HKSAR v. AYUB GOHAR

HCMA 409/2024

[2025] HKCFI 3693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 409 OF 2024

(ON APPEAL FROM STCC 2766 OF 2024)

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J U D G M E N T

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1.  The Appellant was convicted after trial by the Magistrate of one count of “taking employment while being a person in respect of whom a removal order is in force”, contrary to section 38AA(1)(b)  and (2)  of the Immigration Ordinance, Cap. 115. The Appellant was sentenced to 22 months and 2 weeks’ imprisonment. The Appellant now appeals against conviction.

The Prosecution Case

2.  It was admitted by both parties that on 10 January 2020, the Appellant was issued with a Recognizance Form (exhibit P2).  On 1 September 2016, a removal order (exhibit P3)  was issued and served on the Appellant on 22 September 2016 in the presence of an Urdu interpreter.  P3 was enforced against the Appellant on the material day.  The Appellant knew that he should not take any employment, whether paid or unpaid. 

3.  On 16 July 2024, upon request of PC27902 (“PW1”), the Appellant furnished P2 as his proof of identity.  PW1 also drew a sketch match of the scene (exhibit P4). 

4.  PW1 gave evidence that he was on duty in plainclothes on the material day.  At around 0845 hours, he was at the junction of Soy Street and Tung Choi Street.  He conducted an observation along Tung Choi Street towards the direction of Shantung Street.  At a distance of about 30 metres, he saw a South Asian man, the Appellant, picking up some metallic poles from the ground on the carriageway to set up a hawker stall on the carriageway near the pavement, and then putting a piece of canvas over a metal framework.  The Appellant was wearing a pair of white labour gloves. 

5.  The observation lasted about 10 minutes, during which PW1 had lost sight about two to three times, each time for about 10 seconds when the Appellant went behind the canvas.  His observation was unobstructed and the lighting was sufficient. PW1 could recognise that it was the same person from his outfit.  Thereafter, PW1 approached the Appellant.

6.  When PW1 was less than two metres from the Appellant, the Appellant turned around, saw PW1 and tried to run to the opposite direction. 

PW1 immediately intercepted the Appellant, revealed his identity, and asked the Appellant two questions in simple English.  Since the Appellant admitted that he was an illegal worker and he had tried to run away, PW1 handcuffed him. 

7.  PW1 then asked the Appellant for his identity.  The Appellant removed one of the pair of the gloves, dropped it to the ground, and handed a Form 8 Recognizance to PW1. The Appellant then removed the other glove and tried to drop it to the ground, but PW1 caught it this time.  PW1 waited for immigration officers to arrive and check the recognizance document.  The immigration officers gave PW1 an instant camera.  At 0932 hours, PW1 arrested the Appellant after the immigration officers notified him that the Appellant was an illegal worker. 

8.  Upon cross-examination, PW1 admitted that he did not state how the Appellant removed the pair of labour gloves in his witness statement.  He seized them after the arrest of the Appellant.

The Defence Case

9.  The Appellant elected not to give evidence, but called upon a defence witness, Madam Lo Ling (“DW1”), his girlfriend to support his case.  They have known each other for about five months.  DW1 stated that she lives with her 8-year-old son in Tung Choi Street, Mong Kok. 

10.  Prior to the morning in question, the Appellant came to DW1’s place and spent the night with her.  The Appellant got up before her that morning.  At around 0810 hours, the Appellant asked her to have breakfast together and then went down to the street first.  There was a language barrier between them.  DW1 would use Chinese and English to communicate with the Appellant, whereas the Appellant could only understand a little English. 

11.  After waiting for a long time, she thought that the Appellant had already returned to his home.  She became angry and sent the Appellant a WhatsApp message in Chinese, exhibit D2, telling him not to do this again. 

12.  Although the Appellant could not understand Chinese, they would sometimes communicate with the assistance of translation applications.  On the material day, her original plan with the Appellant was to walk around with her son until she had to work.  When she was busy with work, she would also leave her son in the care of the Appellant. 

