HKSAR v. SALAH, MOHAMMED ABU

HCMA 659/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 659 OF 2016

(ON APPEAL FROM STCC 2991/2016)

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J U D G M E N T

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1.  The Appellant was convicted after trial in the Magistrates’ Court on a charge laid under section 38AA(1)(a) and (2) of the Immigration Ordinance (Cap 115), that on 7 August 2016 in Central he, while remaining without authority having landed unlawfully, established a business of selling T-shirts.  He was sentenced to 22 months and 2 weeks’ imprisonment.  He appeals against his conviction and sentence.

2.  Neither in his Notice of Appeal Against Conviction in Form 101 nor in his Notice of Appeal Against Sentence in Form 102 has the Appellant added anything to the pro forma grounds printed in those forms.

3.  At the trial, he was represented by a duty lawyer.  He appears in person in this appeal.

4.  At the trial, certain facts were admitted between the prosecution and the defence. Those facts are set out as follows by the Magistrate in subparagraphs (1) to (7) of paragraph 4 of her Statement of Findings and Reasons for Sentence:

“ (1) The defendant entered Hong Kong unlawfully in August 2015;

(2) He surrendered to the Immigration Department on 20 August 2015;

(3) He was last issued with an Immigration Recognizance Form no. A0329367 on 24 September 2015;

(4) He was well aware that he was prohibited from taking up any employment, whether paid or unpaid, and also establishing or joining in any business in Hong Kong whilst he was released on such recognizance;

(5) On 7 August 2016, seven T-shirts were seized from the defendant;

(6) At around 1500 hours to 1505 hours on 7 August 2016, PC18386 conducted a body search of the defendant and found from his right front trousers pocket two HK$20 banknotes; and

(7) On 7 August 2016, the defendant was a person who had remained in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully.”

5.  The prosecution relied on eye-witness evidence, and also sought to produce a record of interview containing admissions by the Appellant.  Not satisfied beyond reasonable doubt that those admissions were voluntary, the Magistrate excluded them.

6.  PW1 was an Assistant Hawker Control Officer.  His evidence is summarised in paragraphs 7 to 11 of the Statement of Findings and Reasons for Sentence. Those paragraphs read as follows:

“ 7. PW1’s evidence was to the effect that at about 1110hrs on 7 August 2016, when he patrolled to Edinburgh Place near the lamppost No. 30804 in Central, he saw the defendant standing on the pavement showing a T-shirt to some females sitting in front of him. At the same time, he also had some T-shirts putting on his left forearm.

8. PW1 observed the defendant’s activities for 2 minutes during which he saw the defendant receiving money in return for T‑shirts handed over to two different female customers sitting in front of him. For each transaction the defendant was seen receiving a blue banknote from the female customer and then putting it into his right front trousers pocket. During his observation, the lighting condition was sufficient. The distance between the defendant and PW1 was about 10 metres and nothing impeded his sight of the defendant.

9. Subsequently PW1 approached the defendant and revealed his identity producing his warrant card. He made enquiries of the defendant and inspected his identity card. Having found out his identity, PW1 called the police for assistance.

10. The police attended shortly after. During the investigation, seven T-shirts were seized from the defendant. PW1 gave evidence that after the police arrived at the scene, he saw the police searching the defendant’s backpack in which some more T-shirts were found but not seized.

11. Under cross-examination, PW1 denied that when he intercepted the defendant, he was simply standing on the pavement for more than 5 minutes without any T-shirt in his hands.  PW1 further denied that the defendant did not hand over any T-shirt to anyone nor did he receive any banknote from anyone.”

7.  The defence evidence consisted of the Appellant’s own evidence which is summarised in paragraphs 14 to 18 of the Statement of Findings and Reasons for Sentence.  Those paragraphs read:

“ 14. The defendant gave evidence that on 7 August 2016, he left home in Jordan and travelled by MTR to Central to walk around. He said he did not know what time it was when he was in Central as he did not have a watch with him.

15. The defendant said that when he was about to return home from Central, he happened to bump into one of his Pakistani friends in the street whose name was Mohammed. He was talking to some ladies. The defendant then approached Mohammed and wanted to say a few words with him.

16. After exchange of a few words, the defendant asked Mohammed to lend him $20 as he wanted to eat some food. Mohammed said he wanted to go to the toilet and directed the defendant to collect $40 from one of the ladies there. Mohammed also told him that after collection of $40 from the lady, the defendant could keep one $20 banknote for himself and the remaining $20 banknote could be passed to him after his return from the toilet. Before Mohammed left for the toilet, he also passed some T-shirts to the Defendant to hold for him and pointed to a place where the Defendant was asked to wait for his return.

17. After Mohammed left for 2 to 3 minutes, the defendant received the money from a lady. He then walked to the place where he was told to wait. While the defendant was waiting, he grabbed his friend’s T-shirts by one hand with both arms putting on his chest. Suddenly another lady turned up and asked the defendant what was in his hand and she wanted to have a look. He replied that they were all belonged to his friend and asked her to wait for his friend’s return. Later, PW1 suddenly came up to the defendant and intercepted him.

