HKSAR v. HUSSAIN SAJJAD

HCMA 93/2022

[2022] HKCFI 3613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 93 OF 2022

(ON APPEAL FROM STCC 1414 OF 2021)

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REASONS FOR JUDGMENT

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1.  The appellant was charged with one charge of Taking up employment while being a person in respect of whom a removal order was in force[1]. He pleaded not guilty and was convicted after trial by a Deputy Magistrate (The Magistrate)[2]. He now appeals against the conviction.

2.  Having considered submission and evidence, I dismissed his appeal and said I will account for my decision in writing.  This is it.

A.  PROSECUTION CASE

3.  The allegation which the prosecution made against the appellant is that he had performed conduct at the Choi Hung Road Market and Cooked Food Centre which only an employee would do.  He was seen by police officers pushing a trolley to Shop 92, where he unlocked the padlock of a freezer with a key.  The freezer was used for the storage of frozen meat for Shop 81, the Halal Meat Shop.

B.  DEFENCE CASE

4.  At trial, the Appellant did not testify.  A man (DW)  who claimed to be an employee of the Halal Meat Shop (Shop 81)  was called.[3] The gist of his evidence is that the Appellant was a customer who came to Shop 81 to buy chicken legs.  There was no stock in the Shop.  As the appellant was in a hurry, they went together to Shop 92 with a trolley to collect the goods.  On the way, as DW needed to go to the toilet, he passed the trolley and a bunch of keys to the Appellant which contained the keys of the freezer.

C.  EVIDENCE IN THE TRIAL

C1.  Prosecution Evidence

5.  Evidence against the appellant came mainly from two police officers, PC25071 (PW1)  and WPC 21659 (PW4).  Their evidence may be summarized as follows.

C1.1  PW1[4]

6.  He was together with other police officers, most if not all were in police uniform.  He saw the Appellant as they were entering the Market.  They followed him.  The Appellant was pushing an empty trolley towards Shop 92 and stopped there.  The route was marked on a sketch[5]. When the Appellant was at Shop 92, he put aside the trolley and walked towards the shop, took out a bunch of keys from his pocket and unlocked the padlock of a big freezer there with one of the keys.  He and other officers intercepted the Appellant.  He found boxes of frozen chicken inside the freezer.  As Shop 81 was mentioned by the Appellant and the label on the freezer read Shop 81, he took the Appellant to that shop.

C1.2  PW4[6]

7.  When she was at Shop 92, DW approached him and claimed to be a friend of the Appellant and said he was coming to buy things.  Having confirmed his Hong Kong identity card and thinking that DW was not working at the shop she let him go.

8.  She said DW had not said the followings to her: that he was a staff of Shop 81, and he had given the trolley and the keys to the Appellant.  She also said DW had not shown her his wet hand indicating that he had just been to the toilet.

C1.3 The other two prosecution witnesses

9.  The prosecution also called two other witnesses, both police officers who arrived at the scene after the appellant had been arrested.  They are WSgt 56647 (PW2)  and PC25734 (PW3).  Their evidence may be summarized as follows.

10.  PW2 said when she was at Shop 81 waiting for the return of the boss, there was nobody inside the shop.  There were non-Chinese persons coming to buy things or to find his / her friend.[7]

11.  PW3 said there was another person at Shop 81 when the boss arrived but he could not recall whether he was a staff of the shop.[8]

C1.4 Admitted Fact

12.  It was admitted that a removal order had been issued against the appellant on 12 July 2019 and was still force on the date of the incident.

C2.  Defence Evidence

13.  The testimony of DW may be summarized as follows.[9]

14.  He was an employee of the Halal Meat Shop for 5 ‑ 6 years.  The shop was at Shop 81.  The freezer at Shop 92 was used to stock goods of the shop.  The Appellant was not an employee of the Shop.  He had come to buy things.  They also met at the Mosque.

