HKSAR v. YIU WING CONSTRUCTION CO. LTD.

HCMA 1201/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1201 OF 1998

(On appeal from KTS3366 of 1998)

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J U D G M E N T

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1. The Appellant, a limited company, was convicted after trial on a summons before a magistrate at Kwun Tong Court of an offence of being in control of a construction site on which was found persons who had remained in Hong Kong without the authority of the Director of Immigration, contrary to s. 38A(2) of the Immigration Ordinance, Cap. 115.

2. The sole issue at trial was whether the Appellant through its officers and managers had taken all practicable steps to prevent illegal immigrants who were found on the site from being on the site so as to satisfy the provisions of the statutory defence provided by way of s. 38A(3) of Cap. 115.

3. The Appellant originally appealed against both its conviction and sentence, but abandoned its appeal against sentence shortly prior to the hearing.

4. Its grounds of appeal against conviction were as follows:

5. Firstly, that the trial magistrate had wrongly ruled that a proposed defence witness, a Mr WAN, had insufficient qualifications and expertise to qualify as an expert witness on construction site security;

6. Secondly, that the trial magistrate misdirected himself by:-

(a) wrongly holding that the question of whether the Appellant had taken all practicable steps so far as its site security was concerned was a finding of fact which did not involve areas of knowledge outside the competence of the court, and

(b) wrongly admitted and took account of evidence of the condition of the construction site as to its state of security two days before the date of the charge.

7. Thirdly, that the trial magistrate failed to give proper weight to the evidence of the security system employed by the Appellant in finding that it had not established that it had taken all practicable steps to prevent illegal immigrants being on the construction site, and

8. Fourthly, that the trial magistrate had entered the arena of trial and created an impression of bias by asking an inordinate number of questions.

9. The Appellant claims that in all these circumstances, its conviction was unsafe and unsatisfactory.

10. It is convenient to deal with grounds 1 and 2(a) together. During the course of its case before the trial magistrate, the Appellant had sought to introduce the evidence of a Mr WAN as an expert in the field of construction site security. A voire dire was held as to Mr WAN's qualifications and expertise in this field. The magistrate after having heard evidence in this regard ruled that Mr WAN was not sufficiently qualified as an expert.

11. As to that ruling The learned magistrate also said this:-

"Having heard and considered Mr Wan's working experience, his ranking when he left the Hong Kong Police Force, his training and the date and the field of discipline in which he received his training, his academic qualifications and the nature of the evidence he purported to give in court, and also carefully considered whether his knowledge/expertise was scientific and/or specific which was outside the knowledge and experience of the court and if the court was able on the facts proved in this case, to come to a conclusion whether the Appellant had taken all practicable steps to prevent the illegal immigrants found on its construction site, I ruled against the Defence and held that Mr Wan did not have the necessary qualifications and expertise to qualify him as an expert witness on construction site security."

That was said by the learned magistrate in his Statement of Findings. He then went immediately on to say this:

"This trial was also based on facts proved and not on any scientific or special knowledge outside the knowledge of the court on how to prevent illegal immigrants from being on a construction site."

12. Mr WONG for the Appellant complains that the magistrate was wrong in his finding that the trial issue of construction site security was a question of fact not requiring any special knowledge on the part of the tribunal for its proper resolution.

13. In R. v. Bonython (1984) 38 SASR 45. The Supreme Court of South Australia said:-

"Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court."

14. So far as the first question or matter is concerned, the learned magistrate had plainly decided that the subject matter as to construction site security involved solely questions of fact within the competence of an ordinary person, i.e. a person without instruction or experience in the area of construction sites security, so as for him to be able to form a sound judgment on the matter without the assistance of the opinion of witnesses expert in the area. I must say I agree with the finding of the magistrate.

15. The matters of fact at issue in the trial so far as the particular sites security was concerned was whether the fenced perimeter of the site was properly secured in that a proper system of management was set up to ensure that openings made in the fence for the purposes of construction were properly guarded while there, or closed as soon as practicable and whether the comings and goings of people through the sites gates or entrances was properly monitored and further whether security patrols and measures were sufficient to prevent illegal immigrants entering the site with workers and sufficient to subsequently detect them if they did.

16. These are all matters of pragmatic fact. There is no special knowledge or question of science involved. It may well be that the site was very large, it being some 29,000 sq. meters or so, but that is a question of scale only and does not alter the underlying principles by which a tribunal would deal with the questions of fact involved.

17. The magistrate was right in holding that the questions before him were questions of fact within his competence and not requiring any special expertise to resolve.

18. The magistrate having found that, there was really no reason for him to examine the question of the expertise of Mr WAN. In this regard, the learned magistrate seems to have dealt with two separate issues, i.e. firstly, whether the area of evidence in issue requires expert evidence for its resolution and secondly, as to whether Mr WAN was sufficiently qualified as an expert as being one issue.

19. The proper course would have been to firstly and separately decide whether the matters in issue were amenable to expert evidence or not.

20. If not, as the magistrate found, then there was no need to consider the question of whether witnesses were sufficiently qualified. That question would only arise in the event the court had decided that the matters in issue were amenable to expert evidence.

21. Accordingly given his finding that the issues before him were questions of fact not requiring expertise for their resolution, in considering whether Mr WAN was an expert, the magistrate had embarked upon a completely unnecessary course.

22. Whilst an irregularity, however, this was not a material irregularity as the end result was that no expert evidence was given and at the end of the day the magistrate determined the issues in the case as simple matters of fact as he was entitled to do.

