HKSAR V. ASAD, MUHAMMAD

HCMA 559/2021

[2022] HKCFI 1404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 559 OF 2021

(ON APPEAL FROM STCC 1165 OF 2021)

______________

______________

_______________

J U D G M E N T

_______________

1.  The appellant appeals against his conviction of the offence of taking employment while being a person remaining in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance (Cap 115).

Background and admitted facts

2.  On 26 April 2011, the appellant was refused permission to land in Hong Kong.  A removal order was issued against and served on the appellant and remained in force against the appellant on 12 April 2021.

3.  On 10 January 2020, the appellant was provided with an Immigration Recognizance Form.  The appellant was aware that he was prohibited from taking up any employment, whether paid or unpaid, while he was released on such recognizance.

The prosecution case

4.  On the 12 April 2021, two Immigration officers conducted an operation at an electrical appliance store namely, “AMSAH ELECTRONICS,” located at G/F, 223 Lai Chi Kwok Road, Kowloon, (“the Shop”).

5.  At around 1125 hours, Mr Lee Chi Hang, Immigration Assistant (“Lee”) disguised as a customer and entered the Shop.  He was accompanied by his colleague called Ms Ng.  (Ng was not called in the trial).  Both wore civilian clothes.

6.  The appellant and the owner of the Shop, Mr Mohammed SaLeem Arshad (“Mohammed”) was sitting on top of a washing machine on the left-hand side outside the Shop and chatting.

7.  Ms Ng went into the Shop and Mohammed followed her.  At the same time Lee walked to the right-hand side outside the Shop.  Lee then stood in front of a top-loaded washing machine and opened its lid.

8.  The appellant went to the left of Lee and helped him open the metal roll inside the washing machine and told Lee $900 dollars in Cantonese fluently.  Lee then closed the washing machine outside the Shop.

9.  Lee then went inside the Shop and the appellant followed him.  Lee then stood in front of and pointed to a front-loaded washing machine inside the Shop. The appellant went to his left and told him $1,100 dollars in Cantonese.

10.  Lee then asked the appellant how is the delivery.  The appellant answered in fluent Cantonese that “it depends on what district you are living in, possibly that you have to add money to it.”  At this time they were about 4 metres from Mohammed and Ng.

11.  The Shop was about 5-6 metres wide and less than 15 metres long, with only one corridor.  Lee then intercepted and arrested the appellant.

Defence Case

12.  The appellant gave evidence.  The appellant said Mohammed was his maternal cousin.  The appellant said Mohammed did not ask him to do anything in the Shop and he had no obligation to help Mohammed.

13.  The appellant said he often sat inside the Shop and listened to Mohammed communicating with customers.  He had some idea of the prices of machines.  However he was not sure when Lee asked him about the front-loaded washing machine inside the Store.  He did not quote the price as alleged by Lee but simply said that it was between $900 ‑ $1,100.

14.  Mohammed gave evidence.  He testified that he is the cousin of the appellant and was the owner of the Shop.  The Shop was established in September 2020.  Mohammed said the appellant came to eat and chat.  Mohammed did not request the appellant to help him with his business in the Shop and the appellant was not his employee.  Mohammed said when customers came, he negotiated with them in front of the appellant.  At the material time, he was sitting together with the appellant outside the Shop.  Then Lee and Ng approached the Shop.

15.  When Ng went into the Shop, Mohammed said he followed her.  He did not know what happened between the appellant and Lee outside or inside the Shop.  Mohammed said the Shop had no delivery system.  If someone purchased a machine and made a request, he would then arrange a Gogo van for delivery.

The magistrate’s finding

16.  The magistrate[1] accepted the testimony of Lee.  The magistrate gave reasons at paragraphs 23 to 27 of the Statement of Findings and rejected the evidence of the appellant and Mohammed[2].  She rejected the defence case that the appellant and Mohammed were relatives.

17.  The magistrate found on the basis and strength of the prosecution evidence the only reasonable and irresistible evidence to be drawn from the facts was that the appellant was taking employment as an odd job worker at the material time and regarded its location as compelling.

Ground of appeal

18.  Mr William Allan Counsel for the appellant, who was also the defence counsel at trial, appeals against the conviction on one ground.  That ground is that the magistrate erred in law and in fact in finding that the only irresistible inference drawn from the set of facts was that the appellant in performing the work allegedly observed by Lee concluded that the appellant was taking employment.

Appellant’s submissions

19.  Mr Allan submitted that the inference that the appellant was taking employment could not be drawn on the facts before the magistrate.  He referred to the following facts and submissions:-

(i)  The appellant and Mohammed were cousins, therefore there was a clear family relationship between the appellant and the owner of the shop.

