HKSAR v. AHMED, SHERAZ

HCMA 16/2025

[2025] HKCFI 6331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 16 OF 2025

(On appeal from STCC 1547/2024)

________________________

________________________

________________________

J U D G M E N T

________________________

1.  The Appellant was charged with one count of “taking employment while being a person in respect of whom a removal order is in force”, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap.115, to which he pleaded not guilty. He was convicted after trial and sentenced to imprisonment for 22 months. The Appellant now appeals against the conviction only[1].

Prosecution Case

2.  It was admitted under a set of admitted facts (P1) that a removal order was issued against the Appellant on 24 November 2017 and that it remained in force on the day of the offence (i.e. 23 April 2024). At all the material times, the Appellant was aware that he was prohibited from taking up any employment, whether paid or unpaid. On 19 May 2021, the Appellant was issued with a recognizance (P3). At around 2238 hours on the date of the offence, when PC 21006 (PW1) was patrolling near lamp post DD0763 on Chi Cheong Road, Sheung Shui, he saw a goods vehicle with registration number UV 7923 (the “Goods Vehicle”) parked thereat. PW1 drew a sketch map (P4) about what he saw and he also took 4 photographs (P5(1-4)) at the scene. The Appellant had no criminal record in Hong Kong.

3.  The Prosecution called a total of three witnesses.

4.  PW1 (PC 21006) gave evidence that he saw the Appellant wearing a black top, a pair of black trousers and a pair of black shoes. The Appellant put a pallet truck full of foam boxes on the tailgate of the Goods Vehicle, lowered the tailgate, and then dragged the pallet truck to around 20 metres away to an area outside a vegetable stall (the “Vegetable Stall”) which was not open at the time. The Appellant then moved the foam boxes from the pallet truck onto the pavement nearby, took the empty pallet truck back into the Goods Vehicle and dragged the pallet truck full of foam boxes back to the outside area of the Vegetable Stall. The Appellant repeated these actions for 3 times. At the same time, PW1 was laying ambush nearby and could see the Appellant moving foam boxes onto the ground outside the Vegetable Stall.

5.  At around 2245 hours, PW2 (PC 13227) intercepted the Appellant. The foam boxes on the pavement were opened and vegetables were found therein. The Appellant was then arrested.

6.  PW3 (CHAN Chun-fung) was the driver of the Goods Vehicle. His evidence was that he was instructed to drive the Goods Vehicle to deliver a consignment of vegetables to the subject location at the material time. He was told that someone would come to pick up the vegetables on the Goods Vehicle. PW3 said he could not see if there was one or two persons who came to pick up the vegetables.

Defence case

7.  The Appellant elected not to give or call evidence. From the cross examination of the prosecution witnesses, the defence suggested that the person who was doing the above work had already run off before PW2 arrested the Appellant and that the Appellant had already told PW2 that he was not working there.

Magistrate’s Findings

8.  The Magistrate found that the evidence of PW1 was clear, direct and logical. There was no exaggeration and he was unshaken during cross examination. The Magistrate was aware that he mentioned in his witness statement that the Appellant went back-and-forth three times whereas he said the Appellant had repeated the above actions for three times during his examination-in-chief. The Magistrate found that there was in fact no discrepancy between what PW1 said in examination-in-chief and that in his cross-examination, and that PW1 had only misused the term “back-and-forth” in his witness statement.

9.  PW1 admitted under examination-in-chief that the Appellant was out of his sight for two to three minutes when the Appellant had gone into the goods compartment of the Goods Vehicle. The Magistrate found PW1 to be frank to admit that and it added to his credibility and reliability. Nevertheless, the basis for the identification by PW1 of the Appellant doing the above work remained solid and reasonable. The Magistrate found PW1 to be an honest and reliable witness and accepted his evidence as the truth.

