HKSAR v. PALAYON, YOLANDA DOMINONG

HCMA 56/2022

[2022] HKCFI 3690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 56 OF 2022

(ON APPEAL FROM STCC 2268/2021)

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J U D G M E N T

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1.  This is an appeal by the appellant against her conviction by a magistrate, Mr Pang Leung Ting, Norton.

2.  The appellant was convicted after trial on 23 December 2021 and sentenced to 3 months’ imprisonment.  She was convicted of a breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap 115 and by virtue of Regulation 2 of the Immigration Regulations.

Background

3.  This is a case about 3 illegal workers found working in a car wash in Pat Heung.  Two pleaded not guilty and the third pleaded guilty at the earliest opportunity.  The appellant here was the 1^st defendant in the trial.  Both the appellant and the other defendant were convicted after trial.

4.  On 26 July 2021 at about 4:43 PM, immigration officers were conducting an operation and had put a car wash under observation. The appellant was seen cleaning the body of a car with a blue towel.  The other 2 illegal workers were seen similarly cleaning; vacuuming and wiping cars. The prosecution’s allegations were that the 3 illegal workers were employed as odd job workers in the car wash.

5.  It was an admitted fact that the appellant was a foreign domestic helper permitted to perform domestic duties from 11 April 2019 to 22 August 2021 or 2 weeks after the termination of her contract, whichever is earlier, at an address in Tsuen Wan.  The appellant was a domestic helper in Hong Kong and not permitted to take up any employment other than that approved by the Director of Immigration.  She was not permitted to work in this car wash. The issue in the trial was whether or not the appellant was working.

The magistrate’s findings

6.  The prosecution called 3 immigration officers to give evidence.  There were no admission or confession; no direct evidence from any defendant.  The appellant elected not to give evidence.  The defence did call one defence witness; one of the proprietors of the car wash in question.

7.  The prosecution witnesses were outside the car wash for some 20 minutes on the material day before they walked to the entrance of the car wash and began observing those inside.  There were two parked vehicles inside at the time.  When PW1 entered the car wash, he saw the appellant cleaning the front windscreen of a black car parked in the middle of the car wash with a blue towel.  He watched her for 5 to 6 seconds before he reached the vehicle and revealed his identity to the appellant.  He then arrested her.

8.  The other prosecution witness, PW2, gave evidence of similarly entering car wash, observing the other defendant cleaning the inside of the second vehicle with an industrial-sized vacuum cleaner and arresting her.

9.  Both prosecution witnesses gave evidence that both the appellant and the other defendant then went to a cabinet or cupboard nearby to retrieve their handbags in order to produce their identity documents to their respective arresting officers.  There was a sketch, P11, which shows the position of that cabinet or cupboard near the vehicle the appellant was wiping.  It was within the car washing area.

10.  The defence witness was himself under investigation for committing an offence of employing persons not lawfully employable.  He had a vested interest in the outcome of the appellant’s trial.

11.  His evidence was that the appellant was a friend of his business partner and the other defendant, the 2^nd defendant, was his girlfriend.  He said they were both present at the car wash for a party and not to work.  They were there early to help prepare food and prepare for the party to be held later on when about 20 people would attend.

12.  He produced photographs of parties previously held at the car wash.  There were photographs of groups chatting and food being cooked.  He was at the car wash when the immigration officers arrived.  His evidence was that the car wash was actually not open for business at that time because it was raining.  He said those vehicles in the car wash, the two parked inside, belonged to his friends.

13.  What he did not say was what the appellant was doing with a blue towel and wiping a windscreen of a car inside the car wash.  He made no comment about the alleged observations nor disputed the observations.

14.  The magistrate rejected without hesitation the evidence of the defence witness.  He did not believe the car wash was shut nor that they were holding a large party on a Monday.  The magistrate took into account this witness gave no relevant evidence as to what the appellant was observed doing, wiping a windscreen.  He did not admit or dispute that fact nor suggest an explanation.  The magistrate rejected his evidence that she was there in the premises to help prepare food for a party.

15.  The defence did not dispute the evidence of the immigration officer and his observation that the appellant was stood next to a car holding a blue towel.  It was suggested to PW1 that the appellant was not wiping or cleaning the car with it.  The magistrate found there was ample evidence to draw the irresistible inference that she was holding a towel next to the vehicle in order to clean or wipe it.

16.  The magistrate went on to consider the prosecution’s burden of proof and found that the evidence from the immigration officers was credible and reliable.  The defendant’s right to silence was taken into account.  No explanation was given as to why she was at the car wash to contradict the observation evidence of the prosecution witnesses other than the evidence from the car wash owner.  He found the prosecution had proved beyond reasonable doubt that the appellant was cleaning that vehicle and had stored her handbag in a cupboard whilst she worked; he drew the irresistible inference that she was cleaning the car and working at the material time.

17.  The magistrate quite rightly pointed out that he did not need to make a specific finding on the identity of the employer or the amount of remuneration.  These were not elements required to be proved for this offence.

Grounds of appeal

18.  The appellant appeals against conviction only.  She was legally represented in the court below but on appeal, she was acting in person.  She filed a notice of appeal against conviction which contains the general grounds that the magistrate erred in finding that she was employed.  The magistrate erred in accepting the prosecution witnesses’ evidence.  The magistrate erred in finding that the prosecution had proved the charge beyond reasonable doubt.

19.  Subsequently, written submissions for the appellant with perfected grounds of appeal were filed as well as a later reply and further submissions in response to the respondent’s submissions.

