HKSAR v. DAWLATKHAIL, ZIAULRAHMAN

HCMA 62/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 62 OF 2017

(ON APPEAL FROM STCC NO 3830 OF 2016)

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J U D G M E N T

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Introduction

1.  On the 10 January 2017, the appellant was convicted after trial of one charge of Taking employment while being a person in respect of whom a removal order is in force contrary to s38AA(1)(b) and s38AA(2) of the Immigration Ordinance, Cap 115.  The appellant was sentenced to a 22 months and 2 weeks’ term of imprisonment.  The appellant applied for a review of his conviction and this was heard on the 1 February 2017.  It was not successful.  He now appeals against his conviction only.

Background

2.  The prosecution alleged the appellant was seen working inside a scrap metal or recycling yard when he was prohibited from taking up employment whilst released on an Immigration Recognizance.  The magistrate found beyond reasonable doubt the appellant was working and inferred he was employed to convict him as charged.  The defence case was that he was an innocent bystander only looking for a refrigerator in the scrap yard. 

Issue

3.  The issue here is the credibility of the sole prosecution witness and the reliability of his evidence; in particular, the identification evidence of the appellant.

The Admitted Facts

4.  The appellant landed in Hong Kong illegally and was arrested by the police on the 14 January 2016.  He comes from Afghanistan.  He was issued with an immigration recognizance form on 11 February 2016.  On the 18 March 2016 a Removal Order was issued by the Immigration Department against him and served on him on 22 March 2016.  It was still in force on the offence date.  He was aware he was not able to take up any employment in Hong Kong be it paid or unpaid. 

5.  It was admitted PW1, PC8948, was on patrol on 16 August 2016 at about 12:45pm near an unnamed recycling scrap yard in Pat Heung, New Territories.  At 13:28pm the appellant was arrested by PC7305 at the same place. Photographs were taken of the scrap yard, Exhibit P5(1-12) and a sketch was drawn, P6 and 6a. 

6.  Lastly, the appellant had a clear criminal record.  All these admitted facts were set out in Exhibit P1. 

The Prosecution Case

7.  There were three defendants in this case all arrested inside for identical or very similar immigration offences.  The 1^st defendant pleaded guilty.  The 2^nd and 3^rd defendants went to trial. The 2^nd defendant was acquitted after trial whereas the appellant, the 3^rd defendant was convicted. 

8.  The prosecution alleged the appellant took up employment in this recycling scrap yard when his status here in Hong Kong prohibited him from doing so.  On 16 August 2016, PW1 was on patrol near this scrap yard in Pat Heung when he heard the sound of drilling and hammering from inside.  This yard was surrounded by metal sheets fencing it in.  PW1 looked through a gap in the fencing.

9.  PW1 saw the 1^st and 2^nd defendants in this case drilling old air conditioners at a work bench and the appellant hammering away at an old fridge nearby.  He would put parts he had hammered off or dismantled onto the ground together.  PW1 observed all three men doing what they were doing for about 10 minutes before he called for colleagues to assist him.  The appellant was wearing a blue and white striped shirt. 

10.  Suddenly one of the men other than the appellant saw PW1 peering in and all three men tried to run away.  The appellant ran in the direction of PW1.  All three were intercepted by police officers. 

The Defence Case

11.  The appellant elected not to give evidence nor did he call any witnesses; that was his right.  The magistrate drew no adverse inference from this election. 

12.  It was put to PW1 in cross-examination that he had misidentified the appellant.  He was not hammering or dismantling any fridge.  He was there but only to look at fridges and check them out for his own use.  PW1 denied the defence case put to him. 

The Magistrate’s Findings

13.  The magistrate correctly reminded himself of the prosecution’s duty and the standard of proof required.  He also considered the evidence bearing in mind and warning himself the appellant had a clear record in Hong Kong. 

14.  The issue here relates to the credibility of the witness and the weight of the evidence; both being questions of fact to be determined by the magistrate.  This appeal is an appeal by way of rehearing on the papers.  The principles relating to a magistracy appeal have been reiterated in HKSAR v Ip Chin Kei[2012] 4 HKLRD 383 by McWalters J (as he then was).  An appellate court will not depart from a magistrate’s finding as to the credibility of a witness unless it is satisfied that the finding is “plainly wrong”.