10.  The Magistrate also found PW2 and PW3 to be credible and reliable. The Magistrate accepted their evidence except that PW2 said the Appellant was wearing gloves. That part contradicted PW1’s evidence but such discrepancy was immaterial and did not cast doubt on PW2’s credibility and reliability. The evidence of PW3 did not cast any doubt on the prosecution case because he did not pay attention to the rear of the Goods Vehicle. His evidence was not relevant to the present case.

11.  The Magistrate found as matters of facts that the Appellant had used a pallet truck to move around 40 foam boxes of vegetables from a heavy goods vehicle to the area outside a stall in the evening when it was closed. The vegetables were in large quantity and perishable. They could not have been for the Appellant’s own use. The Appellant could not have been the owner of the stall. The Appellant must have been doing the work for someone. The Magistrate took the view that the existence of an employer could be inferred beyond a reasonable doubt. The irresistible inference was that the Appellant took employment on the day of the offence. The charge was proved beyond a reasonable doubt.

Grounds of Appeal

12.  The Appellant relies on a total of two grounds of appeal:-

Ground 1 – the Magistrate wrongly found the offence proved on the basis of the prosecution witnesses’ evidence which were internally inconsistent and/or inconsistent with each other, and therefore neither credible nor reliable.

Ground 2 – the Magistrate erred in concluding that an irresistible inference of employment could be drawn in the circumstances of the case.

My Analysis and Decision

13.  I have considered all the written and the oral submissions by both parties but do not seek to repeat all of them in detail. I shall however refer to those relevant and important parts in my subsequent analysis when necessary.

14.  According to the Court of Final Appeal’s decision in HKSAR v Hui Lai Ki [2024] HKCFA 7, magistracy appeals are to be conducted by way of rehearing. The judge must be satisfied that the appellant’s guilt has been proven beyond a reasonable doubt on the evidence, failing which the appeal must be allowed. An appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

15.  Ground 1 centers on criticisms of the Magistrate’s acceptance of the observation evidence of the prosecution witnesses, mainly on the inconsistencies of their evidence both individually and collectively.

16.  A major criticism by the Appellant was about the inconsistencies in PW1’ evidence on the number of times he said he had observed the Appellant delivering the foam boxes.

17.  In fact, that had been duly considered by the Magistrate. According to the transcripts, PW1 said in his evidence-in-chief that he “saw a South-Asian person wearing a black top, a pair of black trousers and black shoes and he was moving foam boxes … in the truck”[2]. He further stated that person placed a pallet truck “full of foam boxes on the tailgate and then the tailgate landed”[3]. PW1 then observed that person dragging the pallet truck, loaded with foam boxes, approximately 20 metres away from the Goods Vehicle to the pavement outside the Vegetable Stall and unloading the foam boxes onto the ground[4]. That person then returned the pallet truck to the Goods Vehicle, and again moved the pallet truck, full of foam boxes, to the area outside the Vegetable Stall[5]. Initially PW1 described that person’s actions or behaviour repeated three times, he then clarified that, "the three times mean that…what… I’ve mentioned, the three times."[6]. That clarification had been considered by the Magistrate in his analysis of PW1’s evidence[7].

18.  As can be seen from the above, I agreed with the Magistrate’s findings and the Respondent’s submissions that PW1’s relevant observation evidence as summarised above was consistent. He described three trips by the Appellant in total, his first trip to the stall, his second trip back to the Goods Vehicle, and then his third trip to the stall again. That was also consistent with what he admitted during examination-in-chief that he once lost sight of the Appellant when he moved the pallet truck into the Goods Vehicle[8], and that he had called his colleague "on the third occasion, while he was at the shop"[9].

19.  I am therefore not convinced by the Appellant’s submission that there was inconsistencies or alterations in PW1’s evidence, nor do I find that the Magistrate had in any way misunderstood.

20.  The Appellant also criticised PW1’s observation evidence for he had lost sight of the person whom he said he was observing for two to three minutes. It was on that basis that the Appellant submitted that PW1’s identification of that person to be the Appellant unreliable.

