HKSAR v. QURBAN ALI

HCMA 323/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO HCMA 323 OF 2014

(ON APPEAL FROM STCC 630 OF 2014)

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1.  The appellant was convicted after trial by Ms Queenie NG Wing-shan, Deputy Magistrate, of one charge of taking employment while being a person in respect of whom a removal order is in force, contrary to section 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115, and sentenced to 21 months’ imprisonment. He now appeals against his conviction only.

2.  On 20 February 2014, a police officer who was PWl at trial saw the appellant and another male outside a used electrical appliances shop at Tung Chau Street, Sham Shui Po.  He observed a van come to the vicinity of the shop and stop nearby.  The driver alighted from the van and walked towards the shop.  A woman approached the driver and they talked for a short while at the rear of the van.  She then instructed the appellant and the other male to come to the rear of the van by way of a hand gesture to them.  The appellant and Dl went to the rear of the van pushing a trolley ahead of them.  He and the other male then put on gloves and commenced unloading electrical appliances one by one from the van onto the ground.   When the appellant was about to unload a refrigerator from the van, the police officer and two other colleagues approached him for questioning.  It was not in dispute that on 20 February 2014, the appellant was subject to a removal order and was released on recognizance on condition that he was not allowed to take up any employment.

3.  The appellant who was D2 stood trial together with the other male who was Dl and the woman who was D3.  The shop was owned by D3 and her husband.

4.  The appellant’s case was that he and Dl were at the shop because Dl wanted to purchase a refrigerator and the appellant accompanied him because he could speak some simple Chinese.  He denied taking up any employment.

5.  The magistrate at trial accepted the evidence of the prosecution witnesses and rejected the defence evidence.  She was satisfied that the only reasonable inference to draw from the evidence she had accepted was that the appellant and D1 were employed by D3 to work at the relevant time.  The appellant, D1 and D3’s husband testified at trial and their evidence was rejected by the magistrate.  In a careful assessment of the evidence, the magistrate disbelieved the appellant and D1 and did not accept their account as to why they were at the shop at the time.  The magistrate also rejected the evidence of the D3’s husband which she described as confusing, evasive and unreasonable.  In short, the defence case provided a completely different account as to the presence of the appellant and D1 at the shop but the evidence of the defence witnesses was found by the magistrate in certain material respects to be implausible and internally inconsistent.  I agree with the magistrate’s assessment of the defence evidence and findings as to the credibility of the defence witnesses.

6.  The issue in this case is whether the prosecution could establish beyond reasonable doubt whether there was any employer/employee relationship between the appellant and D3.

7.  It is accepted that working at a place in itself may not be employment and that the mere fact that person is working for another does not necessarily mean that there is an employment relationship between them.  In HKSAR v Ferosh, FACC 2/2014, 28 May 2014, unreported, the Court of Final Appeal addressed the factors that one might take into account when determining whether the inference of employment could be proved.  In that case, the only evidence against the defendants was that they were observed removing metal sheets from a derelict tin shed and the Court held that an inference of employment was not the sole and irresistible inference to be drawn from the evidence.  Fok PJ, who gave the judgment of the court, addressed the issue by usefully identifying factors, without being exhaustive, that would assist in determining whether an inference of employment could be drawn from the evidence.  He said:

“18. In the present case, the prosecution evidence merely established that the appellant and his co‑accused were observed to be carrying out some form of manual work at the derelict metal shed.  However, given the condition of the shed, this was not an obvious place of employment, like a restaurant, shop or construction site, and there was no evidence as to whom either the shed or the sheets of metal the appellant was assisting to dismantle belonged.  Moreover, there was no evidence that the four men were doing that work for an employer rather than for themselves, nor of the degree of any control being exercised over them by any employer.  There was no evidence of any payment for the work or the basis of any such remuneration.  There was no evidence of who had provided the hammer and crowbar, if they were not brought by the appellant and his co‑accused themselves.  There was no evidence of any safety or other work-related equipment at the site.”

8.  The appellant at trial and on appeal questioned the evidence against him, in particular the lack of photographic or other evidence to show what he was doing at the time.  He also questioned the evidence of the police officers as to their observations of him working.  His main challenge was against the evidence of PWl, who had him under observation for only a short period of time, being approximately 2 minutes, and he doubted the nature and extent of his observations.  The magistrate fully addressed this issue and accepted the evidence of the police officers and had no doubt that the acts that were observed to have been done by the defendants could have been done during this period.  From my assessment of the papers, I agree with the magistrate’s conclusion on this issue.  The evidence briefly stated involved D3 giving instructions to the appellant and D1, who were both wearing gloves, to go to the van and unload electrical appliances from it.  They then proceeded to unload electrical appliances from the van onto the ground.  This was done outside at the electrical appliances shop that was operated by D3 and her husband.  The features in this case from which to draw the sole and irresistible inference of employment are: (i) that D3 operated an electrical appliances shop; (ii) that a van with electrical appliances parked near the shop; (iii) that D3 beckoned by hand gesture for the appellant and Dl to come the van and to unload the electrical appliances; (iv) that the appellant and Dl responded to the instructions of D3; (v) that the appellant and Dl put on gloves used for handling of heavy items; (vi) that the appellant and Dl brought along to the van a trolley; (vii) that the appellant and Dl unloaded electrical appliances one by one from the van onto the ground; and (viii) that this activity took place at the shop which was an obvious place of employment.

9.  The magistrate found on the evidence that the appellant and Dl were working for D3 at the time.  It was clear from the evidence of PWl that D3 gave instructions to the appellant by way of hand signal, whereupon he went to the rear of the van and unloaded electrical appliances from the van onto the ground.  This clearly demonstrated that D3 exercised a degree of control over the appellant and confirmed that the appellant was not there on his own account.  There was clearly indicia of a working relationship between D3 and the appellant and D1.  D3 and her husband operated a used electrical appliances shop and the appellant and D1 were equipped with gloves and a trolley, and conducting themselves in circumstances where they were providing manual work.

10.  I am satisfied from the evidence that the sole and irresistible inference of employment can be drawn and the offence of taking employment while being a person in respect of whom a removal order is in force has been proven beyond reasonable doubt.

11.  I accordingly dismiss the appeal against conviction.