ALLAHADITTA (a.k.a ALLAHDITTA) AND ANOTHER v. HKSAR

HCMA 339/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 339 OF 2011

(ON APPEAL FROM STCC 6121/2010)

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BETWEEN

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JUDGMENT

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1.  Each appellant was convicted after trial of taking up employment, in the case of the first appellant whilst being a person who remained in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully and in the case of the second appellant whilst being a person in respect of whom a removal order was in force. Each was represented by counsel instructed by the Duty Lawyer Service at trial. Each appeals his conviction.

2.  The prosecution's case was that police officers arrived at a breaker's yard in the New Territories. One of them kept observations through a hole in the metal fence surrounding the yard. Over a period of some 10 minutes he saw the two appellants engaged in the use of cutting or welding equipment, which was erroneously occasionally referred to as “dredging” equipment. He then saw two colleagues apprehend the appellants. At no time did he lose sight of the appellants from the time he had first seen them. The magistrate was satisfied that the nature of their activities led to the inevitable inference that they were employed in those premises.

3.  The first appellant elected not to give evidence but called a witness whose evidence, obviously, also fell to be taken into account in respect of the case for and against the second appellant. The second appellant testified.

4.  This was a matter which turned entirely upon the credibility of the witnesses. The point was specifically made on behalf of the appellants that the police officer keeping observation would not have been able to see what he claimed to have seen because of the size of the hole through which he was watching and the position of various items inside. The magistrate accepted that police officers evidence. He also took into account the further specific submission on behalf of the appellants that the state of their clothing was not consistent with the nature of the work described by the police officer nor were they wearing protective clothing whilst engaged in that work: the magistrate considered and dealt with these submissions. He found each of the three police officers to be honest and reliable witnesses.

5.  The second appellant today points out that the first prosecution witness “changed his evidence” as to which of them was doing what. That is not so. He was describing generally the work that they were doing together.

6.  The magistrate found, correctly on his summary of their evidence, that there were material discrepancies between the evidence of the witness and that of the second appellant. He rejected their evidence.

7.  There is no basis on which it would be open to me to interfere with the magistrate's findings on credibility and, thus, the facts. On the facts of the magistrate found proved the appellants were properly convicted. Each appeal is dismissed.