HKSAR V. RIASAT, KHAN AND ANOTHER

HCMA 1/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 1 OF 2016

(ON APPEAL FROM STCC 1179/2015)

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J U D G M E N T

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Part I (for 2^nd Appellant)

1.  I am dealing at this stage with only the appeal of the second appellant against his sentence.

2.  A brief background is that the second appellant was tried before the learned magistrate together with three others and he was convicted after trial of taking employment while being a person who remained in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.  He was sentenced to 22 months 2 weeks’ imprisonment.

3.  The first appellant was convicted after trial of taking employment while being a person in respect of whom a removal order is in force.

4.  Both their hearings on the appeal were listed today before me.  The first appellant appealing against conviction and the second appellant appealing against sentence.

5.  Both appellants were represented in the court below by a duty lawyer, but due to an administrative error, this court was not informed by the lower court that the first appellant required Pushto interpretation.  So I have adjourned the first appellant’s appeal against his conviction to a date to be fixed once we have organised a Pushto interpreter for him.

6.  I have enquired of the second appellant whether he wishes to have his appeal against sentence to be adjourned to be heard together with the first appellant or he has the option of having his appeal against sentence heard today.  The second appellant has chosen to have his appeal heard today.  Therefore his appeal proceeded.  The second appellant is not represented on the appeal.

7.  The prosecution case was based on the observations of police officers at a recycling depot in Pat Heung and the second appellant was seen moving and conveying air‑conditioners from a pile of second‑hand air‑conditioners together with the other accuseds.  The observation was made on 21 April 2015 and the second appellant was arrested on that day.

8.  It was not disputed that the second appellant landed unlawfully in Hong Kong on 22 September 2014 and was released on the recognizance on 25 October 2014.

9.  The police officer who made the observation gave evidence and he said that the second appellant was working on the site and he was wearing wellington boots at the time.  The police officer said that when the photographs were taken of the second appellant, he suddenly took off his wellington boots. The second appellant was eventually convicted and in mitigation the duty lawyer had informed the court that the second appellant is married with children and has a clear record in Hong Kong and his duty lawyer asked the court to deduct the period of his administrative detention of 24 days from any sentence she may impose.

10.  On appeal before me, the second appellant insisted that he did not take up employment.  I had to remind him that his appeal is only against the sentence.  Nevertheless the issue of whether the second appellant was employed or not had been considered by the learned magistrate fully prior to her conviction of him.  So really the appeal of the second appellant is based on the fact that he considered the sentence imposed on him to be manifestly excessive.

11.  The second appellant also submitted that his family had been affected by his term of imprisonment.  He said that his wife suffered a heart attack when she heard that he had been imprisoned.  However, as Mr Leung pointed out, the consequence to the family as the Court of Appeal had many times pointed out is not a ground of mitigation because the appellant should have foreseen the consequences prior to committing the offence.  This type of offence is viewed very seriously by Hong Kong society because of the difficulty of enforcement.  Much public funds and resources are used in order to prevent this type of offence from happening.  So the Court of Appeal in HKSAR v Usman Butt in 2010[1] laid out a guideline for this type of offence and they said that even on a plea of guilty, the sentence should be one of 15 months’ imprisonment.

12.  In this case, the second appellant was convicted after trial, so the learned magistrate imposed a sentence of imprisonment of 22 months 2 weeks.  As far as the administrative detention of 24 days is concerned, the learned magistrate had considered and very correctly pointed out that it was not connected to the present offence, and the learned magistrate properly refused to exercise her discretion in this matter. I cannot see any grounds for disturbing the sentence imposed by the learned magistrate and therefore the appeal is dismissed.

Part II (for 1^st Appellant)

13.  This is an appeal of the first appellant in this case against his conviction.

14.  This case was first heard on 22 April 2016 when the first appellant appeared on appeal before this court together with the second appellant.

15.  On that day, this court proceeded with an appeal of the second appellant against his sentence while the first appellant’s appeal against conviction with adjournment to today.

16.  In fact, the written grounds had been made by the first appellant and he handed them in court on 22 April 2016 to the court and to counsel for the respondent.  The only reason for the adjournment was because the first appellant spoke Pushto and the interpreter who was arranged for the hearing on 22 April 2016 was a Bengali interpreter due to a miscommunication from the lower court which had failed to inform this court that the first appellant spoke Pushto.

17.  The first appellant stood trial together with two other defendants before Miss Kathie Cheung.  The first appellant who was the second defendant in the case and had pleaded not guilty to the charge of taking employment while being a person in respect of whom a removal order is in force, contrary to the Immigration Ordinance Cap 115.

18.  The trial in the lower court was conducted by counsel representing the appellant in this case.  He was a duty lawyer counsel who represented all the defendants in the case.

19.  The prosecution’s case as summarised by the learned magistrate in the Statement of Findings was that on 21 April 2015, the four defendants, in groups of two, were seen moving and conveying second‑hand air‑conditioners from a pile of second‑hand air‑conditioners to two pallets inside the depot.  This was witnessed by officers during a five‑minute observation outside a recycling depot in Pat Heung.

