HKSAR v. HARI ARSHDEEP SINGH

HCMA 124/2019

[2019] HKCFI 1979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 124 OF 2019

(ON APPEAL FROM STCC NO 4139 OF 2018)

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J U D G M E N T

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1.  This is an appeal against conviction alone. The appellant was convicted after trial on one count of taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance, Cap 115.

The prosecution case

2.  The prosecution case was that at around 1200 hours on 10 October 2018, there was a joint operation between the police and the Immigration Department at Lok Shun Property Management Company (“Lok Shun”), located on the 4^th Floor, 61 Tung Choi Street, Mongkok.

3.  Inside was a warehouse area for the storage of goods from the stalls on the street below.  The goods were covered by blue canvass.  Lok Shun outsourced the transportation of goods to the street below to Awan Trading Co.

4.  The appellant was seen by PC 18950 (PW1) to operate a moveable goods shelf (“the shelf”), within the warehouse, guiding it towards the cargo lift.  The shelf was loaded with goods and also covered by blue canvass.  He was 5 metres away when first observed and moved the goods on the shelf 1 to 2 metres.  The observation lasted 10 to 12 seconds.

5.  Upon interception, the appellant proved to be a Form 8 holder, having unlawfully entered Hong Kong on 11 August 2015.  The appellant was arrested and cautioned.

Admitted facts

6.  The appellant admitted that he was a Form 8 holder and that he had entered Hong Kong unlawfully on 11 August 2015.  He further admitted that he was aware that he was prohibited from taking up employment, whether paid or unpaid, in Hong Kong.  The appellant also admitted that Lok Shun operated the warehouse which housed goods for the stalls in Tung Choi Street and that those goods were transported between the warehouse and Tung Choi Street.  He admitted his arrest and caution, the photographs, P3 and the sketch plan, P4A.  The appellant had a clear record.

The defence case

7.  The appellant elected to give evidence. He accepted that he was present at the material time on the 4^th floor of the building on 10 October 2018, but maintained that he went to the address in order to return $1,000 to his uncle who worked at the warehouse.  He had met his uncle on the ground floor and his uncle had directed him to the 4^th floor to wait for him, as there was seating on the 4^th floor.  Whilst he was playing on his phone on the 4^th floor, PW1 arrested him.  The appellant called no defence witnesses.

Issues at trial

8.  The issues considered by the magistrate at trial were:

(1)  Did the appellant convey the shelf, as shown in P3(3), as described by PW1, at the material time?

(2)  If yes, whether or not from such actions and the circumstances of the case, it could be inferred that the appellant was taking employment at the material time.

The magistrate’s findings

9.  The learned magistrate found PW1 to be a truthful and honest witness and it followed that he accepted that PW1 had observed the appellant moving the shelf, with what appeared to be goods contained upon it.

10.  He also accepted the evidence of PW2, which had not been challenged, although this merely amounted to the ownership of the warehouse and the fact that the goods were stored within it for the stall holders of Tung Choi Street.

11.  The greater part of the learned magistrate’s findings were directed at why he had not accepted the evidence of the appellant and this court does not criticise the view he took.

12.  In respect of the issue of employment, he reminded himself that there was no direct evidence of employment and moved on to whether he could draw the only reasonable inference from the proved facts and, in his words, circumstantial evidence that he was in employment at the material time.

13.  The magistrate found the appellant was an odd-job worker because:

(1)  The warehouse was used for the hawker stalls of Tung Choi Street and only people from those stalls would use the warehouse.

(2)  There was no direct evidence of why the appellant was present in the warehouse (which he accepted) and he was seen to move the shelf.

(3)  There was no special relationship to rebut an employee relationship.

(4)  There was no evidence of self-employment.

(5)  Conveying the shelf was the work of an odd-job worker and “a person would not do the work of an employee and earn money for another person for no reason.”

(6)  In the absence of other evidence, the only reasonable inference was that there was an employment relationship (with someone unknown).

Grounds of appeal

14.  The appellant was not legally represented at appeal.  His single ground of appeal was originally, “I was not there by the time of work at the company.”  This was eventually clarified and the appellant submitted that according to the prosecution witnesses, work had finished by 12 pm.

15.  He also additionally submitted that there was no evidence of employment as the prosecution had not shown any connection between him and the warehouse, the owner of the warehouse, the transportation company, or the stall holders of Tung Choi Street, save for the observation of PW1 for 10 to 12 seconds on 10 October 2018.

The law

16.  Under section 38AA(1)(a) and (2), the prosecution must prove beyond reasonable doubt that:

(1)  the defendant landed in Hong Kong unlawfully; and

(2)  at the material time:

(a) he remained without the authority of the Director of Immigration, and

(b) he undertook employment.

