HKSAR v. HUSNAIN ARIF

HCMA 210/2022

[2023] HKCFI 698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 210 OF 2022

(ON APPEAL FROM STCC 3375 OF 2021)

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REASONS FOR JUDGMENT

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1.  On 11 May 2022, the appellant was found guilty after trial before Mr David YF Chum, Magistrate, sitting at Sha Tin Magistrates’ Court, of taking employment while being a person in respect of whom a removal order is in force contrary to ss38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115 (“the IO”). He was sentenced to a term of imprisonment of 22 months 2 weeks.

2.  By reason of his Notice of Appeal dated 19 May 2022[1], the Appellant now appeals against that conviction.

Facts of the Case

3.  The prosecution alleged that the appellant had taken employment as an odd job worker at Sai Wan Ho on 16 November 2021.  PW1, PC 23521, was on duty in plain clothes in the vicinity of Shing On Street, at approximately 2115 hours on 16 November 2021[2]. He observed a heavy goods vehicle park adjacent to No 33 Shing On Street[3].  From a distance of 15 meters, reducing to 10 meters, he observed the appellant walk from the left hand side of the vehicle to its rear at which point he operated the tailgate and removed 2-3 boxes twice from the vehicle onto the ground.  The whole observation lasted 3-4 minutes. 

Evidence

4.  The prosecution relied upon 1 witness, PC 23521, in addition to the Admitted Facts P1, sketch plans P4 & P6 and photographs P5.  From a distance of 15 meters, PW1 first saw the appellant at the left hand side of the HGV at its tailgate.  He observed the appellant “push some buttons” and then the tailgate came down.  He observed a lot of Styrofoam boxes inside the vehicle, from which the appellant moved boxes onto the ground at least twice.

5.  The defendant elected not to give evidence.  It was suggested to PW1 that the appellant had never taken anything out of the back of the truck and placed it on the ground and, more specifically, that no boxes had been taken out and placed on the ground.  PW1 disagreed[4].

Statement of Findings

6.  The learned Magistrate correctly identified that the issue before him was whether the prosecution had proved beyond reasonable doubt that the appellant was working in the course of employment.  He succinctly summarised the evidence of PW1 and correctly identified the law.  He found PW1 to be a credible witness and accepted his oral evidence that he saw the appellant moving boxes from the rear of the vehicle.  As to the issue of employment, the learned Magistrate considered HKSAR v Ferosh FACC 2/2014, R v Ip Po Fai HCMA (unreported) 1201/1995 and HKSAR v Chan So Bing (unreported HCMA 506/2005).  He drew the inference that the appellant was in employment because he was observed to walk to the rear of the vehicle, operate the tailgate and move goods to the ground.  He considered those acts would not be carried out by someone unless they were authorised to do so and therefore he was employed to load and unload goods.

Grounds of Appeal against Conviction

7.  In his Perfected Grounds of Appeal dated 30 June 2022 the Appellant complains:

Ground 1 –   The learned Magistrate erred in failing to find PW1 was a credible as well as truthful witness;

Ground 2 –   The learned Magistrate failed to address the issue of involvement of other South Asian persons present at the scene of arrest;

Ground 3 –   The learned Magistrate erred in providing his own explanation for the absence of at least 4 if not 6 boxes from both the prosecution and defence photographs

Ground 4 –   The totality of the prosecution evidence was insufficient to prove beyond reasonable doubt that the appellant, a person of clear record, was guilty of the offence.

Ground 5 –   For the above grounds, or generally, the Appellant’s conviction is unsafe or unsatisfactory.

Appeals under s113 of the Magistrates Ordinance, Cap 227

8.  The Court of Final Appeal in Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70, clearly established that an appeal under s113 of the Magistrates Ordinance, is “by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so”.  In HKSAR v Ip Chin Kei & Others HCMA 301/2011, McWalters J (as he then was) helpfully outlined the procedure to be adopted by this Court.

(1)  An appeal under section 113 of the Magistrates Ordinance is conducted by way of rehearing on the evidence before the trial court supplemented by such further evidence as the appellate court might admit under its statutory power to do so.

