HKSAR v. AKHTAR SALIM

HCMA 627/2017

[2018] HKCFI 431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 627 OF 2017

(ON APPEAL FROM STCC 2871 OF 2017)

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REASONS FOR JUDGMENT

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1.  The appellant appeals against his conviction and sentence of 22 months’ and 2 weeks for an offence of taking employment while being a person in respect of whom a removal order is in force contrary to section 38AA(1)(a) and 38AA(2) of the Immigration Ordinance Cap 115.

2.  At the hearing of the appeal I dismissed the appellant’s appeal against conviction and sentence.  Below are my reasons for doing so. 

Admitted facts

3.  It was not in dispute the appellant was at all material times a holder of a recognizance form issued by the Immigration Department (commonly known as Form 8).  He was aware that he should not take up any employment whether paid or unpaid while being released on recognizance.

4.  A removal order was issued against him on 8 June 2016 and served upon him on 16 June 2016. 

5.  At around 1728 hours on 25 July 2017 a police officer PC 15404 (PW1) whilst conducting his patrol, found the appellant at a shopping arcade at Fung Cheung Building, Cheung Sha Wan (“the scene”).  Upon search of the appellant at the scene PW1 seized from him two invoices with the words MPS Foods (HK) Ltd (“MPS Foods”) dated 22 July 2017 and 25 July 2017 (exhibit P6 and P6a respectively) and a trolley. 

The Prosecution case

6.  The Prosecution case was that on 25 July 2017 PW1 patrolled to the scene and mounted an observation.  He observed the appellant was close to a trolley which had placed on it 5 boxes containing cartons of milk.  He saw the appellant move two boxes successively to the outside of Jawad General Store at Shop 26 (the Jawad Store) of the shopping arcade.  The appellant placed these two boxes from the trolley on top of a stack of seven boxes already there, (which looked identical to the five on the trolley). 

7.  PW1 then went up and intercepted the appellant.  The two invoices exhibit P6 and P6a were found on him. 

Defence case

8.  The appellant elected not to give evidence at his trial.  He called two defence witnesses, namely Ranjit Singh (DW1) and Saqib Mohamood (DW2).  DW1 was the driver of MPS Foods.  He gave evidence that he was responsible for delivering 12 boxes of milk to Jawad Store on the material day.  On the other hand, he claimed that he had an arrangement with the appellant whereby the appellant would give DW1 some groceries (which the appellant had bought with ISS coupons in exchange for five boxes[1] of milk.)  For that reason DW1 had a total of 17 boxes of milk in his van for delivery, 12 boxes were to be delivered to the Jawad Store and 5 boxes were to be delivered to the appellant.

9.  After DW1 arrived at the material location, he unloaded the 17 boxes of milk onto the appellant’s trolley and then delivered 12 cartons of milk to the Jawad Store placing around 5 boxes inside the shop and 7 boxes outside the shop.  Afterwards DW1 returned the trolley to the appellant with the 5 boxes of milk on it.

10.  As regards the invoices (P6 and P6a) DW1 explained they were used to collect money from the Jawad Store.  P6a was from a previous delivery which was to be paid on that day, the other was for the delivery made on that day which was to be paid on the next occasion. 

11.  DW1 gave both invoices to the appellant so as to prove the price of the milk.  Afterwards, DW1 left to make another delivery.  He said he would return to pick up the invoices from the appellant later.

12.  DW2 was the owner of the store.  He was not in Hong Kong on the material day but he confirmed that the appellant was his customer and he had never seen him working for MPS Foods before.

Issues at trial

13.  The sole issue was whether the evidence was sufficient to show that the appellant had taken up employment. 

The magistrate’s findings

14.  The magistrate[2] noted that the defence did not seek to challenge PW1’s observation that the appellant had moved two boxes of milk from the trolley to the outside of the shop.  PW1’s evidence was not challenged by cross examination and the magistrate found him to be an honest and reliable witness.

15.  As regards DW1, the magistrate rejected his evidence for the following reasons :-

(i)   If what DW1 said about the 5 boxes of milk that were left on the trolley belonged to the appellant were true, that would mean that the 5 boxes of milk did not belong to the store.  DW1’s evidence failed to explain why then the appellant would move two of the 5 boxes which allegedly belonged to the appellant to place them on the stack of the other milk boxes outside the store.

(ii)   As each box contained 12 cartons of milk, there was no reason why the appellant, who had a wife and one child, would need as much as 60 cartons (or 60 litres of milk) particularly when he relied on ISS coupons to exchange for groceries.