Magistrate’s Finding

13.  The Magistrate pointed out that it had never been put nor suggested to PW1 that there was any mistake in identification.  It was not in dispute that the person whom PW1 saw, was the Appellant.  On the discrepancy of PW1’s evidence between the testimony of PW1 in court and his witness statement concerning how the Appellant removed the labour gloves he was wearing and when they were seized, the Magistrate considered this discrepancy immaterial. 

14.  While PW1 considered the gloves important to this case, the Magistrate disagreed with him, noting that the gloves might be relevant to whether the Appellant was working, but had nothing to do with whether he had taken employment.  The Magistrate also did not find the Appellant’s conduct of removing the gloves and attempting to drop them important enough to warrant mention in PW1’s witness statement as this occurred when the Appellant had been intercepted and handcuffed. 

15.  The Appellant admitted to being an illegal worker.  This evidence was unchallenged during cross-examination. Although the Appellant had not been cautioned at this stage, PW1 was entitled to ask the Appellant question to find out whether or by whom an offence had been committed.  Having considered all the evidence of PW1, the Magistrate find him honest and reliable. 

16.  And on the evidence of DW1, the Magistrate noted that there have been a language barrier between her and the Appellant.  However, the Magistrate found it totally unreasonable for DW1 to use Chinese in her WhatsApp message to the Appellant in exhibit D2.  Even if the Appellant could use interpretation application to understand the messages of DW1, there was still no reason for DW1 not to use English, a language where the Appellant could at least understand to a limited extent.  Furthermore, when the Appellant’s ability to understand English is so limited, it is extremely unreasonable for DW1 to let the Appellant take care of her son when she was at work.  And the exhibit D2, the Magistrate found it very strange that DW1 did not first ask the Appellant for his whereabouts when she found him missing, but instead told him not to do it again. 

17.  Upon cross-examination, DW1 could not provide any reasonable basis to assume that the Appellant had returned to his own residence and DW1 was not forthcoming in providing answer and was generally evasive.  Therefore, the Magistrate did not find DW1 to be honest and reliable and did not accept that her communication with the Appellant was sufficient for her to understand his whereabouts and his activities that morning.

18.  Now, the Magistrate also stated that it was PW1’s evidence that the Appellant was seen setting up a hawker stall at the designated area at the section of Tung Choi Street between Shantung Street and Soy Street.   Pursuant to section 83B of the Public Health and Municipal Services Ordinance (“PHMSO”), Cap. 132, the Commissioner for Transport may set aside streets for hawking purpose.  According to the Second Schedule at section 3 of the Hawker (Permitted Places)  Declaration, Cap. 132AG, the section of Tung Choi Street from the southern junction with Shantung Street to northern junction with Soy Street is a hawker permitted place.  And under section 83B(5)  of PHMSO, the director of Food and Environmental Hygiene may allocate pitches in the street to licensed hawkers.  The designated area PW1 referred to in his evidence could be seen in the photo P62 as the rectangular area with a yellow border and number “523” written in yellow. 

19.  In the absence of evidence to the contrary, an inference could be readily drawn that this is one of the allocated pitches.  It follows that the pitch must have been allocated by the authorities to someone other than the Appellant, but the Appellant could not legally establish or join in any business.  The Appellant must have been doing the work for someone.  The existence of an employer could be inferred from the facts proven beyond doubt. 

20.  The Magistrate also considered the case of R v Ip Po Fai HCMA 1201/1995, saying that it is clear that working at a place, per se, is not employment, although in the absence of other evidence, one may draw the necessary inference.  In the present case, there is no evidence that the Appellant worked at the offence location for purposes other than employment.  The Magistrate finally ruled that the only irresistible inference was that the Appellant took employment at the offence location on the material date, and therefore convicted the Appellant accordingly. 

Grounds of Appeal

21.  Mr McGowan put forward the following grounds: 

(1)  The Magistrate erred in accepting PW1’s evidence, particularly given the lack of recorded detail.

(2)  The Magistrate erred in considering the uncautioned admission of the Appellant as part of the evidence against him. 

(3)  The Magistrate erred in convicting the Appellant in the absence of any evidence as to who his employer was. 

