HKSAR v. ALI SHAFQAT AND ANOTHER

HCMA 242/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 242 OF 2016

(ON APPEAL FROM STCC 72/2016)

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REASONS FOR JUDGMENT

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Background

1. The 1^st appellant (“A1”) 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. The 2^nd appellant (“A2”) was charged with one count of “breach of condition of stay” contrary to section 41 of the Immigration Ordinance, Cap 115.

3. Both appellants pleaded not guilty to the charge and each appellant was convicted after trial by Mr. Colin Wong, Magistrate at Shatin Magistracy on 4 May, 2016.  A1 was sentenced to 22 months and 2 weeks’ imprisonment and A2 was sentence to 3 months’ imprisonment.

4. Both appellants were represented by the Duty Lawyer Service in the trial.  In the appeal hearing on 29 June, 2016, they were both unrepresented and they only appealed against the convictions.  After hearing both the appellants, I have already dismissed their appeals forthwith.  I said I shall give my reasons in due course which I now do.

Prosecution Case

5. The cases for the prosecution and defence as well as the Statement of Findings by the Magistrate are well summarized by the respondent which I shall adopt in my following judgment.

6. The Admitted Facts (Exh. P1) produced in the trial reveals that:

(a) In September 2009, A1 entered and then remained in Hong Kong unlawfully without the authority of the Director of Immigration.  Since then, he had been arrested, released on recognizance and a Removal Order had been issued and was in force against him.  He had been served with the order and he was aware that he was prohibited from taking up any employment while released on recognizance.

(b) On 10 January 2015, A2 entered Hong Kong with his Indian Passport and he was allowed to stay here for 14 days as a visitor. On 26 January 2015, he surrendered to the Immigration Department and he had been released on recognizance.  He was aware that he was prohibited from taking up any employment whilst released on recognizance.

7. The prosecution only called one witness in the trial PC 10490 (PW1). At the material time, PW1 was patrolling with a team of police officers at the offence location at Ta Kwu Ling, New Territories.  He observed A2 pushing a trolley into a village house (House 34).  Inside the house, A1 was standing in a pit that was about 1.5m in depth.  A1 was using a shovel to transfer rubble from the pit to the trolley.  After the trolley was filled, A2 pushed the trolley out of the house to a lawn where he put the rubble down.  A2 then pushed the empty trolley back to the house.  The observation lasted for 10 minutes and both appellants had done the above twice.  There was no other person inside the house.

Defence Case

8. Both appellants elected to testify but they did not call any defence witness.

9. The defence case was summarized by the respondent as follows: -

10. A1 and A2 were living together at that time and they just moved into their flat in Sheung Shui.  Their friend Sonu told them there was a refrigerator in house 34 to collect for their use.  On the date of offence, both appellants and Sonu went to house 34 to look for the fridge.

11. After they arrived at House 34, they saw the fridge.  Sonu then left for arranging a vehicle for the fridge.  Sonu told the appellants to clean the fridge first.  A1 then cleaned the fridge, while A2 went outside to find a path to take the fridge out.

12. Later, four to five plain clothes police officers came into house 34 and checked A1’s papers.  The police asked if he was working and he said no. The police then told him to remove his shirt to take pictures.

13. When A2 was looking for a path outside the house, the police took him back to the house.  After 15 minutes, a police vehicle arrived and they brought a camera.  A2 was then asked to take photos.

14. Both appellants maintained that they were not working all along.

Reasons for Verdict

15. The Magistrate stated he had no reason to doubt PW1’s credibility and he did not have any reason to disbelieve him.  PW1 was found to be an honest and reliable witness.  The Magistrate had considered the defence submissions that PW1 could have taken photos during his observation but he accepted PW1’s explanation that a camera was not standard equipment while doing observation.

16. The Magistrate considered the testimony of A1 and he disbelieved his evidence.  The following reasons were given:

(a) the appellants did not carry any tools (such as a trolley or a cart) to transport the fridge, which was heavy to carry a long way back to Sheung Shui.  It therefore appears that they did not come for the fridge;

(b) A1 said Sonu had gone to look for transportation but then he disappeared.  The fridge cannot be put on a taxi.  It was questionable where Sonu went to look for transportation and he could have just used a mobile phone;

(c) it was said that Sonu disappeared after he left looking for transportation.  The police intercepted the defendants at 10:15am and arrested them at 10:45am.  However, Sonu never showed up; and

(d) there was no other person at House 34.  There were tools, planks, building materials and an open pit there.  If A1 and A2 were only visitors, it is questionable why there was no other person looking after the tools, materials and the open pit.