17.  The real issue therefore before the magistrate was the issue of taking employment.  In HKSAR v Lau Chi Wai HCMA 302/2003, DHCJ Maggie Poon (as she then was) helpfully stated:

“…‘employment’ subsists on the basis of an ‘employer and employee relationship’, that is to say, when one of the parties works for the other party, he regards the other party as his employer, and the other party (i.e. the party who is regarded as the employer) acknowledges their mutual duties or obligations and further, fiduciary duties exist between the two of them. In addition, the employer must have the power to arrange work for the employee and to deploy or instruct the employee to work.”

18.  It follows from this, that in an ideal world, the court would expect the prosecution to prove evidence of the existence of the purported employee, in this case the defendant in the trial, as well as to identify the purported employer.  They would also be able to point to acts which prove the nature of the relationship, although not necessarily the physical undertaking of work.  That may be evidence of payment, or of control over the employee or of a duty owed by the employee to the employer, such as coming to work at a certain time or leaving at a certain time, remaining in a certain place, carrying out particular duties, wearing particular clothes or using particular tools, etc.

19.  In The Queen v Ip Po Fai [1996] HKEC 1056, Patrick Chan J (as he then was), stated that:

“…working at a place per se is not employment, although in the absence of other evidence, one may draw the necessary inference.”

20.  What, therefore, is sufficient evidence to show employment?  Under the Employment Ordinance, Cap 57 or the Immigration Regulations under Cap 115A, it is not necessary to show payment or remuneration, although evidence of payment would clearly be helpful, towards establishing an employer/employee relationship, although not necessarily determinative.  What is clear is that there must be something more than an observation of somebody merely carrying out work in order for the prosecution to ask the magistrate to draw the only reasonable or compelling inference that the defendant was employed.

Discussion

21.  Was the magistrate entitled to draw the inference, which he did, having rejected the evidence of the defendant and accepted the evidence of PW1?

22.  The prosecution are in some difficulty. There was no evidence from any purported employer who may have had an employer/employee relationship with the appellant.  Although there had been a suggestion from PW2 that a subcontractor had been engaged for transportation purposes generally, which was referred to as “Awan”, there was no evidence to link the appellant to Awan.  There was no evidence that PW2 even recognised the appellant and no evidence that he had any dealings with him at all.

23.  It is not known whether the prosecution seek to say that Awan was the employer or whether it was an individual stall holder.  There was no evidence that stall holders always used Awan to convey their goods.  It seems highly unlikely.

24.  PW2 could not assist.  He had not employed the appellant, had not been aware of him previously and had no idea about the basis of his presence in the warehouse.  There was no evidence of payment or instructions being given or received.

25.  There was no evidence, other than his presence and his movement of a shelf for 10 seconds over 1 to 2 metres with something loaded upon it under blue canvass.

26.  The prosecution case may very well have been true, and probably was true.  But the rejection of the defendant’s case does not automatically lead to the prosecution’s case being proved to the requisite standard.  As DHCJ Stuart‑Moore said in HKSAR v Osman Goni & Anor HCMA 745/2012:

“The prosecution’s case against D1 and D2 and also D3 and D4 may possibly have been well-founded and may even probably have been well-founded. In neither situation, however, would the standard of proof required in a criminal trial have been achieved as possible or even probable guilt is not the same at all as guilt about which there is no reasonable doubt and as to which the tribunal of fact is able to feel sure.”

27.  Accordingly, despite the most able submissions of Mr Sean, I am not sure what the facts established and I am certainly not sure that they established employment.

28.  That leaves the issue of whether there were sufficient proven facts from which the learned magistrate could draw the only and irresistible inference that he was in employment and I do not believe there was.

29.  Even if there had been sufficient nexus between the appellant and either Awan or a stall holder, the fact that someone is working for another does not necessarily mean there is an employment relationship between the two, and for that principle, I rely on HKSAR v Ferosh (2018) 21 HKCFAR 159, affirming Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156 and HKSAR v Chow Kin Cheung [2013] 1 HKC 246.

30.  Taking the prosecution case at its highest and taking into account that this was an obvious place of employment, which I accept, the lack of any other evidence to show that the appellant was working as an employee for someone else, rather than on his own or his uncle’s account, for example, provided insufficient proved facts from which an inference could be drawn and was fatal to the prosecution case.

31.  That is without consideration of the fact that there was no evidence at all of what was said to be on the moveable pallet and to whom it belonged, in order to suggest that it was being moved for the purposes of a stall holder in Tung Choi Street.

32.  Whilst I accept that ultimately it is a question of fact for the learned magistrate, on the evidence before him in any given case as to whether he is sure that the defendant was an employee, in this instance the learned magistrate, with respect, fell into the trap of drawing inference from inference in order to come to that finding.

Conclusion

33.  I am satisfied that it is not possible to draw a “sole and irresistible inference” that “employment” has been established under the principles, as enunciated in The Queen v Ip Po Fai.  Having carefully reviewed the evidence, I am satisfied that there was insufficient evidence to prove the prosecution case beyond a reasonable doubt.

34.  For these reasons, the conviction is not safe or satisfactory.  I therefore allow the appeal, set aside sentence and quash the conviction.