Mr Allan contended that the fact the owner of the shop was a relative of the appellant there was an innocent reason why the appellant was present at the shop giving his cousin a helping hand.  He complained the magistrate failed to consider properly or at all the vital fact there was a “real family connection or relationship” between the appellant and Mohammed.  Reliance was placed on the cases of R v Ip Po Fai[3] and HKSAR v Hari Ashdeep Singh[4].

(ii)  Lee’s initial observation was that the appellant and Mohammed were seen outside the shop chatting whilst sitting on top of a washing machine.

Mr Allan submitted that one does not see employed salespersons sitting on top of washing machines, they are selling.

(iii)  The conversation between the appellant and Lee.

Mr Allan contended at its highest the conversation did not prove the appellant was employed at the shop as a salesperson but may have been there just innocently helping his cousin.

(iv)  On the question asked by Lee on how is the delivery.

Mr Allan argued that if the appellant was a salesperson of the Shop the appellant would have asked where Lee lived so a sale could be made.  A salesperson would not have given the response “it depends on what district you are living in possibly that you have to add money to it.”

(v)  The appellant was never seen moving or unloading goods or anything in the shop nor was he seen manning the shop alone or the cash till.

Mr Allan contended that the fact Mohammed was in the shop and the appellant was not there alone was indicative of the appellant not being a salesperson but someone who was innocently helping his relative.

(vi)  There was no evidence of payment of salary nor of Mohammed giving the appellant orders nor exercising control over him.  There was no evidence of the handing over of money or actually buying or selling the washing machine.

Mr Allan contended that without the above there was insufficient evidence to prove the appellant was a salesperson.

(vii)  The washing machines were second hand.

Mr Allan asserted that the appellant did nothing to show there was a negotiable price, if the appellant was a salesperson at this second hand shop, he would surely have been more pro-active in his conversation with Lee to make a sale.

20.  In addition to the above submissions Mr Allan argued there was no need or necessity for the appellant to be employed at the Shop as the Shop was very small and was manned by Mohammed who was present at the time.

Consideration

21.  The only issue in this appeal is whether the inference of employment was the only reasonable inference to draw from the facts.

The submission that the appellant was the cousin of the shop owner Mohammed

22.  I turn first to deal with the submission that the appellant and the owner Mohammed were relatives.  Mr Allan’s contention was that there was “a real family connection/ relationship” which explains why the appellant was at the shop for an innocent reason and was innocently giving his cousin a helping hand when he attended to Lee.

23.  The magistrate rejected the evidence of the appellant and Mohammed that they were relatives[5]. At paragraph 36 of the SOF[6] the magistrate attached no weight to the document, exhibit D1, tendered as proof that the appellant and Mohammed were relatives as it was hearsay evidence.  The magistrate enjoyed the advantage of having received the evidence first-hand.  As to whether a witness is credible and reliable is purely within the scope and decision of the trial magistrate.  I see no error in the magistrate’s evaluation and rejection of the appellant’s and Mohammed’s evidence nor the rejection that they are relatives.

24.  Despite the magistrate’s rejection of the appellant’s claim that he and Mohammed were relatives, the magistrate went on to decide that even if the appellant and the owner were relatives it only undermined but did do not rule out the inference of employment[7]. She said at paragraph 39 of the SOF[8]:-

“39. In any event, each case is unique on its facts. The Court should consider all circumstances and matters including but not limited to the nature of work conducted by the Defendant and the relevancy of the said relationship to the work conducted.

40. The Defendant said he answered the enquiries as PW asked him. He answered on ‘humanitarian basis’ and there was no reason behind it. Both the Defendant and DW said DW did not ask the Defendant to help with anything in the Store. Hence it was not a case that the Defendant help DW out because of their relationship. Even if they are relatives, I find it unreasonable that the Defendant did not just ignore PW or directly referred PW to the DW or asked DW for help if he was not sure about the prices.

41. While the alleged relationship of the two may arguably shed some light on why the Defendant allegedly visited the Store frequently and probably also on why DW allegedly negotiated with customers about the prices in front of the Defendant, as discussed above, I have found the Defendant’s knowledge of the prices of the washing machines could not be obtained merely by his alleged visits.  I also reiterate that I do not accept their evidence and attach no weight thereto.”

