HKSAR v. CHEN SHUIHUA AND OTHERS

Date of Hearing:  21 October 2005

Date of Judgment:  4 November 2005 

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J U D G M E N T

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1.  This case arises out of what the police observed at a recycling site at Tai Kek Tsuen in Pat Heung on 19 April 2005.  As a result of such observation seven persons, whose ages ranged from the late-20s to the mid-40s, were each charged with breach of condition of stay, contrary to s.41 of the Immigration Ordinance, Cap. 115.  Each of them was from the Mainland and was in Hong Kong with permission to remain here for a specified period and subject to a condition of stay against taking up employment here.  The charges were brought on the basis that, as evidenced by what they were observed doing at the recycling site on 19  April 2005, they had taken up employment as odd job workers at that site.  The 5^th and 6^th Defendants pleaded guilty.  But the 1^st to 4^th and the 7^th Defendants pleaded not guilty, and stood trial before H A Mierczak, Esq at the Magistrate’s Court at Shatin.  He convicted them, and they each gave notice of appeal against conviction.

2.  At one time they were all represented by the solicitors’ firm of Messrs Lau & Ngan.  But that firm, which still represents the 2^nd to 5^th Appellants (who were the 2^nd to 4^th and the 7^th Defendants respectively) has lost contact with the 1^st Appellant (who was the 1^st Defendant).  He has not appeared to pursue his appeal, but I have considered his position too.

3.  Mr James Collins for the 2^nd to 5^th Appellants applied on their behalf for the admission of fresh evidence on appeal.  The materials which he sought to have so admitted consist of:  (i) the Affirmations which his clients made when applying for bail and variation of their conditions of bail; (ii) other documents pertaining to their personal and financial backgrounds; (iii) the Detainee’s Property Receipts issued by the Immigration Department showing the cash which the 2^nd and 5^th Appellants had on them; and (iv) evidence that the Appellants succeeded in varying their conditions of bail pending trial and surrendered to their bail by appearing at the trial.  The 3^rd and 4^th Appellants’ bail Affirmations deal with the cash which they had on them.

4.  Mr W T Chiu for the Respondent opposed the application for the admission of fresh evidence on appeal.

5.  After hearing counsel thereon, I dismissed the application for the admission of fresh evidence on appeal, saying that I would give my reasons for doing so when I gave judgment in the appeal itself.  I now give those reasons, which are as follows.

6.  The fact that the Appellants had succeeded in varying their conditions of bail pending trial and the fact that they had surrendered to their bail by appearing at the trial are on the record and are of little or no relevance – especially now when the proceedings are at the appellate stage.  The rest of the evidence sought to be adduced on appeal is evidence of personal background and affluence said on the Appellants’ behalf to be inconsistent with taking up the menial sort of employment the subject–matter of the charges.  But, as Mr Chiu points out, the evidence of background and affluence, while consisting in part of documents, also includes assertions not tested by cross-examination as they would have been if the Appellants had chosen to make them in the witness-box at the trial.  And why each of them was carrying the cash which he or she had on him or her has not been examined by the trial court as it would have been if the evidence of such cash had been adduced at trial.  All of the evidence now sought to be adduced on appeal could have been adduced at trial.  Moreover the evidence is at best of peripheral rather than direct relevance.  The admission of fresh evidence on appeal is a rare and exceptional course.  The circumstances here are not of that type.  The due administration of justice does not call for the admission of this evidence as fresh evidence on appeal.  The application for its admission was therefore refused.

7.  The grounds of appeal argued on behalf of the 2^nd to 5^th Appellants involve a number of complaints about how the Magistrate approached the evidence.  Having considered them for all the Appellants including the 1^st Appellant, I am of the view that the question in respect of each Appellant boils down to whether the evidence in respect of him or her was such that a reasonable tribunal of fact was entitled to say that the only reasonable inference is that he or she had taken up employment at the recycling site.  If the answer is “No”, his or her appeal succeeds.  But if the answer is “Yes”, then his or her appeal fails.  For if the evidence entitled the Magistrate to convict, I find no error in how he went about convicting.

