HKSAR v. VIJAYAKUMARA RAJA VISHNUSANKAR

HCMA 251/2021

[2022] HKCFI 282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 251 OF 2021

(ON APPEAL FROM STCC 172 OF 2021)

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JUDGMENT

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Introduction

1.  The Appellant was convicted after trial before Mr Yip Shing-lam Paul, Deputy Magistrate, on 14 May 2021, of a single charge of taking employment while being a person in respect of whom a removal order is in force, contrary to s38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115. He was sentenced to a term of imprisonment of 22 months and 14 days. By his Notice of Appeal, dated 20 May 2021, the Appellant appeals his conviction only, on the grounds that it was against the weight of the evidence.

Prosecution Case

2.  On 13 January 2021, the Appellant, a Form 8 holder, was in Lau Fau Shan. He was observed outside of Luen Hop Fish Laan Limited, which was described as a fish stall. He was seen at the rear of a goods vehicle. He was then observed to transfer clams from the back of a goods vehicle into a white plastic basket and then to transfer the clams into a fish pond belonging to Luen Hop. He did this twice. That observation took place over a period of 8 minutes.

Defence Case

3.  The Appellant gave evidence on his own behalf. He called no other witnesses. He said he was at the fish stall early in the day in order to purchase dead prawns. He had pointed at the prawns to the fish stall holder and had asked their price. He was bargaining with the stall holder when he was intercepted. He suggested that there were other Southeast Asians at the location. He maintained that he told the officers he was buying prawns. He accepted in evidence that there was a wet market closer to his home address but that it was more expensive than Lau Fau Shan and that he visited this area to buy seafood about once a week.

Statement of Findings

4.  The Magistrate found PW1 to be a reliable and honest witness. He had accepted where there were weaknesses in his evidence such as they were. He noted that DW1 was a man of good character and that this was one person’s word against another. He correctly directed himself in this respect. He rejected the evidence of DW1. He did not accept that someone would seek to buy dead prawns early in the morning. Nor did he believe that a Form 8 holder would be in a position to do so. He found that it was improbable that someone in the financial position of the defendant would pass by other closer wet food markets and go to Lau Fau Shan to buy dead prawns when Lau Fau Shan was famous for its live seafood.

5.  Thereafter, the Magistrate directed his mind to the facts of the case to consider whether the prosecution had proved beyond reasonable doubt that the defendant had been taking up employment. There was no issue as to his status which had been admitted. He found him to have been seen transporting goods between the goods vehicle and the stall twice during the observation period. There were no other persons near-by. For the reasons given, he found him to be an odd job worker.

Analysis

6.  The Magistrate was in the best position to assess the credibility of the witnesses and unless he was plainly wrong as to that, this court will not interfere with his view of that credibility[1]. He was entitled to find that the actions the defendant took amounted to odd job work, in the absence of any other viable alternative as to his presence at the stall at 08:10 in the morning. Whilst the Magistrate did not outline his reasoning for finding that the odd job work amounted to the taking of employment, it is implied from his Statement of Findings, that this was the case, although it may have been better to have provided that reasoning for the benefit of the defendant who is to serve a term of imprisonment as a result. It is clear that this would be a usual place of employment especially early in the morning when deliveries usually take place for fresh food stall holders. He was observed to carry clams from the goods vehicle to the lorry twice and placed them within a pond which would have been used for sale and, importantly emphasises that this was a live food stall and not a dead seafood stall. He would not have carried out that task unless authorised by either the goods driver or the stall holder to do so. He would not have been carrying out that task as a customer. As Mr Chak, on behalf of the respondent pointed out, the Magistrate drew the only reasonable and irresistible inference that he was in employment. He had considered the evidence of DW1 as to his presence at the time and rejected it. As such there was no other evidence from which any other inference could be drawn.

Conclusion

7.  The Magistrate correctly applied the relevant legal principles. He accepted the evidence of the single prosecution witness and noted the weaknesses within it. He assessed the defence evidence and explained his reasons for rejecting the explanation given as being highly improbable but he was cognizant of the test on the drawing of inferences. This Court will not depart from the Magistrate’s findings as to credibility.

8.  There was sufficient evidence taking all the circumstances into account, for the Magistrate to come to the conclusion which he did. I find no fault with his reasoning.

9.  This appeal is dismissed.

10.  There will be no order as to costs.