HKSAR v. CHOUDHRY SOHAIL AHMAD

HCMA 310/2022

[2023] HKCFI 309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 310 OF 2022

(ON APPEAL FROM STCC 3612 OF 2021)

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J U D G M E N T

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1.  On 17 August 2022, the defendant was found guilty after trial before Fung Lim Wai, Deputy Magistrate, of taking employment while being a person in respect of whom a removal order is in force contrary to ss38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115. He was sentenced to a term of imprisonment of 22 months 14 days, which he is currently serving. By reason of his Notice of Appeal dated 17 August 2022, he now seeks to appeal that conviction.

Prosecution Case

2.  The appellant admitted under exhibit P1 that he was the subject of a removal order on 14 December 2021 and that he was aware that he was prohibited from taking up employment.

3.  At around 1006 am on 14 December 2021, PW1 was some 40m away from the appellant in the Kwai Chung area outside the Kwai Shun Industrial Centre on Container Port Road. He observed the appellant standing behind a pallet, which was loaded with large cardboard boxes. The pallet was on the pavement [exhibit P4(1-2)] adjacent to an LGV registration number UU3698, which had its rear door fully open [exhibit P4(5-8)]. PW1 observed the appellant pick up a carton box from the pallet, move behind the van and return to the pallet 30 seconds later without the box. He was not seen to move beyond the back of the LGV towards PW1’s left nor further to the rear of the van. No one else was seen in the immediate vicinity carrying out a similar act in respect of the same goods. The appellant was seen to return to the pallet empty handed and to repeat the process. PW1 then approached the appellant to intercept him, at which point, the appellant ran away crossing the four lane Container Port Road. He was followed and intercepted outside of Ever Gain Plaza. The sketch plan at exhibit P5[1] indicates the position of the pallet, the van and the point of interception. There were several boxes inside the LGV. These were similar to the boxes upon the pallet in that they were the same size and shape, had the same labels, contained the same product and were destined for the same consignee.

Defence Case

4.  The appellant did not give evidence. It was suggested that the appellant was not the person observed to be handling the carton boxes by PW1. This was denied. In the alternative, PW1 agreed to the suggestion that the appellant when first observed, was standing behind the pallet of goods, which was situated between himself and the appellant. He agreed that he was unable to see the appellant physically place the boxes into the van as the appellant needed to go to the rear of the van to do so. PW1 stated that he saw the appellant pick up the boxes, go to the rear of the already open van and then return to the pallet without them[2]. He did not see the appellant go beyond the body of the LGV when he picked up the boxes and each time he returned to the pallet empty handed.

Statement of Findings

5.  The learned Deputy Magistrate summarised the evidence of PW1 accurately and in some detail[3], including his answers under cross-examination, re-examination and to the Court. He fairly identified that evidence which went directly to the issue at hand and also that evidence which was collateral to those issues but which were the subject of criticism by the appellant. Given that there was no issue as to the identity of the person arrested being the appellant, he also identified the inconsistency in the defence case to the effect that the person arrested was not the person who moved the boxes or the person who had run away from the scene. This was a bare assertion which was denied. There was no evidence before the Court of another person present at the scene, who could have been the person observed by PW1 to transport the boxes[4]. He explained in some detail how he came to the conclusion that the only irresistible inference to be drawn was that the appellant had placed the boxes in the rear of the van and that in so doing he was working in the course of employment[5] and, even though collateral, he explained why the alternative scenarios posed by the appellant’s solicitor (albeit without evidential basis) did not alter that view[6].

6.  As for the application of the law to the facts as he found them to be, the learned Deputy Magistrate made a detailed analysis of the evidence and law and came to the conclusion that the appellant was knowingly employed at the material time[7].

Grounds of Appeal

7.  By his Perfected Grounds of Appeal, Mr Andrew C.H.Y Leung submits:

Ground 1

The learned Deputy Magistrate erred in finding PW1 a credible and reliable witness;

Ground 2

The learned Deputy Magistrate erred in irresistibly inferring that the appellant put the boxes into the vehicle;

Ground 3

The learned Deputy Magistrate erred in irresistibly inferring that the appellant was working in the course of employment at the material time.

Test on Appeal

8.  An appeal under s113 of the Magistrates Ordinance, Cap 227 is by way of rehearing of the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power so to do (s118 (1)(b)). It allows the judge on appeal to make whatever order the judge thinks just (s119(1)(d)). On a rehearing, the appellate court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence to the requisite standard: HKSAR v Ip Chin Kei & Ors HCMA 301/2011.

