HKSAR v. YAN, ZHENSHENG

HCMA 256/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 256 OF 2008

(ON APPEAL FROM STCC 9447 OF 2007)

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J U D G M E N T

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1.  The Appellant, a man in his mid-20s, was convicted after trial before T.H. Casewell, Esq. in the Magistrate’s Court at Shatin on a charge of breach of condition of stay, contrary to s. 41 of the Immigration Ordinance, Cap. 115.  He had arrived in Hong Kong on 29 October 2007 on the strength of a Mainland permit for travelling to and from Hong Kong.  Upon arrival here, he was given permission to remain as a visitor for 79 days on condition that he shall not take up any employment here, whether paid or unpaid.  The breach of condition with which he was charged, and which the Magistrate found proved, was that he had, during that period of permitted stay, taken up employment as an odd-job worker at Kin Wong Street in Tuen Mun.

2.  Briefly stated, the prosecution’s evidence was as follows.  On 27 December 2007, PC7225 (who gave evidence as PW1) had, from 12^th floor of a building opposite and about 20 metres away, kept observation on Flats 1 and 2 on the 11^th floor of Raton Industrial Building at No. 4 Kin Wong Street in Tuen Mun.  Looking through the windows, PW1 saw a man who was wearing a red top working in a roasted meat factory at Flat 1.  He saw this going on for about 25 minutes before the police entered Flat 1.

3.  PW1 saw the man in a red top stop work in Flat 1 and go into Flat 2.  He said that the man had stopped work “nervously” and that he had gone into the other flat “in quick paces”.  It appears that PW1’s observation began at 1905 hours.  On that basis, it would have been at about 1930 hours that the police entered Flat 1.

4.  At 2017 hours PW1 saw a man in a red top climbing out of a window in Flat 2.  The Fire Services were summoned, and they eventually rescued that man at around 2110 hours, bringing him back into Flat 2.

5.  There he was arrested by PC34130 (who gave evidence as PW2).  The man so rescued and arrested is the Appellant.  Was the Magistrate justified in feeling sure that he was also the man in the red top who PW1 saw in Flat 1?  The Appellant appeals against conviction, and this is the first question on which his appeal turns.  The second such question is whether the Magistrate was justified in feeling sure that the man in Flat 1 had been working there.  Thus the Perfected Grounds of Appeal against Conviction filed on the Appellant’s behalf read:

“1.  The learned Magistrate was wrong to convict the appellant in that,

(i) the evidence of identification was unreliable; and

(ii) the evidence of employment was inconclusive.

2.  The conviction was unsafe and unsatisfactory.”

6.  The Appellant did not give or call evidence.  He disputes the conclusiveness of the prosecution’s evidence.

7.  Not surprisingly, PW1 could not identify the Appellant’s face as that of the man whom he saw in Flat 1.  This case does not depend on that sort of identification.  It is a question of whether, on the whole of the circumstances, the Magistrate was entitled to take the view that the only reasonable inference is that the man in a red top who climbed out of the window in Flat 2 is the man in a red top who had been in Flat 1.  Such a question is to be approached with care and with the burden and standard of proof in mind.  At the same time, it is to be approached with realism and on the basis that circumstantial evidence is more accurately likened to a rope, the strength of which is the combined strength of all its strands woven together, rather than to a chain which is only as strong as its weakest link.

8.  In my view, the evidence, properly approached, justified the sure conclusion that the man in Flat 1 and the man in Flat 2 is one and the same man, namely the Appellant.  Looking at the Magistrate’s Statement of Findings, it appears to me that he approached this issue in the correct manner.  I resolve the first question against the Appellant.

9.  As for the second question, namely whether what the Appellant had been doing in Flat 1 was working so that he can be found to have taken up employment, it is necessary to have regard to this evidence.  PW1 said that he saw the man pushing pigs around and chopping them.  There were, he said, a lot of pigs there.  And he said, the pigs were hanging on a rack.  In the light of all of that, there was evidence on which the Magistrate could come to the sure conclusion that the Appellant had taken up employment so as to work as an odd-job worker in a roasted meat factory.  Looking at the Magistrate’s Statement of Findings, it appears to me that he reached that conclusion in the correct manner.  I resolve the second question, too, against the Appellant.

10.  Accordingly, the appeal is dismissed.