HKSAR v. MIA, MILON

HCMA 291/2023

[2024] HKCFI 1624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 291 OF 2023

(ON APPEAL FROM STCC 1529/2023)

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J U D G M E N T

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Appeal Against Sentence

1.  The appellant was convicted of one count of taking employment whilst 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. He now appeals against his convictions only.

The Prosecution’s Case

2.  On 10 May 2023 at 227-229, Hollywood Road, Central, Hong Kong at around 12:15 pm, a police officer, the only prosecution witness saw the appellant topless and covered in dust, carrying a bag of cement. He watched the appellant enter the building. This witness saw three carts of renovation material on the road by the entrance.

3.  After about 10 minutes of watching the entrance, PW1 saw the appellant come out of the building and approach a cart as if to pick up another bag of cement. He was still topless and covered in dust. PW1 approached the appellant and asked for his proof of identity. He was given a Form 8 recognizance document. He then called for the assistance of Immigration officers.

4.  When Immigration officers arrived, PW1 took the appellant upstairs. It was a walk up building with no lift. When they reach the 4^th floor, the appellant picked up a shirt and put it on. When they arrived on the 5^th floor, they entered a flat that was under renovation.

5.  There was renovation material placed inside the living room; several piles of what looks like bags of cement or sand in premises with no furniture or even a front door. There was no dispute it was a flat under renovation.

6.  Several bags hung on a window in this flat. The appellant pointed to one of the bags hanging on the window and indicated it was his. Three other men were arrested in this flat.

7.  Although the witness did not follow the appellant into the building to see where he put down the bag of cement, all of the other flats were locked and only this one was open, obviously under renovation and filled with bags of cement.

The Defence Case

8.  The appellant did not give evidence or call any witnesses in his trial. The defence case was that the building was not “an obvious place of employment”. It was argued in closing submissions that there was no evidence the bag or sack of material carried by the appellant into the building was a bag of cement.

9.  To find the appellant was working illegally at the time was not the only reasonable inference to be drawn. It was suggested there were other inferences to draw such as he could have been stealing cement with friends or he was just taking up a bag of cement to give to his friend. Therefore, there were other inferences to draw besides the appellant was undertaking employment or working.

10.  The issue was whether there was sufficient evidence to prove beyond reasonable doubt to show the appellant was under employment at that location.

11.  It was an admitted fact that on 1 August 2018 a removal order was made against the appellant and served on him on 28 August 2018. That removal order was still in force on the offence date. There were 5 photographs of the location and a sketch. It was also an admitted fact that the appellant had no previous convictions in Hong Kong.

The Magistrate’s Findings

12.  The magistrate accepted the evidence given by PW1 in its entirety is credible and reliable. In fact, it was not challenged in cross-examination by defence. The magistrate accepted the evidence that the appellant was topless, covered in dust and carrying a bag of cement when the witness first saw him enter the building.

13.  The magistrate identified the issue as whether the prosecution’s evidence was sufficient to draw the only reasonable or irresistible inference that the appellant was taking up employment by moving cement from the street up into the building.

14.  The magistrate relied on the following facts. The undisputed evidence that there was significant amount of renovation material inside one flat of the 5^th floor. There was no door into this flat. That fact and the photos support the observation that the premises were under renovation. The magistrate was not concluding that the building itself was an obvious place of employment but the flat identified.

15.  In that flat identified was the appellant’s bag hanging on window with other bags. The magistrate took these facts into account when drawing the sole and irresistible inference that the appellant was helping deliver cement from the street level up to the 5^th floor. He had left his bag and upper garment upstairs before he was seen working, it showed he was prepared to continue to carry the cement upstairs and since covered in dust, it would appear this was not his first trip carrying dusty or dirty renovation materials.

16.  The magistrate was aware that working at a place per se is not or cannot be construed or constructed as employment. However, in the absence of other evidence, a magistrate can draw an inference depending on the facts of each case. He took the view that the appellant was carrying cement upstairs for a third party. There was no evidence to suggest he was doing it out the kindness of his heart or friendship or stealing it. Especially when the building he entered included premises under renovation containing other bags of cement and the personal belongings of the appellant.

17.  The magistrate was satisfied beyond reasonable doubt that the prosecution had proved the elements of the offence. He drew the irresistible inference from facts he found proved that the appellant was under employment and performing work by conveying renovation materials upstairs.

The Legal Principles

18.  It is clearly established that a magistracy appeal is conducted by way of a rehearing on the evidence before the trial court.

19.  This can be supplemented by such further evidence as the appellate court may admit within its statutory power.

20.  Where findings of fact are based on oral testimony of witnesses, the appellate court would be subject to limitations and must exercise caution. The magistrate enjoyed the advantage of having seen and heard witnesses giving evidence, which the appellate court does not enjoy.

21.  However, the appellate court must work with those limitations when undertaking its duty to rehear the trial to reach its own conclusion on disputed issues of fact or law. In this case, the evidence of the only prosecution witness was not materially challenged, therefore, credibility was not an issue.

22.  If the appellate court is not satisfied on the evidence of the appellant’s guilt beyond reasonable doubt then the appeal must be allowed. If the appellate court comes to a different view on that evidence, that justifies a decision to allow the appeal.

23.  What this means is that the appellate court is required to consider and weigh all the relevant evidence and reach its own conclusion as to whether the elements of charges are proved to the requisite standard, beyond reasonable doubt.

Grounds of Appeal

24.  Mr Bernard Yuen represented the appellant during his appeal hearing. Mr Yuen argues the trial magistrate erred in law and in fact in finding that the appellant took up employment when such finding was unsupported by evidence. Therefore, the conviction of the appellant was unsafe and unsatisfactory and should be set aside.