9.  This court is entitled and indeed bound to come to its own conclusion about the evidence. Per James J in Histollo Pty Ltd v Director-General National Parks & Wildlife (1998) 45 NSWLR 661: “It is not incumbent upon the appellant to show that such conclusion (whether at half time or on verdict[8]) was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor. If, as at trial, on the rehearing there is a reasonable doubt of guilt, the appeal must be upheld.”

10.  Because this is a rehearing upon the evidence as it was before the magistrate and is not a retrial, there are practical constraints placed upon the court in the exercise of its duties in making findings of fact and determinations in respect of the credibility of witnesses: HKSAR v Ip Chin Kei & Others supra. So far as the facts are concerned this court recognises that it does not have the advantage of having received evidence at first hand which the magistrate enjoyed. The same applies to the opportunity to see and hear the witnesses. To offset that constraint, the court is entitled to have regard to the magistrate’s Statement of Findings to ascertain what determinations the magistrate made as to the credibility of witnesses and the reasons given for such determinations. Where an appeal is based upon the magistrate’s assessment of a witness or assessment of the facts, the appeal court would not ordinarily depart from that assessment unless it was plainly wrong: HKSAR v Fok James Alistair [2015] 4 HKC 247.

The Law

11.  So far as material, section 38AA reads:

“(1) A person-

(b) in respect of whom a removal order or a deportation order is in force,

must not take any employment, whether paid or unpaid, or establish or join in any business.

…

(2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 3 years.”

12.  It is clear that any person to whom this section relates must not take up any employment. What amounts to employment is not defined save to say it may be ‘paid or unpaid’. Some assistance is provided under Part IVB which is entitled “Prohibition of Employment of Illegal Immigrants and Others”. That refers to an offence under section 17I of employing a person not lawfully employable. In the interpretation section of section 17G it is provided that a “contract of employment” means “any agreement whether in writing or oral, express or implied, whereby one person agrees to employ another and that other agrees to serve his employer as an employee and includes a contract of apprenticeship”; “employee” means “any person who has entered into a contract of employment to be employed by any other person as an employee or apprentice”; and “employer” means “any person who has entered into a contract of employment to employ any other person as an employee or apprentice, and the duly authorised agent, manager or factor of such first mentioned person”. It is to be noted that whilst there is no requirement to prove payment of wages or remuneration in order to establish employment equally mere working at a place is not per se employment[9]. Other authorities exist which have discussed the definition of employment, however some care should be taken to consider those authorities in context, especially where the relevant proceedings were not criminal proceedings.

13.  It should be borne in mind that in criminal proceedings the burden placed upon the prosecution is an onerous one. The tribunal of fact must be satisfied beyond reasonable doubt of the guilt of the accused. Where that finding requires the drawing of an inference, then the tribunal of fact must be satisfied beyond reasonable doubt of the proven facts from which he or she is asked to draw the only reasonable inference of guilt. In a case such as the one before the Court today, it must be satisfied beyond reasonable doubt not only that it was the appellant who was observed moving the boxes later found to be in the LGV, but it must also be satisfied beyond reasonable doubt of the proven facts from which the prosecution say that it can draw the only reasonable inference that the appellant was employed to do so. No element of speculation enters into this exercise. The test is a simple one “Am I sure of those facts? Is this the only reasonable inference which can be drawn from those facts?”. Whilst it is wholly proper and necessary for the tribunal of fact to take into account evidence which undermines such a conclusion, it must be remembered that such evidence must be admissible evidence and not speculative. The tribunal of fact must not be drawn into speculation as to possible scenarios not supported by evidence, which may undermine such an inference.

Analysis

14.  The evidence in this case rested upon one witness of fact whose evidence upon the material issues was not undermined in any way. Alleged inconsistencies, which went to the actual issues to be decided by the Court, as opposed to collateral matters, were clarified under cross examination and further questions put by the Court. There was no suggestion that PW1 sought to be untruthful. Indeed, he appeared to answer honestly and fairly. As to Ground One, this Court can find no reason to go behind the findings of the learned Deputy Magistrate as to the credibility and reliability of PW1.

15.  As to the drawing of an inference of fact under Ground Two, given the evidence before the Court, the learned Deputy Magistrate was entitled to find that the appellant twice picked up a box from the pallet, took it to the rear of the vehicle and returned empty handed. He was entitled to find that they were similar in size and weight to the several other boxes found within the rear of the vehicle and that they were found to contain the same product and were to be delivered to the same consignee. Given that he was not seen to walk beyond the boot of the LGV in any direction, the irresistible inference was that the 2 boxes picked up by the appellant were part of the several boxes found in the van. This ground is without merit.