15.  At the material time, he was the only employee present at the Shop.  The Appellant came to buy chicken legs.  As there was no chicken leg at Shop 81, goods had to be taken from the freezer at Shop 92.  He took a trolley with him as he intended also to take out stock for the day on top of the chicken legs requested by the Appellant.  The Appellant was in a hurry but at the same time he (DW)  had to go to the toilet.  He gave the Appellant the trolley and a bunch of keys including that for the padlock of the freezer and asked the Appellant to wait for him at Shop 92.  When he came to Shop 92 after having attended the toilet, he found the Appellant arrested.  He wanted to explain to the policemen but they did not listen.

D.  FINDINGS OF THE MAGISTRATE

16.  The Magistrate found all the prosecution witness credible and reliable and accepted their evidence.[10]  On the other hand, the Magistrate rejected the evidence of DW as he considered it implausible and identified inconsistency.[11]

17.  The Magistrate found that the Defendant pushed the trolley, with the bunch of keys in his possession, walked to Shop 92, unlocked the padlock of the freezer with one of the keys and he did so all by himself.[12]

18.  Further, the Magistrate drew the inference that the Appellant was working as an employee of the Shop and was going to the locked freezer to take considerable amount of stock from there.[13]

E.  GROUNDS OF APPEAL

19.  The appellant was represented by Mr James McGowan, who also represented the appellant at the trial.  He advanced the following grounds of appeal on behalf of the appellant:

(1)  Ground 1: the Magistrate failed to recognize that, taken at its highest, the Prosecution evidence could not support, certainly beyond reasonable doubt, an irresistible inference of employment, and indeed partly supported the Defence Case.

(2)  Ground 2: in contrast, DW’s evidence was subjected to detailed dissection to justify its rejection, partly based on erroneous “findings”, without sufficient consideration of the then situation and circumstances on 28 April 2021.

(3)  Ground 3: the Magistrate failed to appreciate there was indeed a “special relationship” between the Appellant, the shop and its staff.

(4)  Ground 4: the Magistrate, when identifying and weighing the inferences, failed to appreciate that there was therefore at least an equally compelling inference, supported by evidence, that the Appellant was indeed in a “special relationship” with the management and / or Staff at Shop 81.

(5)  Ground 5: the Magistrate erred when stating that he did not know if D noticed the PWs “because he had not testified” when they themselves had accepted that he did / would have done, and in dismissing the importance of this evidence.

(6)  Ground 6: for the above grounds and / or generally the Appellant’s Conviction is Unsafe and / or Unsatisfactory.

F.  DISCUSSION AND CONSIDERATION

20.  The grounds of appeal are mostly inter-related and I do not consider it necessary to deal with them one by one.

21.  This is a simple case.  Prosecution called witnesses to tell what they observed.  The Appellant called a witness who gave an innocent explanation for the presence of the appellant.  If his account is true or may be true, the Appellant must be acquitted.  The duty of the Magistrate was first to assess the credibility of the witnesses and then decide whether the prosecution evidence is true and reliable.  Eventually if he accepted the prosecution evidence the Magistrate was to decide whether it was sufficient to make him sure that all elements of the offence were proved.

22.  Criticism from Mr McGowan focused on the assessment of the evidence of DW.

23.  The Magistrate said he had taken into account the following matters[14]:

(1)  Under cross examination, DW agreed that the bunch of keys not only included the key for the padlock of the freezer, but also the key to the cashier of Shop 81 and the key to the place where important documents of the shop were kept, such conduct is inconceivable as the keys were so important and the Appellant was only a customer;

(2)  The degree of trust he claimed he had on the Appellant was unreasonable as he only met him at the Mosque and at the Shop;

(3)  Not only that he gave two versions of explanation for his giving of the keys to the Appellant, both explanations are unreasonable: when he gave evidence in chief he said as he was going to the toilet his hands would be wet, in cross examination when he was asked why not keep the keys in his pocket, he said it would fall in the toilet[15];

(4)  DW initially said he asked the Appellant to stand near the freezer but had not told him not to use the keys, towards the end of cross examination he said he had told him not to use the keys;

(5)  In the circumstances that the Appellant indicated that he was in a hurry, the whole arrangement asserted by DW would not have speeded up the process, and there was little point for the Appellant to follow DW to Shop 92; and

(6)  Whilst attaching no weight to the receipt in proving that the Appellant had made previous purchase with the Shop, the Magistrate was of the view that even if the Appellant had done so, an employee could have purchased from the shop in which he worked.