21.  PW1 said clearly in his evidence that he lost sight of that person (i.e. the Appellant) only when that person was dealing with the foam boxes inside the Goods Vehicle. PW1 was able to subsequently observe that person (i.e. the Appellant) transporting the foam boxes to the pavement outside the stall, where he was eventually intercepted by PW2. Further, even at the time of the interception, the Appellant was still seen unloading foam boxes[10]. On this, PW2 the arresting officer also confirmed that the Appellant was seen moving foam boxes on the street before the interception[11]. In other words, the Appellant was seen and caught in his action of moving foam boxes.

22.  As to whether the Appellant was in fact wearing gloves and that related inconsistency in the respective evidence of PW1 and PW2, it had been duly considered by the Magistrate and found to be immaterial[12]. Similarly, there was criticism by the Appellant on matters of inconsistency about PW3’s evidence (the driver’s evidence) with other prosecution witnesses’ evidence (the officers’ evidence), as PW3 claimed that it was too dark and he could not see if there was one or two persons (as opposed to there being only the Appellant according to the officers). Again, that inconsistency had been duly considered by the Magistrate who found that PW3 being the driver was not even paying close attention to the rear of the Goods Vehicle and that there was no rear camera[13]. The Magistrate was entitled to come to these findings which were reasonable in the circumstances of the case.

23.  Ground 1 fails.

24.  Ground 2 is about the sufficiency or the otherwise of the evidence in support of the irresistible inference of employment in this case.

25.  It is well-established principle, and both parties agree, that working in a place per se is not employment, though the necessary inference may be drawn and that it would depend on the particular facts and circumstances of the individual case[14].

26.  In particular, it was stated by Patrick Chan J (as he then was) in R v Ip Po Fai that[15]:-

“In my view, it is clear that working at a place per se is not employment, although in the absence of other evidence, one may draw the necessary inference. There is no useful definition of employment in the Immigration Ordinance. Section 17G of the Ordinance refers to contract of employment which is defined to mean any agreement, whether in writing or oral, express or implied, whereby one person agrees to employ another and that other agrees to serve him as an employee and includes a contract of apprenticeship. In my view, this is a circular definition. This begs the question as to what is sufficient evidence to show employment.”

27.  Apparently, comparing facts of different cases would not assist.

28.  In the present case, according to the observation evidence of PW1 and PW2, the Appellant was seen placing a pallet truck loaded with foam boxes onto the tailgate of the Goods Vehicle, lowering the tailgate, and then moving the pallet truck to approximately 20 metres away to an area outside the Vegetable Stall. Moreover, the Appellant repeated the above actions, by transferring foam boxes from the pallet truck onto the pavement, returning the empty pallet truck to the Goods Vehicle, and then transporting another load of foam boxes to the same area outside the Vegetable Stall. In fact he was seen transferring around 40 foam boxes of vegetables from the Goods Vehicle to the outside area of the Vegetable Stall which was at that time closed as it was at about 10:38 pm. The Appellant because of his status as a recognizance holder could not have been the owner of the Vegetable Stall. The vegetables in question was too large in quantity for the Appellant’s own use. He had exercised his right not to give or call evidence.

29.  In the circumstances, the irresistible inference of employment drawn by the Magistrate was both well supported by evidence and reasonable. Further CCTV evidence or evidence from other related persons like the employer would no doubt strengthen the prosecution case but the absence of which would not cast any reasonable doubt on the existence of employment in question.

30.  Ground 2 fails as well.

31.  I have conducted this appeal by way of “rehearing” and considered all the evidence with care. I agree with the Magistrate’s analysis of the evidence and come to the same conclusion to convict. I am sure there is sufficient evidence to prove the relevant charge beyond a reasonable doubt. I accordingly dismiss this appeal against the conviction. The conviction should stand.