HKSAR v. SOHAIL, ADIL AND ANOTHER

HCMA 505/2019

[2020] HKCFI 925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 505 OF 2019

(ON APPEAL FROM SHATIN MAGISTRACY

CASE NO STCC 2010 OF 2019)

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JUDGMENT

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1.  The 1st and 2nd Appellants (A1 and A2) were convicted after trial of one count of “Taking employment while being a person in respect of whom a removal order is in force” (Charge 1) and one count of “Taking employment while being a person in respect of whom a deportation order is in force” (Charge 2) respectively, both contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115. The deputy Magistrate (Magistrate) sentenced A1 to 22 months and 2 weeks’ imprisonment for Charge 1, while A2 to 24 months’ imprisonment for Charge 2. A1 and A2 now appeal against conviction and sentence.

Admitted Facts

2.  On 17 December 2013, a Removal Order was made against A1 and it was still in force on 15 May 2019.  On 26 December 2013, A1 was given a Recognisance Form and he was aware that he should not take up any employment, whether paid or unpaid, in Hong Kong while being released on recognisance. 

3.  On 23 October 2018, a Deportation Order was made against A2 and it was also still in force on 15 May 2019.  On 29 November 2018, A2 was given Recognisance Form and A2 was aware that he should not take up any employment, whether paid or unpaid, in Hong Kong while being released on recognisance. 

4.  At around 2230 hours on 15 May 2019, PC17937 (PW1) and PC19049 (PW2) patrolled to the vicinity of no. 25 Heung Sze Wui Square, Tai Po (the scene).  A1 and A2 and a heavy goods vehicle (HGV) SP 8651 were found at the scene. 

5.  At around 2235 hours on the same day, PW2 arrested and cautioned A2 for suspected breach of condition of stay offence, while at around 2252 hours, PC20034 took eight photos, [P6 (1 to 8), AB p. 40 to 47], at the scene and drew a sketch for the case that truly depicted the scene. 

6.  A1 and A2 were not the owner of the said heavy goods vehicle.  A1 had no previous criminal conviction in Hong Kong.

Prosecution Case as summarised by the Magistrate

7.  At around 2232 hours on that day, PW1 spotted a heavy goods vehicle (HGV) SP 8651 parked at the scene and he observed two foreign males at the rear part of the HGV.  One of the said two males, A1, was in light-coloured top, dark-coloured shorts and dark-coloured shoes.  He observed A1 conveying some foam boxes from the rear part of the HGV to its tailboard and later conveying them to the ground.  At that time there was already a pallet of goods placed on the tailboard as shown in photo P6(3), (AB p. 42).  He said that his observation last for about two minutes and the distance between himself and A1 was 15 metres.  The lighting was sufficient and his sight was unobstructed.  Other than A1 and the other foreign male, PW1 did not see any other foreign male.  PW1 arrest A1 at around 10:35 am.

8.  PW1 confirmed that photo P6(1), (AB p. 40) was the interior part of no. 25 Heung Sze Wui Square.  [P6(2, 3), AB p. 41, 42] was the HGV.  PW1 also marked the position of A1 in photo P9, (AB p. 51). He further marked his position and PC19049’s position in P10, (AB p. 52).  He said A1 placed the goods on the ground at the highlighted part of P11 (AB p. 53).

9.  Under cross-examination, PW1 further stated that A1 moved the foam boxes from the rear part of the HGV one by one with his bare hands to the tailboard and then he conveyed those boxes to the ground, but he was not sure how the foam boxes were conveyed to the ground.  He could not recall whether he passed the foam boxes to another foreign male or he lowered the tailboard first and did it himself. 

10.  PW1 further said there were two batches of goods having been moved by A1 and another foreign male.  For the 1st batch, he observed A1 and another foreign male move three to four foam boxes.  For the 2nd batch, he observed A1 and another foreign male move some foam boxes from the rear part of the HGV to its tailboard and placed those boxes on the wood pallet one by one.  He said A1 and another foreign male did the above within two minutes.  However, PW1 confirmed that he did not mention his observation of the 2nd batch of goods in his witness statement.  But he disagreed that he had difficulty in recalling the details and he also disagreed that A1 and another male were just walking along the pavement. 