(iii)   DW1 claimed to give the invoices to the appellant to prove the price. The invoices were important documents to DW1 and he would need the new invoice (exhibit P6a) to collect payment from the Jawad Store next time.  There was no reason why DW1 would give the invoices to the appellant, leave the scene and rely on the appellant to keep them safe.

16.  As for DW2 he was absent from Hong Kong on the day. The magistrate considered that even if he had not seen the appellant work for MPS foods before, it would have no bearing on whether the appellant was working for MPS foods on the material day.

17.  Based on the evidence of PW1, the magistrate found no one came to talk to PW1 during the investigation at the scene including the appellant’s wife, child or DW1.  The magistrate did not accept that the appellant’s wife and child were at the scene, however even if they were there it could not show any special relationship between the shop and the goods with the appellant.

18.  In considering whether there was employment the magistrate considered the following:

(i)   He found that the appellant had moved two boxes of milk from the trolley to the outside of the store to stack on top of the seven milk boxes already stacked there;

(ii)   The two invoices found on the appellant contained the name of Jawad General Store, and one of them, exhibit P6a bore the description of the milk product; and

(iii)   There was no evidence to show any special relationship between the appellant and the Jawad Store nor was there any evidence that the appellant had a special relationship with anyone when moving the boxes of milk.

19.  Based on the above, the magistrate drew the only irresistible inference that the appellant was delivering goods to the Jawad Store according to the invoice to which the appellant was in possession of and that he was thereby taking employment.

Grounds of appeal

20.  The appellant who was not legally represented advanced the following four grounds of appeal. 

Ground 1- alleged incorrect location of the milk boxes

21.  The appellant contends that he did not put the two boxes immediately outside the Jawad Store which is located at Shop no 26 but placed them onto the stack opposite the store, which was Jawad Store’s godown as shown in the photos exhibit P4.

22.  In dealing with this allegation of the wrong location, as can be gleaned from the photos in exhibit P4 these depict the outside of the Jawad Store at Shop no 26, the store situated on the opposite side, the corridor in between and the stack of milk boxes outside the shop.  As can be seen in all the photos there is only one stack of milk boxes that is situated outside of a shop opposite to the Jawad store.  There was no dispute at trial or even by the appellant that the stack of milk boxes shown in the photos was the stack which the appellant had placed the two boxes on top of.  The fact that it was not immediately outside the Jawad Store is neither here nor there.  The particulars of the charge is set out as follows:

“AKHTAR SALIM…… took employment, whether paid or unpaid, i.e., as an odd job worker at Cheung Sha Wan”

As there is no specific mention of No 26 or the Jawad Store in the particulars, it matters not that the milk boxes were situated at the shop opposite the Jawad Store.  There was no mistake at the trial that the stack of milk boxes in the photos was the stack that the appellant had moved two boxes of milk on top of and this is what PW1 observed the appellant to do. There is no merit in this ground.

Ground 2- leave to adduce fresh evidence

23.  At the hearing of this appeal, the appellant in his submissions explained why he bought 60 litres of milk and why he had placed two boxes of milk onto the stack of 7 boxes of milk outside the Jawad Store. 

24.  As to why he purchased the large quantity of milk he bought it in bulk because he could save money.  He said if he bought the equivalent quantity from Park n Shop he would have paid approximately $250 more than he had paid. Further he has a young son of 4 years old and he and his family drank 2 to 3 litres of milk every day.

25.  As to why he placed two boxes from the trolley onto the stack of seven boxes, he did so as he was going to leave two boxes at the store so he could exchange the milk with food stuff from the Jawad Store. 

26.  The appellant reasons for not giving evidence at the trial was because he thought that his two defence witnesses who were Hong Kong residents with respectable jobs would be believed.  He had no idea that their evidence would be rejected and thus wanted to supplement the evidence with his fresh evidence. 

27.  I regarded the appellant’s submission as an application to adduce fresh evidence.  I turn to deal with his application. 

28.  A magistracy appeal is a rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so: Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70. 

29.  In an appeal from the Magistrate’s Court, the power to receive further evidence comes from s 118(1)(b) of the Magistrates Ordinance (“MO”) which provides that in an appeal under s 105:

“When the appeal comes on for hearing the appellant shall be first heard in support of the appeal, the respondent if present and if he so desires shall be heard against it and the appellant thereafter shall be entitled to reply. If the judge thinks additional evidence to be necessary he may receive such evidence, and for that purpose shall have the like powers under subsections (1) and (6) to (10) of section 83V of the Criminal Procedure Ordinance (Cap 221) that the Court of Appeal would have had if the appeal had been an appeal to which that section applied, and the judge may issue any process necessary for enforcing the exercise of such powers.”

