HKSAR v. LIMBU, SANDHYA

HCMA 118/2025

[2026] HKCFI 1848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 118 OF 2025

(ON APPEAL FROM STCC 3406 OF 2024)

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BETWEEN

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J U D G M E N T

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Background

1.  The Appellant was charged with one charge of “breach of condition of stay”[1]. The particulars of the offence alleged that the Appellant on the 22nd of August 2024 in Hong Kong did contravene a condition of stay in force imposed by an Immigration Assistant on the 6 July 2024, in that, while the Appellant was permitted to remain in Hong Kong for employment subject to the condition of stay that the Appellant shall only take such employment as approved by the Director of Immigration namely, to work as a domestic helper at the address specified in the employment contract numbered P798828, but the Appellant did perform dish washing duties at Happy Valley, other than approved by the Director of Immigration.

2.  The Appellant, represented by Mr William Allan, pleaded not guilty to the charge. She was convicted after trial and sentenced to 3 months’ imprisonment. The Appellant filed a notice of appeal against conviction.

Prosecution Case

3.  At trial, the prosecution called two witnesses PW1 and PW2, both immigration officers.

4.  PW1 testified that he arrived at Man Hing Restaurant in Happy Valley (“the Restaurant”) at 11.40 am on 22 August 2024 together with his teammates. When he was approaching the rear door of the Restaurant, he noticed the Appellant, who was wearing a pair of black gloves and a pair of gumboots (Exhibit P4(7)), standing inside the Restaurant. During the 5 seconds between when PW1 first noticed the Appellant and when he intercepted her, PW1 saw her touching and pushing dishes. He described the Appellant’s action as “something like tidying dishes”. Upon interception, PW1 asked for her identification document. PW1 observed that the Restaurant’s interior lighting was on and spoke with the manager who showed him the Restaurant’s Business Registration Certificate (“BR Cert”).

5.  PW1 drew a not-to-scale sketch (Exhibit P3) of the Restaurant and took some photos of the Restaurant (Exhibit P4(1-6)). Exhibit P4(3) showed where the Appellant was intercepted and her appearance at the time, but PW1 confirmed that it was not taken exactly at the time he entered the Restaurant. Exhibit P4(4) showed the tray of used dishes next to the Appellant when she was intercepted.

6.  PW1 agreed that (i) the Appellant was not wearing any apron or uniform; (ii) he did not see the Appellant washing any dishes or bowls, but only pushing and touching them; (iii) the Appellant did not escape or flee.

7.  PW2 testified that she informed the Appellant of her arrest and cautioned her in English to which the Appellant replied at the scene. After being brought to the Immigration Department Headquarters for further investigation, the Appellant made additional replies. These replies allegedly contained confessions, and the admissibility of which was challenged.

8.  It should be noted that the Appellant did not give evidence in the special issue. Ultimately, the magistrate exercised his residual discretion to exclude the Appellant’s verbal and written statements.

9.  Upon hearing submissions, the magistrate ruled that the Appellant had a case to answer in the general issue. The Appellant elected not to testify or call any defence witness.

10.  In his closing submissions, Mr Allan emphasized that there was insufficient evidence for the court to draw the only reasonable inference that the Appellant was performing dishwashing duties under an employment other than her foreign domestic helper contract.

Reasons for verdict

11.  The magistrate found that, so far as the general issue is concerned, the evidence on what PW1 and PW2 saw at the material time was not challenged or contradicted. Both were found to be honest, credible and reliable witnesses, and full weight was given to their testimony.

12.  The magistrate drew an irresistible inference that the Restaurant was operating at the material time, as the lights were on and PW1 had spoken with the manager who provided the BR Cert for inspection.

13.  The magistrate reviewed the sketch and the photos, which showed the tray of used dishes and bowls the Appellant was handling. The magistrate said these items belonged to the Restaurant and were essential for serving its customers. He further considered the proximity of the tray to the kitchen wash basins and the fact that one of the wash basins was filled with water with foam, and the dishes would be washed on-site.

14.  The magistrate examined the gloves and the gumboots and found that they were clearly work-related gear rather than the Appellant’s causal wear.

15.  Given the above and in the absence of other evidence, the magistrate found that the Appellant’s presence at the Restaurant and her conduct observed at the material time could not have been for personal reasons; no reasonable person would spend their day off wearing gloves and heavy, dirty gumboots while touching and pushing used dishes covered with leftover food at the rear entrance of the Restaurant. Such conduct was clearly for the benefit of the Restaurant, leading to the only reasonable inference that the Appellant was performing dishwashing work under a contract of employment.

16.  In coming to this conclusion that the Appellant had committed the offence, the magistrate considered R v Ip Po Fai, unreported, HCMA 1201/1995, HKSAR v Ferosh (2018) 21 HKCFAR 159, HKSAR v Hari Arshdeep Singh, unreported, HCMA 124/2019 and 香港特別行政區 訴 柳志惠, unreported, HCMA 302/2003.

Grounds of appeal

17.  Mr Allan, representing the Appellant in the appeal hearing, raised 3 grounds of appeal, namely,

Ground 1: the magistrate erred in law and fact as to the inferences to be drawn in this case;

Ground 2: working per se at a place is obviously in law not employment;

Ground 3: the conviction is unsafe and unsatisfactory.