(4)  The Magistrate erred in rejecting PW1’s evidence. 

Overall and generally, the Appellant’s conviction is unsafe and/or unsatisfactory. 

22.  Mr McGowan in his written submissions was detailing all the matters concerning the grounds of appeal.  On ground 1, the Appellant stated that there were four significant differences between PW1’s witness statement and his evidence given in court.  That concerned, firstly, “at least three other officers” were not mentioned in his evidence-in-chief.

23.  Secondly, while PW1 described the Appellant’s wearing of the gloves as important, and stated that the Appellant’s curious and contorted behaviour in trying to lean when removing them when handcuffed, these were also not mentioned in his witness statement. 

24.  Thirdly, PW1 also agreed that many of the details provided were not mentioned in his statement. 

25.  Fourthly, PW1 agreed that the defence case without demur after defence counsel explained what he was about to do, a process which he understood, subsequently changing his answer in re-examination. 

26.  Concerning the recollection, PW1 could not recollect what was the component and how many poles the Appellant had actually taken up, nor the size of the frame initially, or how he fixed them all together.  And he did not take note of the surrounding, so he was unable to see if anyone else performing the same kind of work, despite for 10 minutes observation unobstructed. 

27.  PW1 even mentioned that he thought that the Form 8 matched the Appellant’s appearance.  And during the 20 minutes from the handcuffing until the immigration officers arrived, he had not even made a closer look at the frame at all, and he could not even remember whether the Appellant was photographed.

28.  So there had been more other details that PW1 could not recollect that concerning whether the poles were vertically or horizontally, not sure about the components of the frame, and not sure about the position that the Appellant picked up the poles. He had not been sure if there were any contemporaneous photos taken at all. And he had officially seized the gloves the time the Appellant had dropped them before being asked by the court to clarify when he changed his evidence.  So the Appellant will say the wearing of gloves is often used as an indication when he is working.  And PW1 had even claimed that this was important evidence, however that had not been included in his statement at all.  That certainly affect his credibility and reliability. 

29.  On ground 2, the Magistrate noted that there was no evidence of any caution concerning the admission by the Appellant that he was an illegal worker.  But the Magistrate did not state whether he had ignored this uncautioned admission or what weight he had actually given to it.  So the Appellant will say it must have been utilised in his decision. 

30.  However, there have been completely lack of details as to what had been asked and what was said concerning his admissions about as an illegal worker.  In the absence of any follow-up question to admission that he was an illegal worker, in the circumstances that it would be wrong for the Magistrate to use it as an evidence in convicting the Appellant. 

31.  On ground 3, PW1 had identified and took photograph of the working place, Pitch 523, a designated hawker.  However, there had not been any steps taken to identify the employer which should be quite easily to be identified if they had been any employer at all. 

32.  On ground 4, concerning the evidence of the Appellant’s girlfriend, DW1, the Magistrate stated that even if there is some truth in her evidence, he do not accept that her communication with the Appellant was sufficient for her to understand his whereabouts and activities on that morning.  The Appellant would say that was exactly the point that, there had been a misunderstanding.  She would be expecting the Appellant back with breakfast, but the Appellant was waiting for her downstairs.  So there had not been any unreasonableness concerning the evidence of DW1.  DW1 was concerned and a little bit angry, that would be quite an understandable reaction in the circumstances.  And there had not been any evidence concerning DW1’s English ability.  So after all, her reaction would not be surprising at all. 

33.  Also, there have been interpretation apps that may certainly be able to assist the communication if there happened to be any misunderstanding or communication, that would happen to any relationship and very common.  Given all these matters, the Magistrate had been wrong in rejecting his girlfriend’s evidence.  So overall, the conviction was unsafe and unsatisfactory. 

