HKSAR v. GURPREET SINGH

HCMA 548/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 548 OF 2017

(ON APPEAL FROM STCC 1677/2017)

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R E A S O N S  F O R  J U D G M E N T

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1.  The appellant was convicted after trial of one charge of “Taking employment while being a person in respect of whom a removal order is in force”. He was sentenced to 22 months and 2 weeks’ imprisonment. His appeal against conviction was dismissed. I now give my reasons.

2.  It was not disputed that a removal order was issued against the appellant and was still in force on the date specified in the particulars of charge.  It was also not disputed that he was aware that he should not take up any employment, whether paid or unpaid, in Hong Kong.

Prosecution case

3.  The appellant was seen by police officers to be on board inside the back of a blue goods vehicle.  The clothings he wore was identical to another male who stood behind the vehicle, in particular, both were wearing waterproof pants and black Wellington boots.  Inside the vehicle were fish tanks, and the appellant was seen to be doing this:

“. . . used a wooden net to take some fish out of the fish tank. After taking out the fish, he transferred the fish to a white plastic box outside the vehicle. M1 was holding the white plastic box. After putting the fish in the plastic box, defendant handed a clear plastic bag to M1. There was fish inside the clear plastic bag. M1 took the plastic bag and put it inside the white plastic box. Defendant then took two foam boxes, later found to have frogs inside, and gave them to M1. M1 then stacked the boxes on the trolley and pushed towards Tsing Wu Square. Defendant then got off the vehicle and onto the ground. Defendant then pushed another trolley and white box towards the front of the vehicle.”

4.  The appellant was intercepted and found to be in possession of three invoices.  These invoices related to the Dai’s Thai Seafood Trading Company concerning the sale of fish.

Defence case

5.  The appellant gave evidence to the effect that he was there to meet his friend, Harveed Singh, for breakfast.  Upon arrival, he saw his friend and waited at the front of the truck.  He was then intercepted.  At no time did he work or even touch the fish tank, nor was he wearing the waterproof clothes as described by the prosecution witnesses.

Grounds of appeal

(1) The magistrate erred in drawing the inference that he was working at the material time;

(2) The magistrate failed to resolve discrepancy between the evidence of the two Prosecution witnesses;

(3) The magistrate erred in admitting the evidence of the invoices and rejected his evidence that he was not wearing the waterproof clothings at the material time; and

(4) The conviction is unsafe and should be set aside.

Respondent’s reply

6.  The respondent relied on HKSAR v Fok James Alistair [2015] 4 HKC 247 and submitted that an appellate court, in objectively determining whether the findings of a magistrate is “plainly wrong”, should determine whether the finding was one that no reasonable magistrate could have reached.  Counsel for the respondent submitted that in the present case, the magistrate, having the advantage of observing the witnesses giving evidence and considering all the evidence, was entitled to come to the view as he did.  Further, the facts found by the magistrate support the only reasonable inference that the appellant was there taking up employment.

My judgment

7.  Magistracies appeals are rehearings in the sense that I have to decide this case on the evidence as the magistrate had seen and heard, with the assistance of the transcript and the Statement of Findings.

8.  This case turns on credibility of the Prosecution witnesses and the appellant.  The appellant’s first ground of appeal had already been submitted by his lawyer in the Defence closing speech (AB p.36 H‑J) and the magistrate has dealt with it in this way:

“Defence submitted there were discrepancy between the PW1 and PW2. It was PW1’s evidence that, just before interception, he told PW2 that defendant was pushing the trolley. PW2 denied PW1 told him that. However, the focus of this case is not on defendant moving trolley. Rather, it is about moving fish for delivery.

Further, the focus of this case is also not on how PW1 described the event to PW2.  Before interception, the briefing between PW1 and 2 must be short.  It is not surprised one would forget some details.  I do not find this minor discrepancy affect their credibility.”

9.  I agree with the magistrate that the fact that the clothes of the appellant were not seized and made exhibits did not in any way cast doubt on the prosecution evidence.  The production of invoices found on him as exhibits was entirely proper.  This is highly relevant circumstantial evidence which forms parts of the basic evidence for the court to draw an inference.  On the other hand, the appellant’s evidence is illogical and against common sense.  There is nothing which causes me to think that the assessment by the magistrate was anything other than sound observation and reasoning. The magistrate was entitled to form the view as he did in his Statement of Findings and rejected the appellant’s evidence.

10.  The magistrate relied on these evidence to draw the inference of employment, in that he was “obviously moving fish as part and parcel of the fish delivery operation”:

(1) Defendant was wearing waterproof uniform, same as M1;

(2) Defendant was giving the fish to M1, as part of his work;

(3) M1 then pushed the trolley to the market; and

(4) Defendant had the invoices on him.  The invoices had the same company name as on the truck.  Defendant was moving the fish inside this truck.

11.  With the state of evidence as it was, the magistrate was perfectly entitled to make the only reasonable inference that the appellant was working as part and parcel of the fish delivery operation and under employment.

12.  There is ample evidence to support the conviction.  I dismiss the appeal and affirm the conviction.