HKSAR v. SHOPUN AHKUN

HCMA 308/2025

[2026] HKCFI 2926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 308 OF 2025

(ON APPEAL FROM STCC 649/2025)

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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 establishing or joining in any business while being a person in respect of whom a removal order is in force[1]. The particulars of the charge allege that he established a business of providing food delivery service. He was sentenced to 22 months’ imprisonment.

2.  The appellant now appeals against the conviction.

Prosecution case

3.  Most of the facts in the prosecution case were not in dispute. It was agreed by the parties that:

(1)  a removal order was issued against the appellant in 2013 and was still in force on 17 February 2025 (“the material day”);

(2)  on 2 January 2020, the appellant was issued with a recognizance form. He was aware that he was prohibited from taking up any employment, whether paid or unpaid, or establishing any business in Hong Kong;

(3)  at around 1220 hours on the material day, Immigration Assistant Chan Nga Wun (“IA Chan”) saw the appellant outside the restaurant at G/F, 2A Hau Fook Street, Tsim Sha Tsui (“the Restaurant”). At 1224 hours on the same day, the appellant entered the Restaurant, came out holding a pack of takeaway food (“the Food”) and walked towards the direction of Carnarvon Road;

(4)  the appellant subsequently went to a salon at Room 1601 of Carnarvon Plaza (“the Salon”);

(5)  at 1227 hours on the material day, the appellant was seen putting the Food on the reception desk of the Salon;

(6)  Ms. Lai Kwok Mei, the receptionist of the Salon, confirmed that she had ordered the Food from the Restaurant via Keeta platform (“Keeta”) and the appellant delivered her order; and

(7)  Mr. Wong Hon San, the waiter of the Restaurant, confirmed that the Restaurant received an order via Keeta on the material day and a non-Chinese person collected the Food.

4.  Only IA Chan was called to give evidence at trial. She confirmed she did not see the appellant pick up the Food at the Restaurant, did not know how many people were inside, and only observed the appellant on one occasion for a few minutes.

Defence Case

5.  The appellant elected not to give evidence or call defence witness. His main contention is that there is insufficient evidence to support the only irresistible inference that he established a business of providing food delivery service on the material day.

Magistrate’s findings

6.  The magistrate found IA Chan’s evidence clear, direct and logical. As her credibility and reliability were not challenged, the magistrate accepted her evidence as truthful.

7.  Despite the lack of observation inside the Restaurant, having considered the sequence of entry into the Restaurant, then exit with the Food, and delivery to the Salon matching a Keeta order and given the close proximity of entry and exit with the Food, the magistrate found the only explanation for the appellant’s actions was to pick up the takeaway order from the Restaurant. He was satisfied beyond reasonable doubt that the appellant picked up and delivered a Keeta food order that was not his own on the material day.

10.  Having considered the authorities relied upon by the defence[2] and despite the fact that there was no evidence of a contract with Keeta, or how the appellant registered with Keeta, the magistrate considered it inconceivable that the appellant would deliver a Keeta order even once without an agreement. The magistrate found the appellant was working as an independent contractor and that the only irresistible inference was that the appellant established a business of providing food delivery service on the material day. The magistrate found there was sufficient evidence to prove beyond reasonable doubt that the appellant had committed the offence.    

Grounds of appeal

12.  The grounds of appeal are:

(1)  the magistrate erred in finding that the only irresistible inference was that the appellant had established a business of providing food delivery service;

(2)  the magistrate erred in failing to properly consider that there were other possible alternatives as to the reasons for the appellant’s actions; and

(3)  the magistrate drew numerous inferences without any legal or factual basis.  

13.  It was submitted that AI Chan did not see what occurred inside the Restaurant and thus there was no evidence of how the appellant came to collect the Food, whether any directions were given, or how he knew the delivery address.

14.  It was further submitted that there was no evidence from Keeta or from the appellant’s phone establishing recruitment / registration, order details on the phone, banking / payment trail, or other indicia of being a platform courier. The receipt on the bag of the Food by itself was not sufficient evidence for inferring independent contractor status. It was pointed out that the magistrate misunderstood Independent Workers Union of Great Britain v Central Arbitration Committee and another [2023] UKSC 43 and it was impermissible for the magistrate to find the relationship was one of independent contractor solely due to lack of employment contract but without establishing the necessary factual factors.

15.  It was also pointed out that the delivery fee was shown to be waived from the receipt and thus the magistrate had no basis to draw inference of remuneration.

16.  Finally, it was suggested that there were other reasonable explanations as to why the appellant delivered the Food. Therefore, the appellant had established a business was not the only irresistible inference.

Respondent’s reply

17.  The respondent reiterated that the majority part of the prosecution case was admitted and supplemented by AI Chan’s evidence. The appellant did not give evidence. The Restaurant confirmed the food order was received via Keeta and collected by a non‑Chinese person at the material time. Then the Food was delivered by the appellant from the Restaurant to the Salon.

18.  Regarding Grounds 1 and 3, the respondent submitted that the observed sequence, the receipt, the waiter’s evidence, and the absence of any other person involved strongly established that the appellant had control over the transaction and there was sufficient evidence to substantiate that there was a link between the appellant and Keeta.

