HKSAR v. ASHRAFUL ALOM

HCMA 546/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 546 OF 2016

(ON APPEAL FROM STCC NO 724 OF 2016)

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J U D G M E N T

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1.  The appellant, being the 1^st defendant at trial, faced a charge 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). Before a deputy magistrate (“the Magistrate”) the appellant pleaded not guilty to the charge and was convicted after trial. He was sentenced to imprisonment for 22 months and 2 weeks. He now appeals against the conviction and sentence.

2.  The prosecution alleged that the appellant took up employment as an odd job worker, while his immigration status prohibited him from taking employment.

3.  The defence denied that the appellant had worked or taken any employment.

4.  The appellant was represented by a duty lawyer at trial. He is now unrepresented at the appeal hearing.

5.  At the appeal hearing, the appellant initially abandoned his appeal against conviction and confirmed it in writing.  He later however changed his mind and reinstated his appeal against conviction with the court’s approval.

The Prosecution Case

6.  I shall mainly adopt the summary of evidence in the Magistrate’s Statement of Findings.  On 1 December 2015, police officers conducted an operation in Yuen Long area.  At around 0205 hours, PC 12430 (PW1) observed the appellant standing near a truck with another South-Asian male and a Chinese male.  The truck was parked near Yuen Long Market.  The appellant was seen hopping on the tailboard of the truck.  The other South-Asian male then lifted the tailboard from the ground, before the appellant conveyed boxes of vegetables from the compartment of the truck to a pallet truck.  After the loading of about 20 boxes, the other South-Asian male lowered the tailboard.  The appellant and the other South-Asian male then moved the boxes from the pallet truck onto the ground.

7.  Upon his observation for about 3 minutes, PW1 called for assistance.  PC 15105 then arrested the appellant.

8.  It was admitted that the appellant was subject to a removal order in force.  He was prohibited from taking up any employment, whether paid or unpaid.

The Defence Case

9.  The appellant elected to give evidence.  He did not dispute that he was arrested near the subject truck, but he denied working there.

10.  The appellant said he attended a gathering in Tsuen Wan earlier that night.  When the gathering was over, bus service had already been suspended.  He found the subject truck near Tsuen Wan market and asked if the Chinese driver could take him to Yuen Long.  The driver agreed.  When the appellant boarded the truck, a Pakistani passenger was already onboard.

11.  When the truck arrived at the material location, the Chinese driver alighted and disappeared.  The Pakistani passenger then started to work at the back of the truck.  The appellant was the last one to alight from the truck.  After he got off from the truck, the driver locked the truck by remote control from afar. It was at that moment that the appellant found out that he left his belongings on the truck.  He therefore waited at the front of the truck for the driver’s return.

12.  While he was waiting, he walked around the front of the truck.  He was then stopped and arrested by police officers.

13.  The defence also called a defence witness, Mr AHMED Zulfiqar. Mr Ahmed testified that he did not know the appellant before.  On the material night, he was visiting his friends who worked at Yuen Long Market and was on his way home when he saw the appellant walking around the trunk.  The appellant was then stopped by police officers.  He never saw the appellant working at the scene.

Reasons for Conviction

14.  The Magistrate directed himself that it was the prosecution’s duty to prove the charge beyond reasonable doubt and that the appellant had no burden to prove his innocence.  He noted that the appellant had a clear record in Hong Kong.  He gave the appellant favourable directions in respect of his propensity and credibility.

15.  The Magistrate identified the issue as whether PW1 correctly identified the appellant as the person moving the boxes.  Furthermore, if the identity was established, whether the evidence was sufficient to prove that the appellant took up employment.

16.  The defence complained that the observation was made in difficult circumstances, because PW1 could only observe the appellant from 20 metres away and the lighting condition was unsatisfactory.

17.  The Magistrate noted that PW1 said he was observing from the same direction as photo P3(1) depicted.  He accepted that the lighting condition depicted in P3(1) was bad.  However, he accepted the explanation of PW1 that photo P3(1) did not truly reflect the lighting condition at the scene.  The lighting condition reflected in P3(1) was affected by the poor quality of the camera and the use of flashlight when the picture was taken.  The Magistrate also noted that there was a lamp post immediately adjacent to the truck as shown in photos P3(2) and P3(4).  He found that there was sufficient lighting at the scene.