(2)  Each party bears their respective burdens – the appellant to uphold the appeal and the respondent to uphold the conviction – and the parties, subject to the overriding supervision of the Registrar, or ultimately the appellate judge, will determine the contents of the appeal bundle bearing in mind the burdens they have to discharge.

(3)  The magistrate’s Statement of Findings will form part of the appeal bundle.

(4)  The grounds of appeal will inform the appellate court of those areas where the appellant will seek to persuade the appellate court to depart from the magistrate on findings of fact or law when conducting the rehearing.

(5)  The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility if satisfied that it is plainly wrong.

(6)  Error by the magistrate, especially an error constituting a material irregularity, may lead to the appellate court allowing the appeal and quashing the conviction.

(7)  The test in determining whether an error by the magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made.

(8)  Absent the appellate court identifying any error by the magistrate and absent any of the grounds of appeal succeeding, the appellate court must still perform its statutory duty of conducting a rehearing.  This requires the appellate court to be satisfied that on the evidence adduced by the prosecution the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.

9.  On a rehearing this court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence beyond reasonable doubt.  I can do no better than rely, as McWalters J did on Histollo Pty Ltd v Director-General of National Parks & Wildlife Service(1998) 45 NSWLR 661 at page 678 B – D:

“ …, it is not incumbent on the appellant to show that such conclusion was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor. If, as at trial, on the rehearing there is a reasonable doubt of guilt the appeal must be upheld.”

Analysis     

10.  As to Ground 1, there is nothing within the testimony of PW1 which indicates that his evidence on material issues was undermined.  According to P6, he was in a position to observe the appellant operate the tailgate of the HGV and take out boxes from the vehicle, which he placed upon the ground.  PW1 then arrested him.  There was no issue as to whom he had arrested.  There was no evidence to suggest there was a break in continuity between the observation and arrest.  As for the suggestion that his credibility had been undermined, nothing was gained by an investigation of the meaning of the Chinese characters in his witness statement and a suggested discrepancy between PW1 observing him “moving goods” and his oral evidence in which PW1 said that the appellant was “moving boxes”.  The learned Magistrate as a native Chinese speaker was in the best position to assess this and concluded there was no inconsistency[5]. Nor was there any merit in the suggestion that the witness failed to identify the appellant in the photograph D1.  It is impossible to see the face of either the appellant or the alleged “other South Asian male” in the photograph. Lastly, the fact that the unloaded boxes could not be seen in the photographs at P5(2), in no way undermines his evidence.  The photographs were taken some 45 minutes after interception by another officer and are a close up of the contents of the HGV.  His witness statement was not inconsistent with his oral testimony, which was the best evidence in this case as it was tested under cross examination.

11.  As to Ground 2, this is not relevant.  The fact that another South Asian male was present in the vicinity at the time the appellant was being dealt with after arrest does not assist the defence or undermine the prosecution case given that PW1 arrested the man whom he had observed for 3-4 minutes and that there was no issue as to the appellant’s identification or a break in the chain of his observation.  The learned Magistrate is not obliged to deal with each and every point raised by the parties, especially those not made good.  His or her function is to identify the issues and to make findings of fact and law pertinent to those issues.  The true issue in this case was whether the appellant had carried out the acts which PW1 said he had carried out and, if so, whether those acts amounted to employment.  The officer arrested the appellant.  He arrested him because he was watching him move boxes from the HGV.  He observed him operate the tailgate of the vehicle in order to do so.  The presence of some other male of any ethnic origin in the general vicinity of the vehicle at some stage after the event, is irrelevant to that observation unless it was properly put to PW1 that it was the other South Asian male who unloaded the HGV.  This was not done.

12.  As to Ground 3, Mr McGowan’s written submissions appear to extend beyond a complaint that the learned Magistrate provided his own explanation to an issue raised by the defence and now incorporates a complaint of a general insufficiency of evidence, which is in fact part and parcel of his complaint under Ground 4 and which will be dealt with thereunder.  He did not seek to pursue Ground 3.

