HKSAR v. FABROA CANDELARIA BERME

HCMA 42/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 42 OF 2017

(ON APPEAL FROM STCC 2836 OF 2016)

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J U D G M E N T

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Introduction

1.  The appellant was convicted after trial by Mr Colin Wong, Magistrate, on 12 December 2016, of the offence of breach of condition of stay contrary to s41 of the Immigration Ordinance, Cap 115 (“the IO”) and was sentenced to three months’ imprisonment.  On 15 December 2016, the appellant appealed her conviction only.  She was given bail subject to conditions on 3 January 2017.  On 14 July 2017, with leave, the appellant sought additionally to appeal against sentence out of time and she filed Form 102 on 17 July 2017.  She is unrepresented on her appeal.

2.  The particulars of charge were as follows:

“FABROA, CANDELARIA BERME, you are charged that on 27 July 2016, in Hong Kong you did contravene a condition of stay in force in respect of you imposed by an immigration assistant on 30 March 2016, in that, while you were permitted to remain in Hong Kong for employment subject to the condition of stay that you shall only take such employment as approved by the Director of Immigration, namely, to work as a domestic helper for PARK MI YOUNG at the address specified in the employment contract numbered L266744, but you did perform odd jobs at Shau Kei Wan, other than approved by the Director of Immigration.”

The Prosecution Case

3.  The prosecution alleged that the appellant had been working in her employer’s Korean restaurant on the morning of 27 July 2016 in breach of her work visa as a domestic helper.  The case for the prosecution consisted of one witness.  Inspector Lee Choy-ying (“PW1”) was a member of the Labour Department.  She and two others from the Labour Department held themselves out to be customers of a Korean restaurant called “Big Mama” (“the Restaurant”). It was owned and operated by the appellant’s employer, Mrs Park (“DW2”). PW1 and her two colleagues were in the Restaurant at about 11.15 on 27 July 2016.  At that time there were two non-Chinese females in the Restaurant.  One was in the kitchen (“DW3”) and the appellant, wearing an apron, was at the cash register.  The general layout can be seen in P5, which is a floor plan of the Restaurant.  PW1 approached the cash register and placed an order.  The appellant entered the details into the till and asked for payment of $84.  PW1 paid with a $100 note and two $2 coins.  The appellant placed the cash in the till and gave PW1 her change.

4.  There was a serving area in front of the kitchen which was separated by a wall and a hatch way.  According to PW1, the appellant was seen within that serving area and was observed to hold a skillet and pour some food from the skillet into a metal container.  No one else was in the same area.  She was next seen in that same area with a tray containing PW1’s order.  She carried it over to PW1 and placed her order on the table in front of her.  Later, she was seen to be bagging up take-away food into a blue recyclable bag.

5.  There came a time when PW1 approached the cash register again.  At this time the appellant was in the kitchen area behind the wall and hatchway.  The appellant was observed to look through the hatch, to notice PW1 and her colleagues at the cash register.  She then walked out from the kitchen area and took a further order from them for which she gave PW1 a receipt.  After taking the order, the appellant went to a fridge at the back right hand side of the Restaurant and took out a bag of something and walked with it into the kitchen.  Lastly, through the hatchway, PW1 had seen the appellant placing carrots into a plastic box.

The Defence Case

6.  The appellant is a domestic helper.  She was employed at the material time by DW2 and was subject to the relevant condition of stay.  The only issue which the appellant took in cross examination was that she denied handling the take-away food and placing it into the blue recyclable plastic bag.  This was said to be done by DW3.  She maintains she was in the Restaurant waiting for her employer to arrive to give her money to go shopping.  She was only helping DW3 out when she took the order, served the food and took the food out of the fridge for the second order.  She knew how to use the cash register because she had seen her boss use it previously as she had regularly been to the Restaurant about two to three times per week during her employment as a domestic helper for DW2.  What appeared to be her cooking in the kitchen area was her cooking a personal meal with DW3 at the suggestion of DW3.  She was wearing an apron simply to protect her clothes whilst cooking her personal meal.

The Grounds of Appeal

7.  In her Grounds of Appeal, the appellant maintains:

“And that the general grounds of such appeal are that the conviction was unsafe and unsatisfactory upon hearing of the proceedings in that behalf in that evidence did not suggest an irresistible inference that I was employed at the restaurant.”