Respondent’s Reply

34.  On ground 1, the Respondent will say the Magistrate was satisfied in finding PW1 honest and reliable.  This is not the case where PW1 paid no attention to the frame and the components since he was able to give evidence on the type of components the Appellant used for setting up the frame, the estimated length of the poles, the estimated size of the frame, and the Appellant’s use of canvas for covering the frame.  It is understandable that neither counting the number of walls or poles that the Appellant had taken up nor measuring the actual size of the frame would be immaterial in this case.  PW1 also reasonably explained that his inability to see the components and how the Appellant fixed them altogether clearly was due to the distance between himself and the Appellant. 

35.  PW1’s observation on the overall act of the Appellant and his whereabouts are exactly the key aspect of this case, similar analysis could be applied to the absence of details in respect of the removal of labour gloves in PW1’s witness evidence. 

36.  Concerning the PW1’s failure to mention the presence of some other police officers during evidence-in-chief, the Respondent would say that the omission is immaterial to this case.  Even if someone else was performing the same kind of work, the Respondent would say it would neither weaken the prosecution case nor support the defence’s claim that the Appellant was waiting for a friend. 

37.  The Respondent will say PW1 honestly testified that he was unsure whether there were any contemporaneous records, videos or any evidence showing the Appellant was supposedly assembling the hawker stall and PW1 also confirmed that he did not make such a contemporaneous record. 

38.  While it would have been possible to have photographed the Appellant, there is no such requirement for the prosecution to take photos or video footage at the time.  Also PW1 had been consistent in is his evidence that he saw the Appellant setting up the hawker stall and wearing a pair of labour gloves. 

39.  On ground 2, although PW1 did not testify about the details of the question he posed to the Appellant before admission, he described that such an inquiry as brief.  After such brief inquiry, PW1 revealed his identity to the Appellant who then admitted that he was an illegal worker. 

40.  There is sufficient evidence with evidential basis to establish that PW1 had not formed a reasonable suspicion of the commission of the offence before the Appellant made his admission.  This admission was not challenged by the Appellant at all. So the Magistrate was quite entitled to say that PW1 can ask the Appellant question to ascertain whether an offence had been committed. 

41.  On ground 4, concerning DW1’s evidence in the use of the language and the WhatsApp exchanged as produced in exhibit D2, despite the assertion of language barrier, DW1 demonstrated her ability to communicate with the Appellant in English effectively in saying that “What should I do, I worry about you”.  The Magistrate was correct to find that there is no reason for DW1 not to use English which is a language that the Appellant could at least understand to a limited extent. 

42.  And the Respondent would say that the Appellant seems to have resorted to saying that the court should not take judicial notice of two acts concerning the use of translation application and also the occurrence of miscommunication and misunderstanding in relationship.  The Respondent submitted that there is no basis for the court to take judicial notice on all these matters and the Magistrate was correct in rejecting DW1’s evidence. 

43.  Even if there is some truth in the evidence DW1, DW1 did not know the exact whereabouts of the Appellant and could not say what the Appellant was actually doing at the material time. 

44.  Concerning grounds 3 and 5, the Magistrate was correct in accepting the evidence of PW1 and rejecting the evidence of DW1.  And the Magistrate was also entitled to consider whether the Appellant was taking employment based on the evidence of PW1 concerning the identity of the employer.  The Respondent also relied on the case of HKSAR v Zafar Adnan [2020] 2 HKLRD 1178, it was held that once it is proved that the defendant has taken employment in the sense of acting pursuant to employment relationship, it is not necessary to prove the identity or identify particulars of the employer.  And also in the case of Ip Po Fai stated above, the court may draw only reasonable inference from the proven facts and circumstances evidence that the Appellants were in employment at the material time. 

45.  The Respondent also agreed with the Magistrate’s finding in the light of all the background of the Appellant, the conduct of the Appellant, the offence location, and the only irresistible inference is that the Appellant was taking employment at the offence location. 

46.  So all in all, the conviction shall stand, the appeal shall be dismissed accordingly.

Consideration

47.  In the Court of Final Appeal case, HKSAR v Hui Lai Ki [2024] HKCFA 7, it was stated that the Magistracy Appeal is conducted by way of re-hearing on all the evidence before the court.  On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justify appellant’s intervention to reverse the decision of the magistrate to convict.  The judge must be satisfied that the appellant’s guilt been proven beyond reasonable doubt on the evidence, failing which, the appeal must be allowed. 

