HKSAR v. IBRAHIM KHAN

HCMA 843/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL CASE NO 843 OF 2011

(ON APPEAL FROM STCC 3693 OF 2011

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BETWEEN

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JUDGMENT

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1.  The appellant was convicted after trial of Unlawfully taking up employment, contrary to section 38(AA) of the Immigration Ordinance, Cap 115. On the date of the trial in the Magistrate Court, the appellant was represented by a duty lawyer.

2.  In his appeal, he appeared in person.  At the trial, it was admitted by the defendant that he had landed in Hong Kong unlawfully and he was arrested in October 2008 for illegal remaining.

3.  On 18 October 2008, the defendant was released on recognizances. And one of the terms of his bail was that he is not allowed to take up employment whether paid or unpaid.  The defendant had no criminal conviction in Hong Kong. 

4.  At the trial, PW1, PC3349 gave evidence that on the date of the offence, he was in plainclothes and was on duty.  He went alone to a vehicle dismantling depot in Yuen Long.  Upon his arrival he started observing the scene of the crime and he noticed the defendant picking up some vehicle tyres and used vehicle components.  He saw the defendant moved these things and placed them to the side of the depot and stacked them up.  This was in the afternoon and there was sufficient lighting and the distance from him to the defendant was about 15 metres.  There was no one else inside that depot at the time apart from the defendant.  When PW1 left his observation post, the defendant saw PW1 and quickly walked to the inner part of the depot.  PW1 therefore arrested the defendant. 

5.  The police officer also produced a sketch of the layout of the scene and also a photograph which he had taken of the scene.  After the prosecution case, the defendant elected to give evidence.  The defendant’s evidence was that he knew a person who was an ex‑employee at the depot and that person called Mohammed had said that he could go there to get a rice cooker.  The defendant also said that he knew another employee of that depot who allowed him to use a computer at the depot, so he went to the scene of the crime firstly, to collect the rice cooker and secondly to use the computer.

6.  The defendant denied he was working at the depot and said he did not need to work, because he has friends who give him money.  After the defendant had given evidence, and after the learned magistrate had listened to concluding submissions from counsel he proceeded to analyse to the evidence. The learned magistrate dealt with inconsistencies the defence pointed out between PW1’s evidence in court and what he said in his statement.

7.  Basically, the learned magistrate found that the inconsistencies were not material not important and did not affect the creditability and reliability of PW1.

8.  The learned magistrate then considered the evidence of the defendant.  He found that the defendant’s evidence was not credible.  The learned magistrate gave reasons for his findings which is at paragraph 37 to paragraph 40 of his Statement of Findings and I do need to repeat his reasons here.  The learned magistrate considered that the description of PW1 as to what he saw the defendant doing which gave rise to the only irresistible inference that the defendant was working on the site at that time.

9.  It was clear that the defendant was performing specific duties on that site at the time and the learned magistrate found that it was therefore proved beyond reasonable doubt that the defendant was employed to work at the scene.  He then convicted the defendant. 

10.  The appellant appeals against the conviction mainly on the ground that he was not working at the site.  The learned magistrate had found that his defence was not credible.  I find no reason to interfere with the learned magistrate’s findings and therefore the appeal against conviction is unsuccessful. 

11.  The learned magistrate after hearing mitigation on behalf of the defendant then considered, very properly, the case of R vSo Man King and others [1989] 1 HKLR 142. In that case, the court had laid down a guideline for an offence of lawfully remaining in Hong Kong after a plea of guilty that a proper sentence is 15 months’ imprisonment.  As Mr Kuan very helpfully pointed out in the most recent case of the HKSAR v Usman Butt and Another [2011] 1 HKC 12, where the court dealt with the same offence as the present case, which is unlawfully taking up employment, the Court of Appeal approved the approach in So Man King’s case and said that 15 months’ imprisonment after plea was appropriate.

12.  The learned magistrate, therefore, following the above two cases adopted the starting point of 22 months and 2 weeks’ imprisonment.  Because the defendant had been detained for 13 days, he then deducted the two weeks from the 22 months and 2 weeks starting point and sentenced the defendant to 22 months’ imprisonment.

13.  The appellant appeals against his sentence on the ground that he said his mother is gravely ill and also that the sentence is manifestly excessive.  That matter about his mother’s health had already been told to the learned magistrate when he was considering the sentence. 

14.  The present offence that the defendant faced is a very serious one.  There are many cases, like the defendant’s, where bail is granted upon a condition that no employment is taken.  It takes up a lot of Hong Kong people money to police the offenders of this type of offence.  Therefore the sentence has to be a serious sentence. 

15.  I fear no reason at all to interfere with the learned magistrate’s sentence.  So the appeal is dismissed.