24.  Mr McGowan criticized the Magistrate’s assessment on the following aspects:

(1)  In contrast to his treatment to the prosecution witnesses, there was microscopic examination of the evidence of DW, there has been no objective and even handed assessment of evidence;

(2)  The Magistrate had failed to give sufficient consideration to the situation and circumstances pertaining to the case including the following matters:

(a)  DW said the Appellant had from time to time sat and talked with him at the Shop;

(b)  The Appellant was well known to DW and not simply an acquaintance as described by the Magistrate;

(c)  In the circumstances, it was just natural for DW to give the Appellant, his friend, the trolley and the keys;

(3)  The Magistrate erred in saying that DW did not show his hands to PW4 as this is part of the evidence of DW;

(4)  As to whether DW had told the Appellant not to open the padlock, DW did say things to the effect that: when they left the shop, he gave the Defendant the keys and told him he should not open the lock and just go there and wait[16];

(5)  The approach of the Magistrate in relation to the receipts was erroneous as it did show the Appellant had made previous purchases; and

(6)  The arrangement made by DW was not unreasonable as found by the Magistrate and did have the effect of saving some time because otherwise DW had to return to Shop 81 to collect the trolley and keys before going to obtain the goods.

25.  I have the benefit of reading the transcript of the testimony of DW but do not enjoy the advantage of having received the evidence at first hand[17]. The Court of Final Appeal held in HKSAR v Finan Boris Anthony[18] that the appellate court could only depart from the magistrate’s determination on an issue of credibility, and, for that reason, allow the appeal if it is satisfied that the magistrate’s finding of facts or determination of a witness’s credibility was plainly wrong.[19]

26.  In my judgment, there is no sufficient ground to persuade me that the assessment of credibility of witnesses by the Magistrate was flaw and therefore should be intervened.  Despite the abled submission of Mr McGowan stressing the special relationship and trust between DW and the Appellant, I am of the view that the assessment is a sound and reasonable one.  The Magistrate had taken a realistic approach and cannot be said to have failed to give due consideration to the matters which he should have taken into account.

27.  The other major criticism which Mr McGowan made against the finding of the Magistrate is that the whole of the evidence is not sufficient to support the inference of guilt in this case.

28.  As said, if the evidence of DW is found to be true, or may be true, the Appellant must be acquitted.  The Magistrate had made a sound and safe finding that the evidence of DW is not credible and is entitled to give the part which is favourable to the Appellant little weight in his consideration.

29.  The relevance of the part of the submission of Mr McGowan relying on the evidence of DW become much less significant.

30.  In his consideration, the Magistrate made the following observations:

(1)  The Appellant was in possession of a bunch of keys and one of them was for the padlock locking the freezer at Shop 92[20];

(2)  Significant quantity of the stock of Shop 81 was stored in the freezer[21];

(3)  Included in the bunch of keys were some keys of Shop 81 and with the keys, cash and important documents of the Shop became accessible[22];

(4)  Having rejected the evidence of DW, there is no evidence to suggest a special relationship between the Appellant and the Shop[23];

(5)  The Appellant was able to unlock the padlock within a short time after having arrived at Shop 92, indicating his familiarity with the key[24]; and

(6)  He had taken into account the submission that the Appellant did not act suspiciously even in circumstances where he should have noticed the presence and approach of the officers[25].

