HKSAR v. UDDIN, MD MOHI

HCMA 378/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 378 OF 2014

(ON APPEAL FROM STCC 441 OF 2014)

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J U D G M E N T

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1.  This was an appeal against conviction by the appellant. The appellant was convicted after trial by a magistrate[1] of an offence of being the employer of a person not lawfully employable contrary to section 17I(1) of the Immigration Ordinance, Cap 115.

The facts

2.  On 15 January 2014 a labour officer (PW1) disguised as a customer mounted an observation outside of a shop called “Perfect Shop” (the shop) on Nathan Road, Kowloon.  The shop sold merchandise such as suitcases, handbags bags and umbrellas.  The shop was owned by the defendant since November 2012.

3.  PW1 saw one male inside the shop, later known as Hossen, during an observation of 3 to 4 minutes he made from outside the shop.  PW1 then went into the shop and asked for an umbrella.  Hossen took an umbrella hanging at the entrance of the shop for the officer to inspect.  He told PW1 that the umbrella was $30.  There was no price tag on the umbrella.

4.  PW1 made payment of $30 for the umbrella.  Hossen then got a plastic bag, without any searching, from a place behind the suitcases at the rear part of the shop.  The place which the plastic bag was put was covered with handbags and suitcases.  He then put the umbrella into the plastic bag and handed it to PW1.

5.  Police officers arrived at the scene shortly thereafter for investigation. Whilst conducting their investigation, the appellant approached the officers at the shop.  The appellant informed the officers that the shop and goods were owned by him.  Later through a Bengali interpreter the appellant said he did not know Hossen. 

6.  The male Hossen was an illegal immigrant who remained in Hong Kong unlawfully and was a person not lawfully employable.

The defence case

7.  The defendant elected not to give evidence and called no defence witnesses in this case.  The defence did not dispute that Hossen was present in the shop at the material time and that he sold the umbrella to PW1.  It was the defence case that he did not know Hossen and denied employing him. 

Issue at trial

8.  The issue at trial was whether the appellant employed Hossen.

Grounds of appeal

9.  Counsel for the appellant Mr Raymond Yu raised two grounds of appeal.  They were as follows:-

(1) The learned magistrate wrongly drew the compelling inference against the appellant that the appellant must have employed Hossen in the shop in that there was no evidence or no proper evidence for the learned magistrate to come to that conclusion.

(2) The learned magistrate wrongly failed to consider or sufficiently consider the following evidence before conviction that :

(a) The observation mounted inside the shop by PW1 was so brief and short.

(b) When Hossen was serving PW1 inside the shop, the appellant was not present at the material time.

(c) The appellant made no admission of guilt at scene.

(d) The appellant said in his record of interview that he did not know Hossen.

Discussion

10.  Mr Yu made his submissions on the two grounds of appeal collectively.  

Ground 1

11.  Mr Yu submitted that there was no evidence to draw the compelling inference that the appellant must have employed Hossen.  There was no evidence to show:-

(i) that Hossen was in control of the shop, he did not have possession of the keys of the shop;

(ii) remuneration, wages or reward or contract of employment or any relationship from or between the appellant and Hossen and

(iii) no activities such as handling the cashier counter or money box or dealing with account books or invoices.

12.  The above is direct evidence which may infer employment.  In light of other evidence in the instant case the lack of that evidence did not diminish the drawing of an inference of employment. 

Ground 2a

13.  It was submitted that the there was insufficient time to determine if Hossen was employed at the shop.  The period of time when PW1 approached Hossen to the police officers arrival was approximately 15 minutes inclusive of the observation from outside would be about 20 minutes.  This was sufficient time in the instance case to make the determination.  For the duration Hossen was the only person in the shop, he sold an umbrella and had knowledge of the location of items within the shop.

Ground 2b and Ground 2d

14.  Mr Yu submitted that in view of the appellant’s absence from the shop there was no evidence as to why Hossen was there.  It was argued that although the appellant was the owner of the shop there was no evidence to show that Hossen’s presence was as a result of the appellant’s consent or authority.  He did not know Hossen, nor did he know he was employed or there at all.  Even though the appellant was the owner of the shop, it was not an irresistible inference that he had employed Hossen.  It was suggested Hossen could have been employed by other staff working at the shop.  Hossen’s presence may have been unauthorized, in that whilst the shop was left unattended, Hossen unilaterally without the appellant’s or staff’s authority unilaterally went into the shop to work as a salesman. 

15.  There was no evidence that there was staff employed at the shop.  No other person was seen at the shop for the 18-19 minutes until the appellant appeared.  The only evidence before the magistrate was that the appellant was the owner of the shop and goods.  There is no merit in this submission.  It is far-fetched to accept that Hossen a person unconnected with the shop, would have unilaterally assisted in selling items at the shop in the absence of anyone there and would have done so gratuitously. 

16.  On the evidence there was a reasonable inference to draw that Hossen was present at the shop in a position of trust with the authority and consent of the appellant as a salesman. 

Ground 2c

17.  The appellant did not make any admissions to the offence.  The magistrate did not reach her conclusion of guilt by relying on any admissions of guilt.  There is no merit in this ground.  

18.  The legal position in this area of law is stated in HKSAR v FEROSH [2] the Court of Final Appeal accepted :

(i) the position in The Queen v IP Po-fai HCMA 1201/1995 that evidence of a person actually working at a place of employment would not necessarily support an irresistible inference of employment; and

(ii) the interpretation of a previous decision of the Court of Final Appeal in POON Chau-nam v YIM Siu-cheung [2007] 10 HKCFAR 156 and HKSAR v CHOW Kin-cheung [2013] 1 HKC 246 that the mere fact that a person in working for another does not necessarily mean there is a relationship of employment between the two.

19.  The offence is one a strict liability offence.  Attorney General v YIP Man-cheong [1989] 2 HKLR 547.

20.  The magistrate in her statement of findings referred to the authorities of Ip Po Fai, Chan So Bing[3], Lau Chi Wai[4], Singh Jaya Mahohar[5]. The judgment in Ferosh was delivered one week of the verdict.  She was aware there was no evidence referred to in paragraph 11 (i)-(iii) above and that there was no evidence of a relationship between the appellant and Hossen.

21.  In the absence of any direct evidence the magistrate was correct that to prove employment by the appellant she was to draw the irresistible inference from the evidence.

22.  The magistrate found apart from the undisputed facts that Hossen had sold the umbrella to PW1, Hossen was familiar with the whereabouts of the plastic bags in the shop, the price of the umbrella even though there was no price tag.  The magistrate found it inconceivable that the shop would be left unattended for some 18-19 minutes and that Hossen would unilaterally work as a salesman.  She concluded that Hossen was left in the shop alone as the appellant placed him in a position of trust of goods of some value.  There being no relationship between the appellant and Hossen there was simply no good reason for Hossen to be at the shop except for the purposes of employment and to receive a wage. 

23.  The Court of Final Appeal in Ferosh stated that a shop is an obvious place of employment.  Hossen was working alone as a salesman in an obvious place of employment.  

24.  On the evidence, the magistrate correctly drew the irresistible inference that the appellant employed Hossen.

25.  Having examined all the circumstances and the facts I was satisfied that the conviction is safe and satisfactory.  The appeal is a  accordingly dismissed.