HKSAR v. HUSSAIN, SABIR

HCMA 305/2025

[2026] HKCFI 5282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 305 OF 2025

(ON APPEAL FROM STCC 574/2024)

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BETWEEN

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J U D G M E N T

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1.  The appellant (being D2 in the trial) was convicted after trial of one count of taking employment while being a person in respect of whom a removal order was in force[1]. He was sentenced to imprisonment of 22 months and 14 days.

2.  The appellant now appeals against conviction.

Prosecution case

3.  At about 2:48 p.m. on 11 February 2025, Immigration Officers, including PW1 and PW2, dressed in plain clothes, conducted an operation at a restaurant named Chill Out Chaozhou Cuisine (“the Restaurant”) in Aberdeen. Upon entering the Restaurant, the officers observed the appellant and the other co-defendant (“D1”) washing dishes and tableware at the sink in the kitchen. At that time, the appellant was wearing plastic gloves, over which he put on a pair of grey labour gloves. PW2 observed the appellant washing tableware at the sink for less than 10 seconds before disclosing his identity to him.

4.  The admitted facts relied upon by the prosecution included that the appellant was arrested by the police on 23 October 2023; a removal order was issued against him and served on him on 8 April 2024; that removal order remained in force on 11 February 2025; the appellant knew he was prohibited from taking up any employment, whether paid or unpaid, or establishing or joining in any business; and on 7 February 2025 he was released on recognizance and issued with Immigration recognizance.

Defence Case

5.  The appellant elected not to testify and did not call any witness.

6.  The defence position was that the prosecution had not proved employment. The defence challenged the reliability of the Immigration Officers’ evidence, especially because PW1 and PW2 were part of the same operation team and had entered the Restaurant together.

7.  The defence also emphasized that PW2’s observation of the appellant lasted for less than 10 seconds. It was argued that there was no direct evidence from the restaurant owner, duty manager, or management; no evidence of working hours, remuneration, salary, employer identity, or employment terms; and no investigation explaining why the appellant was present in the kitchen area.

8.  The appellant also relied on the comments said to have been made by Madam Justice Toh during the appellant’s bail application, including concerns about how the prosecution would prove employment where the observation was very short and the restaurant owners had not been interviewed.

Magistrate’s findings

9.  The magistrate considered PW1’s evidence and found it unsatisfactory. He did not accept PW1’s evidence[2].

10.  The magistrate found PW2’s account was clear and firm and he was unshaken under cross-examination. He accepted PW2’s explanation as to why he did not ask the appellant to put on the gloves for photo-taking. He found PW2’s evidence was consistent with other accepted evidence. He found PW2 honest and reliable[3].

11.  The magistrate also considered the remarks made by Madam Justice Toh during the bail application of the appellant but concluded that the evidence before him supported the prosecution case. He found that a restaurant kitchen was a restricted working area used for cooking and cleaning and was not a place where strangers or random persons would casually pass through. Further, the appellant was observed washing tableware in the kitchen, using a sink that was clearly a facility of the restaurant, and dressed in work gear typical of a kitchen worker, namely wellington boots, an apron, plastic gloves and grey labour gloves. While he noted working at a place per se was not employment, he stated that the court might still come to the irresistible inference that the performance of certain work was to fulfill duty under an employment contract. On the totality of the evidence, the magistrate came to the irresistible inference that the appellant was working under employment as an odd job worker at the Restaurant. He found the prosecution had proved all elements of the offence beyond reasonable doubt and convicted the appellant[4].

Grounds of appeal

12.  The appellant’s grounds of appeal are as follows:

(1) the magistrate erred or misdirected himself on the evidence and failed to consider the prosecution case was tainted by PW1’s untruthful and unreliable evidence;

(2) the magistrate erred in law and fact and failed to consider PW2’s evidence was not sufficient to support the only irresistible inference that the appellant was in employment as an odd job worker; and

(3) the magistrate erred and failed to consider there was no evidence to prove employment relationship between the Restaurant and the appellant.