23. I might add in any event that in my view the magistrates decision that, even if the subject matter of the construction site security was amenable to expert evidence, Mr WAN was insufficiently qualified cannot be criticised. From his Statement of Findings he had considered both Mr WANs academic qualifications and his experience in arriving at his decision. It is also apparent from the content of his ruling given in this regard during the course of trial that he had considered both the experience and academic qualifications of Mr WAN in arriving at his finding albeit the terms of his ruling could perhaps have been better worded in that they at the end of the day referred only to the academic qualifications of Mr WAN.

24. Nevertheless for the reasons I have already given, the magistrate resolved the matters of fact, as he was entitled to do, in a proper way without any assistance from Mr WAN, that assistance he having already found was not required. That is enough to dispose of Ground 1 and Ground 2(a).

25. So far as Ground 2(b) is concerned, during trial two police officers, a Sergeant and a Constable, gave evidence of having been able to walk through an entrance gate into the Appellant's construction site without hindrance or checking by security guards on the 27 September 1997 which was 2 days before the charged date.

26. In his Statement of Findings, the learned magistrate said:

"There were evidence to show that PW7 and PW8 (the two police officers) on two different days could walk into the site and walk through the gaps in the hoardings without being stopped and checked by anyone. They were not wearing any Work Pass at the relevant times."

27. Mr WONG for the Appellant argues that whatever the state of security of the site was on the 27 September 1997 was irrelevant to the issue of its state of security on the 29 September 1997.

28. He says, therefore, admitting this evidence was necessarily more prejudicial than probative and it should not have been allowed.

29. With respect I cannot agree. The evidence before the magistrate was that the organisation of the Appellant's security system was a continuing matter. That organisation did not apparently change from day to day but was based on standing management procedures and timetables.

30. It was apparent from the evidence presented in the defence case that the security measures taken at the site were regulated and organised by and in accordance with management decisions which were of long standing.

31. The evidence of how effective or otherwise those security measures were only some 2 days before 10 Illegal Immigrants were found in the site was relevant and probative. The question of any time delay between the 27th and the 29th September was a matter which went to weight only.

32. That disposes of Ground 2(b).

33. So far as Ground 3 is concerned, Mr WONG argued that the learned magistrate failed to properly consider the evidence of the Appellant's security system and as a result fell into error when applying the "all practicable steps" test as considered in R. v. Shun Shing Construction & Engineering Co. Ltd. [1993] 1 HKCLR 69.

34. Mr WONG argued that considerable evidence had been put before the magistrate in the course of the Defence case at trial as to the steps taken by the Appellant's employed security company to ensure site security as well as by the Appellant's own employees.

35. He said the magistrate had ignored that evidence in coming to the conclusion that not all practicable steps had been taken.

36. In my view that is not so. The learned magistrate set out the Defence case in considerable detail in his Statement of Findings. He dealt individually with the evidence of each of the Defence witnesses called as to the steps taken to ensure the security of the site and was quite painstaking in summarising their evidence. He obviously had that evidence well in mind and devoted in his Statement of Findings some considerable part to its analysis.

37. He commenced this analysis by rightly observing that the sole issue before him was as to whether the Appellant had taken all practicable steps to prevent the illegal immigrants being on its site.

38. He concluded, as is evident from that evidential analysis, inter alia, that the guards at the site, given its size, were too localised in 3 guard booths and that their patrols were too regular making them easily avoided. He found also that there was insufficient coordination between the security guards employed by the security company on behalf of the Appellant and the Appellant's own employees so as to allow insufficient supervision of repair and replacement in holes made in the sites perimeter fencing.

39. These are findings of fact based on the evidence in the case made after the learned magistrate had apparently thoroughly considered the Defence case. In my view no criticism can be made of his findings in this regard.

40. The 4th Ground of Appeal is to the effect that the learned magistrate by asking an inordinate number of questions created an impression he was entering the arena and was biased in favour of the prosecution.

41. The learned magistrate did intervene many times in the course of the Defence witnesses giving evidence at trial. These interventions were usually in an area of somewhat technical evidence relating to the security procedures adopted by the Appellant through its agents on the site.

42. It may well be that the quantity of interventions by the learned magistrate was undesirably high. He himself seemed to recognise that he was in danger of descending into the arena when he remarked during the course of the first Defence witnesses evidence:-

"Perhaps I learnt a lesson that I should persevere and listen instead of jumping into the arena."

43. And in my view given the totality of questions asked the learned magistrate had come perilously close to the limits of acceptable intervention.

44. Nevertheless, as the magistrate also said, he was asking these questions because:-

"I was particularly interested when I asked questions of this witness about the hoardings; the records of these holes in the hoardings; the security records regarding those holes; what sort of people were manned to keep watch over these holes".

45. And also

"I am interested in the system; the way things would have been done on this site".

46. On balance, though the magistrates interventions were undesirably frequent at no stage did they go so far as to contradict or to belittle witnesses. At no stage was any indication or perception of bias in favour of the prosecution and against the Defence case given. An interested by-stander may have thought that there were perhaps more intervention than necessary, but could have been in no doubt that the magistrate was simply interested in eliciting details of the security systems at the construction site. The magistrate in his questions gave no perception of having pre-judged the matter or issues before him.

47. In other words from the transcript these interventions were attempts by the magistrate to elicit more evidence as to the nature and the operation of specific security systems employed by or on behalf of the Appellant.

48. Albeit undesirable, the interventions did not at the end of the day in my opinion render the conviction unsafe or unsatisfactory.

49. Indeed in this regard, it is apparent from the transcript that Mr WONG, who appeared also before the magistrate, was not deflected from his task in presenting his Defence case, which is perhaps not surprising given his seniority, and there was nothing on the face of the transcript to suggest the defence case was prejudiced or impaired by the magistrates interventions.

50. Accordingly that disposes of the grounds of appeal advanced on behalf of the Appellant and its appeal against conviction is dismissed.