25.  It was entirely proper for the magistrate to conclude that even if they were relatives it did not rule out the inference of employment.  It was not disputed that there was no price tag or price list inside the Shop.  It was the appellant’s evidence that when Mohammed was busy with customers he would take out his phone to watch a movie and listen to music.  I find no fault in the magistrate’s rejection of the appellant’s evidence that the appellant had some idea of the prices of the machines because he frequently visited the Shop for 1 to 2 hours per day and listened to Mohammed communicating with customers[9]. She was fully justified to have found it an affront to common sense that although the appellant said he was unsure about the prices he simply uttered a price for no reason.  Moreover, despite Mohammed being in the Shop and near to the appellant, the appellant did not seek to ask Mohammed for the price or refer Lee to Mohammed[10].

26.  Moreover, Mohammed’s evidence was that although he was in the Shop at the time he was attending to Lee’s colleague Ng and he paid no attention to the appellant and Lee and did not see them.  The magistrate found this incredulous as the shop was small and when Lee and the appellant were standing inside the middle of Shop in the only corridor of the Shop they were only about 4 metres away from Mohammed[11]. She found that this was not a case where the owner did not know or see that someone was working in the Shop[12]. She found that being only a short distance away and with only Lee and Ng in the Shop, Mohammed would have seen and heard the appellant speaking to Lee.

27.  The magistrate was entitled to find that there was no family relationship between the appellant and the owner.  On this basis she carefully considered the prosecution evidence.  The magistrate found that at the material time and location the appellant was performing work[13] as the appellant did the following:

(i)  approached Lee when Lee opened the lid of the top-loaded washing machine outside the Store;

(ii)  helped Lee open the metal roll inside that washing machine;

(iii)  quoted the price of that washing machine by saying $900 in Cantonese to Lee;

(iv)  followed Lee to the front-loaded washing machine in the middle of the Store;

(v)  quoted the price of that washing machine by saying $1,100 in Cantonese to Lee, and

(vi)  explained to Lee the delivery arrangement upon Lee’s enquiry.

28.  In HKSAR v FEROSH[14] the Court of final Appeal pointed out that a “shop” is an obvious place of employment.  In the instance case it was an admitted fact that this was an electrical appliance store, unquestionably, an obvious place of employment.  Whilst at the Shop, the magistrate found that the appellant was not answering some general enquiries.  The appellant was quoting prices and providing information for the delivery arrangement of the goods in the Shop.  The prices the appellant provided were with exact and specific values.  She specifically found that the appellant could not have gained knowledge of the two different washing machines merely by visiting the store amongst the numerous goods in the Shop.  She concluded that the owner had approved or instructed the appellant to quote an exact price for the different goods in the Shop and answer enquiries regarding the delivery arrangement.[15]

29.  Having rejected the evidence that the appellant and the owner were relatives the magistrate rejected the contention that the appellant was there at the Shop for innocent reasons and that he was innocently giving the owner a helping hand.

30.  As this is a rehearing on the papers I am satisfied that the only reasonable inference to draw from the facts proved and found by the magistrate was that the appellant was in employment.  Even if the appellant was a relative of the shop owner, which the magistrate was entitled to reject, the appellant’s conduct in the Shop, an obvious a place of employment, was wholly consistent with a salesperson of a Shop.  The acts by the appellant revealed the nature of his work at the Shop.  The appellant was serving Lee a customer, informing him of the prices of goods in the Shop and showing him the products (the appellant opened the metal roll inside the washing machine) and answering enquiries. During this time Mohammed was nearby.  Mohammed did not intervene at all, he allowed the appellant to serve Lee independently.  The appellant did not ask Mohammed for prices, nor did Mohammed correct or check with the appellant regarding the information given to Lee.  All such acts prove the nature of the relationship between the appellant and Mohammed.  The appellant knew the products and their prices, he would have only been able to do that if he was a salesperson there and was permitted and or instructed to serve and answer questions from potential customers as any salesperson would do.  The fact that there was no evidence of payment of a salary or moving goods or manning the cash till does not prohibit the drawing of the only reasonable inference that the appellant was employed on the facts of the present case.

31.  Having reviewed the evidence before the magistrate, I am satisfied that on the facts the magistrate was correct to draw the conclusion that the only reasonable inference to draw from the facts was that the appellant was in employment.

Conclusion

32.  I found no merit in the complaints against the magistrate.  The appeal against conviction is dismissed.

Post script – abandonment of sentence by the appellant

33.  The appellant appealed against sentence together with his appeal against conviction.  Although the date of submissions against conviction were filed by the appellant on 7 and 30 March 2022, no grounds or submissions were filed in relation to the appellant’s appeal against sentence.  Upon the Court’s enquiry regarding the appellant’s grounds and submissions against sentence, the solicitors for the appellant notified the Court on 18 May 2022 that the appellant abandons his appeal against sentence.