11.  PW2 said he observed two foreign males conveying goods at the rear part of the HGV.  At the outset, the distance between himself and the said two males was 10 metres.  Later he went closer to the HGV and the distance between them was 5 metres.  PW2 said his observation lasted for about two minutes.  During his observation, the lighting condition was sufficient and his sight of the two males was unobstructed.  He observed the said two males conveying five to six foam boxes from the rear part of the HGV to its tailboard and subsequently to the pavement outside no. 25 of Heung Sze Wui Square.  PW2 said he arrested the foreign male with very short hair and he identified that male as A2.  PW2 said PW1 arrested another foreign male.  PW2 also said A2 and another foreign male moved the foam boxes separately and they did it without any tools and gloves. 

12.  Under cross-examination, PW said the foam box as shown in P6(6) (AB p. 45), were boxes A2 and another foreign male conveyed.  He said that one foam box had been moved to the ground.  He disagreed that A2 and another foreign male were not working at the scene and he also disagreed that A2 and another foreign male were just walking along the pavement. 

Defence Case

13.  Both A1 and A2 elected not to give evidence nor call upon any defence witness. 

Magistrate’s findings

14.  The Magistrate identified the main issues as follow,

(1)  Did A1 and A2 do the alleged acts as described by PW1 and PW2?

(2)  If so, whether or not from such actions and the circumstances it can be inferred that A1 and A2 were taking employment at the material time. 

15.  The Magistrate particularly considered the discrepancies as pointed out by the defence counsel that,

(1)  PW1 said A1 and A2 had conveyed two batches of foam boxes.  The 1st batch involved three to four boxes, and the 2nd batch involved the boxes as shown in P6(8).  But PW2 said A1 and A2 only conveyed five to six foam boxes.  

(2)  PW1 said A1 and A2 had placed three to four foam boxes on the ground, but PW2 only said one foam box. 

16.  It was also submitted that PW1 did not mention the 2nd batch of foam boxes in his statement and that A1 could not have conveyed the two batches of foam boxes from the rear part of the HGV to its tailboard and to the ground within two minutes. 

17.  However, the Magistrate considered that both witnesses conducted their respective observation in different position, PW1 about 15 metres away whereas PW2 about 10 metres away, and that PW2’s observation distance was subsequently shortened to just 5 metres. 

18.  The Magistrate further stated that both witnesses did not conduct their observation exactly at the same time. Therefore, it is not surprising that the evidence of PW1 and PW2 would contain discrepancies.  But the Magistrate did not consider such discrepancies of material significance or would cast serious doubt on the credibility of both witnesses because both PW1 and PW2 observed A1 and A2 conveying box at the rear part of the HGV and they were conveying boxes without any tools and with their bare hands. 

19.  The Magistrate also accepted PW1’s explanation that he considered the acts of A1 as continuous movement and thus, he did not describe them separately.   As to the quality of identification evidence, the Magistrate also considered that both PWs’ sight of A1 and A2 was clear and unobstructed for about 10 minutes and they intercepted A1 and A2 at around the same time.

20.  The Magistrate stated that after careful consideration of the evidence of both witnesses, he found them honest and reliable.  Their evidence is clear and straightforward and was unshaken under cross-examination. 

21.  Accordingly, the Magistrate found that both A1 and A2 did the acts as respectively described by PW1 and PW2.  The Magistrate then proceeded to consider whether A1 and A2 were in employment at the material time, and he had referred to a number of authorities in the statement of findings.  He found that the subject HGV as depicted in P6 (2, 3, 6 and 8), (AB p. 41, 42, 45 and 47) was a place of employment.  In particular, there are authorities accepting that it was not unusual for lorries or trucks to be used as places of employment.

22.  Although there was no evidence on a system of work, direction of command and control from anyone, however, the Magistrate found that the presence of A1 and A2 at the scene was not incidental. 