16.  As to the drawing of inference under Ground 3 that the appellant was taking up employment, the learned magistrate considered this point in detail. The allegation was that the appellant was an odd job worker. He was seen to be carrying boxes destined for a commercial enterprise from an area outside of an industrial building in a location which is known to be involved in logistics. This was not the home address of the appellant and there was no obvious innocent reason for his presence, nor for his observed acts, other than for reward. There was no admissible evidence before the Court which provided for an alternative reason for the acts found by the magistrate to have been carried out. Nevertheless, he analysed the situation in great detail and I cannot find fault with that analysis. This was a bulk consignment of baby products destined for a commercial outlet. That outlet was not adjacent to the scene. The items were clearly in the process of being transported and were required to be moved from the pallet to the vehicle, which the appellant was seen to do in a methodical and open manner without any assistance. In the absence of any other reasonable explanation, and for the reasons given, the irresistible inference was that the appellant was being employed to move the boxes from the pallet to the vehicle. The learned Deputy Magistrate did not allow himself to be drawn into speculation without evidence in support but he did ask himself whether there was any evidence before him which would provide an explanation for the presence of the appellant other than the one he was being asked to consider. He did so to test the irresistible inference he was being asked to draw. Was that the correct inference to be drawn?

14.  Where it is alleged that a person is an odd job worker, one must consider the likely circumstances surrounding the type of employment alleged. There is unlikely, in these circumstances, to be no formal contract of employment. Work of this type is usually ad hoc and often workers are employed on the spur of the moment. There may very well be no obvious supervision. The allocated tasks may be simple ones requiring merely brawn rather than brains. More often than not it is menial work. The supervisory element, if required, may be delegated to others who have no knowledge of the status of the appellant. Odd job workers may very well not require special skills or equipment. A person employed by a restaurant to clean up after a shift may have no more than a broom or mop. A person employed to move pallets around a storehouse may have no more than a pair of gloves. Someone asked to load an LGV rather than a truck may have nothing to assist him other than his own strength rather than a hand operated fork lift. How then must the prosecution prove that he was employed? No employer, in an attempt to save money, will admit to such an engagement when he has deliberately targeted those who are willing to be paid ‘cash in hand’. What may be relevant may vary from case to case and the following is by no means exhaustive. In the circumstances of this case, it is important that the location is one in which you would expect a person to be employed as an odd job worker to carry out the type of task observed. For example, in this instance, it was a logistics zone in which you would expect the receipt, storage and delivery of goods. One would expect to see manual workers present. One would expect the goods in question to be in transit and to be evidenced by documentation indicating a consignor and consignee. One would expect them to be appropriately and uniformly packaged and transported according to size and quantity in a suitable vehicle. A single box may not draw such an inference, but where several boxes are observed, an inference may more likely be drawn. The type of vehicle used will likely be commercial rather than private and have no personal connection to the appellant. The origin and destination of such goods should be commercial without connection to the appellant. The acts of the appellant in relation to those goods should suggest a commercial rather than private relationship and the nature of those goods should have no connection to him.

15.  Whilst there is no onus upon an appellant to explain his innocent relationship with the goods in question, in the absence of admissible evidence to the contrary, the Court is entitled to look to the evidence before it to come to the only reasonable inference in all the circumstances that an appellant must have been employed to do what he was observed to be doing. Whilst it must not be held against a defendant if he chooses not to give evidence on his own behalf, having chosen not to do so, it is not open to the appellant to ask the tribunal of fact to speculate about other scenarios not before the Court. The lack of a positive case from the defence does not warrant speculation in his favour by the Court to consider what evidence there may have been or what explanation might have been offered[10]. In the words of Bokhary PJ[11] “Suppose the accused chooses not to testify. If so, the tribunal of fact should not conjure up a reasonable doubt by speculating upon what he might have said if he had testified.”

Conclusion

16.  The learned Deputy Magistrate correctly considered all relevant legal principles. He outlined the facts which he found to be proved and from those facts he was entitled to draw the inferences he did. He tested those inferences against all of the evidence before him and found that the appellant was an odd job worker employed to move the relevant goods. His reasoning cannot be faulted.

17.  This appeal is dismissed. There will be no order as to costs.