HKSAR v. MUTHUKRISHNAN, SELVARAJAN

HCMA 559/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 559 OF 2016

(ON APPEAL FROM STCC NO 2284 OF 2016)

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J U D G M E N T

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Introduction

1.  On the 20 September 2016 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” contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115.  The appellant was sentenced to a 22 months and 2 weeks’ term of imprisonment.  He now appeals against both conviction and sentence.

Background

2.  The prosecution alleged the appellant was seen working inside a scrap metal or recycling yard when he was prohibited from taking up employment whilst released on an Immigration Recognizance.  The magistrate found beyond reasonable doubt the appellant was working and inferred he was employed to convict him as charged.  The defence case was that he was an innocent bystander framed for the offence. 

Issues

3.  The issue here is the credibility of the witnesses and the reliability of their evidence; in particular, the identification evidence.

Admitted Facts

4.  The appellant entered Hong Kong in September 2005 but overstayed from October 2005.  He was arrested in June 2006 and released on recognizance in July 2006.  A removal order was issued by the immigration department against the appellant in 2012 and served on him on 28 February 2012.  It remained in force on the date of this offence, 21 June 2016.  The appellant agrees he was well aware of the fact he was prohibited from taking up employment.

The Prosecution Case

5.  On the 21 June 2016 at 3:23pm, PW1, an immigration officer, was on patrol near an unnamed warehouse located in Ha Tsuen in Yuen Long when he heard the sound of hammering and machinery coming from inside the premises.  He peered into the premises through a gap in a door and saw four people working there.  The appellant was one of three men and the only non-Chinese person inside.  He said he watched the appellant from some 30 meters away working at a work bench dismantling some electrical items with a hammer.  The warehouse was a recycling plant.  The appellant would put items near his table and another worker would pick them up and compress them; then transport them by a fork lift truck elsewhere.

6.  PW1 called for backup and then continued to observe the goings-on inside for a total of about seven minutes.  It was only when he saw colleagues enter the yard did he follow them in through a side door.  He had to take his eyes off the appellant and other three workers for about 20 seconds as he went from his observation point to the inside of the yard.  When he got inside he saw that all four people had been intercepted by his colleagues.

7.  It was PW2 who approached the appellant at his work bench.  At that moment the appellant had a drill in his hand.  PW1 told PW2 he had had the same appellant under observation before his arrival and had observed him hammering away.  Both PW1 and PW2 said the appellant was the only Southeast-Asian male inside the premises; the other three workers were Chinese.  Both witnesses deny the appellant had been stopped outside the premises by immigration officers and brought inside. 

8.  There was a submission at the close of the prosecution’s case that there was no prima facie case to answer on the basis that the identification evidence was not reliable.  Also, there was no examination for DNA or fingerprints on tools allegedly held by the appellant.  The submission was rejected and the appellant elected to give evidence. 

The Defence Case

9.  The appellant said he lived nearly and was on his way to a rubbish bin with a bag of rubbish when he was intercepted by officers.  The rubbish bin was about 100 to 150 meters from his home and close to the recycling yard.  He was asked for his identification papers which were at his home.  He was taken home to fetch them and arrested.  He was framed for this offence.  He was not in the recycling yard at the material time nor had he taken up employment there.

The Magistrate’s Findings

10.  The issues here relate to the credibility of the witnesses and the weight of the evidence; both being questions of facts to be determined by the magistrate.  This appeal is an appeal by way of rehearing on the papers.  The principles relating to a magistracy appeal have been reiterated in HKSAR v Ip Chin Kei[2012] 4 HKLRD 383 by McWalters J (as he then was). An appellate court will not depart from a magistrates finding as to the credibility of a witness unless it is satisfied that the finding is “plainly wrong”.

11.  The magistrate accepted the evidence of the prosecution witnesses PW1 and PW2.  In a careful assessment of the evidence and submissions made she found PW1’s observations of the appellant in the recycling yard credible and believable.  She did not accept there was an attempt to frame an innocent as suggested.  She was sure there was no error in the identification of the appellant.  She analyzed the evidence in detail and gave reasons why she accepted PW1 and PW2’s evidence.

12.  Likewise, for the defendants evidence she gave reasons why she did not believe him.  She carefully assessed his evidence whilst aware of his clear record.  She found it to be incredulous and rejected it. 

13.  I quote from her statement of findings to show her clear analysis:

“32. I was satisfied that before arrival of PW2 at the warehouse, PW1 had all along kept the Defendant under his observation. Upon arrival of PW2, PW1 left his observation point, went inside the warehouse to join PW2 and immediately pointed out the South Asian man in white vest to PW2 and told him what he had previously observed. I was satisfied that the Defendant was the only non-Chinese man who was found in the warehouse and the Defendant was wearing a white vest when intercepted by PW2.

33. Judging from the Defendant’s appearance and his clothing described by PW1 and PW2, the location where he was found, and there was also no other entrance or exit except the side door used by PW1 and PW2, the only irresistible inference was that the South Asian man in white vest who was seen by PW1 working in the warehouse was the one subsequently intercepted by PW2 in the warehouse. I was sure that the South Asian man in white vest as previously observed by PW1 was the Defendant. There was no such possibility of mistaken identification. I found that the identification evidence was accurate and reliable. I was satisfied that the Defendant was seen by PW1 dismantling some electronic parts with a hammer at the working table inside the warehouse. He was then seen throwing the dismantled parts at the collection area in front of his working table. I was also satisfied that the Defendant was also holding an electric drill in his hand when he was intercepted by PW2.

