HKSAR v. HARJEET SINGH

HCMA 506/2019

[2020] HKCFI 373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 506 OF 2019

(ON APPEAL FROM STCC NO 1571 OF 2019)

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JUDGMENT

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1.  On 26 September 2019, the appellant was convicted after trial of one count of taking employment whilst being a person in respect of whom a removal order is in force, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115. For that offence he was sentenced to a term of imprisonment of 22 months and 2 weeks. By his Notice of Appeal dated 30 September 2019, he seeks to appeal conviction alone. However, before this Court he asked for leave to appeal sentence out of time. Having heard him on that point and found that he had no grounds of appeal against sentence, I refused him such leave.

Grounds of Appeal

2.  The appellant did not file any grounds of appeal against conviction.  Before this Court he submitted:

   (i)  He was prejudiced in his defence by the absence of either of the two other men identified by PW1.  He had asked for them to be called and his legal representatives had failed to do so.

   (ii)  He had also asked for CCTV footage of the locus which had not been provided and although he requested this from his legal representatives, they had not properly pursued the matter.

Prosecution Case

3.  The prosecution called just one witness.  On 15 April 2019, PW1, PC 25255, observed the appellant and two other males at 12:48 pm in the vicinity of the tailboard and loading platform of a lorry bearing registration number NR 972 in a carpark located on the ground floor of Vigor Industrial Building, 49‑53 Ta Chuen Ping Street, Kwai Chung.  The appellant and one other were seen by PW1 to push a trolley of goods from the tailboard to the loading platform whilst the third male was standing on the loading platform itself.  He had observed them talking to one another.  That observation lasted about two minutes from a distance of three to four metres.  He positively identified the appellant as one of the men moving the goods.  The appellant admitted that he was the subject of a removal order on 15 April 2019.  PW1 accepted that the appellant was not wearing gloves or safety boots at the relevant time.

Defence Case in Trial

4.  The appellant testified but called no defence witnesses.  He stated that he had arrived at the scene at 12:15 pm to meet a friend, Zahir, who was standing near a truck but on the loading platform at the time that he met him.  He had only managed to say hello when the officer intervened.  Defence counsel submitted that the act of pushing a trolley alone was insufficient to amount to employment.  There was no evidence of specialist clothing or remuneration to support the prosecution case.

The Test

5.  This is an appeal by way of rehearing on the papers.  There were two issues in trial, the credibility of PW1 and what amounts in law to the taking of employment.  The issue on appeal appears to be the competence of counsel and instructing solicitors.  In this regard the hurdle over which the appellant must climb is very high and made more difficult by the fact that he is unrepresented.

6.  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”.  Zervos J (as he then was) in HKSAR v Fok James Alistair [2015] 4 HKC 247, explained the “plainly wrong” test:

“10. In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, whether the finding was one that no reasonable magistrate could have reached.”

The appellant has said no more about this before the Court today and I have no reason to disbelieve the evidence which was tendered before the magistrate in respect of PW1.

7.  Mr Ng on behalf of the prosecution has taken the Court in his submissions in writing to the findings of the magistrate and has rightly submitted that the magistrate has carefully assessed the evidence including the issues raised by the appellant at trial.  He was however not alive to all the issues submitted today.  There is nothing within the papers which indicates that these matters were raised before the court.  The magistrate concentrated upon the oral evidence of PW1 and of the defendant and found the defence case to be unconvincing and so rejected it.  He found PW1 reliable and credible and there was no defence evidence to undermine that.

8.  As for the other matters raised today for the first time, I have out of an abundance of caution, offered the appellant the opportunity to take his allegation of incompetence further but to do so in a proper manner and with legal assistance.  That course will take time and he has little of his current sentence left to be served.  He has declined that invitation.  He expects that he will be repatriated to India on completion of his sentence and he wishes to join his family.

9.  That being the case, I look again to the papers.  I can find no reason or justification to go behind the findings of the magistrate on the credibility of the witnesses.  He had the advantage of hearing and seeing the witnesses give evidence and studying their demeanour.  As for the issue of drawing an irresistible inference that the appellant was observed in the act of “employment”, the magistrate referred to several authorities.  He was satisfied beyond reasonable doubt that the lorry tailgate and loading platform were a “place of employment” and that the actions the appellant was seen to carry out were in the course of such employment and not carried out gratuitously or arising from some other special relationship.  In doing so, the magistrate went further than the defence case, which was that these acts had never occurred.  For all of the reasons given by him I find that his conclusion was justified and I agree with it.

Conclusion

10.  Having had the benefit of the magistrate’s Statement of Findings, and of the submissions today including Mr Ng’s written submissions, I am satisfied that the prosecution has proved its case against the appellant beyond reasonable doubt.

11.  I find no merit in this appeal.  Accordingly, this appeal against conviction is dismissed.

12.  There will be no order as to costs.