Press Summary (English)

Press Summary (Chinese)

FACC NO. 7 OF 2024

[2025] HKCFA 9

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2024 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 372 OF 2019)

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J U D G M E N T

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Chief Justice Cheung:

1. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

2. In this appeal, it falls to the Court to consider the essential elements of two offences under the Immigration Ordinance (“ IO ”). [1] The first is the offence of making a false statement or representation to an immigration officer (“ the representation offence ”) contrary to section 42(1)(a) (“ IO s 42(1)(a) ”). And the second is using a false travel document (“ the document offence ”) contrary to section 42(2)(b) (“ IO s 42(2)(b) ”). [2]

A. The charges

3. The appellant, who was a Mainland resident, presented himself for immigration clearance for entry into Hong Kong at the Lok Ma Chau Control Point on 19 September 2018. He used his Mainland passport (E30914590) which stated his date of birth as 10 September 1978 (the “ 978 DOB ”). He was, however refused entry because on being examined, he failed to dispel the doubts of immigration officers as to the purpose of his visit.

4. A few months later, on 3 May 2019, he sought to enter Hong Kong via the automated immigration clearance facilities at the West Kowloon Express Rail Link Station, using his Mainland Exit-Entry Permit (“ EEP ”) (C76036774) which stated his date of birth as 4 July 1973 (the “ 773 DOB ”). However, the system detected an irregularity, matching his facial image to that of a person who had been refused entry when using his aforesaid Mainland passport containing the 978 DOB.

5. The appellant was consequently subjected to a secondary examination by immigration officers. In a cautioned statement, he admitted that the 773 DOB and 978 DOB were both wrong and stated that he was actually born in 1978 on the 9 ^th day of the tenth month according to the lunar calendar, being 9 November 1978 by the Gregorian Calendar.

6. He explained that he was born in a rural area where no official records of his birth were available. The wrong dates of birth in his travel documents were the result of a series of errors by various Mainland officials including census enumerators and those compiling household registration records, complicated by his moving from rural to urban residences and maintaining dual registrations. Although his mother had sought to have the mistakes rectified, the errors we