HKSAR v. SANJAY, KUMAR AND ANOTHER

HCMA 418/2022

[2023] HKCFI 958

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 418 OF 2022

(ON APPEAL FROM STCC 3232 OF 2021)

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REASONS FOR JUDGMENT

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1.  The 1^st and 2^nd appellants (A1 and A2 respectively)  were each separately charged with one count of “taking employment while being a person in respect of a removal order is in force”, contrary to section 38AA(1)(b)  of the Immigration Ordinance, Cap. 115. The employment alleged was that of an odd job worker.

2.  The Deputy Magistrate[1] (the magistrate) convicted both appellants after trial.  Each appellant was to 22 months and 14 days’ imprisonment.  The appellants now appeal against their convictions.

3.  At the hearing of the appeal I dismissed both appellants appeal against conviction and said I would hand down my reasons for doing so.  This I now do.

Admitted facts

4.  The facts admitted at the trial comprised inter alia the following:-

(i)  The appellants were holders of recognizance forms (commonly known as Form 8 holders);

(ii)  Removal orders was issued against A1 and A2 on 26 October 2021 and 26 October 2021 respectively;

(iii)  The appellants were aware they were prohibited from taking up employment in Hong Kong whether paid or unpaid;

(iv)  On 26 October 2021 at around 2140 hours a heavy goods vehicle (HGV)  was parked at the vicinity of lamppost N1000, Chik Fai Street, Tai Wai (the scene), and

(v)  At around 2204 hours on 26 October at the scene PC20374 (PW1)  and PC23201 (PW2)  arrested and cautioned the appellants at the scene.

The Prosecution case

5.  The prosecution called 2 police officers in support of the charges.  PW1 and PW2 gave evidence mainly concerning the charge against A1 and A2 respectively.

6.  The prosecution case was that in the evening of 26 October 2021 police officers in plain clothes, who included PW1 and PW2, were conducting an operation against illegal workers in the vicinity of Chik Fai Street, Tai Wai.

7.  At about 940 pm on Chik Fai Street, PW1 conducted an unobstructed observation under sufficient lighting of A1 a South Asian male, whom he suspected was an illegal worker for about 5 minutes.  He made his observation from a distance of about 15 metres away from his point of observation to the tailboard of the parked heavy goods vehicle (HGV)  at the scene.  PW1 observed A1 alight from the passenger side of the HGV and walk to the back of it.  PW1 saw the tailboard of the HGV was lowered then A1 board the tailboard and unload some foam boxes and plastic baskets on a pallet truck from the HGV on to the road side.  A1 then returned to the tailboard to offload the second pallet of goods but before A1 was able to do so PW1 intercepted and arrested A1 whilst he was standing on the tailboard of the HGV.  Upon a body search of A1 an envelope (exhibit P8 and PA English translation)  containing a delivery note (exhibit P9 and P9A English translation)  with the recipient name “家農蔬果批發專門店有限公司” was found from A1’s left front shorts pocket.

8.  The HGV was illegally parked about 100 metres away from a store known as 家農優質果菜shown in photo exhibit P6(3).

9.  PW1 said the photos exhibit P6(4-6)  show the pallet of goods which were loaded from the rear of the HGV on to the ground.  He later discovered the goods were vegetables.

10.  PW2 who was at a location close by to Chik Fai Street received a call at about 9.40 pm from PW1 asking for assistance.  PW1 informed PW2 there was a suspected illegal worker in Chik Fai Street.  PW2 then headed to the scene where the HGV was parked.  On his unobstructed approach with sufficient lighting PW2 observed two South Asian males at the rear of the HGV.  At the time, one of the males was standing on the tailboard (who PW2 referred to as male A)  whilst the other, who he identified as A2 was standing inside the rear compartment of the HGV.  PW2 saw A2 moving goods contained in baskets inside the rear compartment towards the rear part of the HGV towards male A.  At that time male A was holding the control panel for operating the tailboard of the HGV in one hand whilst the other hand was touching goods on a pallet truck.

11.  PW2 approached the HGV and arrested A2 inside the rear compartment of the HGV.  PW2 said that male A was arrested by PW1. 