8.  In respect of the 1^st to 4^th Appellants, the observation was by a police officer who gave evidence as PW1.  The Magistrate summarised his evidence thus:

“PW1 is a police officer who was in plain clothes on the 19/4/05 and went to the subject recycling site at Tai Kek Tsuen.  It recycled TV sets and computers and pinball machines.  It had hoardings all around it, but had no sign plate with name on it.  PW1 took up a position at a knoll outside and observed the goings on inside.  He saw 1^st Appellant doing work near a container stacking up pinball machines covers in a heap.  He saw the 2^nd Appellant beyond the container on the left receiving machines (TV sets) from another male inside the container.  He observed the 3^rd Appellant moving TV sets from the container i.e. receiving TV sets from another inside the container and then placing them on the ground.  PW1 saw the 4^th Appellant inside the container receiving TV sets moved by another male inside the container.  He also received those TV sets and placed them on the ground.

PW1’s observations of these 4 Appellants lasted about 7 minutes, and he had observed them from some 15 metres away.  He had an unobstructed view in day light.  These 4 Appellants were subsequently arrested.

In cross-examination PW1 agreed there were many scrap yards in this area, and they mainly sell scrap to mainland China.  He had seen the 2^nd Appellant and 3^rd Appellant handle about 10 TVs during his observation.  The 1^st Appellant had stacked up pinball machine covers.  The 4^th Appellant had also handled about 10 TV sets.  PW1 was taken through the various photos produced, and said that he had missed out taking a photo of where the TVs were stacked upon their removal from the container, but it was next to it where they were stacked.  One could see the edge of the stack in some of the photos i.e. P7H.”

9.  In respect of the 5^th Appellant, the observation was by a police officer who gave evidence as PW2.  The Magistrate summarised his evidence thus:

“PW2 was another police officer called.  He was observing from a different location i.e. in a long crevasse outside the recycling shop.  He observed the 5^th Appellant to squat on the ground and hold in her right hand a screwdriver.  She was dismantling some parts inside a monitor (electronic components).  He had a clear, unobstructed view of this for about 5 minutes from 6 metres away.  The 5^th Appellant was subsequently arrested.

In cross-examination PW2 said that the 5^th Appellant had dissembled parts of the monitor and used a clamp to break the electrical wiring of the appliance and took out parts and threw them on the ground.  PW2 later admitted in his statement he had stated she put the parts in a plastic bag.  He agreed what was in his statement is in fact correct, and he had stated that point wrongly in court.”

10.  The only defence evidence was given by the 1^st Appellant.  The Magistrate summarised his evidence thus:

“He said he was in the hardware trade in China and had his own factory processing scrap iron.  He had come to Hong Kong with the 3^rd Appellant (a fellow clansman) on 18/4/05.  They had both stayed that night at the Sun Kong Hotel (the receipt had been produced earlier).  He had gone to the subject scrap yard on 19/4/05 to see if there were any goods he was interested in.  He had been to Hong Kong before inspecting materials.  The door of the site was open and he entered.  He walked around and inspected the goods for about 10 minutes.  There were quite a few other people there whom he did not know.  There was a container there not opened and the others were waiting for that.  The 1^st Appellant had never thrown pinball machine covers onto a heap.  He was having tea with others where he was arrested.

In cross-examination 1^st Appellant said he did not know the owner of the site, or the owner of the goods.  His cousin had told him to go there and inspect materials.  When he sees something he wants he asks for the owner.  He did not know the price of the goods.  He said he did know his cousin there.  His cousin’s name was Dhu Siu Miu.  1^st Appellant said that after he purchases goods, he arranges with the owner to transfer goods to China, and that he would purchase it in China.  No down payment was required.”

11.  The Magistrate, having seen and heard them, felt sure that the evidence of the police officers was accurate and that the evidence of the 1^st Appellant was not.  He also rejected the exculpatory things said by the other Appellants in their cautioned statements.

12.  Upon a careful consideration of the whole of the evidence in respect of each Appellant, bearing in mind the criminal burden and standard of proof but looking at the matter realistically rather than fancifully, I am of the view, in respect of each Appellant, that a reasonable tribunal of fact could, as the Magistrate did, conclude that the only reasonable inference is that he or she had taken up employment.  Mr Collins asked me to quash his clients’ convictions and either discharge them or order their retrial.  Neither course is warranted.  The correct course, I am satisfied, is to affirm the convictions.

13.  Accordingly each Appellant’s appeal is dismissed.