48.  The Court recognised 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 his own conclusion on disputed issues of fact or law. 

49.  On ground 1, much had been said on the unreliability of PW1’s evidence, which was lacking in details and there was significant omission of details of removing gloves in his witness statement.  However, I also had the opportunity of going through the transcript concerning PW1’s evidence, referring to the appeal bundle page 45 to 71.  No doubt, PW1 had been able to tell the details of the nature of the poles, that is iron or metallic poles, about 1 to 1.5 metres long, the frame was about 2 metres tall and 5 metres wide, and the canvas was about 10 metres high times 5 metres. 

50.  Furthermore, PW1 was able to tell the distance and length of observation, which was about 10 minutes and was clearly a sufficient period of his observation. There is a sufficient period of observation that the Appellant had picked up the poles to set up the hawker stall and also put the canvas over the metal frames. 

51.  As to the omission of removal of gloves in the witness statement, as what the Magistrate had stated it may be relevant to working, but not employment.  After all, it had been seized as exhibit and it only happened after the Appellant had been handcuffed.  Thus, failing to mention that in the witness statement would not affect PW1’s reliability and credibility at all. 

52.  Now that the Magistrate had received PW1’s evidence first hand, after thorough consideration and analysis, then his evidence was accepted.  I have no basis to disturb his finding.  So this ground fails. 

53.  As to ground 2 about the admission as illegal worker, although the Appellant was not cautioned, such answer had not been challenged at all.  And more importantly the Magistrate did not make use of his admission to form any basis of his findings of employment.  So this ground also fails. 

54.  Ground 3 concerning that the employer was not identified nor was any steps taken to find the employer.  However, as in the case of Zafar Adnan stated above, it is not necessary to prove the identity and the particulars of the employer.  So this ground also fails. 

55.  On ground 4, concerning the evidence of DW1, the Appellant’s girlfriend, likewise the Magistrate had fully considered her evidence and saying that it was totally unreasonable for her to use Chinese as the WhatsApp message while knowing that the Appellant could only understand English to a limited extent, but not Chinese.  In fact, DW1 had also, at the end, been stating in English to say that she had been worrying about the Appellant. 

56.  Further, the Magistrate also concerned that it was very strange for DW1 not firstly ask the whereabouts of the Appellant but simply telling him not to do it again. Thus the Magistrate had ample reasons for not believing DW1, apart from the observation that DW1 had been evasive in answering questions.  So this ground also fails. 

57.  Lastly, the overall evidence of the present case was indeed compelling to form the basis of employment, not only the location was a designated place for hawking, the status of the Appellant could not be the licensed person.  In the absence of any contrary evidence and with the clear observation of PW1 that the Appellant was setting up the hawking stall, I am also satisfied that the Appellant was taking up employment there and his guilt had been proven beyond all reasonable doubt. 

58.  There remains a final matter which was just raised by the Respondent at the last minute that the prosecution had not been able to disclose to the Appellant at trial concerning that the hawker pitch in this case had not been covered by a valid hawking license since 10 June 2022, but the Respondent would also simply say that the identity of employer need not be ascertained nor it is the prosecution case that the hawking pitch was in fact licensed to someone.  So even in the absence of valid hawking license, that would not affect the conviction at all. 

59.  The Appellant replied that the basis of conviction by the Magistrate included that the hawking pitch must be indeed licensed to someone.  Now that it was revealed that may not be the case, it certainly affects the conviction and it would be unsafe and unsatisfactory.

60.  However, I am of the view that even that the particular location was not covered by a valid license, that did not mean it would not be used by someone hawking there.  In the present case, through observation, the Appellant had indeed been setting up the hawker frames.  Further as stated above, it was also not necessary to identify any employer, especially given the facts in the present case in the circumstances, as compelling, and also in the absence of any contrary evidence. 

61.  So all in all, I am satisfied the guilt of the Appellant has been proved beyond all reasonable doubt.  Therefore, the conviction do stand and the appeal is dismissed accordingly.