HKSAR v. SIDHU, BALVEER SINGH

HCMA 88/2025

[2025] HKCFI 6434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 88 OF 2025

(On appeal from WKCC 2761/2024)

________________________

________________________

________________________

J U D G M E N T

________________________

1.  The Appellant was D1 at the trial and was charged with one count of “taking employment while being a person in respect of whom a deportation order is in force”, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance (Cap. 115) (Charge 1). The particulars of the offence alleged that, on 22 June 2024, at near Car Space 45, Cheung Sha Wan Wholesale Food Market, 36 Yen Chow Street West, Cheung Sha Wan, Kowloon, Hong Kong, the Appellant, while being a person in respect of whom a deportation order was in force, took employment, whether paid or unpaid, namely wrapping the Styrofoam boxes with a roll of stretch wrapping film.

2.  The Appellant pleaded not guilty to the charge and was convicted after trial. He was sentenced to imprisonment for 22 months and 15 days. The Appellant now appeals against both conviction and sentence.

Prosecution case

3.  Appellant who was represented by Counsel instructed by the Duty Lawyer Service agreed under a set of Admitted Facts (P1) that:-

(a)  On 22 June 2024, at about 2:25 am, DPC 7308 (PW1) and DPC 16022 (PW2) entered Cheung Sha Wan Wholesale Food Market (the “Market”) and that the Appellant was inside the Market.

(b)  At about 2:30 am, PW1 arrested the Appellant for “breach of condition of stay”.

(c)  At the material time, the Appellant was a Form 8 Recognizance holder and the subject of a deportation order. The Appellant was not allowed to take any employment, whether paid or unpaid, or establish or join in any business.

4.  The prosecution called two witnesses and the key evidence against the Appellant came from PW1. PW2’s evidence was mainly about another defendant D2.

5.  According to PW1’s evidence, at the material time, he and PW2 was on an anti-crime operation targeting illegal workers and they entered the Market in an unmarked government seven-seater vehicle. When the vehicle was moving forward near G45 parking space, PW1 observed through the front windscreen that there were stacks of Styrofoam boxes approximately 15 to 20 metres ahead. Two males (the Appellant and D2) were standing near the boxes and working.

6.  PW1 observed, on his left side, that the Appellant as a South Asian male approximately 1.8 metres tall, “fat build”, with short hair and abundant facial hair. The Appellant was wearing a green short-sleeve polo shirt, dark-coloured trousers, and black shoes. The Appellant was holding a roll of transparent wrapping paper and wrapping Styrofoam boxes by walking around or encircling them. PW1 also noticed another male (D2) conveying Styrofoam boxes.

7.  PW1 stated that he saw the Appellant was working on the left side in the photo P2(11) and another male (D2) was working near the centre of the photo. PW1 said, at the time of his observation, there was sufficient lighting from the street lamps and there was no other person nearby apart from a Chinese male on the truck UF 9832. The gaps between the Styrofoam boxes ranged from 10 centimetres to two metres. PW1’s observation lasted for around one minute.

8.  The police vehicle eventually stopped at around 10 metres away from the Appellant and D2. PW1 got off the vehicle, approached and then intercepted the Appellant when he was still wrapping Styrofoam boxes. PW1 asked the Appellant for identification document. The Appellant then went to the truck UF 9832 nearby and retrieved his Form 8 from a black sling bag which was placed behind the front passenger seat and presented it to PW1.

9.  PW1 when testifying drew a sketch (P3) to show the initial position of the Appellant and D2, as well as the respective positions of the truck UF9832, the government vehicle, the Styrofoam boxes and the roll of transparent wrapping paper.

Defence case

10.  The Appellant elected to give evidence with no other witnesses.

11.  The Appellant said that, on the night of 21 June 2024, he was having drinks with his friend Harry in Sham Shui Po. At around 1 am on 22 June, he left Harry’s place and walked to the Market planning to buy fish at a lower price. It was his first time visiting the Market during night time, but he had been there once or twice during daytime. He arrived at the Market at around 1:30 am. He spoke to a Punjabi speaking driver who was working there and came to know that the Market would only open at 3 am. The Appellant then waited and spent his time by walking around the Market. When the police arrived, he was standing beside the truck UF 9832. He saw three to four Chinese workers. He denied that he was working there. He also said that his Form 8 was placed inside his pocket and that he did not retrieve it from the truck.

The Magistrate’s findings

12.  The Magistrate stated that this case depended on the correct identification of the Appellant and D2 by the police officers, and gave himself the Turnbull directions. The Magistrate noted all the defence’s criticisms of PW1’s identification evidence against the Appellant.

13.  The Magistrate noted that when PW1 was inside the government vehicle, the initial field of view must be wider. Having compared the sketch with the photos (especially P2(8)), the Magistrate observed that as the Appellant was moving around the boxes, there were opportunities when PW1 could observe him directly as opposed to observing through the gaps between the boxes.

14.  The Magistrate also considered that, despite PW1’s observation lasting for only one minute, he was subsequently moving towards the Appellant and had a clear view of him as the government vehicle approached the eventual stopping position. When the vehicle stopped, PW1 immediately alighted and intercepted the Appellant. Since PW1 was carrying out an operation targeting non-locals, he must have focused on the Appellant once he had spotted him.

