Saturday, July 09, 2011


Important judgments were delivered by his Honour Mr. Justice Chapman yesterday in dismissing the appeals ot Van Chu Lin and Chan Yee Hop against the decision of Mr. D. G. A. Cooper, S.M., who lined the woman for landing in New Zealand without complying with the regulations, and the ma„ for aiding the woman to do so.


In the course of his judgment his Honour stated: The appelant is a Chinese woman, and is admitted to bo the wife of Chan Yee Hop, or Wong Yee Hop, a Chinese not naturalised m New Zealand. A Chinese named Ah Young became naturalised in New Zealand in 189'*i, and left for China more than four years ago. 'Chan Yee Hop got possession of Ah Young's letters of naturalisation. Having paid his own tax on landing, he was free to leave ' New Zealand and return within four years, and had done so, under his own name in 1912. On 10th March, IQIS, he falsely represented himjself as •the person described in the letters of naturalisation issued to Ah Young, obtained identification papers, and went abroad under that name. Under that name, too, he married the appellant m Sydney, on 19th July, 1915. He and his wife returned to New Zealand in the Ulimaroa^ as Mr. and Mrs. Ah Young on 2nd August, 1915. On arrival at the office of the Custom. Depavtment.,**han Yee Hop, with his wife, produced the letters of naturalisation of the said Ah Young and. also the marriage carljificate, and stated that he was married to the appellant. By means of this false pretence—namely, that he was Ah Young, and a naturalised Chinese—Chan Yee Hop and his wife entered New Zealand. The appellant did not comply with the section of the Immigration Restriction Act, 190b, requiring an examination in the English language. She is not naturalised, and did not pay the tax of £100 provided for. She did not give evidence at the hearing or i otherwise prove that -she wa,*> not I subject to the provisions of the Act. It was stated, and may be assumed, j that she is ignorant of English and of the law oi New Zealand. The only question is whether section 42 (1), paragraph (a), does or does not create' an offence irrespective of proof of mens rea. The scope of the Statute and the meaning of the clause seem to me to be very plain. Part 111. is specially devoted to Chinese immigration, which presupposes that the persons at whom it is aimed, and who are likely to commit the offence described, are ignorant. Chinese who know nothing of English or of New Zealand law or of what is required of them on landing. Paragraph (a) describes an offence, and there is j nothing strained in assuming that any immigrant will understand that it is his business to find out what he is to do on landing, and how he is to get ashore. Ev.ry traveller in any part of the world knows almost instinctively that he cannot go where he likes, and has to enquire into such matters. I must, therefore, impute to the appellant that she took the burden of ascertaining the requirements of the law and that- her ignorance of these requirements is immaterial. The requirement in question is that sho shall be able to read a printed passage of 100 words in English. It is admitted that she has not complied with that. Has she, then, any defence to the information? It is said that the Customs authorities let her pass without questioning her. This we now know was due to her husband's fraud, of which it is stated she was ignorant. That, however, is immaterial. The Customs House officials have no power to dispense an immigrant from compliance with a penal law, whether they do it knowingly, or, as here, unwittingly. By section 38 the burden is thrown on the immigrant of proving compliance with the Statute, and this has not been proved. In these circumstances we have a simple violation of a Statute, and a person who may be, and probably is, ignorant of its provisions; to such an offence the. doctrine of mens rea has no application. The object of this Statute is to guard the country against unrestricted immigration, and to secure a poll tax from immigrants of the class to which the appellant belongs, and the determination of the question whether mens rea is an ingredient in an offence depends largely on a consideration of the object of the Statute. Looking at the facts, we find that the appellant's husband was perpetrating a fraud on his own account, but I am not- at all sure that he was not, even on the finding set out, the agent of his wife, who, ex necessitate, required an agent for the purpose of procuring, her permission to land. In that ease, the Magistrate, 'if asked to do so, would. probably have found that she relied on her husband, and relied on his fraud, which might result in sufficient proof of mens rea. That, however, has not been raised or argued. CHAU YEE HOP'S CASE. I The offence of which the appellant is convicted is that of procuring his _ wife to commit the offence above described. This prosecution is under Section 53 of the. Justices of the Peace Act, 1908, which renders a person who aids, assists, counsels, or procures the commission of any offence punishable on summary conviction, liable to be proceeded against for the same, and subjects him on conviction to the same forfeiture and punishment as such principal offender. is by law liable to. It is argued that the use of the expression forfeiture shows that mens rea must be proved; that is to say, that this section only refers to offences in which mens' rea is essential, as forfeitures only arose at common law, in connection with such grave offences as felonies. This argument appears to me entirely to miss the real meaning of section 53. It must be borne in. mind that it is part of a general enactment connected with the administration of the law. Its operation is not i restricted to Acts now in force; it is purposely made wide enough, to be capable of being applied to future Acts enacting forfeitures and punishments. There are probably many sta : tutes now in force creating purely statutory offences, to some of which forfeiture and to others of which forfeiture and punishment in the shape of penalties are annexed. The Customs Law Act, 1908, for instance, contains numerous illustrations of this. I am satisfied that section 53 is intended to cover such a case as this. Both appeals are dismissed, with £5 5s costs in each case."

At the hearing Mr. P. J. O'Regan appeared for tho appellants, and Mr. V. K. S. Macassey for the Crown. Evening Post, Volume XCII, Issue 66, 15 September 1916, Page 5

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