HKSAR v. SHARMA, RAJEEV

HCMA 533/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 533 OF 2013

(ON APPEAL FROM STCC 2330 OF 2013)

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J U D G M E N T

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1. This is an appeal against a conviction after trial in the Magistrates Court on a charge of taking employment while being a person in respect of whom a removal order was in force. Two perfected grounds of appeal have been filed. The first is that the Magistrate erred in finding that the only reasonable inference was that the Appellant was working and receiving wages. The second, which is really dependent on the first, is that in the circumstances the conviction is unsafe and unsatisfactory.

2. The evidence upon which the Magistrate drew the inference complained of is principally that which is found summarized thus in the following paragraphs of the Magistrate’s Statement of Findings:

‘6. The prosecution case relied on PW1. His evidence was that he observed the Appellant for five minutes, and during which he was “sorting electronic waste” with his own hands without tools. PW1 revealed his police identity to him, he then ran away but was intercepted.

7. PW1 asked questions from him in simple English.

  Q: “What are you doing here?”.

  A: “Sorting things”.

  Q: “How long you work here?”.

  A: “Work here for two days”.

  Q: “Anyone pay you?”

  A: “Not yet received any money”.

  Q: “Anyone employ you?”

A: it was a person from (his) native place introduced [him] to go there. [He] have no means of contact of that person and [he] did not know his name.

8. PW1 then arrested the Appellant and cautioned him in Chinese as he could not remember the caution in English. The Appellant then replied, “Sorry, Sir, I will not work here again”.’

3. The Magistrate also said this:

‘18. The place where the defendant was found was a recycle site. That takes the Appellant, at least 25 to 30 minutes to travel from his home to there. He had no business to be in this place except to work and to receive wages, that would be the only inference that I could draw.’

4. The Magistrate felt sure that there was no truth in the Appellant’s testimony denying his guilt.

5. In my view the prosecution evidence which the Magistrate accepted, and was entitled to accept, was such as to warrant the drawing of an inference, as the only reasonable one, that the Appellant was working and receiving wages.

6. Accordingly, the appeal fails and is dismissed.