18.  The Magistrate accepted PW1’s observation and identification of the appellant.

19.  On the other hand, the Magistrate rejected the appellant’s evidence for the following reasons:

(1) He found the appellant’s version filled with co-incidences and unreasonable. He alleged that he had no money to go home in Yuen Long and there happened to be a truck in Tsuen Wan and the truck was also going to Yuen Long.

(2) He also found it implausible that the driver of the truck would just let the appellant, a complete stranger, onto his truck when all that the appellant could communicate was by gesture and saying “Yuen Long” in English.

(3) The appellant said he had no money with him on the material night.  It was implausible that he would stay in a gathering after the bus service hour.

(4) The appellant’s explanation of staying near the truck was unconvincing. First it was implausible that he would leave the truck without his personal belongings.  Even so, when he found out that the truck was locked, the driver should be just around, since the driver managed to lock the truck with his remote control.  Yet the appellant did not look for the driver.  It was also unreasonable that the appellant did not seek the assistance of the Pakistani passenger who just got off the truck with the appellant, while the appellant could see him working at the back of the truck. 

20.  The Magistrate also found the evidence of the defence witness, Mr Ahmed, unreliable.  His evidence showed that he did not pay much attention to the appellant. Moreover there were discrepancies between the evidence of the appellant and his witness as to where the appellant was before the arrest.

21.  In considering whether the appellant was being employed, the Magistrate bore in mind that working per se is not employment.

22.  Having considered all the circumstances of the case, he drew as an irresistible inference that the appellant was employed as an odd job delivery worker in delivering the goods to the market.  He convicted the appellant accordingly.

Reasons for Sentence

23.  The appellant is 34 years old.  He came to Hong Kong in 2004 to pursue his non-refoulemont claim.  The result of the claim is still pending.

24.  The Magistrate adopted the sentencing tariff laid down in HKSAR v Usman Butt & Anor [1]. He therefore adopted a starting point of 22 months and 2 weeks.  As the appellant was convicted after trial, the Magistrate saw no reason to reduce the sentence from the starting point. 

Grounds of Appeal

25.  The grounds of appeal, in gist, were that the evidence of the police officers was only speculation; it was difficult for them to observe the appellant; the appellant’s witness proved that the appellant was just standing there; and the police officers misunderstood him.  The appellant emphasized in court that the evidence of the police was not sufficient and that he had a clear record in Hong Kong having lived here for 11 years.  After the hearing, the appellant sent a letter to court making a further submission basically repeating what he had previously said.  He added that his mother had suffered a minor heart attack.  I have taken into account what he said in the letter.

The Court’s Consideration

26.  Magistracy appeal is conducted by way of rehearing on the evidence before the trial court.  The main issue in the present case is the credibility and reliability of PW1.  The credibility and reliability of any particular witness is within the assessment of the trial magistrate who had the advantage of receiving the evidence first-hand.  It is only where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or where the magistrate has misunderstood, misquoted, or failed to consider any significant aspect of the evidence, that the conviction will be rendered unsafe and/or unsatisfactory.  An appellate court will only depart from a magistrate’s finding of fact or determination of a witness’s credibility if the court is satisfied that the finding is plainly wrong.[2]

27.  In my judgment, the Magistrate has considered all the evidence in the case very carefully.  He analyzed the case with great care and gave detailed reasons why he accepted the evidence of PW1 and rejected the evidence of the appellant and his witness.  The evidence that when the appellant had no money to go home and there happened to be a stranger to give him free ride is implausible.  The explanation that he remained near the truck because he left his belongings on the truck is also entirely unreasonable.

28.  The Magistrate’s reasons are sound and there is nothing illogical or inherently improbable in his findings. I find that his findings cannot be faulted.

29.  There is entirely no basis for the appellant to say that the evidence of PW1 was speculation.  As the Magistrate rightly observed, there was a lamp post immediately adjacent to the truck and it was not difficult for PW1 to observe someone standing on the tailboard for 3 minutes.  The Magistrate is entirely entitled to accept PW1’s identification of the appellant.

30.  On the totality of the evidence in the case, the inference of employment must be the only irresistible inference.

The Result

31.  I find that the conviction is not unsafe or unsatisfactory.  The appeal against conviction is therefore dismissed.

32.  Insofar as the sentence is concerned, the Magistrate applied the correct sentencing guideline.  The medical condition of the appellant’s mother cannot amount to any mitigation in this case.  The sentence of 22 months and 2 weeks’ imprisonment is neither wrong in principle nor manifestly excessive.

33.  The appeal against sentence is also dismissed.