23.  As to why both Appellants were present at the scene, there was no direct evidence.  However, the Magistrate considered that their appearance must be relating to the subject HGV and the goods they dealt with.  The Magistrate further found that if they were unconnected with the subject HGV and the goods loaded thereon, they would not have dealt with them and would not have done so gratuitously.

24.  The Magistrate also quoted the case of HKSAR v Chan So Bing HCMA 506/2005 where it was held at para. 15:

“Generally, this inference is very reasonable and also an inevitable one. Although Hong Kong people are very helpful, generally a person will not for no reason assist others to perform employment duties and earn money on their behalf. So in the absence of other evidence, the court may draw the inference of employment very easily... If a young man for no reason assists others in delivery, there will be no difficulty for the court to draw the only inference that his doing of the work is to perform the contractual obligations of employment...”

25.  The Magistrate also considered that it was never the defence case that those items belonged to them.  It is also an admitted fact that both Appellants were not the owner of the HGV.  P6(1) showed the interior part of the scene.  According to PW1, this was a vegetable and fruit store.  PW1 further said that he and PW2 had checked one of the foam box and its contents were vegetables.  

26.  Considering the nature of the business operated there, the contents of the foam box and that PW1 and PW2 had checked the location where the HGV was parked and also the location where at least one of the foam box were being placed, the Magistrate found sufficient basis to infer that the foam boxes conveyed by both Appellants were goods to be delivered to the vegetable store located therein. 

27.  Further, as it was never the defence case that both Appellants were just helping out of friendship or other relationship with the driver and/or the storeowner, the Magistrate found that there is no reason to suppose that both Appellants did the work free or out of any obligation or special relationship.  The Magistrate further considered that whether A1 or A2 were working as self-employed workers as they only used their bare hands to convey the foam boxes.  But it was also never the defence case that they were rendering a service as movers. 

28.  As to there was no evidence of remuneration, the Magistrate also considered that it is not surprising at all that they were not yet paid for their work at that time, given the fact that the Appellants were intercepted by the police even before the goods loaded on the subject HGV were delivered to their destination.  Therefore, the Magistrate found the irresistible inference that each of the Appellants was taking employment at the scene and this is the only reasonable inference to be drawn.  Therefore, the Magistrate found that the prosecution had proved every element of the present charge beyond all reasonable doubt and both Appellants were guilty as charged accordingly. 

Magistrate’s Sentence

29.  A1 and A2 are 28 and 25 years old Pakistani respectively, and both are Form 8 holders.  A1 has clear record, while A2 has two previous similar conviction records.  Both are now waiting for the outcome of their judicial review application.  The Magistrate referred to the Court of Appeal case in HKSAR v Usman Butt & Anor [2010] HKLRD 452 where the guideline sentence of 15 months’ imprisonment was laid down upon a plea of guilty. Since both the 1st and the 2nd Appellants were convicted after trial, the starting point to be adopted is 22 months and 2 weeks’ imprisonment.

30.  So for A1, he was sentenced to 22 months and 2 weeks’ imprisonment, while for A2, as he already had two previous similar conviction records and as in the case of HKSAR v Eftakhar Beg HCMA 262/2015, 24-month imprisonment was adopted when the Appellant had one previous similar conviction.  In the circumstances, the Magistrate considered that for A2, 24-month imprisonment was appropriate. 

Grounds of Appeal

31.  Both Appellants did not state out any particular grounds of appeal against conviction and sentence.  However, in court both Appellants confirmed what their defence counsel had mainly argued for them in the lower court, particularly firstly, as to the discrepancies between both witnesses as to the actual number of boxes conveyed by them and also how many were placed to the ground.  It was also stated that there was no evidence of employment.  A1 also submitted in writing of what had been already put forward at the lower court, that they were actually going to visit a friend’s home at Po Heung Building, Tai Po, and they were simply passing through there but were stopped and arrested by plainclothes police officers at the footpath where there was neither an industrial area nor a market. 