8.  In her “Grounds of Appeal Clarification and Refutation on Statement of Findings” dated 23 June 2017, the appellant amended her grounds of appeal as follows:

1.   The conviction was against the weight of the evidence;

(1)   The magistrate made the conviction judgment with the only irresistible inference that I was, in fact, employed as an odd-job worker in Big Mama at the time.  But his irresistible inference was by accepting PW1’s observations and evidence but rebutting the evidence of mine and my witnesses (Richel and Mrs Park) I made in the above what kind of wrong or false observations or evidence PW1 made in the trial.

(2)   I would like to contend that the magistrate failed to consider the fact that the observation made by PW1 was a one-off event and it lasted for about half an hour only and the fact I was familiar with Korean foods including Mandu and Korean drinks.  And I think it was not sufficient to rebut the explanations given by me, and Richel and Mrs Park.  I also contend that there was no evidence that I was going to the shop to work under any direction or instruction of Mrs Park.

2.   The following evidence was improperly rejected:

(1)   I did not prepare food for the customers.

(2)   I did not put the takeaways into the blue bag.

(3)   I did not take out the Mandu from the fridge, it was actually the freezer.

(4)   I did not know the whereabouts of foods including Mandu, except Korean drinks which were in the fridge located next to the cash register.

(5)   Richel was not whole time in the kitchen but was actually standing most of the time at the food containers next to cash register preparing the takeaway lunch boxes and gave me some instructions in Tagalog.

(6)   I did not go to the shop for work but to wait for Mrs Park.  Mrs Park never asked me to go there for work.

(7)   I did put carrots inside a plastic bag but the carrots were nothing to do with food or Mandu for the customers but it had been used to make Pancit for our personal consumption before the customers came in.

9.  The thrust of the appellant’s grounds of appeal is that the learned magistrate was simply wrong to reject the defence evidence and that it was therefore wrong to draw the inference which he did based upon the evidence of PW1.

10.  In support of that, the appellant seeks to adduce further fresh evidence through her written submissions which this court will not allow.  The appellant was represented in the court below and all proper matters should have been put at that stage.  There is no compelling reason for introducing fresh evidence at this stage.  There is no reason why it was not put below.

The Procedure on Appeal

11.  An appeal under s113 of the Magistrates Ordinance, Cap 227 is by way of rehearing of the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power so to do (s118 (1)(b)).  It allows the judge on appeal to make whatever order the judge thinks just (s119(1)(d)).

12.  On a rehearing, the appellate court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence to the requisite standard: HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.  It follows that the appellate court is also required to ensure that all proper safeguards were put in place as to the admissibility of such evidence as was relied upon by the court below.

13.  This court is entitled and indeed bound to come to its own conclusion about the evidence.  Per James J in Histollo Pty Ltd v Director-General National Parks & Wildlife (1998) 45 NSWLR 661:

“It is not incumbent upon the appellant to show that such conclusion (whether at half time or on verdict^[1])was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor. If, as at trial, on the rehearing there is a reasonable doubt of guilt, the appeal must be upheld.”

14.  Because this is a rehearing upon the evidence as it was before the magistrate and is not a retrial, there are practical constraints placed upon the court in the exercise of its duties in making findings of fact and determinations in respect of the credibility of witnesses: HKSAR v Ip Chin Kei & Others supra.  So far as the facts are concerned this court recognises that it does not have the advantage of having received evidence at first hand which the magistrate enjoyed.  The same applies to the opportunity to see and hear the witnesses.  To offset that constraint the court is entitled to have regard to the magistrate’s Statement of Findings to ascertain what determinations the magistrate made as to the credibility of witnesses and the reasons given for such determinations.  This court would be most reluctant to go behind that without good reason and none has been given.

15.  The evidence in this case rested upon one prosecution witness of fact and three witnesses for the defence.  It necessarily involved an assessment of their credibility.  This court should be slow to reverse the finding of the magistrate as to the credibility of a witness unless satisfied that his conclusion on the facts is plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.  This was elaborated upon in HKSAR v Fok James Alistair [2015] 4 HKC 247 where, Zervos J said,

“In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, whether the finding was one no reasonable magistrate could have reached”.

The appellant was unable to do that and this court, in taking all the appellant has said into account, is unable to do that either.

