HKSAR v. CHAUDHARY, NARESH KUMAR

HCMA 38/2024

[2025] HKCFI 2156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 38 OF 2024

(ON APPEAL FROM STCC 2442 OF 2023)

_____________

_____________

__________________

J U D G M E N T

__________________

1.  The Appellant was charged with one count of “taking employment while being a person in respect of whom a removal order is in forced”, contrary to section 38AA(1) (b) and 38AA(2) of the Immigration Ordinance, Cap 115. After trial, the Appellant was acquitted by the Magistrate. The Appellant then applied for costs, but was refused. The Appellant now appeals against the order of refusing his costs application.

Prosecution’s Case

2.  The Appellant was a holder of a recognizance form. A removal order was issued against the Appellant and remained enforced on the offence date. Police officer (“Police” or “PW1”) gave evidence that on that day, at about 1228 hours on 8 August 2023, when patrolling to the vicinity of a store, namely “Keno International Dry Food & Beverage Store”, located at G/F, No. 580, Canton Road, Yau Ma Tei, Kowloon (“Store”), he observed that the Appellant was moving carton boxes repeatedly and looking at a piece of invoice, like A4 paper, near the entrance of the Store.

3.  Police observed for about 4 minutes from the opposite side of the road at a distance of around 15 metres before the operation. Police then revealed his police identity and approached the Appellant. The Appellant took out his recognizance form from the cashier drawer inside the Store. Police agreed that he did take some photos at the scene, but he forgot to mention it in his witness statement and could not print them out because of a technical issue. It was only after asking the assistance from the police forensic department that he could produce it at the trial.

Defence’s Case

4.  For the defence case, the Appellant did not give evidence, but called upon one defence witness, Mr Gurung (“DW1”), to give evidence for the defendant. DW1 has known the Appellant for about five to six years, and they have been living together in the same apartment for two years. He knew that the Appellant was a Form 8 holder and was not allowed to work in Hong Kong. The Appellant has always stayed at home. DW1 said he would work at the Store on a part-time basis. The invoice (Exhibit P4) was an outgoing invoice, and they would pack the goods and deliver them to the customers. As the Appellant would always get bored, he would go to the Store to visit DW1 and use his hotspot to surf the internet at the Store.

5.  DW1 explained that the Appellant came to the Store on the offence date and he asked the Appellant to guard the Store for him, as he had to use the toilet and went to the market afterwards while his boss went to the bank. His son also went to deliver the goods at the material time. So DW1 disagreed that it was a normal practice for him to ask the Appellant to guard the Store for him when he was away.

Reasons for Verdict

6.  The Magistrate could not accept the PW1’s evidence entirely because the Police failed to explain why the photos could not be printed out at the outset, and also failed to explain why he stopped trying to contact the Immigration Department when knowing that these photos would be related to this case to be as evidence in court.

7.  The Magistrate also noted from the exhibit P6(3), that there were quite a lot of traffic on the road, which seems to be completely blocking the opposite side of the road. Therefore, the Magistrate wondered how could it be possible that the PW1, the police officer, could testify that there was no visual obstruction during his 4-minutes observation.

8.  In respect of DW1’s evidence, the Magistrate also found his evidence incredible and did not accept his evidence, basically because DW1 claimed the Appellant was always in his room, but he then would often visit DW1 at the Store. Also, DW1 and the Appellant lived at the same apartment for two years, how come DW1 did not know where the Appellant got his food to feed.

9.  And further, DW1 could not even recall when the Appellant arrived at the Store on the offence date, but he had to go to the toilet at that time, and so the Magistrate found it incredible that because he did not know exactly the time when he asked the Appellant to guard the Store for him.

10.  Eventually, the Magistrate found that the Police’s evidence could not be accepted entirely, so the prosecution failed to prove the case beyond all reasonable doubt that. Therefore, the Magistrate acquitted the Appellant.

11.  For reasons of refusing costs application, the Magistrate refused the costs application on the ground that the Appellant had brought suspicion upon himself. Based on the Police’s observation and DW1’s evidence, it is not in dispute that the Appellant was present at the Store before he was arrested, and DW1 also asked the Appellant to guard the Store for him at the time when he went to the toilet and went to buy vegetables. The Magistrate considered that the Appellant had brought suspicion on himself by doing work whether paid or unpaid at the Store.

Grounds of Appeal

12.  Mr Connelly had the following grounds of appeal:

(1)  the Magistrate erred in wrongfully finding that the Appellant’s mere presence in the Store brought suspicion on himself; and

(2)  wrongfully finding that the Appellant brought suspicion upon himself by remaining in the Store after his friend, DW1, had left to go to the toilet.

13.  In his written submissions, the following matters have been put in detail. On ground one, it is the Appellant saying that there was a special relationship between the Appellant and DW1 that they were co-tenants. The defence case was that the Appellant would go to the Store when DW1 worked to spend time and use the internet. As the Appellant is not permitted to work there, it is highly surprising that the Appellant would go there to find ways to spend his time. So the finding is that the Appellant’s mere presence in a public store could not be brought suspicion on himself because otherwise it would affect his right to freedom of movement.