12.  PW2 said his duration of observation of male A when he was on the tailboard and A2 was inside the rear compartment of the HGV was about 15 seconds as he was approaching the HGV.  PW2 said the source of lighting inside the rear compartment of the HGV came from the ceiling lights of the HGV which were switched on at the time and were bright.  There was also sufficient lighting from the lighting generated from the lamppost near to where the HGV was parked.

13.  PW2 estimated there were in total about 40-50 boxes and baskets of goods inside the rear compartment of the HGV.  He later discovered the basket of goods A2 was moving contained vegetables.

Defence case

14.  Both appellants were legally represented at their trial.  They both chose not to give evidence or call any defence witnesses.  Both appellants’ case was the same, that neither of them was working on or had any connection to the HGV or goods at the scene.  They were merely in the vicinity of the scene and mistakenly identified for the persons seen working on the HGV given their similar ethnicity and gender.

15.  A1’s case was that he never alighted from the HGV.  He never unloaded any goods from the HGV.  He was merely standing at the pedestrian crossing and was intercepted by PW1.  PW1 did not find the envelope and delivery note on A1.

16.  A2’s case was that he was never inside the rear compartment of the HGV assisting in the unloading of goods.  At the material time A2 was waiting on the street for someone and PW2 approached him whilst he was on the street for an identification check.

17.  Both appellants challenged the credibility and reliability of PW1 and PW2’s evidence.  They further disputed the accuracy and correctness of their observations and identification of the appellants.

The magistrate’s findings

18.  After a careful and thorough evaluation, the magistrate found both PW1 and PW2 to be truthful and reliable witnesses.  The magistrate found the officers made a good and detailed observation of A1 and A2 conducted under sufficient lighting either from the lamp post beside the back of the HGV or from the ceiling lights which were switched on inside the rear compartment.

19.  The magistrate found at the time PW1 and PW2 approached the rear of the HGV there were only two persons at the rear of the HGV, one on the tailboard and the other inside the rear compartment.  At the time PW1 intercepted A1 he was on the back of the tailboard.  At the time PW2 intercepted A2 he was inside the rear compartment.  At all material times during their observation there were no other people inside the rear compartment of the HGV or on the tailboard.

Grounds of appeal

20.  Mr Simon N. M Young counsel for both appellants relied upon four grounds of appeal as follows:-

Ground 1:  The magistrate erred in finding supporting evidence for identification.

Ground 2:  The magistrate erred in finding no broken chain in the observation.

Ground 3:  The magistrate erred in determining the quality of the lighting.

Ground 4:  The appellants’ convictions are unsafe.

21.  The above grounds 1 to 4 relates to the appellants’ criticisms of the magistrate on the issue of identification.  Mr Young’s submissions in relation to ground 4 summarise the general grounds.  They are as follows:-

(a)  PW1 and PW2 could not have made reliable observations of identification because:

(i)  PW1 made his observation from the front of the HGV whilst the material acts occurred at the rear of the HGV;

(ii)  PW2’s line of sight of the person inside the rear compartment of the HGV was obstructed by the tall baskets of goods that person was moving thereby impairing and making his observations unreliable;

(b)  the lighting at the scene was poor as evident in the photos (exhibit P6)  depicting the scene that evening;

(c)  the time and opportunity for PW1 and PW2 to make their material observations was no more than a fleeting glance; and

(d)  both PW1 and PW2 confirmed the presence of other persons in the vicinity of the scene, thereby making the defence case of mistaken identity plausible when taken together with the poor quality of the identification evidence.

Consideration

22.  In relation to ground 1 Mr Young submitted that the magistrate “appears” to have found that PW1 and PW2 provide mutual support for their identification of A1 and A2.  Mr Young argues there is no mention of PW2’s testimony lending support to PW1’s identification of A1 and no mention of PW1’s testimony lending support for the accuracy of PW2’s identification of A2.  Reliance is placed by Mr Young on the following passage in the magistrates Statement of Findings (SOF[2]):-

“58. PW1 and PW2 had never met D1 and D2 before the incident in question. It was not a case of recognition. The Court is aware of the danger of mistaken identity, therefore, the Court needs to look for supporting evidence which can be found in PW1’s and PW2’s evidence which include the followings.”

23.  Paragraphs 50-71 in the SOF are specifically dedicated to identification.  As can be elicited from those paragraphs the magistrate did not rely on the testimony of either officer to support the identification of the other officer.

