HKSAR v. GULNAZ AKHTAR

HCMA 229/2019

[2019] HKCFI 1849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 229 OF 2019

(ON APPEAL FROM STCC NO 3976 OF 2018)

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BAIL PENDING APPEAL:
REASONS FOR DETERMINATION

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Introduction

1.  Gulnaz Akhtar (hereafter “the Appellant” [1] ) appeared before Mr Colin Wong, sitting as a Permanent Magistrate in the Sha Tin Magistrates’ Court.  She was charged with an offence of aiding, abetting, counselling, procuring a person who remained in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, to take employment.  Such conduct is contrary to section 89 of the Criminal Procedure Ordinance, Cap 221 and section 38AA(1)(a) of the Immigration Ordinance, Cap 115. She pleaded not guilty and a trial ensued.

2.  On 22 May 2019 the learned Magistrate convicted the Appellant and sentenced her to 18 months and 2 weeks’ imprisonment.

3.  The Appellant has appealed against conviction and sentence under Part VII of the Magistrates Ordinance, Cap 227. She now applies for bail pending appeal.

4.  The Court was able to obtain a transcript of the audio recording of the plea (and the audio recording itself), closing submissions, verdict, mitigation and sentence at the trial before Mr Wong.  That together with the charge sheet and brief facts together with the submissions of counsel for Appellant and counsel for the Respondent means that I have been able to piece together the nature of the case against the Appellant at trial, the reasoning of the learned Magistrate and proceedings relating to sentence.  The application for bail pending appeal brought to this Court has been undertaken with admirable expedition but the formal paperwork had not been able to catch up with that. However, I am satisfied that I have ample material to make a determination in relation to the application for bail pending appeal.

The case at trial

5.  The case at trial I can take from the reasons for conviction articulated by the learned Magistrate.  It is:

“ [The] Prosecution case is that PW1 is from India and he entered Hong Kong illegally. PW1 met the 2^nd defendant in India about two to four months before coming to Hong Kong. [The] 2^nd defendant was introduced to PW1 as an agent who brought people to Hong Kong with a visa for employment. [The] 2^nd defendant charged PW1 400,000 rupees for bringing PW1 to Hong Kong and give him shelter in Hong Kong. PW1 paid the 2^nd defendant 350,000 rupee in India and a balance of 50,000 rupee will be paid in Hong Kong.

In November 2015, [the] 2^nd defendant arranged air ticket and flight for PW1 to go to Hong Kong. After arriving at Hong Kong, the 2^nd defendant instructed PW1 to take a ferry to China, which PW1 did. In China, PW1 met a person called Shera who was introduced as the 2^nd defendant’s relative. Shera pick[ed] up PW1 and PW1 stay[ed] with him for a few days. Then Shera brought PW1 to go to Hong Kong but, instead of going through proper immigration channel, Shera told PW1 to enter Hong Kong through a short wall and a fence. Shera told PW1 to meet him after entering Hong Kong. Shera pick[ed] [up] PW1 in Hong Kong and brought him to a Sikh temple. Later on, PW1 was brought to [the] 2^nd defendant’s flat. PW1 stayed in the 2^nd defendant’s flat with the 2^nd defendant for about four to five months. [The] 2^nd defendant came to Hong Kong in January 2016. Afterwards, PW1 moved to another of [the] 2^nd defendant’s flat until arrest.

In July, year 2016, the 2^nd defendant introduced [the] 1^st defendant to PW1.  [The] 2^nd defendant said that PW1 needs to work to repay the 50,000 rupees and also the money for his food and stay.  [The] 1^st defendant introduced PW1 to the job in the Japanese restaurant, Masuka Japanese Restaurant.  It was the 1^st defendant who talked to the owner of the restaurant, explained to PW1 what he needed to do and also, sometimes, the restaurant would pay PW1’s salary through [the] 1^st defendant.  Part of PW1’s income was given to [the] 2^nd defendant.  [The] 1^st defendant knew of the immigration status of PW1.”

The Appellant did not give evidence but called a witness.  The witness was the restaurant director.  The evidence from this witness was that PW1 came to the restaurant by himself and no one introduced PW1 and the defence witness hired PW1 after interviewing him.

Bail pending appeal

6.  Section 122(2) of the Magistrates Ordinance provides that a judge may, on the application of an Appellant who is in custody, admit the Appellant to bail pending the determination of his appeal or any proceeding therein. Section 122(2) provides no criteria for the grant of bail.  Nevertheless, there are general principles governing the grant of bail pending appeal which inform the discretion given to a Judge under this section.

