HKSAR v. HASAN RASHEED

HCMA647/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 647 OF 2012

(ON APPEAL FROM STCC 3191/2012)

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JUDGMENT

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1.  On 8 January 2013 I dismissed the appellant’s appeal against the sentence imposed upon him subsequent to his conviction on 10 September 2012, after trial, on a single charge of taking up employment whilst being a person in respect of whom a removal order is in force, contrary to the Immigration Ordinance, Cap 15.

2.  On 11 January 2013 application was made to the magistrate by the appellant for leave to appeal out of time against conviction. That application was granted and the appeal was set down for hearing on 23 April 2013. On that date the appellant read out a lengthy statement which, in effect, constituted his grounds of appeal which may be smmarised as follows: first, that the magistrate erred in rejecting the evidence of the defence witness, one Majharul Islam, which she did because she had misunderstood his evidence; second, the magistrate erred in accepting the evidence of the police officer who testified on behalf of the prosecution.

3.  On the appellant’s application the matter was adjourned to 28 May 2013 in order to obtain a transcript of the defence witness’s evidence. That day the appellant sought a further adjournment as the transcript was not available. The prosecution, fairly, did not object to the further adjournment which was until today. The transcript of the evidence of the defence witness is now to hand.

4.  The prosecution case comprised a number of exhibits, including a set of agreed facts, as well as the oral testimony of one police officer. The police officer testified that he had noticed the accused inside the premises of a motor repair shop in Sheung Shui: the way he conducted himself aroused the suspicions of the police officer; he managed to get within approximately 5 metres of the appellant with an unobstructed view of him; for about one and a half minutes he observed the appellant; the appellant was sandpapering the right side of a black vehicle bumper which was placed in front of him on top of a wooden box; he intercepted the appellant who produced a recognizance issued by the Department of Immigration: he arrested the appellant. The police officer testified that a the appellant wore a white upper garment, blue jeans and gumboots. In cross-examination it was put to the police officer that it had been another person and not the appellant who had been using sandpaper and that the owner of the repair shop, a Mr. Lung, had been talking to the appellant: the officer disputed both propositions. He agreed that he had not looked for fingerprints at the scene nor had he taken a photograph of the appellant at the time he was working.

5.  The appellant testified as did Mr. Islam. It was the appellant’s case that he was not working in the repair shop but rather had gone there at the request of Mr. Islam to discuss his, the appellant’s non-payment of rental, it being the appellant’s case that he and Mr. Islam jointly occupied a house in Ma Shi Po village which they leased from Mr. Lung. Mr. Lung, he said, had telephoned Mr. Islam and require the appellant to go to see him so as soon as possible. The appellant said that he had been wearing the clothing described by the police officer when Mr. Islam told him to go to see Mr. Lung and did not change before doing so. He did not have the money to pay his rental but had simply gone to speak to Mr. Lung. Whilst he was talking to him, another person in the repair shop had mentioned that a police van had driven past the premises and that, because of the clothing which the appellant was wearing, he could be in trouble as the police may suspect he had been working there.

6.  He issue raised by the evidence of Mr. Islam – which the appellant suggests the magistrate misunderstood – arose during the course of his cross-examination when it transpired that his own recognisance, for he is also a person in respect of whom a removal order is in force, showed a residential address completely different from Ma Shi Po village. The transcript of the evidence of Mr. Islam is unremarkable. It was his testimony that , as a matter of fact, he continued to reside in the same premised in Ma Shi Po village with the appellant even though a different address appeared on his recognizance. It was his testimony that the reason for this was that mail delivery to ma Shi Po village was erratic so he had provided the new address, informing the Immigration Department that it was his residential address, simply so that he received his correspondence. It was his further testimony that he lived “ at both places”.

7.  In re-examination by counsel, instructed by the Duty Lawyer Scheme, who appeared on behalf of the appellant at trial, Mr. Islam made reference to the fact that at earlier points in time he had had provided the International Social Services organisation with proof that he had a tenancy agreement in respect of the Ma Shi Po village premises, which he was required to do in order to collect a subsidy of his rental. Counsel, after discussion with the prosecutor as well as with the court, decided not to exhibit the documents to which she had invited Mr. Islam’s attention concerning this aspect of the testimony.

8.  Of course, the real issue in this matter is whether or not there is evidence sufficient to establish beyond reasonable doubt that the appellant had taken up employment, whether paid or unpaid, as testified to by the police officer. The appellant does not have to prove anything in the proceedings: the issue that he raised concerning his co-tenancy with Mr. Islam of the premises leading to his innocent reason for being present in the repair shop is a matter which, if it were or might be true, may raise a doubt in the court’s mind. That would be sufficient to result in the appellant being acquitted.

9.  A magistracy appeal is a rehearing before this court on the material before the magistrate together with such further materialise this court may permit to be reduced. It is incumbent on this court to arrive at its own decision but subject to the recognition that the magistrate has the advantage over this court in that she saw and heard the witnesses testify. This court will be loathe to interfere with findings of credibility made by the trial court.

10.  The magistrate found, for compelling and cogent reasons which she gave, that she did not accept the testimony of the appellant or Mr. Islam. The magistrate was fully aware of the defence case and in no way misunderstood it, generally, or, specifically, the evidence of Mr. Islam. The appellant has made much of the fact that the magistrate referred to he and Mr. Islam sharing the premises for two years whilst, he contends, Mr. Islam’s evidence was that they had shared the premises for three years: a proper reading of Mr. Islam’s evidence is that he had lived in the premises for three years but he makes no mention of having shared them with the appellant for that period. Mroe to the point, however, is the magistrate’s rejection of the claim that, in truth, they occupied the premises jointly. The magistrate also made reference to other improbabilities in the version advanced by the appellant: she was unimpressed by the appellant’s evidence of the comment by another person about the drive past by a police vehicle and the possibility of the appellant’s clothing making the police suspicious of him. That verges on the nonsensical: it is contrived.

11.  The magistrate found, too, that the police officer was an honest and reliable witness upon evidence she both could and should rely.

12.  In my judgement the magistrate was entitled to make the findings as the did on credibility, accepting the evidence of the prosecution and rejecting that of the appellant and his witness. No sensible criticism may be made of those findings. Once made, the evidence of the police constable renders the conviction of the appellant inevitable.

13.  The appeal is dismissed.