HKSAR v. BISWAS SUBHASH

HCMA 623/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 623 OF 2016

(ON APPEAL FROM STCC 2499 OF 2016)

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J U D G M E N T

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1.  The Appellant was convicted after trial in the Magistrates’ Court on a charge of taking employment while being a person in respect of whom a removal order is in force, contrary to Section 38A(1)(b) and (2) of the Immigration Ordinance (Cap 115), and was sentenced to 22 months and 2 weeks’ imprisonment.  He appeals against his conviction and sentence. 

2.  The prosecution’s case was that on the afternoon on 5 July 2016, the Appellant, being a person in respect of whom a removal order was in force, was working as a paid odd-job worker selling mangos from a trolley on the pavement outside 93 Castle Peak Road in Yuen Long. 

3.  In support of the charge, the prosecution relied on eye-witness evidence and admissions which it is said that the Appellant made when interviewed by the police.  Those admissions are contained in a record of that interview. 

4.  The prosecution’s eye-witness was summarised by the Magistrate in paragraphs 2 to 4 of his Statement of Findings and Reasons for Sentence, which read:

“ 2. The prosecution case is that on 5^th July 2016, Ms Wong Fuk Loi (“PW1”) was standing outside Hang Seng Bank. She was distributing leaflet at the time. She saw a man shouting “Very sweet. $100 per box.” Next to the man, there was a trolley. On the trolley, there were boxes of mangos. The man kept shouting “Very sweet, very sweet.” Some people passed by and ask him about the mangos. He said, “$100 per box” and they walked away.

3. PW1 observed the man for about 10 minutes. She also saw the man in the same area selling mangos before.

4. DPC 13126 (“PW2”) approached the man selling mangos at the scene. PW2 later identified the man as defendant. PW2 saw defendant was talking to a passerby, saying, “Mango. Very sweet.” PW2 then walked over to the defendant and defendant told PW2, “Mango. Very sweet.” PW2 then produced a warrant card then later on arrested defendant. Defendant stood next to the trolley, where there were 26 boxes of mangos. There were plastic bags on the trolley. After interception, defendant handed to PW2 the recognisance form.”

5.  What the Appellant said when giving evidence on the general issue is summarised by the Magistrate in paragraphs 7 to 9 of his Statement of Findings and Reasons for Sentence which reads:

“ 7. The defence case is that defendant was organising a gathering at his place on 6^th July 2016. It was a festival time and he invited 40 to 50 people for the gathering. At the material time, defendant went to the Pakistani market to buy mangos for the gathering. Every year, he bought mangos from the same person, Mukhtak. He also went to the wholesale market to buy plastic bags as they are cheaper. He brought the trolley along for the mangos.

8. At the material time, defendant went to the market with his friend Deepu. Deepu needed to go to market to buy other things and they separated when they arrived the market. After defendant bought the mangos, he was waiting at the material location for Deepu before they went home together. The mango boxes were closed at that time.

9. Some Chinese people passed by when defendant was waiting, asking him about mangos.  ‘Are they sweet?  How much?’  Defendant answered it was for $100 and they were really sweet.  Then the plain clothes police officer went over and asked how much were the mangos.  Defendant was about to tell the police he can buy mangos in a market, then other police officers came and intercepted defendant.” 

6.  In paragraph 26 of his Statement of Findings and Reasons for Sentence, the Magistrate referred to answers 7, 9 and 10 in the record of the Appellant’s interview by the police, summarising those answers as follows:

“ i) Answer 7, defendant admitted that he was selling mangos because he passed by Yuen Long Market and a male offered him to sell mangos for him for $200 per day.

ii) Answer 9, all mangos, trolley and plastic bag were given by that male, Mukhtak.

iii) Answer 10, only defendant was working for him selling mangos.” 

7.  A special issue arose in that the defence challenged the admissibility of the record of interview, doing so on grounds which the Magistrate summarised in paragraph 13 of his Statement of Findings and Reasons for Sentence, which read:

“ 13. The defence challenged the admission of the record of interview. The grounds of objection can be found in MFI-1 and MFI-2. In short, the grounds are:-

i) The interview was conducted in Hindi but defendant is a Bengalese speaker; and

ii) The officer induced defendant by saying if defendant signed the document and said “sorry”, he will be released.”

