HKSAR v. BALWINDER SINGH AND ANOTHER

HCMA 96/2021

[2021] HKCFI 3876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 96 OF 2021

(ON APPEAL FROM STCC 3689 OF 2020)

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REASONS FOR JUDGMENT

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1.  On 3 February 2021, the 1^st Appellant was found guilty after trial before Deputy Magistrate Wong Heung-yung 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 25 months.

2.  On the same date, the 2^nd Appellant was found guilty after trial of taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully contrary to ss38AA(1)(a)  and 38AA(2)  of the IO.  He was sentenced to a term of imprisonment of 22 months and 2 months.

3.  By reason of his Notices of Appeal dated 3 February 2021[1], the 1^st Appellant now appeals against his conviction and sentence. By reason of his Notice of Appeal dated the same date[2], the 2^nd Appellant seeks to appeal his conviction only.

4.  On 17 November 2021, I allowed their appeals against conviction and I now provide the reasons for so doing.

Facts of the Case

5.  This was an operation against illegal workers carried out by officers of the Immigration Department (“the ID”).  It came about as a result of a complaint that there were illegal workers observed in a recycling site on Hing Fu Street, Tuen Mun.  On 10 November 2020, a number of officers from the ID attended at the scene and were in the vicinity for approximately an hour prior to PW1 entering the premises at 09:43 hours.  When he did so, he observed the 1^st and 2^nd Appellants standing together talking to another male who was identified in trial as S1.  At this stage, the 1^st Appellant was seen to be holding the handle of a yellow pallet truck.  He was wearing gloves. The truck had a roller shutter already loaded onto it and S1 was using both hands to keep it steady.  The 2^nd Appellant was standing next to the 1^st Appellant.  PW1 walked into the compound and then returned to the three men.  The 2^nd Appellant initiated a conversation with him to the effect:

“D3: What is it?

PW1: I would like to sell a metal gate.

D3: You can take the metal gate down here for sale

PW1: Had I brought the metal gate down here, whom should I look for?

D3:  You look for me.”

6.  At the same time, S1 and the 1^st Appellant were observed to push the yellow pallet truck 3 to 5 meters towards a large white bag and manoeuvre it before coming to a stop.  The 2^nd Appellant was seen to walk over to a different white bag and to pick it up.  It was at this point that the remainder of the team entered.

7.  There were 8 PWs in all.  The appellants did not give evidence but relied upon the evidence of DW1.  She was the wife of the 2^nd Appellant and held herself to be operating the recycling business.  Her testimony was fraught with difficulty and does not require reciting here.  She was not believed and rightly so. Under caution, the 2^nd Appellant had said that he was not working and he was only helping his wife to lift heavy objects.

8.  The Admitted Facts[3] accepted that the 1^st Appellant had a removal order in force against him at the relevant date and that the 2^nd Appellant had landed unlawfully.  Both appellants accepted that they knew they could not take up employment.

Grounds of Appeal against Conviction

9.  In his Perfected Grounds of Appeal dated 8 April 2021 the 1^st Appellant complains:

“Ground 1 – Inference of Employment Not Properly Drawn

1. The Deputy Magistrate’s inference that the 1^st Appellant took employment as an odd job worker was not properly drawn because

a. the Deputy Magistrate adopted an erroneous approach to the drawing of the inference, one that tends towards reversing the burden of proof and the drawing of an adverse inference from the failure to testify;

b. the proper approach examines all the features of a possible employment relationship against the background of the indicia of employment developed in the case law before deciding if the prosecution has proven ‘taking employment’ beyond reasonable doubt; and

c.  had the proper approach been applied no court would find that the only reasonable inference is that the 1^st Appellant took employment as an odd job worker, given the distinct features of the scene, the ambiguity in the 1^st Appellant’s observed conduct, and the absence of evidence of an employment relationship with an employer.”

10.  In his Perfected Grounds of Appeal dated 8 April 2021 the 2^nd Appellant complains:

“Ground 1 – Inference of Employment Not Properly Drawn

2. The Deputy Magistrate’s inference that the 2^nd Appellant took employment as an odd job worker was not properly drawn because

a. the Deputy Magistrate adopted an erroneous approach to the drawing of the inference, one that tends towards reversing the burden of proof and the drawing of an adverse inference from the failure to testify;

b. the proper approach examines all the features of a possible employment relationship against the background of the indicia of employment developed in the case law before deciding if the prosecution has proven ‘taking employment’ beyond reasonable doubt; and

c.  had the proper approach been applied no court would find that the only reasonable inference is that the 2^nd Appellant took employment as an odd job worker, given his relationship with DW1, DW1’s explanation of the presence of the 2^nd Appellant at the scene, the multiple innocent explanations for his observed conduct, and the absence of evidence of an employment relationship with an employer.”

