HKSAR v. RAI, NISHA

HCMA 165/2023

[2024] HKCFI 3581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 165 OF 2023

(ON APPEAL FROM STCC 2530/2022)

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J U D G M E N T

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Appeal Against Conviction

1.  The appellant was convicted after trial of one count of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap 115. She was sentenced to 10 weeks’ imprisonment after trial. She now appeals her conviction only.

The Prosecution’s Case

2.  The appellant entered Hong Kong on 2 July 2019 as a foreign domestic helper from India. It was the first time she had come to Hong Kong. The Immigration Department received a notification of termination of employment contract with a foreign domestic helper dated 6 July 2020. It was received by the Immigration Department by 21 July 2020. This related to the termination of this appellant’s employment contract.

3.  According to the terms of her visa, the appellant was limited to stay in Hong Kong until 2 July 2021 or 2 weeks after termination of her employment contract, whichever is earlier.

4.  This term in the appellant’s visa specified her visa would be terminated under these conditions. It is an undertaking set out in the appellant’s Visa/Extension of Stay Application for Domestic Helper from abroad dated 5 February 2019. This Application Form contains no less than four signatures of the appellant as the applicant, Exhibit P5.

5.  The appellant surrendered to the Immigration Department on 6 June 2022. She should have left Hong Kong in July 2020. She overstayed in Hong Kong for nearly 2 years.

The Defence Case

6.  The appellant elected to give evidence. The defence is that she was not terminated in July 2020 by her employer. She only left her employment 3 days or 4 days before surrendering herself to the Immigration Department on 6 June 2020.

7.  Her case is that she did not stop working for the same employer since she arrived on 2 July 2019. The contract should have been renewed and she should have applied for a new visa in July 2021. She appears to have no knowledge of this. The Immigration Department did not receive an application to renew her contract.

8.  Her evidence is that she never signed any documents relating to her employment in Hong Kong before she left India. As soon as she arrived, her employer took her passport from her.

9.  According to her evidence, she was terminated 3 days before she surrendered; she worked continuously for this employer until early June 2022. However, in her evidence, she said she worked for the employer until April or May 2022. She does not remember why she stopped working for her employer. Yet, she says that she terminated her employment because her employer stopped paying wages to her family. She then said her employer was actually a member of her family.

10.  Not only did the appellant give evidence that she did not sign an employment contract, she did not sign an application for a visa, which appears to have four of her signatures, Exhibit P5. She did not see the visa attached to a page of her passport therefore, did not know its contents or terms and conditions.

11.  The defence case is that as far as she was concerned, she was terminated only days before she surrendered to the Immigration Department and therefore her 14 days to leave Hong Kong after termination had not expired. This means she did not commit this offence and there was no breach of her condition of stay. It appears she also put forward a defence the appellant did not know she had 14 days to leave Hong Kong if terminated early.

Legal Principles

12.  It is clearly established that a magistracy appeal is conducted by way of a rehearing on the evidence before the trial court. Where findings of fact are based on the oral testimony of witnesses, the appellate court would be subject to limitations and must therefore exercise caution. After all, the magistrate enjoyed the advantage of having seen and heard witnesses giving evidence. The appellate court is not in that same position.

13.  Nevertheless, the appellate court must work with those limitations when undertaking its duty to rehear the trial to reach its own conclusion on disputed issues of fact or law.

14.  If the appellate court is not satisfied on the evidence of the appellant’s guilt beyond reasonable doubt then the appeal must be allowed. If the appellate court comes to a different view on that evidence, this would justify the decision to allow the appeal.

15.  What this means is that the appellate court is required to consider and weigh all the available evidence, relevant evidence and reach its own conclusion as to whether the elements of all charges are proved to the requisite standard, beyond reasonable doubt.

The Magistrate’s Findings

16.  The magistrate did not believe the appellant’s evidence. He found her evasive on material issues and important questions. For example, she could not remember exactly how long she had worked for her employer. However, her issue was unpaid wages so what she was owed and how long she had worked for the employer should have been at the forefront of her mind and of utmost importance.

