HKSAR v. CHETRY GOKUL

HCMA 574/2018

[2019] HKCFI 858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 574 OF 2018

(ON APPEAL FROM STCC 3086 OF 2018)

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J U D G M E N T

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1.  The appellant was convicted after trial before a magistrate[1] with one count of taking employment while being a person in respect of whom a deportation order is in force, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong. He was sentenced to 22 months and 2 weeks’ imprisonment.

2.  He now appeals against his conviction. 

The Prosecution case

3.  The prosecution case was that on 5 August 2018 at around 10.50 am the appellant was taking up employment as an odd job worker in the kitchen of the India Club located at No. 24 Gascoigne Road, Jordan, Kowloon.

4.  The only and key witness called by the prosecution was an Immigration Assistant Ching Ka Ho (PW1).  It was PW1’s evidence that at 10.50 am he observed the appellant in the kitchen wearing a black apron and two pairs of gloves, one inside was yellow in colour and the other one was white in colour.  At the time the appellant was standing beside a kitchen sink and cleaning a silver metal plate in the sink.  The sink was full of yellowish liquid.  When the appellant saw PW1, he took off his apron and gloves placed them on the top of the rubbish bin next to the sink.

5.  PW1 then approached the appellant, revealed his identity and asked the appellant for his identification document.  While waiting for the appellant to produce the document, the appellant suddenly rushed to an exit near the kitchen sink and attempted to leave the kitchen. The appellant was however intercepted by PW1 and subsequently handcuffed.

6.  After the appellant was arrested, he requested to retrieve his personal belongings from the storeroom near the kitchen.  The appellant’s bag was identified by him as the black bag kept above the locker in the storeroom. 

Admitted facts

7.  It was admitted at the trial:

(i)   The appellant was issued with a recognizance form by the Immigration Department (commonly known as a Form 8 recognizance) on 29 November 2017.  A deportation order was issued against the appellant on 18 October 2017.  The appellant was aware that he was prohibited from taking up employment in Hong Kong, whether paid or unpaid. 

(ii)   Seven photographs depicted the true condition of the kitchen.

(iii)   At 11.08 am PW1 seized from the kitchen 1 black apron, one pair of labour gloves and one pair of plastic gloves.

(iv)   The defendant was present in the kitchen of the India Club on the material day at the material time.

Defence case

8.  The appellant elected not to give evidence and did not call any other defence witnesses.  The defence case was that there was an event on the material day open to all Indians in Hong Kong and food was arranged for the guests.  The event started in the morning and it was held at the open area outside of the India Club building as shown in photo, Exhibit D2.  The appellant was present in the kitchen as he went to get a plate for food which was being arranged.  He denied wearing the gloves or the apron.  He denied working or being employed. 

Magistrate’s findings

9.  The magistrate found PW1 to be an honest and reliable witness giving detailed reasons at paragraphs 24(1) to (5) of the statement of findings (“SOF”). 

10.  He carefully analyzed and gave reasons for rejecting the defence case at paragraphs 29 to 30 of the SOF that the appellant was present in the kitchen for the purposes of collecting a plate.  He reminded himself of the proper direction in respect of the appellant not giving or calling any evidence. 

11.  He reminded himself that there was no direct evidence to prove that the appellant was in employment.  He did not rely on the attempt to escape by the appellant to infer his guilt. 

12.  The magistrate found that the appellant was at the end of the corridor inside the kitchen, wearing an apron and gloves, washing a metal silver plate inside the kitchen sink.  At that time, there were two other kitchen workers. The appellant knew that there was a storeroom near the kitchen and he himself had placed his bag inside the storeroom. 

13.  From those facts the magistrate found that the appellant must have been approved to work in the kitchen, otherwise he would not have been permitted to enter into the inner part of the kitchen and to put his bag inside the storeroom. 

14.  In the circumstances, the magistrate concluded that this was an obvious place of employment and the only irresistible inference to draw from those facts was that the appellant took employment as an odd job worker in the kitchen.  He found the appellant was in employment while being a person in respect of whom a deportation was in force.

Grounds of appeal

15.  The appellant, acting in person, submitted his grounds of appeal in a handwritten document consisting of three pages.  In support of his grounds of appeal he sought to supplement his case by giving evidence before me in reply to findings made by the magistrate.  The appellant was legally represented at his trial, he elected not to give evidence before the magistrate.  There were no grounds or reasons for introducing fresh evidence on appeal. 

16.  His grounds of appeal were on the whole a repeat of the submissions made by his counsel before the magistrate.  He submitted that PW1 was not a credible witness and the magistrate erred in accepting his evidence on the grounds that: -

(i)   PW1’s observation of about two seconds was far too short a duration to observe what the appellant was doing (ground 1);

(ii)   The quality of his observation was poor as there were two other workers in the kitchen at the material time (ground 2);

(iii)   PW1 failed to make a record in his witness statement that he saw the appellant at around 10.50 am, his observation of his cleaning the metal plate was around 1-2 seconds and that the appellant took off his apron and gloves when PW1 was approaching him (ground 3).