7.  The authorities which consider the discretion to grant bail pending appeal characterised the circumstances in which bail might be granted as exceptional.  Generally, two considerations are apposite:

(1)  the Appellant must be a good bail risk on the basis of suitable terms of bail; and

(2)  the circumstances must be such that justice can only be done by the grant of bail: R v Watton (1979) 68 Cr App R 293; HKSAR v Chan Man Chung CACC 87/2000, 26 July 2000.

8.  In relation to the second consideration, the starting point for analysis is that it is for the Appellant to demonstrate that his or her conviction or sentence is ill-founded.  Accordingly, the court must consider whether or not to grant bail and must determine whether the grounds of appeal compel that conclusion.  The other consideration is whether the whole or a substantial part of the sentence of the Appellant might be served before the determination of the appeal.

9.  The standard that the grounds of appeal must attain before bail might be granted has been expressed in various ways.  Generally speaking, the Appellant must be able to demonstrate that he/she has a strong prospect of succeeding on appeal and that a consequence of his success is that he/she will be at liberty.  See: HKSAR v Huynh Bat Muoi [2001] 4 HKC 643; HKSAR v Fan Ying Chao CACC 520/2000; HKSAR v Au Yeung Chun Yee CACC 438/2014 (25 April 2016, unreported); HKSAR v Fong King Choi CACC 319/2018, [2019] HKCA 487.

10.  Where the sentence imposed on the Appellant is such that there is a substantial risk that substantial part or all of the sentence might be served before the hearing and determination of the substantive appeal, the merits of the appeal still fall to be considered.  In HKSAR v Lau Man Kin [2010] 1 HKLRD 336, §8 it was held that in such circumstances the Appellant must demonstrate that there are reasonable prospects of success on appeal.  In short, even if the sentence is such that a substantial part or all of it might be served by the time of the determination of the appeal, the Appellant must still demonstrate that the appeal has merit: HKSAR v Wong Hon Ching, San Stephen CACC 547/2003, 7 January 2004.

Evaluation

11.  In relation to the issue of whether or not the accused is a suitable bail risk, the circumstances suggest that the Appellant is a good risk. She has been a member of the Hong Kong community since 1996 and holds a Hong Kong permanent identity card.  She has a business in this community as well as her family being here.  She is a working mother with children and she is presently pregnant. 

12.  The real issue is whether justice can only be done by the granting of bail pending appeal.

13.  Although this Court has not seen Perfected Grounds of Appeal, Counsel for the Appellant in her written submissions has advanced two grounds of appeal against conviction.  Essentially those two grounds of appeal are an attack on the credibility of PW1 and the learned Magistrate’s evaluation of his evidence and an attack on the evaluation of the learned Magistrate in relation to DW1 who was the director of the restaurant company.  

14.  The learned Magistrate recognised the deficiencies of PW1 as a witness of truth.  The Magistrate recognised that this witness was the sole witness against the Appellant.  He noted in his reasons given for conviction that there were inconsistencies including inconsistencies relating to salary range, working hours and other matters.  The Magistrate said: “These are minor details for matters that happened two to three years ago.  I do not consider it affects his overall credibility.”  The learned Magistrate considered other attacks on the credibility of PW1 and concluded having considered all of the attacks on the credibility of the witness that “his evidence was reasonable and logical.  I accept him as honest and reliable.”  It is also to be noted that the transcript available to this Court sets out the careful and comprehensive closing submissions of Ms Herbert (who appeared for the Appellant at trial and on the application for bail pending appeal).  The essence of those submissions is reflected in the grounds of appeal which Counsel intends to advance on behalf of the Appellant.  The learned Magistrate did not deal with each and every point of Ms Herbert’s submissions at trial but it is clear to me that he had them on board.  As I understand the argument, one of the principal points of attack on the learned Magistrate’s findings is his characterisation of the weaknesses of the testimony of PW1 as “minor details”.  Counsel for the Appellant contends that what were characterised as “minor details” went to the very heart of the employment relationship and the involvement (or lack of it) of the Appellant in that relationship.

15.  The grounds of appeal that counsel for the Appellant proposes to advance on her behalf for so complain about the learned Magistrate’s treatment of DW1. It is manifested from the statement of reasons for conviction by the learned Magistrate that he did not believe DW1.  The Magistrate characterised her evidence as “evasive”.  He added: “there is no explanation why the witness would hire PW1, who does not speak English or Punti, as a waiter.”