31.  The Magistrate found that the only reasonable and irresistible inference to be drawn is that at the Appellant was working as an employee of the Shop and taking into account he had with him an empty trolley he was going to the locked freezer to take a considerable amount of stock from there.[26]

32.  Citing HKSAR v Ferosh[27], Mr McGowan submitted that the evidence is not sufficient to support the inference which the Magistrate drew.  In that case, the conviction of the appellant of the same offence was quashed.  The Court of Final Appeal stressed the need to prove employment.  Fok PJ observed:

“In the present case, the prosecution evidence merely established that the appellant and his co-accused were observed to be carrying out some form of manual work at the derelict metal shed. However, given the condition of the shed, this was not an obvious place of employment, like a restaurant, shop or construction site, and there was no evidence as to whom either the shed or the sheets of metal the appellant was assisting to dismantle belonged. Moreover, there was no evidence that the four men were doing that work for an employer rather than for themselves, nor of the degree of any control being exercised over them by any employer. There was no evidence of any payment for the work or the basis of such remuneration. There was no evidence of who had provided the hammer and crowbar, if they were not brought by the appellant and his co-accused themselves. There was no evidence of any safety or other work-related equipment at the site.”[28]

33.  I do not intend to repeat the whole of his submission, in gist, Mr McGowan criticized the Magistrate for failing to give due and sufficient regard to the whole circumstances as revealed in evidence, in particular as:

(1)  As accepted by PW1, that the appellant, despite seeing the uniformed officers approaching him, continued to walk towards them for a while before turning right;

(2)  When the appellant reached Shop 92, he turned the trolley around before approaching and unlocking the container, indicating that he was again facing the officers who were obviously pursuing him;

(3)  The DW had approached the officers at Shop 92 and had shown his wet hands to PW4, and the Appellant had told PW1 that his friend was coming; and

(4)  The mere pushing of the trolley, even coupled with the possession of the keys and / or opening of the freezer do not support an irresistible inference of employment.

34.  Mr McGowan criticized in particular the following approach of the Magistrate.  The Magistrate mentioned that “the [Appellant] had not testified and I do not know whether or not he noticed the police officers … Even if he did, I do not have to speculate why he proceeded to unlock the freezer anyway.”  Mr McGowan submitted that this remark, together with the other approach of the Magistrate, indicated that the Magistrate had failed to have sufficient regard to the whole circumstances of the case in particular that the police presence had been obvious to the Appellant and yet he continued on his way without hesitation, did not flee with or without the trolley, thus indicating that he had nothing to fear, he was acting on his own account and he believed what he was doing was lawful.

35.  I accept that the circumstances as revealed by evidence might be one that the Appellant could have noticed the presence of the police officers but at the same time the Magistrate was entitled to bear in mind that there was no evidence from the Appellant that he was aware of the situation and his state of mind at the material time.

36.  As for the conduct of the Appellant relating to the keys, I have the following observations:

(1)  The evidence from the officer which the Magistrate accepted is that the Appellant was able to open the padlock swiftly, whilst accepting that the key and the padlock bear the same brand name, the swift action indicates, as the Magistrate found, a degree of familiarity; and

(2)  It is an extreme unordinary act for a customer or anyone who is not an employee to open the lock of a container in which any reasonable man would appreciate are stock of the shop.

37.  I do not find the Magistrate had failed to perform his duty properly.  As said, there is no reason to intervene his assessment on credibility of witnesses.  There was no material error in his treatment and consideration of the evidence.  His observation of the matters as set out in paragraph 30 above are matters he was entitled to take into account.

38.  Bearing in mind the observation in Ferosh[29] and the factual difference between that case and the present one, I am satisfied that the conviction of the Appellant is safe and satisfactory.  Despite the evidence of what the Appellant had actually done was confined to what took place in a short duration, the conclusion that the Appellant must have done what he did in the course of employment is the only reasonable inference supported by the whole of the evidence.

39.  I therefore dismissed the appeal and upheld the conviction.