Considerations

25.  Mr Yuen most comprehensively argued this sole issue with a similarly comprehensive reply from the respondent; from Mr Daryanani. I thank them for their assistance and reference to numerous authorities including those cited and relied on by the magistrate. Both strive to illustrate the correct definition of employment or what constitutes taking employment to support their position in this appeal.

26.  Both parties referred to HKSAR v Ferosh (2018) 21 HKCFAR 159. What both parties did agree on was that evidence of a person actually working at a place of employment would not necessarily support an irresistible inference of employment. In addition, the mere fact that a person is working for another does not necessarily mean there is a relationship of employment between the two.

27.  There should be a common understanding between the two of a relationship where one party is regarded as an employer by the other, HKSAR v Lui Zhi Hui, HCMA 302/2023. At the very least, there must be something more than an observation of somebody merely carrying out work in order for the prosecution to ask a court to draw the only reasonable or compelling inference that the defendant in question was an employee or employed, HKSAR v Hari Arshdeep Singh, HCMA 124/2019.

28.  It is also however, recognised that generally a person will not for no reason assist others to perform employment duties and earn money on their behalf. Therefore, in the absence of other evidence, the only reasonable or compelling inference of employment may be easy to draw.

29.  The respondent highlights from authorities two factors required to prove employment and that is evidence of work performed and evidence supporting the only reasonable inference of an employee and employer relationship.

30.  The appellant suggests the authorities recognise that working at a place per se is not employment. Mr Yuen reiterates that doing some work could be several reasons, such as for the purposes of fulfilling obligations under an employment contract or a service contract or on a voluntary and unpaid basis. Where there is other inferences to draw for doing work then the court cannot draw the only inference of actual employment. That of course must be right. The appellant recognises that every case stands on its own facts.

31.  The difficulty the appellant faces in this case is that there are no other inferences to draw. Suggestions made in closing submissions of other inferences to draw such as the possibility of the appellant just helping a friend carry a bag of building material do not constitute evidence the magistrate could consider. The appellant elected not to give evidence. The appellant did not materially challenge the evidence of the only prosecution witness. It is not for the magistrate to find evidence, which points to other inferences without more than the evidence presented by the prosecution. There is no other evidence to show more than one inference can be drawn.

32.  Mr Yuen for the appellant stresses the evidence of the only prosecution witness is far from sufficient to allow the court to draw the only reasonable inference of guilt against the appellant. He suggests the lack of evidence of an agreement between two parties, which includes fiduciary duties, and mutual obligations means there are insufficient facts the prosecution to prove employment beyond reasonable doubt.

33.  It is suggested the magistrate’s findings on the prosecution’s evidence at most only amounts to a suspicion of employment, which is not enough. The appellant elected not give evidence, which does not relieve or assist the prosecution’s burden of proof. That is to prove their case to the appropriate standard beyond reasonable doubt on proven facts.

34.  Being a rehearing, for the purposes of this appeal, I have reconsidered afresh the evidence from the only prosecution witness. I too draw the only irresistible inference on the facts accepted by the appellant that he was taking up employment.

35.  Like the magistrate, I find more than sufficient circumstantial evidence to be able to draw that inference. The respondent has set out the circumstantial evidence that I also find when considered together, allows me to draw the only irresistible inference adverse to the appellant.

36.  The time of day is relevant; from 12:15pm to 12:25pm. Other relevant factors include the location of the observation of the appellant began on the street outside 227-229 Hollywood Road. The appellant was next to a cartload of renovation material. He was seen carrying a bag of cement from that location inside the building. He was topless and dusty, covered in dust. Carrying renovation material, bags of cement up stairs is dirty and hot work, which explains why the appellant was topless.

37.  The only location in the whole building that contained renovation material and bags of cement was the flat that was clearly under renovation, empty of all fittings and fixtures including a front door. All of the other premises in the building were locked.

38.  In that flat, hanging on the window frame was the appellant’s bag containing his personal belongings. On the floor below was his shirt, which he picked up after having been intercepted by the police and put it on.

39.  The evidence he was about to pick up a second bag meant that this work was ongoing, repetitive and the nature of the work was clearly of a manual and laborious nature. Clearly, work linked to a renovation project. The magistrate was right to conclude that the facts showed the appellant preparing to continue to carry cement from the street up into the building.

40.  The appellant is a Form 8 holder and clearly did not live there so must have been part of a team of people (others were arrested too) working to renovate that specific premises.

41.  I am only repeating the circumstantial evidence considered by the magistrate and reiterated by the respondent in submissions. There may be no evidence from any other employee or an employer but that is not fatal to the prosecution’s case.

42.  In the majority of these types of cases, an employer is not identified nor is there enough evidence to prosecute a suspected employer. The common understanding required to infer an employer and employee relationship can come from the circumstantial evidence highlighted above.

43.  No one would undertake such labour-intensive work without remuneration. The appellant’s status in Hong Kong with a deportation order in force means the work undertaken must and can only be illegal. Therefore, any terms of employment or evidence of fiduciary duty will be impossible to uncover.

Conclusion

44.  On the facts proven, I am sure I can draw the only irresistible inference that the appellant took up employment as an odd job worker in Hollywood Road, whether paid or unpaid when a removal order against him was in force.

45.  I am satisfied the offence has been proven by the prosecution beyond reasonable doubt. The magistrate’s findings and reasons given are more than valid; they are correct. In the circumstances, the magistrate was justified in convicting the appellant and I find no basis for disturbing that conviction. There is no merit in this appeal.

46.  The appeal against this conviction is dismissed.