16.  Although it does not form any part of the grounds for appeal as presently characterised, I have some difficulty in understanding aspects of the treatment by the learned Magistrate of the assertion at trial made on behalf of the Appellant that PW1 was making up his assertions against the Appellant in order to obtain a reduction in sentence.  The learned Magistrate makes the point that PW1 had made assertions in a witness statement which he made shortly after his arrest in 2016.  I can perfectly understand the point which the learned Magistrate was making that PW1 had been consistent since 2016.  That certainly might literally deal with the point that PW1 had not made these up solely for the purpose of advancing his appeal.  In a narrow and literal sense, that disposes of the point that counsel for the Appellant was making in her closing submissions trial.  There is an issue as to whether witness had a motive to lie or to graduate which may not have been explored in the broader sense.  That may be because that did not form part of the submissions of counsel for the Appellant at trial.  While there is no suggestion that the Magistrate needed to revive the late but decidedly un-lamented laws of corroboration, he was dealing with a witness which mandated a level of caution beyond an evaluation of inconsistencies.  The extent to which a tribunal of fact required to demonstrate that it has evaluated a tainted witness such as the witness in this case will vary according to circumstances.  When the old and much reviled corroboration law was repealed it did not suddenly change the nature of witnesses who were accomplices or otherwise tainted.  They still need to be evaluated with care and where the tribunal is a professional tribunal, there must be a demonstration of the care that the tribunal is taken with the evaluation of this witness.  What has not changed is the need for care.  The only thing that changed is the abolition of the unhelpful and confusing mode of analysis of that issue.

17.  Counsel for the Appellant argues that a magistrate’s appeal is in the nature of a rehearing.  That was declared to be the position in Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70.  In that case, in discussing the real nature of an appeal by way of rehearing, Bokhary PJ observed: “Where the facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed.  Even so, it will not fail to quash a conviction that it considers unsafe.”  The authorities demonstrate that and appellate court would only be entitled to depart from a finding of fact by a Magistrate or a determination by a Magistrate of the credibility of a witness if the court was satisfied that such a determination was plainly wrong.  Unless the appellate court could characterise the determination of the trial court as plainly wrong, the court would not be in a position to substitute its own views for the Magistrate on the appeal: HKSAR v Ip Chin Kei & Others [2012] 4 HKLRD 383; HKSAR v Fok, James Alistair [2015] 4 HKC 247.

18.  There is also an appeal against sentence.  What the learned Magistrate did in relation to that is that he equated the person in the position of the Appellant with the unlawful entrant for the purpose of sentence.  The policy of Hong Kong courts for the position of the unlawful entrant is that a sentence of 22 months will normally be appropriate on conviction after trial; 15 months on a plea of guilty: HKSAR v Usman Butt [2010] 5 HKLRD 452.  However, the case for the Appellant is that this tariff is inapplicable to a person in the position of the Appellant who is not herself an unlawful entrant but simply aided and abetted that person.  The case for the Appellant before the Magistrate and on appeal is that a sentence of a substantially smaller level is appropriate for such persons and, in this regard, counsel for the Appellant points to sentences as low as 3 months’ imprisonment.

19.  A court determining bail pending appeal does not and cannot determine finally the merits of the appeal whichever of the many and various formulations for the criteria for granting bail pending appeal is asserted they each come with the recognition that the appeal may succeed or the appeal may fail.  The concern of the court when dealing with an application for bail pending appeal is to look at the circumstances and determine whether justice can only be done pending the determination of the appeal by the grant of bail.  

20.  As to the appeal against conviction, in the circumstances of this case, the points which are intended to be advanced by the Appellant are arguable.  That is more so in relation to the evaluation of PW1 as a witness of truth.  I am less sure that the two grounds proposed by the Appellant attain the level of arguability required to found a grant of bail pending appeal.

21.  In my judgement, the argument about sentence is potentially meritorious.  If that were to succeed then the chances of the Appellant having served the whole of that sentence (and then some) by the time the appeal comes on for hearing and determination are substantial and clearly arguable. (That is not to say that this Court does not see the point concerning the appropriate sentence that the learned Magistrate was making and which were cogently made on behalf of the Respondent before this Court.)  If that point succeeded, the Appellant would be in custody awaiting her appeal for substantially longer than the sentence she might properly receive.  That would be true even if the sentence ultimately arrived at was twice or three times the size of the optimum position argued by the Appellant.

Disposition

22.  All things considered; I think that in all the circumstances justice can only be done by granting bail to the Appellant.  I will hear the parties as to appropriate terms of bail.

(Discussion re terms of bail)

23.  Having heard the parties as to the terms, bail was offered to the Appellant on the following terms:

(1)  Cash bail in the sum of $100,000.

(2)  Cash surety of $50,000.

(3)  Not to leave Hong Kong.

(4)  Surrender travel documents.

(5)  Report to Wong Tai Sin Police Station once per week.

(6)  Reside at the address supplied to the Court and not to change that address without giving 24 hours’ notice to Wong Tai Sin Police Station.