13.  As to Ground 4, the learned Magistrate properly directed himself as to the burden of proof and clear record of the appellant in Hong Kong[6] and to the fact that this was a “one against one” case.  There is some merit however as to whether the evidence before the court was sufficient to prove the prosecution case beyond reasonable doubt.

14.  It is for the prosecution to call evidence sufficient to prove their case beyond reasonable doubt.  They either achieve that or they do not.  There was no issue as to identity.  The person who was arrested was the person who PW1 saw moving boxes.  PW1 was 10 meters away at the time in good light with an unobstructed view.  The real issue, having found that the appellant was the person whom PW1 observed, was not what he was seen to be doing but whether what he was seen to be doing amounted to employment.

15.  Simply being seen to be working is not per se employment.  Employment is proved by a combination of factors in any given case.  Those factors may vary greatly.  The learned Magistrate took into consideration the fact that the appellant was seen operating an HGV tailgate and thereafter moving 2-3 of a large number of boxes from the body of the vehicle over a period of 3-4 minutes.  He took into consideration that there had been no defence case in the alternative, which may have provided an explanation for the presence of the appellant and for his actions.  He also addressed the issue of whether the appellant could have been helping out a friend or relative, or knew the driver or owner of the goods, such that there may be a good reason for him to handle the goods without being employed but there was no evidence from which he could properly consider those scenarios and “… no reason to suppose the defendant did the work for free or out of any obligation or special relationship”.  Having taken all of that into consideration, he drew the irresistible inference that the appellant was acting in the course of employment. With the greatest respect to the learned Magistrate, this reasoning appears to be somewhat unbalanced.  More emphasis appears to have been placed upon evidence he did not have and less upon whether the evidence he did have was sufficient to prove the prosecution case beyond reasonable doubt.

16.  On the facts of this case, unlike HKSAR v Choudhry Sohail Ahmad & Others[7], which Mr McGowan sought to distinguish, there was insufficient evidence to prove beyond reasonable doubt that the appellant was acting in the course of employment.  It is true to say that the appellant was some distance from his home address that evening but it was not a particularly late hour for an adult.  The location was not an obvious logistics hub.  Whilst the appellant clearly did move some boxes from the HGV and place them on the floor, they were not seized or exhibited.  There is therefore no way of knowing whether they contained any saleable goods, rubbish or nothing at all.  The appellant did not have any handling aids to use, which suggests the boxes were light.  P5(2) indicates the body of the HGV was stacked to the roof with Styrofoam boxes and the height of the stack would have required some form of fork lift if they were heavy and all to be unloaded at the scene.  Nor does the photograph suggest the boxes were secured in any way within the HGV, which you would expect to be done if they contained goods as opposed to empty cartons or rubbish.  Importantly, there is no evidence of ownership of the boxes or their contents i.e. some form of transportation documentation or labelling to indicate to whom they belong from which the court could infer the existence of an employer.

17.  From the state of the boxes inside the HGV and the scene generally, there are insufficient proven facts from which the Court could draw an inference that there was a continuing act of unloading going on in which the appellant was the main actor and therefore could be said to be acting in the course of employment.  The scene, being a busy road with commercial and residential buildings, could not have accommodated the entire contents of the lorry.  There were no pallets to stack the boxes for onward movement, no equipment to secure them together and no obvious connection with the locus, such as a warehouse, for the storage of the Styrofoam boxes or a shop to receive goods.  Finally, there was no connection between the boxes and ownership by a particular individual or company for whom the appellant could be said to be working.

Conclusion

18.  In all the circumstances, there is a reasonable doubt as to guilt, this appeal against conviction is allowed.

19.  The costs of this appeal to be to the appellant to be taxed if not agreed.  There will be no order as to costs below.

[1]  AB 1

[2]  AB 39Q-V

[3]  Which is in fact on Tai Shek Street.

[4]  AB 62D-T

[5]  AB 14 §18; AB58F

[6]  AB13 §§12-15

[7]  HCMA 310/2022; [2023] HKCFI 309