17. The Magistrate considered the testimony of A2 and he also disbelieved his evidence.  The following had been considered:

(a) A2 has a clear record;

(b) A2’s version is the same as A1 which was considered not credible; and

(c) A2 further said Sonu was the one who paid for transportation.  The fridge was for A1 and A2’s home.  It was unreasonable for Sonu to pay for their transportation.

18. The Magistrate found beyond reasonable doubt the following facts:-

19. At the material time, A1 was standing in the pit shuffling rubble to the trolley.  After A1 filled the trolley, A2 pushed the trolley from House 34 to a lawn nearby and placed the rubble there.  A2 then pushed the trolley back to the house.  During the 10-minute observation by PW1, A2 had pushed and emptied the trolley twice.  No other person was in the house except the two appellants.  Therefore, they were completing the task of digging a pit and emptying the rubble together, for at least 10 minutes.  They would not have done that for fun or pleasure.  It was beyond reasonable doubt that they were working at that time.  There is also no evidence to suggest why the appellants would work at the house, except under employment.  The only irresistible inference is that the defendants were doing odd‑jobs under employment at the material location.  The prosecution had proved beyond reasonable doubt all elements of the two offences.

Grounds of Appeal

20. In their statements of application for appeal against convictions, both appellants declared that they had not pleaded guilty and insisted to raise their applications for appeal against their convictions but without stating any substantive grounds.

Application for Bail and Adjournment

21. Instead, they each applied for an adjournment before me so that they could engage a private lawyer as their application for legal aid had met with no success.  For this purpose, they both requested to be bailed out so that they can contact their family members for legal expenses.

22. I refused their applications without any hesitation.  I note also that their earlier application for bail have already been refused by Saw J on 17 May 2016.

23. A magistracy appeal is conducted by way of a rehearing.  The appellate court should recognize the advantage the trial Magistrate had of receiving the evidence first hand, and should only depart from the Magistrate’s finding of fact or determination of a witness credibility if satisfied that it is plainly wrong: HKSAR v Ip Chin Kei & others [2012] 4 HKLRD 383.

24. As rightly pointed out by the respondent in the submission, the issue in dispute in this case is whether PW1’s version is believed, given his version is contradictory to the version given by both appellants.  Whether PW1 is believed is a finding of fact and determination of a witness’ credibility.  It is entirely within the prerogative of the Magistrate.

25. Reading the Statement of Findings as a whole, the Magistrate was well aware of the standard and burden of proof in a criminal trial.  He directed himself properly in law regarding A2’s clear record and gave careful assessments of the evidence of both appellants.  He provided cogent reasons for rejecting the evidence of A1 and A2.

26. The Magistrate’s assessment of the credibility of A1 and A2 and his finding against them cannot be faulted.

27. The Magistrate was fully justified in reaching his conclusion that A1and A2 had been proved to have committed the offences beyond all reasonable doubt.

28. I should also add that the Magistrate’s comment on the role played by Sonu was entirely correct.  Firstly, PW1 and the police party never noticed the presence of this person at the scene.  During the entire observation which was about 45 minutes, Sonu never returned to the house despite A1 insisted that he earlier went out to arrange the transportation of the fridge.  If A1 was telling the truth, there is simply no reason why Sonu would just disappear without a trace.  The Magistrate was also correct to point out that there is no need for Sonu to leave the two appellants and he could have just arranged the transport by using his mobile phone but he did not.  All in all, the claims by both appellants that they were called by Sonu to go to the house to collect a fridge is thus very dubious.  It is also highly doubtful that the character Sonu really existed at all.  There is a hallmark of invention of this character by the two appellants in their defence. That was also why when the appellants requested for an adjournment before me in order to call Sonu as his defence witness, I have flatly turned down the request. After all, this should be done in the trial and they both had already testified in the trial about this man but they were already disbelieved, and in my view properly, by the Magistrate.

29. It is all beyond reasonable doubt, based on the observation evidence by PW1 at the offence location, that both appellants were found working at the pit at the material time.  The convictions of A1 and A2 were therefore neither unsafe nor unsatisfactory.

Conclusion

30. The appeal against conviction of A1 and A2 is dismissed accordingly.