32.  Both Appellants now in court further submitted a number of points for appeals, including that:

(1)  the observation were just two minutes, as said by PW1 and PW2, but the Magistrate said they had observed for 10 minutes and they were not arrested AM as said. 

(2)  The photos had shown neither A1 and A2.  If they had actually made the observation, they should have taken them in the photo as well. 

(3)  Both prosecution witnesses have stated different number of foam boxes conveyed and that no foam box was on the ground as shown in the photos. 

(4)  They had no tools nor equipment at hands.  They were not working there. 

(5)  Photos shown CCTV was there.  The police should have taken the CCTV footage. 

Discussion

33.  Magistracy appeal is conducted by way of a re-hearing of the evidence before the trial court.  The Magistrate had the advantage of hearing witnesses first-hand and the appellate court would only depart from a Magistrate’s finding of fact or determination of a witness credibility if satisfied that it is plainly wrong.  See HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.

34.  Firstly, the Magistrate had the advantage of seeing and hearing the evidence of both witnesses and also gave details of the evidence and reasons for accepting them.  The Magistrate further dealt with the apparent discrepancy concerning boxes conveying and placed to the ground, but nonetheless found them not surprising because of the different position of observation, different timeframe and period and different distance apart.  The Magistrate further thoroughly considered the quality of observation and found both witnesses’ evidence credible and reliable. 

35.  I note what the Appellants now said from the statement of findings as in para. 4, that A1 was arrested 10:35 am instead of 10:35 pm and that all along the observation by them were just respectively two minutes, but the Magistrate later at para. 22(2) said that it was 10 minutes. 

36.  I have carefully read through the whole statement of findings.  The Magistrate had clearly fully set out all evidence in details and the above apparent mistake were clearly no more than typos and I do not see them as significant error nor alter any findings.  As such, I do not consider the findings illogical nor unreasonable in any aspect, and the appellate court would therefore not to disturb the Magistrate’s determination. 

37.  As to the evidence of employment, the Magistrate had made reference to a number of relevant authorities and he had duly considered the circumstances at the scene including what both Appellants had acted upon; whether there was any special relationship between them and the driver and/or the owner of the store and even whether they were just self-employed and there was no tools nor equipment found or that there is no evidence of remuneration despite what had all along been put forward by the Appellants that they were just passing through instead of doing anything as observed. Undoubtedly, the Magistrate had already gone through a number of factors giving rise to the inference of employment in the circumstances, and I do agree the conclusion he had reached and it was the only irresistible inference to be drawn. 

38.  Further, concerning the defence of just passing by, it was clearly disagreed by both witnesses.  The Magistrate had also considered that, but as the witnesses’ evidence was accepted entirely, the defence allegation must have been rejected thereby. 

39.  Lastly, as to whether photos should be taken by police officers when they were allegedly working or whether CCTV footage should have been taken or that no photos had shown their appearance and that photo did not show any boxes on the ground as well.

40.  However, the photos were taken clearly much later after the arrest and that now no CCTV footage nor photos showing that they were working there were neither here nor there.  As the prosecution were just relying on the evidence of the witnesses instead of any CCTV footage or photos taking them working there, therefore I find all these grounds must fail. 

41.  In the circumstances, the Magistrate findings was sound and reasonable and I also do not find any appeal grounds sustainable.  After re-hearing, considering all the evidence before this court, the appeal against conviction for both Appellants are dismissed accordingly. 

Appeal against sentence

42.  As to the appeal against sentence, the Magistrate had correctly referred to the Court of Appeal case in Usman Butt where the guideline sentence should be 15 months’ imprisonment upon guilty plea.  Now that both Appellants were convicted after trial, the starting point of 22 months and 2 weeks’ imprisonment adopted are therefore appropriate. 

43.  As to the 2nd Appellant, he had similar convictions and I also consider that a slight enhancement to 24-month imprisonment is also suitable. 

44.  As such, the sentence could not be said as manifestly excessive nor too severe.  Therefore, the appeal against sentence for both Appellants are also dismissed accordingly.