HKSAR v. ZAMAN MUNIR UZ

HCMA 113/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 113 OF 2017

(ON APPEAL FROM STCC 4614 OF 2016)

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J U D G M E N T

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1.  The appellant was convicted after trial of one count of taking employment while being a person in respect of whom a removal order is in force, contrary to s 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 155. He was sentenced to 22 months and 2 weeks imprisonment. He now appeals against his conviction and sentence.

Background

2.  It was not disputed that the appellant is a Pakistani male in which a removal order was issued against him on 7 October 2013.  He was then released on recognizance and he was prohibited from taking up any employment, paid or unpaid in Hong Kong including the date of the offence on 21 November 2016.

3.  The prosecution alleged that the appellant took up employment as an odd job worker in a fruit store ‘Kwong Hop Loong’ (‘the store’) located at Stall No. 89-90 & 93-94, Hai Pong Road Temporary Market in Tsim Sha Tsui. 

4.  The defence case was that he was only using a hose in the shop to clean his hands of faeces and was there intending to purchase vegetables. 

5.  The deputy magistrate[1] rejected the defence case.  He accepted the prosecution case and drew an irresistible inference that the appellant must have taken employment in the store as an odd job worker and found the charge proved beyond reasonable doubt. 

Grounds of appeal

6.  The appellant who was not legally represented repeated part of his defence.  He reiterated that he was not working at the store but he only went there to buy vegetables.  In brief he submitted that the magistrate was wrong to believe the only prosecution witness (PW1) and reject his evidence. 

Prosecution case

7.  The Prosecution called an Immigration Officer (PW1).  PW1 testified that on 21 November 2016, he arrived at the store at around 0706 hours and observed it for around 15 minutes. During his observation he saw the appellant in the store doing the following:

(i) spraying water at the glass doors of the refrigerators before brushing them with a brush;

(ii) cleaning two refrigerators for about 10 minutes;

(iii) tidied up the hose and put the brush aside;

(iv) moved a box of fruit from outside the store to the entrance of the store;

(v) moved two more boxes and

(vi) when he finished moving the boxes, he left the store.

8.  The appellant was intercepted outside the store and arrested.

The defence case

9.  The appellant elected to give evidence. In brief, he denied working in the store but admitted going inside the store for two purposes.  The first was to wash animal faeces off his hands and whilst in the store he decided then to purchase vegetables. 

10.  The appellant said that on the material day, he went to the store after his morning prayer at the mosque.  When he walked past the area where boxes of fruits were placed, dog or cat faeces deposited on the boxes became stuck on his hands.  He therefore went inside the store where he was a frequent patron, to clean his hands.  He did so by using the hose and brush to wash his hands.  After cleaning his hands, he decided to buy some vegetables (lady fingers) from the refrigerators of the store.  He therefore took out his wallet and just then realized he only had $10.  Realising that he had insufficient cash, he then returned the vegetables back into the refrigerator and left the shop.  When he was outside the store he was intercepted and arrested by Immigration officers.

The magistrate’s findings

11.  The magistrate carefully considered the evidence of PW1 and the defendant.  He accepted the evidence of PW1 and his observation of the appellant in the store for 15 minutes (from 0706 to 0721 hours) doing all the cleaning and moving which was consistent with him working at and in a place of obvious employment. 

12.  The magistrate rejected the evidence of the appellant.  He observed that the appellant was tall.  He found improbable, that even if, which he found difficult to accept, dog or cat faeces was deposited on the carton boxes, for the appellant’s hand to have touched the boxes they would have had to be been at a height of at least a metre from the ground.  He also found it unreasonable that the appellant did not ask for permission first before he used the hose and brush in the store to wash his hands.  He found it unconvincing that the appellant had only brought $10 with him when he was going out to do grocery shopping.

Discussion

13.  The issue turns on the magistrate’s assessment of the appellant’s and PW1’s credibility. 

14.  The appellant submitted it was wrong to reject his testimony and accept that of PW1’s. 

15.  The issue of credibility is a question of fact.  The principles relating to a magistracy appeal have been reiterated in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383 by McWalters J (as he then was).  An appellate court will not depart from a magistrates finding as to the credibility of a witness unless it is satisfied that the finding is plainly wrong. 

16.  The magistrate had the opportunity of seeing and hearing the witnesses.  I see no reason to go behind the findings of the magistrate.  The magistrate was entitled to feel sure that the truth had been told by PW1 and reject the appellant’s evidence. 

17.  In finding that PW1 was a credible witness, I am satisfied that he was fully justified in drawing the irresistible inference in finding that the appellant took employment at the store as an odd job worker. 

18.  The conviction was based on the totality of the evidence, the magistrate had duly dealt with and assessed the issue of credibility.  Accordingly, the appeal against conviction is dismissed.

Appeal against sentence

19.  The appellant is 38 years old.  All his family members are residing in Pakistan.  The appellant has one previous conviction for a similar offence.

20.  The appellant submitted that the sentence of 22 months and 2 weeks was too long.  He asked for leniency so that he can be released as soon as possible so that he could return to look after his father and children in Pakistan. 

21.  In sentencing the appellant the magistrate considered the relevant authority of HKSAR v Usman Butt & another [2010] 5 HKLRD 452.  The Court of Appeal laid down the guideline sentence of 15 months imprisonment upon a plea of guilty in relation to section 38AA offences.  The appellant was convicted after trial and as such the correct starting point to be adopted is one of 22 months and 2 weeks imprisonment.  The appellant did not present any mitigation that merited a departure from the starting point. 

22.  Although the magistrate considered enhancing the sentence he decided not to do so, it could be said that the magistrate was generous to the appellant in not enhancing the starting point as the appellant had a previous similar offence.  In the circumstances, the sentence is neither wrong in principle or manifestly excessive.  Accordingly the appeal against sentence is dismissed.