HKSAR v. KHAN BABAR

HCMA 645/2017

[2018] HKCFI 329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 645 OF 2017

(ON APPEAL FROM STCC 2866/2017)

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REASONS FOR JUDGMENT

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1.  The appellant was convicted after trial of one charge of taking employment while being a person in respect of whom a removal order is in force. He was sentenced to 22 months and 2 weeks’ imprisonment. The appellant’s appeal against conviction and sentence has been dismissed. Here are the reasons.

2.  It was not disputed that at the material time, a removal order was in force against the appellant.  He was aware that he was prohibited from taking up any employment, whether paid or unpaid in Hong Kong.

Prosecution case

3.  PW1, a police officer, saw a South-Asian male pushing a trolley on top of which were plastic boxes covered by blue canvass for 10 meters, for about 20 to 30 seconds at 12:19 am.  The location was in the vicinity of street stalls where people were closing down the stalls in the area by removing and tidying the metal bars.

4.  PW1 went up to reveal his police warrant card but that male immediately fled.  PW1 gave chase along Soy Street and into Hak Po Street, when the appellant was intercepted by two police officers from another team.  PW1 identified the appellant to be the person he saw and chased after.

Defence case

5.  The appellant elected not to give or call evidence.

Grounds of appeal

6.  The appellant submitted that he did not commit this offence and he was only at that location to meet his brother, who had since gone back to Pakistan.  He also complained that the 22 months and 2 weeks’ imprisonment was too harsh.

Respondent’s reply

7.  The respondent submitted that whilst no expressed Turnbull direction was given by the magistrate, it is clear that the issue of identification was alive to the magistrate.  The evidence has been fully analysed and the magistrate was satisfied that at no time did PW1 lose sight of the male that he was chasing after.  His identification of the appellant to be the person he confronted earlier on Soy Street is reliable evidence and the magistrate was entitled to draw the irresistible inference that the appellant was working under employment at that time.

Discussion

8.  Magistracy appeals are by way of rehearing: Chou Shih Bin v HKSAR [2005] 1 HKLRD 838. An appellate court will not depart from a magistrate’s findings as to the credibility if a witness unless it is satisfied that the finding is “plainly wrong”: HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.  An appellant court should objectively determine whether the magistrate’s finding cannot be reasonably explained or justified, ie whether the finding was one that no reasonable magistrate could have reached: HKSAR v Fok James Alistair [2015] 4 HKC 247.

9.  Whilst the appellant attempted to advance his defence on appeal, as he had already elected not to give evidence at the trial, this was new evidence which I declined to accept.

10.  The magistrate dealt with the various so-called inconsistencies in PW1’s evidence pointed out by the Defence in paragraph 8 of the Statement of Findings.  He was alive to the issue of mistaken identity.  PW1 had testified as to the distance between him and the male, the duration of observation, and the lighting condition (transcript page 5 line P to U).  His view was not obstructed and during the chase he did not lose sight of the appellant (transcript page 6 line E and page 14 line M).  It was suggested to him by Defence counsel that it was a case of mistaken identity and the person pushing the trolley was not the appellant.  PW1 disagreed (transcript page 21 line Q to U).  PW1’s evidence was unshaken.  In my view, the magistrate was entitled to find that PW1’s evidence was reasonable and logical, and to accept PW1 as an honest and reliable witness.  Failing to mention the Turnbull direction in the circumstances of this case is not fatal to the conviction.  The magistrate being a professional judge must have borne that in the forefront of his mind.

11.  The magistrate then considered the authority if HKSAR v Ip Po Fai^[1], HKSAR v Chan So Bing^[2], and HKSAR v Masih, Shamoon and others^[3] in relation to the issue of employment. In the absence of credible evidence from the Defence, the magistrate was entitled to rely on the following circumstantial evidence to make the inference as he did.

(1) The appellant was pushing a trolley for 10 meters, in about 20–30 seconds at a location where the Tung Choi Street street stalls were;

(2) It was 12:01 am, a time when people working at the street stall were closing down;

(3) There were trolleys similar to the one that the appellant was pushing nearby; and

(4) The appellant was seen pushing the trolley to move stuff away from Tung Choi Street.

12.  There was ample evidence to convict and I dismissed the appeal against conviction.

Appeal against sentence

13.  The Court of Appeal in HKSAR v Usman Butt & Anor[4] laid down a tariff of 22-and-a-half months starting point for offences of this nature.

14.  There is nothing in the circumstances of this case for the magistrate to depart from that.  The period of 38 days’ detention in Castle Peak CIC had nothing to do with the present offence and the magistrate was correct to take no account of that.

15.  The appeal against sentence was dismissed accordingly.