20.  Ground 1 submitted the magistrate was wrong to reject the evidence of the defendant’s witness.  He was wrong to take into account the fact that this witness who was also arrested at the scene and admits to being the owner of the car wash means he had a vested interest in the outcome of the appellant’s trial.  It was suggested without evidence to the contrary, there was no good reason to reject that witness’s evidence about having a party, whose cars were parked inside and when they would be taken outside when party commenced as well as how he managed to inform more than 20 friends that the party would not go ahead because of the arrests made.

21.  Of course he had a vested interest as a person arrested and under investigation.  He had a direct vested interest.  But more importantly, he gave no evidence as to why the appellant was holding a towel next to the vehicle if she was there to help prepare food for a party.  It was neither here nor there if parties had been held in the past, the photographs did not help this appellant when the observation evidence of the prosecution witnesses was not seriously contradicted.

22.  There is no merit in this ground.

23.  Ground 2 submitted the magistrate failed to properly direct himself and how to approach the defence evidence.  It appears to suggest that the magistrate did not remind himself that even if he totally rejected the defence evidence that he still had to be sure that the prosecution evidence was true and that there was no reasonable doubt on it before he could convict.  If he thought that the defence evidence pointing to innocence was true, or might be true, it followed that the defence had raised sufficient doubt in the prosecution’s case and the appellant should have been acquitted.

24.  There is no doubt the magistrate rejected the defence evidence as well as the defence suggestion that although she was standing next to the vehicle holding a blue towel, the appellant was not cleaning the vehicle.  This was rejected in its entirety before the magistrate turn to the question of whether there was sufficient evidence from the prosecution to prove guilt beyond reasonable doubt.  The magistrate gave full reasons for rejecting the evidence of the defence witness as well as full reasons for how he drew the only reasonable inference of guilt.

25.  There is no merit in this ground.

26.  Ground 3 and Ground 4 are essentially the same complaint and that is the magistrate did not give adequate or any reasons as to his findings.  He erred in drawing the only irresistible inference from the prosecution’s evidence that the appellant was working for and/or in employment when observed by PW1.

27.  It was suggested that the observation time of 5 to 6 seconds was insufficient to draw the only irresistible inference.  The location of the appellant’s handbag stored in a cupboard was irrelevant.  What she was wearing and whether it was suitable for washing cars was not considered. The magistrate failed to consider that maybe she was helping her friend to wash a car on a casual basis.  The fact that parties had been held there was not taken into account.

28.  No one gave evidence that the defendant may have been helping a friend wash a car without remuneration.  No one suggested that what she was wearing at the time meant the appellant could not possibly have been dressed appropriately to wash cars.  It’s irrelevant whether the premises were used in the past for parties.  The fact her handbag was stowed away in a cupboard was a piece of circumstantial evidence the magistrate was right to take into account when considering whether or not he could draw the irresistible inference.

29.  Having read his statement of findings, I am satisfied that the magistrate did consider all of the evidence and had not erred in finding that employment was the only inference to be drawn from PW1’s observation evidence of the appellant.  There is no merit in this ground of appeal.

30.  It was suggested in submissions that the magistrate could only have drawn an inference of guilt if there was an absence of other evidence.  It was submitted that because the court had heard evidence from a defence witness and it was unreasonable to reject his evidence, it must follow that there was more than one inference to draw.  In light of the magistrates detailed reasons for rejecting that defence evidence and for drawing the only reasonable inference, this submission fails.

Discussions

31.  A magistracy appeal is an appeal by way of rehearing, that is to say, a rehearing on the evidence before the magistrate, the principles relating to a magistracy appeal have been reiterated in HKSAR v Ip Chin Kei & Ors [2012] 4 HKLRD 383.  An appellate court is required to assess the evidence and come to its own conclusion.  It is required to make up its own mind as to whether the evidence proves the essential elements of the offence beyond reasonable doubt.  An appellate court will not depart from a magistrate’s findings unless it is satisfied that the finding is “plainly wrong”.

32.  The respondent rightly points out in submissions that this case concerns a factual dispute; whether an irresistible inference could be drawn from the evidence of the prosecution witnesses that the appellant was working at the car wash at the material time and that there existed an employment relationship between her and those that ran or owned the car wash.

33.  As far as factual disputes are concerned, the appellate court should appreciate that the magistrate enjoyed the advantage of having seen and heard the witnesses in court.  Whether a witness is credible or reliable is a matter entirely for the magistrate to decide.

34.  Where this charge is concerned it is correct to say that working at a place per se is not employment although in the absence of other evidence, one may draw the necessary inference.  The issue was whether the evidence proved was enough to draw the only reasonable and irresistible inference that what the appellant was doing was in the course of employment.  The magistrate identified these issues and found the prosecution’s evidence reliable and when collectively considered together allowed him to draw that irresistible inference.

35.  There was no dispute by the defence that the appellant was stood next to a vehicle with a blue towel in her hand.  Where she was found was in a car wash where people pay to have their cars washed and she was observed washing a car.  One of the owners or proprietors was present at the material time.  There was no evidence that she was cleaning the car as a favour or out of friendship.  In any event, the defence evidence was that she was there to prepare food for a party which would not include wiping a car.

36.  I have reassessed the evidence and it supports the magistrate’s findings.  His findings were not unreasonable, illogical or inherently improbable.  The magistrate did not fail to consider any material fact or misunderstood or misquoted any material fact.  I am satisfied the magistrate fairly and properly considered the issues.  He rejected the evidence of the defence witness with good reason.

37.  This is not a case where the magistrate had not considered or evaluated the evidence properly.  This is not a case where the magistrate erred in finding there to be an irresistible inference of guilt.  I find no basis to interfere with the magistrate’s findings.  The evidence proved beyond reasonable doubt that the appellant was working at a place and doing a job that was not approved by the Director of Immigration.  She was in breach of a condition of her stay in Hong Kong.  There is no substance to this appeal against conviction.

38.  Therefore, the appeal is dismissed.