HKSAR v. ADHIKARI SUSHIL

HCMA 595/2018

[2019] HKCFI 828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 595 OF 2018

(ON APPEAL FROM STCC 1836 OF 2018)

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J U D G M E N T

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1.  The appellant 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, Laws of Hong Kong.

2.  The appellant was convicted after trial by a magistrate[1] and sentenced to 22 months and 2 weeks’ imprisonment.  He now appeals against his conviction. 

Admitted facts

3.  It was admitted at the trial that the appellant was the holder of a recognizance form issued by the Immigration Department (commonly known as Form 8) on 16 February 2016.  He was aware that he was prohibited him from taking up employment in Hong Kong, whether paid or unpaid.  A removal order was issued against the appellant on 18 December 2013 and served on him on 7 January 2014. The removal order remained in force against the appellant on 16 May 2018.

The Prosecution case

4.  The prosecution case was that on 16 May 2018, the appellant was taking up employment in a store named Mamita Store (“the store”), situated at Shop 21, Ground Floor, Healey Building, No. 221-223 Castle Peak Road, Yuen Long, New Territories. 

5.  The prosecution called one witness in support of their case, she was Labour Inspector L.Y. Leung.  It was Inspector Leung’s evidence that at around 11.51 am she and her colleague, dressed in plain clothes went inside Mamita Store disguised as customers.  At the time. there were only two persons inside the store, the appellant and the owner of the store who was also a South Asian male.  The Inspector asked the appellant what the price of chicken wings were, the appellant replied “3 pieces for $10.”  She ordered the chicken wings from the appellant.  She observed the appellant place 3 chicken wings on a white paper plate and heat them in a microwave.  After about half a minute, he removed the chicken wings and took the chicken wings on the paper plate with two plastic forks and put them on a table near the door of the shop.  He took a red plastic chair near the vicinity of the door of the shop and also put it at the table. 

6.  Inspector Leung then asked the appellant the price of a drink and he told her “$10 for one bottle.”  She purchased two bottles of drinks, one for herself and one for her colleague.  She gave the appellant $100 and received $70 change from the him.  She conversed with the appellant in Cantonese.  She explained the $30 payment was for the cost of the chicken wings at $10 and the two drinks at $10 each.  She and her colleague then went to sit down at the table outside the shop and began to consume the chicken wings and drinks. 

7.  Inspector Leung said her observation of and with dealings the appellant lasted about 6 minutes from about 11.51 am to 11.57 am when she was at a distance of about 2 metres from him. 

8.  At about 11.57 am whilst seated at the table, she informed her colleagues from the Labour and Immigration department who arrived at the store at about 12 noon. 

Defence case

9.  The appellant elected to give evidence and did not call any other witnesses.  He denied working or being employed.  In summary he said that he was very familiar with the store.  He went there about 3 to 4 times a week and would spend 1 to 2 hours per visit depending on his friends. He went there as he had nowhere else to go and would meet with his Nepalese friends.  He knew the owner of the store who was also Nepalese. 

10.  According to the appellant, on 16 May 2016 he arrived at the store at about 11.30 am and met his friend there.  His friend and him sat there looking at football results and watching videos on his mobile phone.  At about 11.50 am the appellant asked his friend whether he would like to have chicken wings.  His friend replied yes.  The appellant then went into the shop.  He told the owner he wanted to take chicken wings.  The owner replied OK, so he took a plate and helped himself to three chicken wings from the refrigerator.  At that time a female (whom he later came to know was the Inspector) entered the store and asked the appellant “how much for these?”. The appellant answered her “$10 for 3 pieces.”  He only answered her as she had asked him and because he was familiar with the price.  He spoke to her in Cantonese. 

11.  The appellant then heated up his chicken wings in the microwave himself because the store was a self-service store.

12.  Whilst the chicken wings were being heated, the Inspector took out HK$100.  The appellant told the owner to take it.  The owner however told the appellant to take the money and give it to him.  The appellant complied and handed the money to the owner.  He did not hand back the change to the Inspector.  When the reheating was completed, the appellant took the chicken wings to the table outside to his friend.  However, as his friend was smoking a cigarette at that time he joined his friend in smoking a cigarette too.  He left the chicken wings on the table.  Whilst they were smoking, immigration officers went over and intercepted him but let his friend go. 