17.  The magistrate did not believe her evidence or find her credible when she said she did not know about the visa attached to her passport nor did she sign any application forms including the one with her photograph attached to it. Without her visa application, she would not have been permitted to enter Hong Kong to work as a foreign domestic helper. He found the appellant was not telling the truth and rejected her evidence.

18.  He accepted as truthful the prosecution witnesses and found he could rely on the immigration officers. Their oral evidence was given to produce and to support relevant documentation. The documents were certified as true copies of an extract reproduced from the computer records of the Immigration Department, admissible under the Evidence Ordinance.

19.  The magistrate refused to believe that the employer terminated the appellant without informing the appellant yet continued to employ her as an employee for another almost 2 year. This would mean not only did the employer allow her terminated employee to continue living and working with her, she allowed it beyond the expiration of the first contract period without applying for a renewed employment contract and a new visa to remain in Hong Kong for another contract.

20.  He did note that the termination notification received by the Immigration Department did not contain the appellant’s signature but it was not a requirement. The purpose of the document was to notify the Director of Immigration of the termination. He accepted the documentation and what it represented, which was a termination by the employer in July 2020, almost 2 years before the appellant surrendered herself.

21.  It followed therefore that the magistrate did not accept the defence submission that it was fatal to the prosecution case that the employer was not called as a prosecution witness.

Grounds of Appeal

22.  There were grounds of the appeal filed by Mr William Allan on behalf of the appellant. The first ground was that the magistrate erred in law by placing full weight on that notification of termination in the absence of oral evidence from the employer since it was the appellant’s case she was not aware that she had overstayed.

23.  Secondly, the magistrate erred by relying on immigration documents and lastly that the magistrate erred in law in regarding the offence is a strict liability offence. To prove the appellant had knowledge she had been terminated prematurely, oral evidence from the employer was vital. Without it, the prosecution could not prove the offence beyond reasonable doubt.

Discussion

24.  The first two grounds can be dealt with together as they are essentially the same point. It is suggested the appellant was unaware that she had overstayed and this cannot be proved without direct evidence from the employer.

25.  The magistrate had the advantage of witnessing the appellant give evidence. He gave full reasons why he rejected her evidence, found her to be unreliable. He gave full reasons why her evidence was illogical and incredible. If I had heard the evidence as recounted in his statement of findings, I too would have reached the same conclusion.

26.  I too reject as inherently improbable a scenario where her employer informed the Immigration Department of her termination yet continue to employ her illegally for another 2 years.

27.  I too agree with the magistrate that one could draw the only reasonable inference from the admitted facts and the immigration documents that the appellant must have been aware of her conditions of stay in Hong Kong and that she had knowledge of the termination date of her contract.

28.  She must have had notice of her termination to overstay nearly 2 years until she surrendered on 6 June 2022, which was also way beyond the last date of her first contract on 2 July 2021. Her defence and evidence was rightly rejected, it was inherently improbable.

29.  The magistrate was well aware of the prosecution’s burden of proof and I can see no evidence he reversed the burden of proof to reaches finding.

30.  Moreover, at no stage did he treat or consider the offence as a strict liability offence. He was well aware the prosecution had proved the appellant knew she had overstayed in Hong Kong. He found from all of the evidence relating to her employment and the documents involved as well as her visa that he could draw the only irresistible inference she was well aware of her terms of a condition of stay in Hong Kong as well as a termination.

31.  The fact there was no evidence of the employer complying with terms upon a termination such as arranging the air tickets or paying the equivalent value of an air ticket home is not fatal to the charge. Even if there had been such a failure to comply with such terms, it did not prove the contract was not terminated.

Conclusion

32.  There is no merit in any of the grounds set out in this appeal. The appellant was not believed and her defence was far-fetched therefore, readily and rightly dismissed as incredible. I find no error in the magistrate’s findings.

33.  I agree with the respondent and find the magistrate’s reasons given valid. The magistrate was justified in convicting the appellant and I find no basis for disturbing those convictions.

34.  Therefore, the appeal against this conviction is dismissed.