8.  In deciding the special issue in favour of the prosecution and against the defence, the Magistrate said as follows in paragraphs 14 to 20 of his Statement of Findings and Reasons for Sentence:

“ 14. I first considered the credibility of all witnesses on special issue. Prosecution relied on PW2, 3, 4 and 6’s evidence to proof special issued. I have the following observations:-

i) Defence complained that PW3 had no fresh memory; he only relied on the normal practice. While giving evidence, PW3 said he assisted in the making of record of interview and can remember a bit but not clearly. However, during cross examination, PW3 clearly disagreed with the suggestion that, if defendant said “Bengali”, he would continue to use Hindi in the interview. I found that PW3 gave evidence on what he can remember with the assistance of the record of interview. With the record of interview, I found his evidence truthful and can be relied on.

ii) Defence also complained about the discrepancies between PW4 and other witnesses’ evidence. Under cross examination, PW4 said that during the interview, there was an issue with language. PW4 said at one point, through PW3, they became aware defendant knew Bengali. However, after clarification, defendant said he understands Hindi and can continue with the interview. However, PW2 and 3 said there were no such discussion. Looking carefully at PW4’s evidence, it is not clear when this conversation took place. However, after the discussion and clarification, defendant confirmed he can conduct the interview in Hindi.

iii) I do not find this affect the credibility of prosecution witnesses. This discussion might have caused more impression on PW4. It does not mean it had the same impression on PW2 and 3. PW3 said his memory is not very clearly, so his failure in memory does not affect his honesty. As to PW2, the interviewing officer, I do not find that fail to remember one discussion would affect his honesty. He could have easily forgotten about the discussion. This is the case especially when subsequently the record of interview was continued in Hindi.

iv) Further, the grounds of objections contained two main allegations. First allegation is that PW2, through the interpreters, induced the defendant. In this regard, PW2 to PW4’s evidence were all consistent with each other that there was no such inducement.

v) Secondly, allegation is that the interview was not conducted in accordance with the record of interview and defendant did not understand Hindi. In this regard, PW2 to PW4 had no contradictions, as they all said defendant understands Hindi. PW4’s evidence is that, after clarification, defendant said he understands Hindi and can continue with the interview. PW2 – PW4 confirmed the interview was taken place the same manner as the record of interview.

vi) Therefore, the discrepancy between PW4 and other prosecution witnesses are not material for me not to disbelieve prosecution witnesses. Therefore, I accept their evidence as honest and reliable.

15. Regarding PW6, I accept that it is made a long time ago and he has given evidence on the general practice on how he served the removal order and notice.  His evidence was not seriously challenged by the defence and defendant did not give any contrary evidence to it.  Therefore, I accept he is an honest and reliable witness. 

16. In regarding to defendant’s evidence, I have the following considerations:-

i) Defendant has a clear record. 

ii) Defendant said he did not understand Hindi. However, in the first court hearing, a Hindi interpreter was arranged.  Why did he not ask for a Bengali interpreter?  Why did he continue to use a Hindi interpreter in the court’s proceedings? 

iii) Defendant was represented by duty lawyer service on that day. If he does not understand Hindi, how could he give instruction to the duty lawyer to attend court?  How could the duty lawyer apply bail for him with his instructions?  All along, defendant never said he did not understand Hindi.

iv) The same applies when defendant was being served with a removal order.  On the Notice of Removal Order, it stated they used “Hindi” to explain the notice to him.  Defendant did not complain the use of Hindi when the removal order was served on him.

v) It appears that defendant was able to use Hindi all along. The only time he raised complaints about the use of Hindi is in these proceedings, when he claimed he does not understand the record of interview.

vi) Further, evidence of defendant was not reasonable.  According to defendant, he pointed to the police that he needs Bengali but the police forced him to change it back to Hindi. What is the difference to the police between arranging a Bengali and a Hindi interpreter?  There is no reason for the police to force a Hindi interpreter on the defendant when he chose Bengali.

vii) Further, the defendant said answer 8 was given by him.  If he did not understand Hindi, why some answers were provided by him?  Also, if he failed to understand what was going on, why would defendant sign all the documents?  This is especially the case when defendant knew he was arrested.

17. Therefore, I do not believe defendants’ evidence.  I find defendant clearly understands Hindi and now only using the language as an excuse.

18. As I accept prosecution witnesses’ evidence, not defendant, I find beyond reasonable there is no inducement. I also accept that defendant understood Hindi and he was able to conduct the interview using Hindi.

19. Even if I accepted defendant’s mother tongue is Bengali, from PW2 – PW4’s evidence, it is clear defendant had no problem in conducting the interview in Hindi.  All along, in other proceedings and the first court hearing, the defendant used Hindi without problem and was able to give instructions to duty lawyer to apply bail in Hindi.  Even the Rules and Directions of the Question of a Suspect and Taking of Statements stated that an interview should use a suspect’s mother tongue, I find defendant fully understood the interview.  It was a technical breach when no injustice against defendant, it is not sufficient for me to exercise my discretion not to accept the record of interview as evidence.

20. Therefore, I accept the record of interview and the receipt, PP7 and PP8, as evidence, into P7 and P8.”

9.  The Magistrate’s reason for resolving the general issue in favour of the prosecution and against the defence are set out in paragraphs 21 to 29 of his Statement of Findings and Reasons for Sentence, which reads:

“ 21. I first consider all prosecution witnesses’ credibility. Regarding PW1’s evidence, her credibility had not been seriously challenged in cross-examination; defence counsel merely put the defence case against her. The same applies to PW2’s evidence on the observation. I have no reason to doubt their evidence and I accept them as honest and reliable witness. I also accept PW5’s evidence on the photos as it has not been challenged.