30.  Subsection (1) of s 83V of the Criminal Procedure Ordinance Cap 221 reads:

“(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice—

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c)   subject to subsection (3), receive the evidence, if tendered, of any witness.”

31.  Subsection (3) provides that the evidence must be competent. Subsections (6) to (10) deals with spouses.

32.  As can be seen s 118(1)(b) of the MO gives the judge a power to admit further evidence if the judge considers such evidence to be necessary. It is a discretion to be exercised judicially in the interests of justice. 

33.  The judgment of the Court of Appeal in HKSAR v Mazhar Taha Ahmed Elmansouri[3], referred to the Court of Final Appeal’s decision in Mahabobur Rahman v HKSAR[4] where the Court set out the conditions to be satisfied under s 83V before the Court of Appeal will exercise its discretion to receive fresh evidence.  They are that: (i) the fresh evidence was likely to be credible; (ii) it would have been admissible in the courts below; (iii) it was relevant to an issue in the appeal; (iv) there was a reasonable explanation for the failure to adduce it in the courts below; and (v) the court is satisfied it would afford a ground of appeal.

34.  I turn now to the above considerations.  The appellant was legally represented[5] at his trial.  The appellant’s decision not to give evidence is to be taken to have been a deliberate decision and made in consultation with his legal representatives.  The failure of him to give evidence because he expected his defence witnesses would be believed is not a reasonable explanation for his election not to give evidence.   The appellant’s wish now to supplement the evidence with his evidence to answer the magistrate’s adverse observations made against him is also not a reasonable explanation.  For these reasons, the application made by the appellant to admit further fresh evidence does not satisfy the conditions of s 83V.

35.  I bear in mind that if this fresh evidence is admitted on appeal I would be engaged in deciding whether the magistrate would have arrived at a different result if he had received that evidence.  On the evidence before the magistrate it would not have made any difference.  It is therefore not necessary in the interests of justice to admit this evidence.

Ground 4 – the magistrate erred in rejecting and/or not placing any weight on the evidence of the Defence Witnesses

36.  The appellant submitted that the magistrate erred in rejecting and placing no weight on the evidence of DW1 and DW2 respectively who were both Hong Kong residents, with respectable jobs and who spoke the truth.  He contended that they did not know how to present their evidence before the magistrate and for this reason the magistrate preferred the evidence of PW1 who was a police officer experienced in giving evidence. 

37.  As regards the evidence of DW1, the magistrate carefully analysed his evidence and gave full reasons for rejecting the same.  The magistrate was entitled to reject DW1’s evidence which was considered implausible on a number of points.  The magistrate has had the advantage of having seen and heard DW1 give evidence and there is no reason to go behind his findings on the credibility and reliability of DW1.  

38.  DW2 was absent from Hong Kong on the material day, the magistrate was entitled not to place any weight on his evidence.  DW2’s evidence was not relevant as to whether the appellant had worked on the day as charged.

39.  The magistrate conducted a full and careful evaluation of the evidence in the case.  He found that PW1’s evidence was not shaken in cross-examination.   He was entitled to find him to be an honest and reliable witness. 

40.  For the reasons expressed above, I was satisfied that the conviction was neither unsafe or unsatisfactory.  Accordingly, the appeal against conviction is dismissed.

Appeal against sentence

41.  The appellant appealed against his sentence of 22 months’ and 2 weeks’ imprisonment.  The appellant submitted that the sentence was manifestly excessive. 

42.  At the time of sentencing, the magistrate took into account the appellant’s clear record. 

43.  In the hearing of appeal, the appellant repeated his mitigation made before the magistrate.  He sought a reduction of sentence to look after his wife and young son.  He said that his wife had an ongoing medical condition which was not easily resolved and causes her a lot of pain. To some degree, she was restricted in some of her daily activities and was unable to look after their young son.  Given his wife’s poor condition he was needed and responsible for looking after her and their son. 

44.  In sentencing the appellant the magistrate correctly pointed out there was nothing in the appellant’s background or the circumstances of the commission of the offence which justified a departure from the sentencing guideline as set out in HKSAR v Usman Butt[6] of 15 months’ imprisonment after a plea of guilty and a starting point of 22 months and 2 weeks imprisonment after trial. 

45.  The sentence was neither wrong in principle nor manifestly excessive.  Accordingly, the appeal against sentence is dismissed.