HKSAR v. JAVED ZAKIR

HCMA 584/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 584 OF 2016

(On appeal from STCC 1607/2016)

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J U D G M E N T

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1.  The Appellant was convicted after trial in the Magistrates’ Court on a charge that, contrary to Section 38AA(1)(a) and (2) of the Immigration Ordinance (Cap 115), he, on 15 March 2016, in Fanling, took up employment, namely as an odd-job worker, who remains in Hong Kong without the authority of the Director of Immigration after having landed unlawfully.  He appeals against his conviction.

2.  Two Perfected Grounds of Appeal have been filed on his behalf.  They read:

“ 1. It is respectfully submitted, the Learned Magistrate whilst rejecting and not relying on PW1’s (PC13942) evidence, in that the alleged observation was unable to prove the element of ‘taking up employment’ concerning both the 1st Defendant and D2 (resulting in the acquittal of the 1st Defendant) erred and was wrong in fact and/or principle in convicting D2 of Charge 2 as a matter of fact finding/law and/or inference by

i placing excessive and undue weight in terms of the D2’s ‘lunch arrangement’ as unbelievable and therefore rejected; and/or alternatively;

ii placing excessive and undue weight whilst relying on D2’s Record of Interview as a basis of an ‘employment contract’ with an unknown Indian male further and/or alternatively to finding that D2 ‘was employed to do offloading work and as an odd-job worker’ at the material location whilst bearing in mind PW1’s evidence that observation had not been proven and was unaccepted.

2. By reason of the foregoing ground(s), the conviction is unsafe and unsatisfactory.”

3.  Section 38AA(1)(a) of the Immigration Ordinance provides that a person “who, having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director of Immigration under Section 13 … must not take any employment, whether paid or unpaid, or establish or join in any business.”  As to employment, the prohibition is against taking employment, and is not confined to actually doing work.

4.  What the Record of Interview states is summarised as follows in paragraph 6 of the Written Submissions provided by counsel for the Appellant:

“ i. Answer 1: An Indian guy asked me to go there to off load [goods] truck. I told him that I was not allowed to work, but he told me that helping him was not a problem. (‘Answer 1’)

ii. Answer 2: The Indian male is about 31,32 years old, 1.7 m tall… [t]he first time I met him was at ISS, where he asked me to help him. I do not have his contact. I do not know him. (‘Answer 2’)

iii. Answer 3: The Indian male promised to pay me $300 in cash after the work was done. (‘Answer 3’)

iv. Answer 4: …I would only be given the $300 on the next Sunday after the work was done. [Not yet, I would only receive the $300 on the next Sunday after the work was done: Certified Translation] (‘Answer 4’)

v. Answer 5: I went to Fanling from Kwun Tong by MTR. At unknown exit of MTR Fanling station, I got onto a van and then someone drove me there. [I went to Fanling from Kwun Tong by MTR. At an exit of which (I) do not know the name of Fanling MTR station, I (got onto a van‑type light goods vehicle and then someone drove me there: Certified Translation]. (‘Answer 5’)

vi. Answer 6: I forgot the registration mark of van. On the van apart from me there was a driver and 3 other passengers. I only recognized that one of the passenger was the Indian male who asked me to help him. Neither do I remember nor know the rest of the passengers. (‘Answer 6’)

vii. Answer 7: The Indian male did not get off the van with me, so I stood next to the truck alone, waiting for him to come back until he arrived to start work together. [The Indian male did not get off the vehicle with me, so I stood next to the truck alone, waiting for him to come back. We started working together after he has come back: Certified Translation]. (‘Answer 7’)

viii. In response to question 8 — whether the Appellant saw anybody working around where he stood? : – Answer 8: No.  (‘Answer 8’) ”

5.  If the Magistrate felt sure, which he did, that those admissions were admissible and true, he was entitled to convict the Appellant on those admissions, doing so on the basis that even though the Appellant had not yet started work, he had agreed to off‑load a truck (in return for a promise of payment but as it happens, even unpaid employment is prohibited by Section 38AA(1) of the Immigration Ordinance) and he had turned up at the time and place where he was to off‑load the truck.  By agreeing to do work and turning up for work, a person takes employment within the meaning of Section 38AA(1) of the Immigration Ordinance.

6.  Saying, as the Magistrate said, that the Appellant’s evidence that he was at the scene pursuant to a lunch arrangement was “unbelievable” can be said to be putting it too high since such evidence was not inherently incapable of being believed. But that is not fatal to this conviction.  A Magistrate’s Statement of Finding is to be read as a whole and in a manner fair to both the prosecution and the defence.

7.  Reading the Statement of Findings in the present case in that manner, I am satisfied that the Magistrate, who after all saw and heard the Appellant in the witness‑box, was really saying no more than that he felt sure on the whole of the evidence that there was no truth in the Appellant’s evidence that he was at the scene pursuant to a lunch arrangement.  That is a view of the facts properly open to the Magistrate. 

8.  Despite the able arguments of counsel for the Appellant, I do not regard this conviction as unsafe or unsatisfactory.  Nor, despite those able arguments, do I find any other basis for quashing it.

9.  The appeal is therefore dismissed.