34.       The fact that no DNA or fingerprint was collected on the electric drill or hammer or the fact that no picture was taken by the police to show to the effect that the Defendant was holding the electric drill did not cause me to doubt the evidence adduced by the Prosecution.”

Grounds of Appeal

14.  The Grounds submitted can be summarized as follows: Ground 1 concerns the possibility of a mistaken identity scenario.  The appellant says his hair was long and not short as described.  He was not wearing a white vest as alleged.  PW1 was 30 meters away and did concede he could not see the appellants face clearly so the identification must be unsafe.

15.  Ground 2 concerns the magistrate’s ignorance of a psychological phenomenon known as “own race bias” where here, a Chinese person such as PW1 would have difficulty recognising and identifying the face of a person of a different race.  To exacerbate the issue, there are many south East Asian men living around the scrapyard in Yuen Long and this increases the chance of a mistaken identification by PW1. 

16.  Ground 3 concerns “other issues” including the lack of a witness to prove he was employed there.  He submitted the fact the other three Chinese workers were not called to give evidence meant he did not get a fair trial. Also, the drill was not seized as an exhibit to prove he was working at the time.  There were also material discrepancies between PW1 and PW2’s evidence. 

17.  The appellant also submitted the finding he was evasive and dishonest was wrong and likely to be because the magistrate was unaware the appellant stammered and was nervous in the witness box.  Lastly, he (at para 10 of his grounds of appeal) “did not feel that the interpretation/translation was occurring smoothly”.  He was concerned with the quality of the interpretation.

18.  As for his sentence he felt it was heavy bearing in mind he had been in Hong Kong for 12 years and had a clear record.

Considerations of the grounds and submissions

19.  I do not find the magistrate erred in concluding the identification evidence safe and reliable.  She had the advantage of observing the witnesses giving evidence and assessed the prosecution witnesses’ evidence carefully. She also reminded herself that an honest witness can be a mistaken witness.

20.  Ground 1 fails.  I am sure the magistrate was satisfied PW1 was observing the appellant for a significant amount of time and then PW2 intercepted him whilst he was working.  She was sure he was the only Southeast-Asian male in the recycling yard; the others working were Chinese.  There was no chance of mistaking the appellant for another Southeast-Asian male.  There was only one entrance to the yard and PW1 and PW2 entered it one after the other. The fact PW1 could not see his face clearly from 30 meters is not fatal.  PW1 saw PW2 intercept the appellant at the same location where he had been observing him working. 

21.  The prosecution agreed he had a thin and low ponytail when arrested but the rest of his hair was very close to his head, giving his head the appearance of having short hair.  This was not a discrepancy raised by defence counsel during the course of her submissions.  I find nothing of merit in this point.

22.  What the appellant was wearing was not an issue during the trial either; more specifically it was not suggested he was not wearing a white vest.  In fact, from the transcript in the papers, defence counsel admits he was wearing a white vest when she submits PW2 did not “take notice of anyone else who might have been wearing a white vest”.  I reject this ground of appeal.  The trial magistrate’s findings were proper, safe and satisfactory.  There is nothing in the papers to suggest any danger of misidentification. 

23.  Ground 2 fails.  I am sure the prosecution witnesses did not suffer from any racial bias nor misidentified the appellant because they had difficulty identifying other races besides people of Chinese origin.  This was also not raised during the course of the trial.  In any event, the appellant was the only non-Chinese in the recycling yard so the danger of any racial bias or stereotyping was non-existent. 

24.  As for the other issues grouped together as Ground 3; they fail as well.  Alleged discrepancies between PW1 and PW2’s evidence was a bare assertion only with no substance to consider.  There was no suggestion during the trial that there was an issue with the translator or translation.  The appellant had legal representation who would have been aware of any problems. The lack of a real exhibit in the form of the tools is not fatal nor was the prosecution of the view they required any nor other witnesses to prove their case.  It is always open to the defence to call witnesses.

25.  I am sure the magistrate did not find the appellant “evasive and dishonest” because she did not realise he had a stammer and was nervous.  His stammer is obvious and the signs of nervousness would not translate as evasive and dishonest.  There is nothing in this point. 

26.  The magistrate drew the irresistible inference based on facts she found proved the appellant was working in the recycling yard and was employed at the material time.  In paras 36 to 39 of her statement of findings she sets out the facts she relies on to draw that necessary inference as well as the relevant authority.  I too am satisfied on the evidence that the only irresistible inference that can be drawn is that the appellant was taking employment and it was proved beyond reasonable doubt.  I dismiss the appeal against conviction. 

Sentence

27.  In arriving at her sentence the magistrate considered the relevant authority of HKSAR v Usman Butt & another [2010]5 HKLRD 452. The Court of Appeal laid down the guideline of 15 months’ imprisonment on a plea for section 38AA offences.  Here, the appellant was convicted after trial and lost the benefit of a discount after a plea of guilty.  Hence the sentence of 22 months and 2 weeks is correct following the guideline.  Of course a sentencing magistrate can depart from it if there are certain mitigating factors such as a voluntary surrender to the authorities, merciful reasons or strong humanitarian grounds.  Here, the appellant did not present any mitigation that merited a departure from the norm either upon conviction or during the appeal.

28.  In this case, there is nothing to show the magistrate passed a sentence which is beyond the guideline laid down or which fails to take into account any mitigation to the benefit of the appellant.  I therefore find the sentence of the magistrate correct and it is not manifestly excessive or wrong in principle.  I also dismiss the appeal against sentence.