HKSAR v. NAZRUL ISLAM

HCMA471/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 471 OF 2012

(ON APPEAL FROM STCC 2043 OF 2012)

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REASONS FOR JUDGMENT

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1.  The appellant was charged with one count 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”. He was the 5^th accused in a group of 5 defendants who were facing similar offences.

2.  The appellant pleaded not guilty and was convicted after trial.  He was given 21 months and 2 weeks’ imprisonment.

3.  The appellant sought to appeal against the conviction.

4.  After hearing the submissions of the appellant, who was not represented, I had dismissed the appeal.  I now give the reasons.

5.  The prosecution had called 2 police witnesses to testify.  The appellant himself had elected to give evidence.

6.  What happened was that on the day in question, PW1 and his colleagues had gone to the area mentioned in the charge to carry out investigation.  He went near a warehouse and observed through a window.  What he said he saw was that the appellant and some other men were in the process of packing old shoes into nylon bags.  PW1 had described to the court about the lighting condition and the appellant’s activities in detail. Later, the police team went into the warehouse to check the ID cards and made arrests.  PW2 was the officer who had arrested the appellant.

7.  PW1 took photographs of the location and also the bags packed by the appellant.  The photographs showed that there were quite a lot of shoes at the scene.

8.  The appellant stated in his testimony that he only went to the warehouse to buy shoes.  He explained to the court how he had come to know about this place and how he got there.  He said that the shoes were recycled items and costed about $50 per pair.  As to the Mr Khan who had taken him there and the person who had opened the gate to them, the appellant said they had left before the police came.  He said what the officer had observed was him choosing shoes.  He denied having put anything into the nylon bags.  In fact, he was taking the shoes out so that he could choose.  The appellant said he ran inside the office when he saw the police as he feared that the police might think he was stealing there.  He had immediately explained to the police that he was in fact a customer. 

9.  In considering the evidence, the magistrate had warned himself of the onus and standard of proof and the appropriate basis of drawing inferences.  He also reminded himself of the fact that the appellant had a clear record.  He had not ignored the principle that “working at a place per se is not employment, although in the absence of other evidence, one may draw the necessary inference.”  (The Queen v Ip Po Fai, HCMA1201/1995)

10.  The magistrate was fully aware that the prosecution case relied solely on PW1’s observation and what inferences could be drawn.  He had carefully analysed the issues, taking into account of the defence submissions.  He also dealt with the alleged inconsistencies in PW1’s testimony.  However, the magistrate found that PW1 did not give inconsistent answers as alleged.  He found that PW1’s identification evidence was of good quality, and that PW1 was generally an honest and reliable witness.  He came to the conclusion that there was nothing in his account that was inherently improbable.  He also found PW2’s evidence to be consistent with PW1’s.

11.  Having considered the relevant evidence, including the contents of the photographs, the magistrate had rejected the evidence of the appellant and explained the reasons.  The magistrate concluded that, based on PW1’s observation and the circumstances, the appellant was indeed working at the place with others.

12.  The appellant was unrepresented at the appeal hearing.  He submitted a letter explaining his grounds in Bengali.  With the assistance of the interpreter, the court heard the following: the prosecution witnesses were lying, they could not have gone into the warehouse.  In fact, the magistrate had got the timing wrong regarding his arrival at the place. Furthermore, unlike the other defendants who were really working there, his clothes were clean.  The prosecution had asked him many questions but failed to inquire why he did not called up Mr Khan.  If they did ask the question, he would have explained that he was worried at the time and that he had lost his mobile phone.  In addition, if he were really working there, the other defendants would have known him, but they did not.

13.  The only issue raised by the defence was whether the appellant was working there and then, there was no challenge by the defence as to the other elements of the charge.

14.  This was a case involving mainly a factual dispute.  The magistrate had seen and heard the witnesses.  He had analysed the issues and dealt with the defence submissions, including the alleged inconsistencies.  Based on PW1’s observation, which was accepted by the magistrate, and the circumstances of the scene, the inference that the appellant was working there was justified.  This was a factual finding which the magistrate was entitled to draw.  What the appellant said in court, in my view, did not constitute any grounds to say that the conviction was unsafe or unsatisfactory. 

15.  Hence, I had dismissed the appeal.