然的默示，所取代的(第43段)。終審法院列出，法定罪行所需的心態，有5個可能性，由第一個(最嚴謹的)選擇，即控方必須以「毫無合理疑點下」的標準，證明犯罪意圖; 至第五個(最寬鬆的) 選擇，即犯罪意圖的推定已被取代，而不論被告人的心態為何，控方只需證明了犯罪行為(actus reus) ，被告人便罪名成立 (第96段)。

In relation to s. 37D in this case, we do not think that the mental requirement falls within the first alternative as suggested by counsel for the applicant. Instead, it falls within the third alternative listed by the Court of Final Appeal, which is also known as “the defence approach”, namely, that the presumption has been displaced so that the prosecution need not prove mens rea but that the accused has a good defence if he can prove on the balance of probabilities that the prohibited act was done in the honest and reasonable belief that the circumstances were such that, if true, he would not be guilty of the offence (paragraph 96).
就本案第37D條而言，本庭認為該條例所需的心態，並不是申請人代表大律師所提議的第一個選擇的心態，而是終審法院所列出的第三個選擇。第三個選擇又名「辯護的取向」(“the defence approach”) ，即是犯罪意圖的推定已被取代，控方不需要證明被告人有犯罪意圖，但是如果被告人以「相對可能性較高」的標準，證明他誠實及合理地相信真確的情況，他便可解脫罪名(第96段)。

Applying the above approach to the defence provided in s. 37D(2), it means that the defendant has to prove on the balance of probabilities that his act was done in the honest and reasonable belief that the circumstances were such that he did not know, had no reason to suspect and could not with reasonable diligence have discovered that the passengers he carried in his taxi were unlawful entrants.
套入第37D(2) 條所賦予的辯護，就是被告人需要以「相對可能性較高」的標準，證明他誠實及合理地相信情況是令他不知道，亦沒有理由懷疑，並在合理努力下都不能發現，他的士所載的人是非法入境者。

However, counsel for the applicant submitted forcefully that it involved reverse onus of proof and therefore violated his human right to “presumption of innocence”. We are of the view that even if s. 37D imposes an additional persuasive burden of proof on the defendant, this court should therefore read it down as imposing an evidential burden instead which is less harsh on the defendant (see HKSAR v Lam Kwong Wai [2006] 3 HKLRD 808, HKSAR v Gurung Krishna [2010] 4 HKLRD 456). Nevertheless, in the present case, there is still ample evidence showing that the applicant knew full well that he was carrying unlawful entrants. The trial judge has already listed many pieces of prosecution evidence in this regard, for example, there were multiple contacts between the applicant and the other two taxis; the applicant, in the small hours, at a remote place, picked up people who were not waiting by the road side but came out from a water channel instead; and he even urged them to get in the vehicle quickly. All these show that the applicant in fact knew that his passengers were unlawful entrants. Under these circumstances, this ground of appeal cannot stand.
然而申請人代表大律師力陳，這是涉及「顛倒舉證責任」 (reverse onus), 因而觸犯「無罪推定」的人權。本庭認為，即使第37(D) 條是施加一項「具說服力的舉證責任」 (persuasive burden) 於被告人身上，本庭因此而應該以對被告人有利的「提證責任」 (evidential burden) 來作詮釋(見HKSAR v Lam Kwong Wai [2006] 3 HKLRD 808, HKSAR v Gurung Krishna [2010] 4 HKLRD 456案例) ，在本案中, 仍然有充足證據顯示申請人清楚知道他是接載非法入境者。原審法官已列出多項控方證據例如，申請人與另外兩部的士，經多次互相聯絡，在凌晨的時份，在偏僻的地方，接載一些並非在路邊等候，而是從水渠處走出來的人，還催促他們上車，顯示申請人其實是知道他所接載的是非法入境者。在這情況下, 這項上訴理由也不能成立。

The third ground of appeal put forward by the applicant was that the trial judge, without evidential support, made a finding about taxi operation based on his own “daily experience”. We agree with the trial judge that the evidence listed above in this case indicated that the passengers were unlawful entrants. The version of events (namely, a Miss Lee, having phoned him many times in six hours without specifying the pickup point) put forward by the applicant in his self defence also clearly differs from what happens every day and common sense. Therefore, in the light of the facts in the present case, there is nothing improper in the verdict of the trial judge.
申請人的第三項上訴理由是，原審法官在沒有證據支持下，自以「日常生活經驗」，去作出有關的士運作的裁決。本庭同意原審法官列出案中上述的證據，顯示接載的人是非法入境者，而申請人自辯時所說(有關李小姐6小時內多次電召去沒有說明接客的地點)的一套，亦明顯地與日常情況及常理有異，所以在本案的案情下, 原審法官的裁決並無不妥。

Having considered the above arguments from the applicant and the replies from the respondent, we do not think that the applicant’s appeal has any chance of success.
考慮過申請人上述論點，與及答辯的回應，本庭認為申請人的上訴沒有成功機會。

Regarding the sentence, the judge has already enhanced the starting point to four years to reflect that the case involved a number of unlawful entrants. As the three offences took place at the same time, we do not think that there is any justification to further order parts of the sentence to be served consecutively.
至於判刑方面，法官把判刑起點上調至四年，已反映了案件牽涉多名非法入境者，而三項罪行都是同時間發生的, 所以本庭認為沒有理據再命令部份刑期分期執行。

Accordingly, we dismissed the applicant’s application for leave to appeal against conviction. Leave was given to him for application to appeal against sentence, and treating the application as the appeal, the appeal was allowed and the total sentence on the applicant be reduced from 4 ½ years to 4 years, to be served concurrently in respect of the three charges.
基於以上理由，本庭駁回了申請人就定罪的上訴許可申請，批准申請人就判刑的上訴許可申請，並視其申請為正式上訴，判上訴得直，申請人的總刑期由4年半減至4年，三項控罪同期執行。

Philip Wong, instructed by Chan Raymond, Kenneth Yuen & Co., for the Applicant (the 2nd Defendant).
申請人(第二被告人): 由陳兆明袁耀彬律師事務所轉聘大律師黃志偉代表。

Martin Hui, Senior Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司高級檢控官許紹鼎代表。