20.  It was not disputed that on 9 April 2015, a removal order had been issued against the first appellant and served on him on 13 April 2015.  On 20 April 2015, the first appellant had been released on recognizance and one of the terms was that he was prohibited from taking up any employment in Hong Kong.  Also produced at trial were photographs taken on the day of the arrest of the first appellant and that was exhibited Exhibit P7.  The photographs clearly showed the interior of the recycling yard and clearly showed the second‑hand air‑conditioners piled up to one side of the yard.

21.  At trial, the first appellant said that he had been released on recognizance only the evening before the day of the offence. He had slept in a park in Pat Heung and the following day he was on his way to a bus stop when a police officer approached him and took him to the recycling yard where he was subsequently arrested.  So clearly his case is that he had been framed by the police.

22.  In the trial, it was clearly brought to the learned magistrate’s attention that the first appellant took issue with the fact that no photographs were taken of him while he was alleged to be working and that it is also the first ground of appeal.

23.  Also complained of by the first appellant was that the police officer would not have been able to observe the first appellant through the main gate because of the height of the main gate and that was a matter which was also brought out before the learned magistrate.

24.  Also at issue at the trial was the first appellant’s contention that his clothes was clean and if he had been working, it was submitted by the defence that his clothes must have been dirty and messy which was also the second ground of appeal.

25.  And in fact, the first appellant acting in person before me today reiterated again to the court his first two grounds.

26.  The first appellant claimed that since he had been only released from prison shortly before his arrest for the present case and he had previously served a sentence for illegal employment, he would not be so silly as to work again illegally so shortly after his release.  This was also ground three of his grounds of appeal.

27.  Ground four was that he was not wearing hand gloves or safety shoes and therefore he could not have been working as claimed by the police officers.

28.  Matters that were raised in the grounds of appeal were in fact dealt with in the lower court by the learned magistrate, also the learned magistrate said that the height of the main gate was no bar to the observation of the police officers because the prosecution’s witnesses actually marked on the photographs, the gaps in the fence through which the observation was conducted.  As for taking photographs of the appellant while he was working, common sense will say that it would be rather difficult to take proper photographs through the narrow gap in the fencing.

29.  As for the complaint about clothing, the learned magistrate dealt with it in her Statement of Findings and observed that the photographs are not studio photographs and were instamatic photographs and therefore may not clearly show marks which may be on the clothing and so it is not supportive of the defence case that they were not working, nor the learned magistrate said would it shake the credibility of the prosecution’s witnesses.

30.  As for ground three about the first appellant not wanting to work shortly after his release from prison again that had also been dealt with by the learned magistrate, I do not need to consider that ground further.

31.  As for the contention of the first appellant that he was not wearing gloves or proper shoes.  Again it does not render the prosecution’s case weaker because as observed by counsel for the respondent, actually the hands of the first appellant in the photographs were behind him, and even if he had no gloves on him at the time photographs were taken does not mean that he could not have carried the air‑conditioners.

32.  We must not forget that the findings of the learned magistrate were based on her finding of facts after hearing the evidence that was given by witnesses before her.

33.  This court is at a disadvantage in that I do not have the opportunity to hear or see the witnesses giving evidence, so clearly whether the learned magistrate believed the police that the CCTV camera was not functioning is a question of fact, and I would accept her finding of facts in that matter unless there were evidence to the contrary.

34.  Also worth mentioning is the respondent counsel’s submission whether there is sufficient evidence to establish employment on the facts before the learned magistrate.  It is of course a question of fact and whether the only irresistible influence may be drawn from the surrounding facts in each case.

35.  Mr Leung, appearing for the respondent on the last occasion, in his well‑presented written submission, referred to the Court of Final Appeal case in HKSAR v Ferosh [2014] 5 HKC 104 where the Court of Final Appeal held that in the case of Ferosh, the inference of employment was not the sole and irresistible influence to be drawn from the evidence. In that case, the Court of Final Appeal observed that the place where that appellant was carrying out some form of manual work was a derelict metal shed and was not obviously a place of employment.

36.  However, Mr Leung’s submission was that this case can be distinguished from that Ferosh case as can be seen from the photographs, the recycling yard showed that the air‑conditioners were stacked up systematically. It was not what would commonly be‑called a dumping ground for rubbish.  Also, the learned magistrate found that the air‑conditioners belonged to the first defendant in this case.

37.  From the way that the air‑conditioners were placed they could not be abandoned items, and therefore it is submitted by Mr Leung that the learned magistrate was correct in drawing the only irresistible influence that the first appellant was working on that site.

38.  After considering the evidence in this case and the Statement of Findings of the learned magistrate, it is clear that her conviction in relation to the first appellant was based on ample evidence.

39.  The learned magistrate also set out in her Statement of Findings reasons why she did not accept the evidence of the appellant at trial.  The learned magistrate has set out those reasons in paragraph 21 of her Statement of Findings and I do not wish to repeat them here.

40.  Suffice it to say that after considering the grounds of appeal, the learned magistrate’s Statement of Findings and the photographs, I have come to the conclusion that there are no reasons for disturbing the learned magistrate’s findings and therefore the appeal is dismissed.