15.  The Magistrate therefore rejected all the defence’s criticisms against PW1 and ruled that he was both credible and reliable. PW1’s evidence was accepted as the truth.

16.  The Magistrate after consideration decided to reject the Appellant’s evidence because he found that to be unreasonable. The Appellant stated that he had never visited the Market at night and did not know if the fish market was even open. It was unreasonable for him to go there to buy fish without even knowing if it was open at that time. He lived in To Kwa Wan but at that time there was no available public transportation so that he had to walk all the way to Sham Shui Po as any form of transportation could be costly and counterproductive which defeat his purpose of visiting the Market to buy cheap fish.

17.  The Magistrate then considered all the following circumstantial evidence and came to conclude that it gave rise to an irresistible inference that the Appellant took employment and worked at the material time:-

(a)  The offence occurred at around 2:30 a.m. where the Market was not open to the general public or individual customers in general.

(b)  The offence occurred during a period when wholesale transactions were taking place involving conveying and packaging of food items.

(c)  The Appellant was using a sizeable roll of transparent plastic film to wrap Styrofoam boxes; given the substantial number of boxes present, it would be impossible for him to take action without prior instructions from another.

(d)  The Appellant placed his belongings on a truck nearby.

(e)  There was no evidence to suggest that the Appellant was working in a place operated by or connected to his relatives or friends.

18.  The Magistrate eventually convicted the Appellant as charged.

Magistrate’s reasons for sentence

19.  The Magistrate had considered all the mitigation from defence. He was 40 years old and came to Hong Kong from India in 2014. He has a wife and two daughters aged five and nine in India. It was submitted that the Appellant had already withdrawn his non-refoulement claim and planned to return to India but for the present case he had to stayed here.

20.  On the other hand, the Magistrate noted the Appellant’s previous similar conviction for which he was sentenced to 15 months’ imprisonment in 2020.

21.  The Magistrate expressed that the Appellant was convicted after trial. He considered the relevant authority HKSAR v Usman Butt & Another [2010] 5 HKLRD 452 and found no reason to depart from the usual sentence of 22.5 months’ imprisonment. The Appellant was sentenced to 22 months and 15 days’ imprisonment.

Grounds of Appeal

22.  From the Appellant’s written submission dated 1 July 2025 but filed in Court on 14 July 2025, he was basically reiterated his version in the trial, namely that he was just intending to go buy fish and not working in the Market at the material time. He complained that the Magistrate erred in relying on PW1’s untrue evidence (in particular from PW1’s position of observation to claim to have seen him clearly) to convict him. He also complained that there was no video footage, photographs, fingerprints or any other forms of evidence to prove that he was working at the material time. The Appellant insisted that it was a frame-up by the police as there were two other people working there but had fled the scene and that the police subsequently found out that he had a previous similar conviction.

My analysis and decision

23.  I have considered all the written submissions from the Appellant and the Respondent.

24.  According to the Court of Final Appeal’s decision in HKSAR v Hui Lai Ki (2024) 27 HKCFAR 265, magistracy appeals are to be conducted by way of rehearing. The judge must be satisfied that the appellant’s guilt has been proven beyond 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.

25.  This is in fact a typical case of dispute on facts. The prosecution case was, by relying on PW1’s evidence, that the Appellant was working by wrapping Styrofoam boxes in the Market. On the other hand, the defence case was that the Appellant was just a visitor or customer there planning to buy fish and had never worked as the prosecution alleged.

26.  As I have summarised above, the Magistrate had correctly noted that this case depended on the correctness of the identification evidence of PW1 and that he had given himself the relevant Turnbull directions. He then considered the respective evidence of PW1 and the Appellant, decided to accept the former and rejected the latter with reasons given. Those were all findings of fact and I do not see any flaws or errors.

27.  The Appellant’s various criticisms of the lack of other evidence like CCTV footage, photographs or fingerprints do not cast any reasonable doubt on the prosecution case which rested on the evidence of PW1.

28.  I also noted that, the Appellant’s current complaint that it was in fact a deliberate frame-up by PW1 or the police and that the real illegal workers had already fled the scene. That had never been the Appellant’s version in his evidence at the trial nor was it put to the officers during cross-examination by the defence counsel.

29.  In any event, I have considered all the evidence afresh and agree with the Magistrate’s analysis and conclusion. None of the Appellant’s points or arguments amount to any valid grounds of appeal. I am sure that the Appellant’s guilt has been proven beyond any reasonable doubt on the evidence. This appeal against conviction is dismissed and the conviction should stand.

30.  Regarding the Appellant’s appeal against the sentence, he only stated that he had two young daughters and one new-born son in India and that he wanted to go back to India to join his family.

31.  The Magistrate had correctly identified and followed the case authority of Usman Butt. The Appellant was convicted after trial and there was no valid or substantial mitigation. On the other hand, as the Magistrate was aware, the Appellant had a previous similar conviction in 2020 and not reflected in the sentence.

32.  I have found no valid complaint against the sentence. The final sentence of 22 months and 15 days’ imprisonment imposed on the Appellant is neither wrong in principle nor manifestly excessive. This appeal against sentence is also dismissed.