HKSAR v. MOHAMMAD SHAKIL

HCMA 103/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 103 OF 2017

(ON APPEAL FROM KCCC NO 3403 OF 2016)

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JUDGMENT

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1.  The appellant was convicted after trial of an offence of taking employment while being a person in respect of whom a removal order is in force (“Charge 1”) and managing a guesthouse without a certificate of exemption or licence (“Charge 2”). He was sentenced to 22.5 months imprisonment for Charge 1 and 4 weeks imprisonment for Charge 2, both sentences to run concurrently.

2.  He appeals against the convictions and sentences of both charges.

EVIDENCE OF THE PROSECUTION

3.  On 5 August 2016 the first and second prosecution witnesses (“PW1 and PW2”) who were officers of the Home Affairs Department (“HAD”) went to Flat A7, 6/F., Block A, Chung King Mansions, 36-44 Nathan Road, Tsim Sha Tsui, Kowloon (“Flat A7”), posing as customers.  Flat A7 was connected with Flat A6 and they were opened to each other.

4.  PW1 dialled one of the two telephone numbers shown on a piece of paper posted on the door of Flat A7 and talked to a male. After ascertaining that PW1 wanted a room the male said he would come over in 5 minutes.

5.  After a few minutes the appellant arrived and asked if the prosecution witnesses were looking for a room.  PW2 answered in the affirmative.  The appellant gestured the 2 prosecution witnesses to follow him.  The appellant punched in the passcode for the combination lock of the door of Flat A7 and the prosecution witnesses followed him into the flat.

6.  The appellant took them to Room 78 and when PW2 enquired about the room charge for him to live there alone the appellant said $250.  PW2 paid the appellant the amount in marked money.  The appellant gave PW2 a set of keys to the room.  When PW2 asked about the use of Wi-Fi he entered the password for the Wi-Fi as well as that for the main door into PW2’s mobile telephone.  He also gave his business card to PW2, pointing at the name “Shaki” on the card, saying that it bore his number and PW2 could call him for anything.

7.  At the request of PW1 the appellant demonstrated how the combination lock of the main door could be opened, saying that the code was “357456”.

8.  Other HAD officers arrived.  One of them, the third prosecution witness (“PW3”), revealed his identity and told the appellant their purpose of visit.  At his request the appellant produced his identification document which was a Form 8 Recognizance.  On being questioned the appellant said that he lived there in Room 79 and did not know who PW1 and PW2 were.  PW3 revealed the real identity of these 2 witnesses and PW1 told PW3 what had happened.  The appellant then said that he was not working there.  He had been asked by a friend to collect money and tell the 2 prosecution witnesses how the room was like.  At the request of PW3 the appellant returned the marked money to them.  The police then arrived and arrested the appellant for the offences of breach of condition of stay and operating a guesthouse without licence.

DEFENCE Evidence

9.  The appellant gave evidence and called a defence witness, DW2.  Their evidence was to the effect that the appellant went to Flat A7 at the invitation of DW2, who was a tenant there, to have food and drinks with DW2 and 2 other friends.  At the advice of DW2 the appellant stayed in Room 78 for the night as he was not able to walk properly after drinks.  DW2 and the 2 friends left.

10.  The appellant also left the next morning, but he discovered later in the day that he had left his mobile telephone in Flat A7. He went back there to get it back and saw 2 males there who talked to him in English.  He said “no English, no English” to the two and opened the door of Flat A7.  They followed him into the flat and continued to talk to him.  He kept saying “no English, no English”.  He went inside Room 78.  The two followed and one of them inserted some money into his shirt pocket.  He kept saying “no English, no English” and returned the money to the male but he refused to accept.  The male took the set of keys from the appellant and left Room 78.  He closed the door which was locked automatically and could not be opened from inside without the keys.  5 to 6 minutes later some other people including police officers arrived.

GROUNDS OF APPEAL

11.  The appellant does not advance any specific grounds of appeal.  He simply asserts his innocence and complains that the magistrate wrongly rejected his evidence and that of his witness.  The appellant further complains that the sentence imposed on him is too heavy.

DISCUSSION

12.  It is not in dispute that Flat A7 and Flat A6 have not been issued a licence or certificate of exemption under the Hotel and Guesthouse Accommodation Ordinance, Cap 349 to operate as a hotel or guesthouse.  The main issues of the case are whether Flat A6 and Flat A7 were a guesthouse as defined in the Hotel and Guesthouse Accommodation Ordinance, Cap 349 (“the Ordinance”) and whether the appellant managed it under employment as alleged by the prosecution or he only went there to take back his telephone as testified to by himself.  These issues hinge heavily on the finding of facts by the magistrate.

13.  The magistrate found the prosecution witnesses to be honest and reliable after considering their evidence very carefully.  She was well aware of the discrepancies in their evidence, and after analysis she was convinced that such discrepancies were of minor nature, not affecting the credibility and reliability of the witnesses.