14.  On ground two, the Appellant was simply saying that the evidence of DW1 was rejected by the Magistrate. Therefore, the Magistrate should not rely upon his evidence, and even if the Magistrate were entitled to rely selectively on part of DW1’s evidence, there was not an act of the Appellant that brought suspicion upon himself. There was no evidence of any acknowledgement or agreement by the Appellant to what DW1 purportedly said or did. And DW1’s evidence was not even accepted by the prosecution at all, so this is clearly a case where the Appellant did not bring suspicion on himself.

15.  On case law, the Appellant relied on the HKSAR v Tong Cun Lin [1999] 2 HKCFAR 531. It is stated that the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charge he faced. And so long as the judge is not indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict.

16.  Now that PW1’s observation was found not to be credible and reliable, the Appellant was not found to have conducted himself in a manner as alleged by PW1. But the Magistrate nevertheless went onto rely upon DW1’s evidence in part, without specifying what part of the evidence was accepted to deny his costs. It is submitted by refusing the Appellant’s costs on the basis that he was present in the Store, the Magistrate adopted a position at variance with his own fact-finding exercise, which correctly found that the mere presence at the scene could not amount to proof of employment. In the circumstances, the Appellant ought to be allowed on costs.

Respondent’s Reply

17.  The Respondent firstly relied on the case of Ting James Henry v HKSAR [2007] 10 HKCFAR 730, which stated that:

“The discretion is not bound by any such inflexible rule. By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself. There is no reason to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid.”

18.  As for the two grounds advanced by the Appellant, Respondent stated that the court has a wide and general discretion in awarding costs. The court should normally award costs to an acquitted defendant, unless there are positive reasons for making a different order. One of the positive reasons stated by the Magistrate were that the defendant had brought suspicion upon himself.

19.  On the Magistrate’s finding, he had carefully analysed PW1’s evidence and could not accept his evidence entirely. But having said that, even just the part that PW1 did not come clean as to what he has done during the time when he was taking the photos, the Magistrate did not find that PW1 did not see what had happened at all. There might be doubt as to the view. Might be that there may be obstruction, but not completely obstructed, and it was not disputed that the Appellant was present at the Store.

20.  The Appellant was asked by DW1 to guard the Store for him to watch out for thieves, and it was a store which was opened for business, so the Appellant did obviously bring suspicion on himself. As stated above, the Respondent said the Magistrate did not find that PW1 did not see anything at all. There may be doubt as to his view, but not completely obstructed. The evidence against the Appellant was that he was moving carton boxes repeatedly and always looking at a piece of invoice like A4 paper near the entrance of the Store. And then upon inspection, the Appellant took out his recognizance form from the cashier drawer inside the Store.

21.  The Respondent said the Appellant had clearly brought suspicion on himself by giving the impression that he was taking employment as a worker in the Store. And based on DW1’s evidence, the Appellant was asked by DW1 to guard the Store for him to watch out for thieves, and it was a store which was opened for business. In relying on the above Ting James Henry case, there was no reason to ignore such conduct in the exercise of the Magistrate’s discretion on costs following acquittal.

22.  The Magistrate was entitled to find that given the suspicious conduct of the Appellant, he had brought suspicion on himself. The Respondent submitted that the Appellant was not merely present at the Store as alleged, but to guard the Store for DW1 during the opening hours at the material time. So there are sufficient grounds for the Magistrate to refuse the Applicant’s costs application.

Consideration

23.  On costs application, the relevant principles were stated above in Tong Cun Lin and also in Ting James Henry. And the court has to consider all the defendant’s conduct prior to the investigation or a trial, and also all the surrounding circumstances, which form part of the setting for the charge placed against him.

24.  The Magistrate basically refused costs application on the ground that the Appellant had brought suspicion on himself when he was present at the Store, and that DW1 had asked him to guard the Store when DW1 was going away. The Appellant now submitted that mere presence at the Store alone could not have brought suspicion upon himself or it will just affect his right to freedom of movement.

25.  Further, as DW1’s evidence was rejected, his evidence could not be relied upon by the Magistrate. Even if selecting part of DW1’s evidence, there was no evidence of any acknowledgement or agreement by the Appellant to what DW1 had purportedly said. Therefore, costs should be granted accordingly. However, it is not disputed that the Appellant was actually present at the Store.

26.  Although the Magistrate did not accept DW1’s evidence generally, but on analysis of DW1’s evidence, particularly at paragraph 28 of his statement of finding, the Magistrate stated that when DW1 was asking the Appellant to guard the Store for him to watch out for thieves, he was effectively asking the Appellant to take up employment, paid or unpaid. As DW1 was called upon by the Appellant to give evidence for defence case, it could not be said that the Appellant did not acknowledge or accept his evidence. Further, there was no evidence that the Appellant did not accept such requests at all.

27.  Clearly, as stated above by the Magistrate, the Appellant was effectively taking up employment by guarding the Store. In the circumstances, the Appellant did bring suspicion on himself.

28.  Therefore, the appeal against refusal of costs is hereby dismissed accordingly.