HKSAR v. ALI, AMIR

HCMA 272/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 272 OF 2017

(ON APPEAL FROM STCC 214 OF 2017)

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J U D G M E N T

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Introduction

1.  The Appellant was charged with one count of taking employment while 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.

2.  At trial the Appellant was represented by counsel Mr James Sherry[1] and found guilty[2].  He was sentenced to 22 months and 2 weeks’ imprisonment.  The Appellant now appeals conviction. 

3.  The key issue at the trial was whether the facts as presented by the prosecution amounted to the Appellant “taking employment.”

Admitted Facts

4.  It was admitted that the Appellant entered Hong Kong unlawfully in August 2016 and remained in Hong Kong without the authority of the Director of Immigration.  The Appellant was subject to a removal order issued on the 8 September 2016 which was in force on the day of the offence[3].

5.  On 10 August 2016, the Appellant was last provided with an Immigration Recognizance Form.  The Appellant was aware that he was prohibited from taking up paid or unpaid employment in Hong Kong whilst on recognizance. 

6.  The Appellant was of clear record.

Prosecution Case

7.  The Prosecution called one witness in support of the charge, PW1, PC 15443, the observation officer.

8.  PW1’s evidence was that at about 9 am on 12 January 2017, when PW1 and his colleagues patrolled to No.49 Tung Choi Street, Mong Kok, he saw the Appellant, a South Asian male wearing a pair of white labour gloves, black jacket, black pants, and sport shoes. 

9.  PW1 observed the Appellant assembling a stall in Tung Choi Street by inserting an iron bar into the ground.  At the time PW1 also saw other iron bars as well as a number of red plastic boxes around the Appellant. 

10.  PW1’s observation of the Appellant was made for one minute from a distance of about five metres away from the Appellant and in good lighting with nothing impeding his observation. 

11.  After his observation, PW1 immediately walked up to the Appellant and revealed his identity by producing his warrant card.  When the Appellant was asked for proof of identity, the Appellant produced his recognizance formfor inspection.  Thereafter, PW1 called the Immigration officers for assistance. 

12.  At about 9:30am, PW1 arrested the Appellant and seized his gloves as an exhibit.  PW1 became concerned that the Appellant may try to escape as he noticed that the Appellant was looking around and mumbling.  PW1 handcuffed the Appellant’s hands behind his back.

13.  Under cross-examination, PW1 said while he was walking across Tung Choi Street, he saw a number of scaffoldings [sic stalls] being assembled and a number of pallet trucks.  About ten people of mixed or a variety of ethnic descriptions were seen in the vicinity.

14.  Under cross-examination, it was put to PW1 that the Appellant did not wear any labour gloves at the time and the Appellant had never done any work as described.  PW1 disagreed. 

Defence Case

15.  The Appellant elected not to give or call evidence nor call any witnesses. 

16.  It was the defence case that the Appellant was not wearing white labour gloves and he was not doing the work as suggested by the Prosecution and hence was not taking employment. 

Magistrates Statement of Findings

17.  In her careful assessment of the evidence, the Magistrate found PW1 to be reliable and truthful and delivered his evidence cogently without exaggeration.  She accepted his evidence in its entirety.[4]  She accepted that the Appellant was wearing gloves and was seen assembling a stall by inserting one of the iron bars into the ground. 

18.  Having found PW1 to be a credible witness, the Magistrate was aware the primary issue “was to consider whether the defendant’s behaviour at the scene amounted to taking of employment.[5]”

19.  The magistrate found that PW1’s observation for a short period of approximately one minute was sufficient enough for the Court to draw an irresistible inference that the Appellant was in employment. 

20.  Apart from accepting that the Appellant was seen inserting the iron bar into the ground wearing labour gloves she concluded from the other surrounding evidence such as, the large amount of iron bars, canvas sheets, plastic boxes and a large number of other stalls being assembled and a number of pallet trucks, that the Appellant was assembling or erecting a stall.  She found :

(i) that no reasonable person, who was unconnected to the stall, would have done such work,

(ii) the Appellant could not be a mere helping hand and

(iii) the Appellant was providing manual work and assembling the stall for money.

21.  The magistrate was satisfied that the sole and compelling inference on the proven facts was that the Appellant was in employment.

Grounds of Appeal

22.  In his Amended Perfected Grounds of Appeal, counsel for the Appellant Mr Nicholas Adams, advanced the following three grounds:

Ground 1 (“the money and employment finding”)

23.  The Magistrate erred in fact and law in finding that the Appellant was assembling the stall at the material time for money.[6] Mr Adams submitted that there was no evidence from which the only irresistible inference could be drawn that the Appellant was providing manual work for money. 

24.  Further, the Magistrate erred in fact and law in finding that the Appellant was in employment.[7]  This was not the sole and compelling inference. 

Ground 2 (“Error of law – misquotation of the law”)

25.  The Magistrate erred in law in misquoting the judgment of Hon Patrick Chan J (as he was then) in The Queen v Ip Po Fai, HCMA 1201/1995 in her findings[8] and demonstrated a miscomprehension of the law.  

Discussion

Ground 1 The employment and money finding

26.  Mr Adams contends that the Magistrate erred in finding that the Appellant was assembling the stall at the material time for money as there was no evidence for her to make such a finding.  There was no money found on the Appellant.  There was therefore no evidence from which she could draw the only irresistible inference that his employment was in return for money.