Magistrate’s findings

13.  The magistrate accepted the evidence of the Inspector.  He found the Inspector to be a credible witness giving detailed reasons as stated in paragraphs 40 and 41 in his Statement of Findings (“SOF”). 

14.  The magistrate rejected the appellant’s evidence.  He carefully analyzed the appellant’s evidence and fully explained why he rejected his evidence at paragraph 43 of his SOF.

15.  Having considered all the circumstances and the facts, the magistrate concluded that the only irresistible inference from the facts he found proved was that the appellant was employed at the store working as an odd-job worker employed of which some of his duties were to serve and collect payment from customers such as the Inspector[2]. He rejected the evidence of the appellant that the store was a self- service store.  He found the appellant was in employment while being a person in respect of whom a removal order which was in force.

Grounds of appeal

16.  The appellant, acting in person, in his homemade grounds of appeal[3] complained that in the absence of supportive evidence called by the prosecution, the magistrate was wrong to accept the evidence of the Inspector. 

17.  He submitted that the prosecution had failed to call evidence from or of:

(i)   The owner of the store or his friend who were present at the material time who would have supported his case.  He explained, he was unable to do so as he was incarcerated at the time.

(ii)   A video, recording the activities as alleged by the Inspector in the store.

(iii)   Proof that his DNA was on the $70 change allegedly given to the Inspector by him.

18.  The appellant further submitted that the magistrate erred in not accepting his evidence and accepting the Inspector’s evidence.

Consideration

19.  The appellant was legally represented in his trial before the magistrate.  The respondent informed this court that the Immigration Department had disclosed the record of interview of the owner of the store to the defence in the unused material before his trial.  The fact that the appellant was incarcerated is no justification in the appellant not being able to call the witnesses.  His legal representatives were able to call the owner or his friend as defence witnesses if they so desired.  In any event, there was no obligation for the prosecution to call them as witnesses.  This ground of appeal fails.

20.  There is no evidence of any video recording or DNA evidence.  The absence of these two types of evidence does not mean a charge against an accused can never be established as long as there is other evidence sufficient to establish his guilt to the required standard.  The suggestion of the lack of a video recording or DNA evidence has no merit whatsoever. 

21.  The real issue in this appeal is whether the magistrate erred in finding the Inspector, the only witness called by the prosecution, to be an honest and reliable witness.  It is incumbent on this court to arrive at its own decision but subject to recognizing that the magistrate has the advantage over this court of seeing and hearing the witnesses testify in the witness box and ultimately assessing credibility. 

22.  A magistracy appeal is by way of rehearing on the evidence before the trial magistrate supplemented by any fresh evidence which the appellate court may admit, see CHOU Shih Bin v. HKSAR(2005) 8 HKCFAR 70.  

23.  In HKSAR v. IP Chin-kei [2012] 4 HKLRD 383, McWalters J (as he then was) said this at p.403:-

“(5) The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’s credibility if satisfied that it is plainly wrong.”

24.  In HKSAR v Fok James Alistair [2015] 4 HKC 247 Zervos J (as he then was) said[4] :

“In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, whether the finding was one that no reasonable magistrate could have reached.”

25.  The magistrate having rejected the evidence of the appellant, was to decide if the prosecution had proved its case beyond reasonable doubt against the appellant.  The magistrate was clearly aware of the standard of proof as illustrated at paragraph 39 of his SOF. 

26.  The magistrate reviewed all the evidence in detail.  It is apparent from the thoroughness of the SOF that the magistrate was alert to the important issue of credibility.  Having reviewed the evidence, I find no error in the magistrate’s approach to the reliability and credibility of the Inspector and his finding on her credibility.  I can find no basis to interfere with the magistrate rejection of the appellant’s evidence. 

27.  In the circumstances, the conviction is neither unsafe or unsatisfactory.  For these reasons the appeal against conviction is dismissed.