Analysis

11.  In his Statement of Findings, the learned Magistrate accurately summarised the case for the prosecution[4].  He also accurately outlined the defence evidence provided by DW1.  As with many of these cases, the period of observation of the defendants was limited[5].  It is unfortunate that it lasted just 3 minutes.  Given that the ID team were there on an operation as a result of a complaint, the observation could easily have taken place over a longer period of time without any harm to the integrity of the observation carried out by plain clothed operatives.  It is interesting to note that the team had arrived at 08:39 hours and yet there was no evidence as to any illegal or suspect activity before 09:43. Although the limited direct observation time is not fatal to a prosecution, it follows that the content of what is observed needs to be all the more unambiguous.  The necessary period of observation in such cases can be ascertained in advance.  This was a small recycling business. People would be coming and going throughout the day both depositing and collecting items to be recycled.  Many of those items may be bulky and therefore require trolleys and working gloves to be used by the customer and not just the site operatives.  Observers would need firstly to ascertain those who appear to be in situ over a period of time and those who are coming and going as customers.  The same could be said for restaurant premises where one would expect customers to sit down and eat or shop premises where the shelf stacker may be dressed identically to the man or woman off the street but can be distinguished from a customer paying for goods.  There is no evidence before the Court for example of when S1, D2 or D3 arrived or what they were observed to be doing during the hour in which the team were outside the premises if they had arrived before the team, nor of any other interaction they may have had with other customers.

12.  The learned Magistrate clearly and accurately outlined the defence case[6] and I can see no reason to criticise him for his rejection of the evidence of DW1.  Unfortunately that rejection had a knock on effect upon the evidence in respect of the 1^st Appellant, who was unrelated to DW1[7], as well as the 2^nd Appellant, who was related to DW1.

13.  Having rejected the evidence of DW1, the learned Magistrate should have asked himself, whether the prosecution had proved beyond reasonable doubt that the 1^st Appellant was employed at the site and thereafter, and independent of the case against the 1^st Appellant, whether the prosecution had proved beyond reasonable doubt that the 2^nd Appellant was employed at the site.  As there was no direct evidence of this, an inference had to be drawn and it had to be the only reasonable and irresistible inference.

14.  As to the 1^st Appellant, the learned Magistrate found that the use of the pallet truck by the 1^st Appellant[8] could not have been for his own benefit and therefore the only reasonable and irresistible inference was that he was an odd job worker.  In addition, and on the basis of PW1’s evidence, that he was skilled at using a pallet truck and was wearing a pair of labouring gloves, the learned Magistrate found the 1^st Appellant to be working at the site.

15.  In order to support that finding, he noted that the 1^st Appellant had no burden of proof[9] but then commented that he had not provided an innocent explanation of why he was at the scene.  Ground 1a, that the learned Magistrate reversed the burden of proof by drawing an adverse inference from the 1^st and 2^nd Appellants’ failure to testify, is therefore correct.

16.  At §70, the learned magistrate went on to say:

“Defence submission saying that D2 was there just to buy goods was unsupported by any evidence and contradicted by PW1’s observation. It was not true or might not be true.”

In doing so, the learned Magistrate appears to have reversed not only the burden of proof but to have misunderstood the standard of proof.  If the defence case raised is true or may be true he is entitled to be acquitted.  To find, as he did, that the defence case “was not true or might not be true” is actually the same as a finding of not satisfied beyond reasonable doubt, but the Magistrate did not realise this.

17.  As for the position of the 2^nd Appellant, who was married to the person operating the site, his relationship with DW1 was not in issue.  He provided an explanation for his presence on the site and for his dialogue with PW1 as well as the fact that he was seen to lift a heavy bag.  The learned Magistrate found that the 2^nd Appellant was working at the site.  He too was affected by the rejection of DW1’s evidence but in a different way.