22. However, PW1 said that she saw defendant previously selling mangos at the same location. It is unclear when did PW1 last see defendant and how good was the quality of her observation in the previous occasions. I would not rely on her evidence in this regard when considering the current charge against defendant.

23. In respect of defendant’s evidence, I have the following observations:-

i)Defendant has a clear record.

ii) Defendant said he was organising a party for 40 to 50 people. Why should he need to buy 20 boxes of mangos for a party of 40 to 50 people? While he accepted there were around 6 mangos per box, that would be over 120 mangos. Why would he need so many? Defendant was unable to explain when being asked in cross examination. He said he would reserve some if there were leftover. However, with the amount of mangos, he will reserve a lot of the mangos. It is wholly unreasonable why he needs so many mangos for a party of 40 – 50.

iii) Defendant also said the boxes were closed while he was waiting for his friend at the material location.  In such a case, why would passerby come over and ask a complete stranger about the mango?  Why would strangers ask for the price and whether they were sweet when defendant was merely standing there with closed boxes of mangos?  His evidence is wholly unreasonable.

iv) Therefore I do not believe defendant’s evidence.

24. I believe PW1 and PW2’s observation and not believe defendant’s evidence.  I also accept the record of interviews as voluntary.  There is no reason to doubt the truthfulness of the content of defendant’s admission, therefore I accept the content is true. 

25. With these evidence, I find beyond reasonable doubt there was a trolley of mangos next to defendant and the boxes were open.  Defendant was shouting to passerby, “Sweet, very sweet mango” and, when asked, he said, “$100 per box.”  It is beyond reasonable doubt defendant was selling the mangos.

26. Defendant made the following admissions in the record of interview:-

i) Answer 7, defendant admitted that he was selling mangos because he passed by Yuen Long Market and a male offered him to sell mangos for him for $200 per day.

ii) Answer 9, all mangos, trolley and plastic bag were given by that male, Mukhtak.

iii) Answer 10, only defendant was working for him selling mangos.

27. With these admissions, I found beyond reasonable doubt defendant was employed to sell mangos and defendant took employment.

28. According to the evidence of PW6 and Notice of Removal Order and Right of Appeal (P12), it was served on defendant on 8^th May 2013.  According to admitted facts, defendant has not left Hong Kong since 8^th May 2013.  Therefore, the removal order was still in force on 5^th July 2016.  Further, as admitted in answer 5 of the record of interview, defendant knew he was not allowed to work in Hong Kong. 

29. Therefore, I find beyond reasonable doubt all elements of the offence are proved.  I find the defendant guilty.” 

10.  There was evidence on which to convict, and the Magistrate did not make any error of law or approach.  There is no basis on which to disturb this conviction. 

11.  As to sentence, the Magistrate said this in paragraphs 30 to 32 of his Statement of Findings and Reasons for Sentence:

“ 30. After conviction, defence submitted the following mitigations:-

i) Defendant’s previous clear record.

ii) Defendant has a wife and two young children, aged 12 and 9. They are all dependent on defendant.

iii) Defendant has already suffered a lot when he left India to come to Hong Kong, losing his livelihood and everything here and fleeing from violence in his home country.

iv) Lastly, the damage to Hong Kong society is at the lower end of the spectrum; the fact showed a very casual, brief, ad-hoc nature of the employment and very low pay.

31. When deciding on sentence, I had the following considerations:-

i) Defendant had a clear record.

ii) Sentence guideline as laid out in HKSAR v Usman Butt [2010] 5 HKLRD 452, where 22-and-a-half-month starting point is appropriate for this type of offence.

iii) Defendant’s personal and family backgrounds are not reason for me to depart from the usual sentence.

iv) Regarding his suffering in India, I do appreciate a lot of non-refoulement claimants had suffered in their home countries, and that is why they are in Hong Kong. It is also the reason why Hong Kong has a system to screen all applicants and assist those with successful applications. That does not mean the defendant or others can come to Hong Kong and commit offences, including illegally working in Hong Kong. Especially for this particular offence, many of the non-refoulement claimants faced the same situation as defendant. Therefore, I do not find defendant’s suffering coming to Hong Kong is ground for me to depart from the usual sentence.

32. Considering all of the above, the appropriate sentence is 22-months’-and-2-weeks’ immediate imprisonment.” 

12.  The sentence which the Magistrate passed is an appropriate one to pass unless there is some reason to depart from the guidelines to which he referred.  There is no such reason and therefore no basis on which to interfere with the sentence.

13.  In the result, both the appeal against conviction and the appeal against sentence are dismissed.