19.  The respondent referred to HKSAR v Mizanur Rahman HCMA 90/2011 and 香港特別行政區 訴 陳彩彔HCMA 462/2007 and contended that “establishing a business” meant setting it up on one’s own account and self-employment as delivery worker satisfied that definition. It was submitted that the prosecution was not required to prove formal contractual terms, recruitment requirements, uniforms, or payment mechanics to establish “establishing or joining in any business”. The emphasis should be on the operational conduct.

20.  It was said that while the Supreme Court in Independent Workers Union of Great Britain did not explicitly label Deliveroo riders as independent contractors, it analysed why no employment relationship existed. Those factors collectively indicated that Deliveroo riders operated on a self-employed basis. Thus, the magistrate had correctly applied Independent Workers Union of Great Britain in concluding that the appellant was not an employee of Keeta. Further, the appellant’s conduct, including entering the Restaurant, collecting the Food, and delivering it to the specific location, demonstrated purposeful engagement with Keeta and contradicted any suggestion of acting without a business purpose. The respondent submitted that these facts strongly supported the magistrate’s conclusion that the appellant was operating as an independent contractor. The respondent further submitted that even if the appellant was not an independent contractor of Keeta, his conduct still amounted to establishing a delivery business.

21.  Regarding Ground 2, it was submitted that the proposed alternatives were speculative in the absence of evidential foundation. Based on the proven facts, the inference of business activity was irresistible.

Consideration

22.  The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power. The judge must be satisfied that the appellant’s guilt has been proved beyond reasonable doubt on the evidence, failing which the appeal must be allowed. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict. It was recognized that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of facts based on oral testimony. Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

23.  In this case, delivery of food order placed through Keeta was involved. It is well-known that:

(1)  Keeta is one of the food delivery platforms in Hong Kong; and

(2)  its couriers are paid by Keeta for providing delivery services.

24.  According to the admitted facts as stated above, the appellant was seen entering the Restaurant at 1224 hours, came out with the Food and then delivered and put it on the reception desk at the Salon at 1227 hours. Mr Wong of the Restaurant confirmed the food order was received via Keeta and a non-Chinese person collected the Food. While AI Chan did not see what happened inside the Restaurant, given the appellant entered the Restaurant at 1224 hours and came out with the Food and then delivered it within 3 minutes and he is a non-Chinese person, I am satisfied beyond reasonable doubt that the appellant entered the Restaurant for the purpose of collecting the Keeta food order from the Restaurant and he was the non-Chinese person who collected the Food.

25.  Ms. Lai confirmed that she placed the order via Keeta and the appellant delivered it. It follows that the appellant was performing a paid delivery for Keeta in respect of that order. Although it is conceivable that a friend may, informally, collect an order for another’s personal consumption, it is unlikely that a person would perform another’s paid delivery work without remuneration. The evidence shows that Ms. Lai did not know the appellant. In the circumstances, the suggestion of “delivery for a friend” is no more than speculation, there being no evidence from either side to raise this issue.

26.  Counsel for the appellant pointed to the receipt (Exhibits P5 and P6) showing that delivery fee was waived and submitted that there was no evidence to show Keeta would still pay despite there being no delivery fee. In my view, that submission is based on a misunderstanding of the effect of the waiver. The waiver simply means the customer was not required to pay the delivery fee, no doubt as a promotional measure to attract orders. It does not follow that the courier would not be paid for carrying out the delivery. If the appellant’s contention were correct, it would mean that, whenever a delivery fee is waived, couriers would be delivering orders for Keeta without renumeration, effectively as volunteers. That is inherently improbable and contrary to common sense.

27.  Counsel for the appellant referred to R v Ip Po Fai HCMA 1201/1995 and submitted that it was not permissible for the magistrate to rule that as long as someone was not under an employment contract, then he/she must be an independent contractor. Ip Po Fai can be distinguished in that the appellant in that case was seen working in a shop owned by his relatives and it was held that more evidence was required to prove employment relationship between them. In the present case, the appellant was delivering an order for Keeta. In the ordinary course, such delivery is performed for renumeration pursuant to an arrangement with Keeta. Depending on the terms of the arrangement, the appellant would either be an employee or an independent contractor of Keeta.

28.  It is not disputed that a removal order is in force against the appellant. The appellant is prohibited from taking employment, or establishing or joining in any business. It is an offence to employ a person who is not lawfully employable in Hong Kong[3]. In the absence of any evidence suggesting that Keeta would knowingly enter into an employment relationship with a person who was not lawfully employable, I do not regard “employment by Keeta” as a realistic possibility on the evidence. Even assuming Keeta’s arrangement with couriers is similar to that of Deliveroo as disclosed in Independent Workers Union of Great Britain, it was held in that case that the couriers / riders of Deliveroo were not employees of Deliveroo.

29.  Turning to the facts of the present case, the evidence shows that the appellant went to the Restaurant, collected the food order, and proceeded to deliver it in circumstances consistent with a platform delivery. I agree with the magistrate that it is inherently improbable that the appellant would have worked for Keeta without renumeration. Although there is no direct evidence of the contractual terms between Keeta and the appellant, or of the precise mechanism by which he obtained the order details, the appellant’s conduct supports the only reasonable inference that he was providing delivery service for Keeta for remuneration. As I have already rejected the possibility of employment by Keeta, the only reasonable inference from the facts is that the appellant was performing the delivery in the capacity of an independent contractor. The appellant must have established a business of providing food delivery service. Therefore, I am satisfied that the evidence was sufficient to prove beyond reasonable doubt that the appellant committed the offence as charged.

30.  In view of the above, the appeal against conviction is dismissed.