Ground 4

17.  Additionally, the appellant argued that the prosecution failed to produce independent evidence in the form of CCTV footage of him working in the kitchen and failed to take photos of him wearing an apron and gloves.

Ground 5

18.  The appellant complained that the magistrate improperly rejected the defence case that:

(i)   he was not wearing gloves or an apron;

(ii)   his presence in the kitchen was only to get a plate for food;

(iii)   he was not wearing a uniform like the other workers working there, hence he was not working;

(iv)   there was no exit near the kitchen sink;

(v)   the appellant did not attempt to run out of the kitchen; and

(vi)   he was only arrested because he was a Form 8 recognisance holder.

Consideration

19.  I turn to deal with grounds 1, 2 and 3.  The magistrate carefully considered the quality and duration of observation made by PW1.  At paragraph 24 (3) and (4) the magistrate stated the following:

“24. …

3) As to the quality of PW1’s observation, I have considered the position he conducted the observation, the position of the two kitchen workers and the position of the Defendant as marked in Exhibit P8a and P8b. I satisfy that the view of PW1 on the Defendant would not be obstructed by the two kitchen workers.

4)   Since his view was unobstructed, I do not find it impossible for PW1 to be able to observe what the Defendant was doing at the Kitchen within 1 to 2 seconds. In fact, when PW1 approached the Defendant, he had further opportunity to observe the conduct of the Defendant and that was the time he observed the Defendant took off the apron and the gloves.”

20.  As to PW1 not making detailed records in his statement, the magistrate said this at para 24(2) of the SOF:

“24….

2)   His explanation as to why certain details were not recorded in his statement was not unreasonable. As PW1 explained, what was important to him was that he had already observed the Defendant wearing an apron and gloves while cleaning a metal silver plate at the Kitchen.” 

21.  These three grounds of appeal fail. 

22.  As to ground 4.  At the trial the defence produced Exhibit D1, a photo of the appellant in the kitchen.  When the photo was shown to PW1 he agreed that in the photo the appellant was not wearing gloves or an apron.  The appellant’s complaint is that despite there being a camera, no photograph was taken of him wearing gloves and an apron.  From the evidence as accepted by the magistrate, during the observation that PW1 made, the appellant had very quickly removed his gloves and apron.  Hence a photo was taken of the defendant in the kitchen after he had taken off the gloves and apron.  There was no evidence of any CCTV footage in the kitchen. 

23.  The absence of a photograph with the appellant wearing gloves and an apron or the CCTV footage does not mean a charge against the defendant cannot be established as long as there is other evidence sufficient to establish his guilt to the required standard.  The other evidence in this trial is the evidence of PW1 which the magistrate accepted, that PW1 had observed the appellant washing up a metal plate in the sink wearing an apron and gloves.  There is no merit in this fourth ground of appeal. 

24.  Turning to ground 5.  As the magistrate accepted the evidence of PW1 he was entitled to reject the defence case as put.  It was an admitted fact that the appellant was present in the kitchen.  The magistrate considered the defence case that he was in the kitchen to collect a plate for food.  He gave detailed reasons for rejecting the defendant’s reason for being present in the kitchen.  He stated at paragraphs 29 and 30 of the SOF as follows:

“29. I do not accept the presence of the Defendant at the Kitchen was due to the reason put forward by the defence. It is unreasonable that a guest who needed a plate for food would have to go to the area where the Defendant was found. It is clear from exhibit P7(4) and (6) (photographs) that the condition there was unhygienic and the plates as shown therein did not appeared to be clean. Some of them were soaked in the kitchen sink, which was full of yellowish liquid as shown in exhibit P7(5).

30.   It was not the case of the defence that the Defendant was a guest or attendee of the event held at the area as shown in exhibit D2. Even assuming that he was a guest or attendee, it is inexplicable why he had to go to the Kitchen by himself to get a plate for food. As the defence put it, the event was opened to all Indian in Hong Kong and food was arranged for the attendees. For such a setting, I do not believe that a guest or attendee would have to go to the Kitchen to get a plate by himself/herself. Even if, for whatever reason, a guest or attendee have to get a plate by himself, I cannot imagine why he/or she had to wear an apron and gloves to do it. I therefore reject the case of the defence that the Defendant was present at the Kitchen because he needed to get a plate for food there.”

25.  The magistrate carefully analysed the defence case.  I found no merit in this ground of appeal or the criticisms raised by the appellant of the magistrate’s finding, assessment or evaluation of the evidence. 

26.  The prosecution case turned entirely on the credibility of PW1.  The magistrate properly considered all the relevant law.  I am satisfied that the magistrate’s approach to the reliability and credibility of PW1 was sound.  I find no basis on which to interfere with his assessment of the evidence.  I am satisfied that the case was properly established and proved against the appellant.  The appeal against conviction is dismissed.