Conclusion

16.  This case turned entirely upon the facts as the learned magistrate found them to be.  He clearly felt sure that the account given by the prosecution witness was true in all aspects and that the account given by the appellant and her witnesses was not.  In order to draw an inference there must firstly be a set of facts which the court finds to be proved to the requisite standard.  In this case, the question for the learned magistrate would have been whether he found the evidence from the defence witnesses to be true or whether it may have been true.  He had a first-hand opportunity to hear the witnesses and to assess their credibility.  If, as he did, he rejected the defence evidence, he would have gone on to satisfy himself so that he was sure of the evidence of PW1 as he said he did.

17.  He noted that the credibility of PW1 was not seriously challenged.  It was suggested that her ability to observe the actions of the appellant would have been undermined by her role as a customer.  The learned magistrate rejected this suggestion and found that her observations were accurate.  Given that the appellant agrees all of them save for the bagging of the take away food, I find that it is inherently unlikely that the observations of PW1 were accurate save for an observation which took place just a few feet away from her and without any intervening obstruction.

18.  As for the defence witnesses, the learned magistrate noted the clear record of the appellant.  He did not accept the reason for the appellant being asked to go to the Restaurant in order to collect money from her employer.  This involved a 1½ hour wait in the Restaurant when, at the time of her call, her employer was in the vicinity of the home address with her son.  Even if the appellant had been walking in the area because she was upset by her sister’s death, then it would nevertheless have been easier for the employer to find an ATM close by to her home address than to ask her domestic helper to make her way to the Restaurant which was some 30-minute walk away from the flat and to wait for her there for 1½ hours.  I might add, that I find it unbelievable that Mrs Park would ask the appellant to leave the house when they were expecting Town Gas to attend because of a sudden emergency.  According to Mrs Park, allowing the appellant to go for a walk because of her bereavement and then asking her to go shopping but needing first to give her the money for the shopping, resulted in Mrs Park leaving her son’s tutorial and returning home herself so that she could meet the Town Gas repair worker when, according to her, her domestic helper was sitting in the Restaurant for an hour and a half. 

19.  On the other hand, the learned magistrate noted that Mrs Park usually attended her Restaurant each day where she employed just one full-time employee, DW3.  On that day, she chose to take her son to his tutorial, be in attendance at home for Town Gas and then to pick up her son at 11.40 am.  She had not arranged for any part-time employee to stand in for her at the Restaurant.  DW3 would have been on her own until Mrs Park could arrive which would have been after the luncheon rush hour had commenced.  As it was, she was on her own until the appellant arrived at about 10.40.  This was the period of time that food would be prepared, the odd customer would come into the shop and take-away orders were received.  A time when two rather than one member of staff was preferable.

20.  The learned magistrate also concentrated upon the familiarity the appellant had with the Restaurant, the food and the cash register.  In respect of the latter, the learned magistrate found that there was a material discrepancy between DW1 and DW3.  DW3 said she had instructed DW1 on how to use it whereas DW1 said she knew how to use it because of watching her employer use it.  She did not mention being instructed on its use by DW3.  In rejecting both these contentions, the learned magistrate noted that DW3 would not have allowed the appellant to operate the cash register unless she was satisfied she could do so already.  He also noted that DW1 was very familiar with the operation of the Restaurant in respect of the menu, service area, food storage and the till.  He found that this was not commensurate with someone who worked there for the first time.

21.  In addition, the learned magistrate did not accept that DW3 would leave the Restaurant unattended save for the appellant, with the cash register unlocked, in order to buy coffee if the appellant did not work there.

22.  Having rejected the evidence of all three defence witnesses, the learned magistrate went on to consider the prosecution evidence of which he was sure.  He found:

(i) The appellant was not just dealing with PW1 at the cash desk but was also serving her food, moving food from a cooking utensil into a serving dish; placing take-away food into a recycling bag and doing all this whilst an actual employee was present.

(ii) The appellant was wearing an apron at all times.

(iii) The appellant had knowledge of the operation of the Restaurant, how to use the cash register, where the food and drinks were stored, the names of the food, where to store food, and had no difficulty looking after the customer.

(iv) The appellant handled cash and receipts.

Accordingly he drew an irresistible inference that the appellant was carrying out odd-job work within the restaurant at the direction of Mrs Park.

23.  I find no error in the reasoning of the learned magistrate.  This appeal against conviction is dismissed.  As to her appeal against sentence out of time, given her intervening pregnancy, I order the sentence to be reduced to reflect time served.