14.  She also carefully analysed and considered the evidence of the appellant and his witness and came to the conclusion that they were not honest and reliable witnesses and rejected their evidence.  She set out succinctly the unreasonable and illogical instances in their evidence:

 “32. For example, I found DW2’s assertion that he worked as a construction site worker and rented Flat A7 at the monthly rate of $15,000 for the sole purpose of having weekly regular parties of drinking and eating with his friends in Room 78 was inherently improbable.  I also found that the Defendant’s evidence in material aspects presented as being inherently improbable.  He said that he had been invited by DW2 to Room 78 for parties more than once but he did not know and did not even ask the relationship between DW2 and Flat A7, whether he was the owner, landlord, tenant or whatever.  His assertion that he saw Male A and Male B (who turned out to be PW1 and PW2) following him into Flat A7 but he did not do anything to stop them wholly unbelievable.  They were total strangers to him.  Although he claimed that he did not know English, he could have done some body gestures to communicate to them that they were not allowed to go in.  Besides in his evidence, he said that he was locked inside Room 78 with Male A, a total stranger, for 5 to 6 minutes.  During that period of time, apart from kept saying “No English no English”, he said he did nothing else.  He was possessed of his mobile phone.”

15.  In Chou Shih Bin v HKSAR FACC 11/2004 it is said that where the facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed.  There are ample authorities saying that a magistrate has the advantage of observing witnesses giving evidence in court while the judge on appeal can only rely on a written transcript or summary of facts set out in the statement of findings of the magistrate.  The credibility and reliability of any particular witness is therefore within the assessment of the magistrate.  Where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable, or that the magistrate has misunderstood, or misquoted, or failed to consider any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.  The magistrate in the present case has not committed any of these mistakes.  There are no justifications to interfere with her finding of facts.

16.  According to the Ordinance hotel and guesthouse are defined as follows:

“any premises whose occupier, proprietor or tenant holds out that, to the extent of his available accommodation, he will provide sleeping accommodation for any person presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and is in a fit state to be received.”

17.  According to the finding of facts of the magistrate it is of no doubt that Flat A6 and A7 was a guesthouse or hotel within the meaning of the Ordinance and judging from the way the appellant attended to PW1 and PW2 he was certainly managing the place.

18.  The question to ask is in what capacity he did so.  There is no dispute that the appellant was an asylum seeker of torture claim and is subject of a removal order.  He relied on the assistance from the International Social Service for his livelihood.  It is impossible that he was managing the guesthouse as its proprietor.

19.  As pointed out in R v Ip Po Fai HCMA 1201/1999 working in a place per se is not employment, although in the absence of other evidence, one may draw the necessary inference.  The question to ask then becomes whether the appellant was employed to manage the guesthouse or he was only doing it on a voluntary basis to help others.  In section 17G of the Immigration Ordinance, Cap 115 a contract of employment is defined as:

“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.”

It can be seen that a contract of employment does not involve the payment of wages or any kind of consideration.  It is confirmed in regulation 2(1) of the Immigration Regulations and provisions of the Employment Ordinance, Cap 57 that this is, indeed, not a necessary criterion.

20.  The prosecution therefore has to prove beyond a reasonable doubt that the appellant was under a contract of employment to do the job.  The contract can be in writing or oral, express or implied, whereby the appellant agreed with whoever employed him to manage the guesthouse as an employee.  The contract can also be implied by conduct.

21.  On the basis of the evidence accepted by the magistrate she is perfectly entitled to draw the inference that the appellant was under a contract of employment to manage the guesthouse which was not licensed and had not been issue a certificate of exemption under the Ordinance.

22.  The convictions in Charge 1 and 2 are not unsafe or unsatisfactory.  The appeal against convictions of both charges is dismissed.

23.  The appellant is 40 years old and is an Indian. He came to Hong Kong in 2008 and was a torture claimant.  A removal order was issued against him in 2013.

24.  In the case of HKSAR v Usman Butt [2010] 5 HKLRD 452 the Court of Appeal holds that the normal sentence for the offence of taking employment while being a person in respect of whom a removal order is in force is 15 months imprisonment on a guilty plea.  The appellant was convicted after trial and there was no valid ground of mitigation including humanitarian consideration.  The magistrate correctly referred to this authority and found that there was no justification to depart from the guidelines.

25.  The sentence of 22.5 months imprisonment imposed by the magistrate in respect of Charge 1 is neither manifestly excessive nor wrong in principle.

26.  As regards the offence of managing a guesthouse without a certificate of exemption or licence the magistrate correctly pointed out that there were no sentencing guidelines or tariffs.  She referred to the maximum penalty for the offence which is a fine of $200,000 and imprisonment for 2 years, and after considering all the circumstances of the case sentenced the appellant to 4 weeks imprisonment.  The sentence is neither manifestly excessive nor wrong in principle.

27.  She correctly ordered the sentences of the 2 charges to run concurrently as they are not separate and distinct offences.

28.  Appeal against the sentences of the 2 charges is dismissed.