24.  At paragraph 60 and 61 of the SOF the magistrate carefully considered the evidence only of PW1 in relation to the identification of A1 independently from the evidence of PW2.  The magistrate found that PW1 observed A1 alight from the HGV passenger seat then appear at the rear of the HGV and step onto the tailboard and unload a pallet of goods.  PW1 then observed A1 get back onto the tailboard which escalated back to the level of the rear compartment when a second pallet of goods was loaded onto the tailboard.  Crucially and importantly PW1 intercepted A1 on the tailboard and identified A1 as the person who he was observing all along and there were no other persons doing the same act as A1.

25.  In relation to A2 the magistrate at paragraph 61 of the SOF also considered PW2’s evidence independently of PW1.  PW2 observed A2 inside the rear compartment of the HGV as PW2 approached the vehicle and when he reached the HGV, A2 was still standing inside the HGV.

Ground 2

26.  Mr Young submitted that PW1 and PW2 admitted they were periods of time during their observation that either PW1 and PW2 lost sight of the suspect they were observing.  For PW1 he lost sight of the suspect after the suspect alighted on the passenger side of the HGV and while the suspect was inside the HGV rear compartment.  For PW2 he admitted that as the pallet was stacked with goods more than 2 metres high he could not see inside the rear compartment properly at times.  The magistrate therefore erred in finding there was no “broken chain of the observation, the interception, and/or identification.[3]”

27.  Although there were some short periods when PW1 and PW2 lost sight of the suspects, when PW1 and PW2 approached the HGV A1 and A2 were still moving goods from the inside of the rear compartment to the tailboard.  They were the only two persons inside the rear compartment and on tailboard at the rear of the HGV.  Any break in their observation of A1 and A2 was immaterial.

Ground 3

28.  Criticism is made as to PW1 and PW2’s ability to make a good observation given the quality of lighting during observation of the suspects by PW1 and PW2. Mr Young avers it was an admitted fact that the photos P6 (1-16)  taken by a police officer depicted the lighting condition of scene.  Mr Young says these photos clearly show the area around the goods vehicle was very dark, including the driver seat and passenger seat cabin, notwithstanding the presence of a streetlight at a different location.

29.  As to the photos exhibit P6 and the quality and sufficiency of lighting the magistrate said at paragraph 55 (c)  of the SOF:-

“The Court should not rely too heavily on these photos of exhibit P6 to determine the sufficiency of lighting at the material times but consider the lighting condition as described by those who was present at the Scene at the material times.”

30.  It was not an admitted fact that the lighting at the scene as depicted in the photos was similarly dark.  The magistrate took into account the photographs produced at trial were photos printed out on pieces of paper[4] and were therefore not a reliable source as regards the lighting at the scene.  The magistrate was entitled not to place too much weight on the lighting in the paper printout of the photos and place more weight on the lighting as described by PW1 and PW2 when they were at scene.

Ground 4

31.  Ground 4 (a), (b), and (c)  have been dealt with above.  I turn to Ground 4(d).  Although PW1 and PW2 confirmed the presence of other persons in the vicinity their evidence was clear-cut that there were only two persons at the rear of the HGV, A1 and A2.  The magistrate had rejected the defence case that A1 and A2 were merely standing at the pedestrian crossing or waiting on the street for someone and therefore there was no possibility of mistaken identity with other persons in the vicinity.

32.  After A1 was arrested PW1 found upon a body search of A1 a delivery note bearing the recipient’s name.  The recipient’s name had 2 similar Chinese characters 家農 to the store’s name the HGV was parked near to (see photo P6(3)).  The store shutters were open and its lights were turned on.  It displayed vegetables.  The baskets of goods unloaded by A1 from the rear compartment on to the ground contained vegetables.

33.  On all the evidence before the magistrate he was correct to find that the only reasonable and irresistible inference to be drawn from the facts he found proved was A1 and A2 were in the course of employment and employed as an odd job worker.

Conclusion

34.  I found no error in the magistrate’s finding that PW1 and PW2 were honest and reliable witnesses.  He carefully, thoroughly and properly evaluated all the evidence given by PW1 and PW2 on their identification of A1 and A2.

35.  For the above reasons I dismissed the appeal against conviction by A1 and A2.