18.  There was no proper analysis of the prosecution evidence against the 2^nd Appellant independent of the 1^st Appellant and DW1, on the issue of the proven facts from which an inference could be drawn.  The Magistrate went directly to the inherent improbability that the 2^nd Appellant might have been present on that day to assist his wife.  Instead, he found that the 2^nd Appellant was present every day and DW1 was herself an employee.  It followed, according to the learned Magistrate, that the 2^nd Appellant would not be present every day to help someone who was an employee and therefore must be working for whoever operated the site.  There was considerable speculation in this thought process without an evidential basis.  Having rejected the evidence of DW1, the Magistrate had to explain this leap of faith.  In addition, there was no explanation as to why he found the 2^nd Appellant to be in employment as opposed to simply working upon the site.

19.  This error was compounded by his adoption of his earlier reasoning as to the 1^st Appellant, in stating that the 2^nd Appellant had no burden of proof but that he did not give evidence to provide an innocent explanation for his presence.  That is, besides being an incorrect application of the law, evidentially incorrect.  Even without the evidence of DW1, the 2^nd Appellant had made admissions upon arrest and caution which amounted to an explanation for his presence.

20.  The inference sought to be raised, and which was raised by the evidence of the 2^nd Appellant upon arrest and caution, was that he had an innocent reason for his presence and for his actions, which may not have amounted to employment.  It was not so highly improbable as to be without any merit and as such, the only reasonable and irresistible inference to be drawn could not be said to be that he was acting in the course of employment without more and the learned Magistrate erred when he drew such inference.

Magistracy Appeals

21.  This is an appeal as of right under s113(1)  of the Magistrate’s Ordinance, Cap 227, which is by way of rehearing on the papers[10] but subject to the caveat that this Court recognises that it does not have the advantage of having heard the evidence first hand and whilst it will not fail to quash a conviction if it considers it unsafe, it is unlikely to go behind the magistrate’s view of the credibility of witnesses unless that view is plainly wrong.

22.  The thrust of the Appellants complaint in their joint appeals against conviction is as to the shifting of the burden of proof and as to the inference drawn by the learned magistrate on the issue of employment. For that latter submission, Mr Young relies upon HKSAR v Ferosh (2018)  21 HKCFAR 159 and Poon Chau Nam v Yim Siu Cheung (2007)  10 HKCFAR 156.  Mr Tsang, on behalf of the respondent, did not gainsay that analysis.

23.  Neither Ferosh nor Poon supra were necessarily intended to be applicable in all circumstances.  Even in lawful situations, not all of the indicia will necessarily be made out.  What these authorities show is that the Court must stand back and look at what is being alleged and take a common sense approach to what evidence should be available to make that out.  There will not always be books of account or wage slips.  There will not always be a supervisor or someone to whom an employee reports.  There will not always be evidence of health and safety standards etc.  This was a small recycling yard which had been in operation for a short time.  It appears to have taken a wide variety of domestic products from microwaves to fridge/freezers to metal shutters.  It was what in the west would be termed a junk yard.  Such operations are not known for their immaculate books or offices and their adhesion to rules and regulations but that does not mean that that the Court cannot infer that someone is in employment in such a place, otherwise persons in the shoes of the Appellants could work at will in any of a number of dubious businesses.  On the other hand, it is to be expected that working men will come to and fro on a regular basis throughout the day. Goods will be both deposited and collected.  Such customers are highly likely to be construction or decoration workers in working dress including the wearing of gloves used in manual labour.  As a consequence, this type of dress is not exclusive to an employee on this site, nor will the skill set required to use a pallet truck be so restricted.  Common sense says something more is required for the prosecution to meet the heavy burden placed upon it.

Conclusion

24.  The learned Magistrate was not assisted by the manner in which the defence was run below.  A number of tangential exercises were embarked by the defence which caused all parties, including the learned Magistrate, to lose focus on the true issues.  This was unfortunate.  It also took up unnecessary court time.  The appellants chose to call DW1, who was not believed.  I am not surprised by that.  It diverted the learned Magistrate away from the issues which had to be proved and away from a proper analysis of the inferences which could, or could not be drawn.  I do not believe the appellants should have their costs below.

25.  The 1^st and 2^nd Appellants’ appeals against conviction are allowed.  By reason of that finding, the appeal against sentence by the 1^st Appellant falls away.  The convictions of the 1^st and 2^nd Appellants are quashed and the sentences set aside.

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