15.  The magistrate accepted the evidence of the prosecution witness PW1.  In a careful assessment of the evidence and submissions made he found PW1’s observations of the appellant in the recycling yard credible and believable.  He did not accept there was a mistake in the identification of the appellant.  He analyzed the evidence in detail and gave reasons why he accepted PW1 evidence; finding him reliable.

16.  In particular, the magistrate said although PW1 was looking through a narrow gap he could physically move around to get a better view if necessary so the magistrate was sure PW1 saw what he said he saw.  He found nothing obstructed PW1’s view of the appellant and he was only a few metres away.  He noted that PW1 watched the appellant for about 10 minutes; plenty of time to see and determine what he was doing in the context of the surroundings.  That is hammering on electrical goods to dismantle them as were other people there doing a similar job.

17.  In addition, the magistrate believed the identification evidence was safe and reliable because when another man saw PW1 the men all moved away and the appellant moved in the direction of PW1 not away from him. The magistrate said if PW1 lost sight of the appellant at all it was fleetingly. 

Grounds of Appeal

18.  The appellant did not attach any grounds of appeal to his notice but during the appeal he repeated his defence.  In essence he said the scrap yard is close to his home and he went there to buy something for $300.00.  He was just looking around when arrested.  It was not him dismantling fridges and he did not work there.  He submitted that he was a victim of misidentification. 

19.  He did state he was advised not to give evidence and was not allowed to speak during his trial.  He said his lawyer told him he could not call a defence witness.  Upon clarification, he was not submitting he was not properly represented during the trial as a ground of appeal. 

Discussion

20.  I have considered the magistrate’s findings and he obviously carefully assessed the evidence.  He was alive to all issues submitted.  He found the defence case lacking credibility and rejected it.  Whereas he found PW1 reliable and credible. 

21.  There is no reason or justification to go behind his findings on the credibility of the witness.  He had the advantage of hearing and seeing the witness give evidence and studying his demeanor. 

22.  There was an anomaly in the magistrate’s Statement of Findings at para 21 under the heading “Identification” where he says “in any event there was no challenge by the defence in relation to the identification of the appellant by PW1”.  Clearly from the papers and transcript it was the opposite.  However, from the Statement of Findings it is clear the magistrate did analyse the identification evidence and did it carefully in spite of that sentence.  This anomaly is not fatal. 

23.  In finding the appellant was employed he took into account the relevant authorities when considering what defines employment.  Following R v IP Po Fai, HCMA 1201/1995 he bore in mind that working at a place per se was not taking up employment, although in the absence of other evidence one may draw the necessary inference. 

24.  He also referred himself to other relevant authorities as to what constituted employment.  He identified the pertinent factors.  He took into account the place where the appellant was seen breaking up old electrical appliances whilst surrounded by mountains of old electrical appliances.  This scrap yard was not named but it was fenced off and surrounded by a crude form of fencing.  There were tools and work tables to carry out dismantling work associated with scrap yards of this nature.  There was obviously an electricity supply.  This denotes private property and a business.  Moreover, the appellant did this work; repeating the actions for about 10 minutes.  It was not a one-off act.  I am sure on the evidence when considered as a whole the magistrate rightly drew the only irresistible inference against the appellant that he was taking up employment.

Conclusion

25.  Whether a witness is credible or reliable is a matter entirely for the magistrate to decide.  In the event the findings of fact made by that magistrate are unreasonable or illogical or contain inherent improbabilities then the conviction will be unsafe.  The same applies if the magistrate when dealing with the evidence erred in his reference of material facts or omitted or failed to consider material facts then again the conviction would be unsafe. 

26.  Here I do not find the findings unreasonable, illogical or inherently improbable.  The magistrate did not fail to consider any material fact or misunderstand or misquote any material fact.  I, having considered the papers before me, do not find any reason not to believe the evidence of PW1.  I am satisfied the magistrate fairly and properly considered the issues raised by the appellant and was not plainly wrong in his finding PW1 was credible and the identification evidence safe.

27.  I find no basis to interfere with the magistrate’s findings of fact and his assessment of the credibility of the witness. The same applies to the compelling inference the magistrate drew that the appellant was taking up employment.  The evidence proved beyond reasonable doubt the appellant did take up employment while being a person in respect of whom a removal order is in force.  Therefore, the appeal is dismissed.