18. The defendant gave evidence that he did not sell any T-shirts to anyone nor did he receive any money from anyone.  He did not ask Mohammed to give evidence on his behalf.  As Mohammed was also a torture claimant, the defendant believed his friend might get into trouble if he was invited to be a defence witness. Therefore the defendant decided not to call him.”

8.  In accepting PW1’s evidence, the Magistrate said as follows in paragraphs 23 and 24 of the Statement of Findings and Reasons for Sentence:

“ 23. I accepted the evidence of PW1 who impressed me as being both reliable and truthful in describing what occurred. PW1 remained unshaken under cross-examination, insisting on the veracity of his accounts. He gave his evidence in a straightforward manner.

24. I did not lose sight of the criticisms made by the Defence such as that PW1 could not tell the colours of the T-shirts that were allegedly sold by the defendant or that PW1 failed to invite the female customers to be witnesses in this case.  I found it understandable that PW1 might not pay too much attention on the colours of the T-shirts sold as he was in fact focusing on the money transactions between the defendant and the female customers.  As to his failure to invite the female customers to be witnesses, PW1 explained that they did not want to testify when being asked for their personal details by him at the scene.  Having considered all the evidence before me, I did not find any criticism made by the Defence on PW1 which would cause me to doubt his credibility and reliability.”

9.  In rejecting the Appellant’s evidence, the Magistrate said as follows in paragraphs 25 to 27 of the Statement of Findings and Reasons for Sentence:

“ 25. I have carefully considered the evidence of the defendant. He said in the witness box that at one stage he did receive $40 from the lady as instructed by Mohammed. Further, the defendant said he was holding some T-shirts for Mohammed. I found this version of event was quite different from the version that was put to PW1. In cross-examination, PW1 was put that the defendant did not hold any T-shirt in his hands nor did he receive any banknote from anyone.

26. The defendant said he needed to borrow $20 from Mohammed because he wanted to eat. If this was the case, I found it unreasonable that the defendant was willing to pay more than $10 the MTR fare from Jordan to Central simply with a view to walking aimlessly around Central?

27. Furthermore, the defendant was holding a bunch of T-shirts in the street as instructed by a friend whom he did not know his real name, his telephone number and his residential address.  The defendant was then told to collect money from a lady and also to keep an eye on the backpack that was belonged to his friend.  I also found it so strange that the defendant blindly followed his friend’s instruction to stand at a different location for his return without questioning why he needed to do so.  The Defendant did not impress me as an honest and reliable witness.  I found him to be evasive and dishonest.  I found his version of events totally unbelievable.  I did not accept his evidence.”

10.  Then, as to why she convicted the Appellant, the Magistrate said as follows in paragraphs 28 to 30 of the Statement of Findings and Reasons for Sentence:

“ 28. Despite this rejection, I still have to consider the prosecution evidence and whether it could prove the charge beyond reasonable doubt.

29. I found that the identification evidence was accurate and reliable. I was satisfied that during PW1’s observation, the defendant was seen selling two T-shirts to two different female customers, each of whom gave $20 banknote to him. The description of PW1 as to what he saw the defendant was doing gave rise to the only irresistible inference that he was selling in the street at the material time for money. The Defendant establishing his business in selling T-shirts thereat was compelling. This was the only reasonable inference to be drawn in the whole circumstances.

30. I was satisfied that the prosecution had proved beyond reasonable doubt all requisite elements of the charge and I found the defendant guilty of the charge.”

11.  There was evidence on which to convict, and the Magistrate did not make any error of law or approach.  There is no basis on which to disturb this conviction.

12.  As to why she passed a sentence of 22 months and 2 weeks’ imprisonment, the Magistrate said as follows in paragraphs 31 to 35 of the Statement of Findings and Reasons for Sentence:

“ 31. The Defendant is now 30 years of age, married with a son aged 3 and a daughter aged 1. He is from Bangladesh and is of a clear record in Hong Kong. He is in Hong Kong presently as a torture claimant.

32. Mr Chung asked for a lenient sentence to be imposed on the defendant.

33. In HKSAR v Usman Butt [2010] 5 HKLRD 452, the Court of Appeal has fixed a tariff of 15 months’ imprisonment after a plea of guilty in respect of Section 38AA offences with the primary reason being deterrence.

34. Having considered the whole circumstances including mitigation, I do not consider there exists sufficient reasons not to follow the tariff as set out in the Usman Butt case.

35. Having considered the background of the present case, I adopt a starting point of 22 months and 2 weeks’ imprisonment.  Having been convicted after trial, I see no other reason to lower that starting point.  Therefore, the Defendant is sentenced to 22 months and 2 weeks’ imprisonment.”

13.  The sentence which the Magistrate passed is an appropriate one to pass unless there is some reason to depart from the guidelines to which she referred.  There is no such reason and therefore no basis on which to interfere with this sentence.

14.  In the result, both the appeal against conviction and the appeal against sentence are dismissed.