27.  On the employment finding, Mr Adams submits that the Magistrate was in error in finding that the Appellant was in employment as this was not the sole and compelling inference from the facts.  The other possible inferences amongst others, were the following: (i) the Appellant was erecting the stall as an unpaid favour for someone who was not his employer, but who knew he was doing it; (ii) the stall owner did not know he was erecting the stall or (iii) he was invited to help by one of the other persons there for no payment or (iv) he was just a helping hand. 

28.  Counsel for Respondent, Mr Prakash Daryanani submits that although there is no direct evidence of money being paid there is really no other credible reason for setting up the stall.  Mr Daryanani further points out, and correctly accepted by Mr Adams, that the offence can be committed by either “paid or unpaid” employment. 

29.  It is Mr Daryanani’s submissions that the inferences that were put forward by Mr Adams are no more than fanciful inferences in the circumstances. The Respondent submits that the Magistrate’s finding that the Appellant was in employment was the only reasonable inference to be drawn. 

30.  With respect, the long list of possible reasonable inferences listed by the Appellant in the Amended Submissions[9] did not warrant consideration by the court as it cannot be said that they provide a reasonable inference for the actions of the Appellant. 

31.  When considering whether the Appellant was in employment in her analysis of the evidence, the Magistrate found that the Appellant was an illegal immigrant, a person who knew he could not be lawfully employed.  She found:

“… no reasonable person, who was not connected with the stall, would have done such work. I also found that the Defendant could not be a mere helping hand. The description of PW1 as to what he saw the Defendant doing gave rise to the only irresistible inference that he was providing manual work and assembling the stall at the material time for money.” [10]

32.  On the evidence, the Magistrate was entitled and correct in finding that that the Appellant was providing manual work in erecting or assembling a stall whilst wearing labour gloves[11]. As can be seen in the sketch drawn in exhibit P5(a) and (b) and the photographs exhibit P6, the stall was being erected near to the stalls numbered 297, 298, 299 and 300.  The stall was being erected on Tung Choi Street itself not on the pavement.  Tung Choi Street is a street known for its street stalls.  The evidence was that at the time the Appellant was erecting the stall, there were a number of stalls being assembled and a number of pallet trucks in the vicinity of the Appellant.  It would be fanciful to suggest or infer on the evidence before the court, that at 9am, the Appellant was erecting this stall as a helping hand or as a favour. 

33.  As correctly accepted by both Mr Adams and Mr Daryanani employment can be paid or unpaid.  Although paid employment is an inference to be drawn from the circumstances of this case, I am satisfied that the Magistrate erred in finding that the Appellant’s employment was for money. 

34.  Despite the error in finding that the Appellant was employed for money, in the circumstances of this case, the erecting of the stall by the Appellant gave rise to the only irresistible inference that he was in employment. 

Ground 2 - (“Error of law – misquotation of the law”)

35.  In her statement of findings, the Magistrate stated the following[12]:

“I considered the relevant authority R v Ip Po Fai HCMA 1201/1995.  Working in a place is not per se employment but “in the absence of any other evidence, it is easy for the court to draw the necessary inference that a person is in employment”. (My emphasis)

36.  The Magistrate misquoted the passage.  The correct passage in Ip Po Fai, by Chan J (as he was then) states[13]:

“… it is clear that working at a place per se is not employment, although in the absence of other evidence, one may draw the necessary inference.”

37.  Mr Adams submits that describing the exercise of drawing a compelling, irresistible and only reasonable inference from proven facts as “it is easy” does not demonstrate appropriate care has been given to the task and is a matter of concern as it demonstrates that the Magistrate may not have fully understood that passage in the judgment. 

38.  Mr Daryanani rightly accepts that there is a misquotation by the Magistrate. 

39.  I accept there is clearly an error in the misuse of the words “it is easy.”  However when reading the statement of findings in its entirety and considering the passage in context, what must be asked is if the meaning conveyed in the correct passage is understood and the prevailing principle and test have been applied correctly by the Magistrate. 

40.  The Magistrate demonstrated an understanding and the meaning of the passage despite her misquotation.  She addressed herself correctly on the relevant law.  She provided considered reasons for her decision and was analytical in her consideration of the evidence whilst keeping the relevant directions in the forefront of her mind. 

41.  The magistrate stated[14]:

“In the present case, the defendant chose not to give or call any evidence. That was his right and I drew no adverse inference against him exercising that right. This proved nothing one way or the other. It did however mean that there was no evidence coming from him to undermine, contradict or explain the evidence put before the court by the prosecution.”

42.  I do not accept that the words “it is easy” could have meant that if the Appellant did not give evidence she would find it easy to convict the Appellant.  Her reference above shows her understanding that there was no evidence coming from the Appellant to undermine or contradict or explain the evidence put before the court by the prosecution.

43.  The flippant use of the words “it is easy” in this case, though careless and regrettable, does not render the conviction unsafe or unsatisfactory. 

44.  In any event, this is a re-hearing and in applying the correct test as laid down in Ip Po Fai I am satisfied that on the detailed accumulation of the evidence, the erection of the stall by the Appellant in its surroundings and in the circumstances as described by the prosecution, the only irresistible inference was that the Appellant was in employment. 

Conclusion

45.  In the circumstances, the appeal against conviction is dismissed.