Consideration

13.  The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power. The judge must be satisfied that the appellant’s guilt has been proved beyond reasonable doubt on the evidence, failing which the appeal must be allowed. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict. It was recognized that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of facts based on oral testimony. Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

14.  Regarding Ground (1), the appellant repeatedly emphasized that, as PW1 and PW2 were members of the same team conducting the investigation, the magistrate’s finding that PW1 was untruthful cast doubt on the entire prosecution case. In advancing this submission, the appellant appears to have overlooked the principle that the credibility and reliability of each witness must be assessed independently. The fact that one witness is found to be untruthful does not necessarily mean that other witnesses are also untruthful. If the appellant’s submission were correct, it would follow that whenever one prosecution witness is found to be unreliable or untruthful, the prosecution case as a whole must fail. That proposition is plainly unsustainable. PW1’s evidence related solely to D1 and did not concern the appellant. Accordingly, I reject the appellant’s submissions on this point.

15.  Grounds (2) and (3) relate to sufficiency of evidence against the appellant and can be dealt with together.

16.  Under these 2 grounds, the appellant submitted that PW2 only observed the appellant for less than 10 seconds, there was lack of evidence from owners or management of the Restaurant to explain what the appellant was doing there and the terms of employment. The appellant also relied on the remarks of Madam Justice Toh in granting bail to the appellant that this type of clothing was not necessarily the clothing of a restaurant dishwasher.

17.  It is not in dispute that PW2 only observed the appellant for less than 10 seconds. Regarding the appellant’s clothing, PW2 explained why the appellant was not wearing gloves when the photographs were taken. I agree with the magistrate that PW2’s explanation was reasonable and did not cast any doubt on his credibility and reliability. Having considered the challenges to PW2’s evidence, I am satisfied that the magistrate was correct to reject the defence’s criticisms and to find PW2’s evidence cogent and reliable. The magistrate was entitled to find PW2 honest and reliable and accept his evidence.

18.  The appellant repeatedly contended that the owner or management of the Restaurant was not interviewed. While confirmation from the owner or management on the appellant’s employment status would strengthen the prosecution case, the lack of it does not prevent the magistrate from drawing inference from the evidence available.

19.  The evidence available in the present case includes:

(1) the appellant was found in the kitchen of the Restaurant;

(2) the appellant was seen washing tableware behind the sink in the kitchen for less than 10 seconds;

(3) at the time of observation, the appellant was wearing wellington boots, apron, and a pair of plastic gloves with grey labour gloves on top;

(4) the photographs (Exhibit P11(1)-(4)) depicted the appellant standing next to the sink with the apron hanging up

nearby, and the sink with bowls and dishes and dish soap foam;

(5) the sketch (Exhibit P9A) showed the layout of the Restaurant and indicated where the appellant was intercepted. He was inside the kitchen, not in the dining area of the Restaurant;

(6) at the material time, the Restaurant was open for business as there were customers in the Restaurant[5]; and

(7) the absence of evidence showing any relationship between the appellant and the Restaurant and/or owner and/or manager of the Restaurant.

20.  As the magistrate rightly pointed out, a restaurant is a place of food business and its kitchen is a place for cooking and washing. A restaurant kitchen is not a place for strangers or random people to enter. It is clear from the Statement of Findings that the magistrate took into consideration all the circumstances of the case, including those set out above, in finding the appellant was working in the Restaurant as an odd job worker.

21.  I have carefully considered the Statement of Findings. I am of the view that the magistrate had conducted a fair and balanced assessment of the evidence, properly rejected the evidence of PW1 and accepted the evidence of PW2. In his analysis, he correctly directed himself on the burden and standard of proof, the appellant’s clear record, the appellant’s right not to testify or call witness, and the proper approach to the drawing of inference. He also considered the relevant cases[6]. Having considered all the evidence, the magistrate drew the only irresistible inference that the appellant was working under employment as an odd job worker at the Restaurant.

22.  By way of rehearing, I have reviewed all the evidence in this case. I agree with the magistrate’s analysis and conclusion that the appellant was working as an odd job worker at the Restaurant. There is no merit in Grounds (2) and (3).

23.  For the reasons set out above, I am satisfied that the prosecution has proved its case against the appellant beyond reasonable doubt. Accordingly, the appeal against conviction is dismissed and the conviction is affirmed. As the appellant was granted bail pending appeal, the bail is revoked. The appellant shall surrender forthwith to serve the sentence imposed.