18.  I will briefly summarize the arguments presented in grounds 1 and 2.

19.  In Ground 1, Mr Allan contended that all the matters mentioned below could not conclusively prove dishwashing work and employment:

(a) the observation evidence by PW1 was extremely short only 5 seconds;

(b) the Appellant was never seen washing dishes;

(c) the Appellant was not seen acting under anyone’s instructions;

(d) the Appellant was not wearing any kind of uniform or wearing an apron which one would expect if one was a dishwasher;

(e) the gloves were not plastic gloves and the gumboots could be a pair of fashionable footwear;

(f) no questions or interviews were conducted with the manager, owner, or any staff regarding the Appellant’s employment at the Restaurant;

(g) the fact that the lights were on and that PW1 had spoken with the manager and received the BR Cert did not mean that the Restaurant was operating.

20.  Mr Allan also argued that the magistrate misdirected himself and appeared to have reversed the burden of proof onto the Appellant as the magistrate stated the following:

“23. In the present case, there was no evidence explaining why the defendant was doing what she did in the Restaurant at the location of the interception at the material time.”

21.  This error in law was further compounded by his findings in paragraph 24 of the Statement of Findings, where he made erroneous, speculative assumptions:

“24. I found it common sense that no reasonable person having one's day-off would derive any fun or personal gratification from standing by the rear door of an operating Restaurant, in a passage of the width of one's shoulder, touching used dishes belonging to the Restaurant containing leftover food. Further, no reasonable customer would touch used dishes with leftover food of the others which were to be washed. As such, I could draw the only irresistible inference that the defendant must have been working in the Restaurant at the material time and the scope of the work was dishwashing. Further, the defendant must have been instructed and under a duty to do so.”

22.  In Ground 2, Mr Allan queried why the Restaurant owner was not interviewed to clear the matter up as to the key and vital issue of employment. There was no evidence identifying the Appellant’s actual employer, nor was there CCTV footage inside the Restaurant. Furthermore, no evidence was adduced regarding the Appellant’s working hours; pay, or the existence of mutual responsibilities / obligation and fiduciary duties.

The Respondent’s submissions

23.  The respondent submitted that although three grounds of appeal have been advanced, there seems to be essentially one substantive ground: the magistrate erred in law and facts as to the inferences drawn that the Appellant was performing dishwashing duties at the Restaurant and that such duties were performed under a contract of employment at the material time.

24.  In gist, the respondent submitted that the magistrate did not base his findings only on the 5-second observation, but rather on the whole circumstances and surrounding environment where the Appellant was found. The incident occurred in a location where employment would be readily apparent. The observations made by PW1 regarding the environment, the Appellant’s conduct and her attire, have provided the magistrate with a sufficient and reliable factual basis for making rulings on the relevant factual disputes. It should not be overlooked that PW1 testified that the dishes that the Appellant was seen touching and pushing were used, covered with leftover food, and stacked up inside a tray. Furthermore, the Appellant was wearing gloves and waterproof boots, standing at the rear of the Restaurant near trays of used dishes and kitchen wash basins.

25.  The magistrate, having the advantage to examine the gloves and the gumboots, observed that the plastic gloves could be used to protect one’s hands from dishwashing detergent, and the boots were heavy and covered with dirt. It was the Appellant’s bare assertion that the boots and the gloves were fashionable wear. Besides, her lack of an apron or uniform is peripheral to the central issue; her conduct and attire are overwhelmingly indicative and conclusive of employment.

26.  It was repeatedly contended by the Appellant that the manager was not interviewed. Although in these kinds of cases, the confirmation by the Restaurant owner on an accused’s employment status would undoubtedly strengthen the prosecution’s case, the absence of such confirmation - which is very common in most cases since the employers could also be held criminally liable for hiring individuals who are not legally employable, does not prevent the magistrate from drawing the necessary inference on the existence of employment based on other available evidence adduced.

27.  The Appellant complained that the magistrate failed to consider a favorable alternative explanation: that she was visiting a friend employed at the Restaurant and washing her own bowl after eating.

28.  The respondent submitted that the Appellant did not give evidence in her defence, and the replies she gave to PW2 were excluded as evidence. There was simply no factual basis or evidence allowing the magistrate to draw such an inference. The magistrate was right to refer to HKSAR v Yu Fai-tat[2] and state that it was not the function of the court to conjure up implausible defences without a credible basis in the evidence; furthermore, the magistrate was correct to distinguish the case of HKSAR v Hari Arshdeep Singh[3] from the present case.

29.  The magistrate fully and properly considered all the evidence and the relevant law at trial. He did not reverse the burden of proof; in fact, he stated that if there was a reasonable doubt, the benefit of the doubt must be given to the Appellant. He had every reason to draw the irresistible inference that he did and convicted the Appellant as charged.

Consideration

30.  In HKSAR v Hui Lai Ki[4], the Court of Final Appeal held that magistracy appeals are conducted by way of rehearing on the evidence presented to the trial court. The judge must be satisfied that the appellant’s guilt has been proved beyond reasonable doubt on the evidence, failing which the appeal must be allowed.

31.  The issue at trial was a simple one: whether the Appellant was performing dishwashing duties, and if so, whether such work was performed under a contract of employment at the material time.

32.  As grounds 1 and 2 contend that the magistrate erred in inferring the Appellant was employed as a dishwasher at the Restaurant, and ground 3 asserts that the conviction is unsafe for the reasons stated therein, I shall deal with all three grounds together.

33.  Mr Allan argued that the essence of the prosecution case was based on the observation of PW1; however, such an observation was extremely short, and the Appellant was seen doing “something like tidying dishes” but not washing the dishes. There was, therefore, insufficient evidence to prove that the Appellant was employed at the Restaurant. I disagree with this argument. Mr Allan put undue emphasis on the 5-second observation and the Appellant’s actions during that time. As the respondent rightly submitted, the Appellant’s conduct is to be considered collectively alongside the entirety of the evidence.

34.  Apart from PW1’s 5-second observation, there is other evidence in this case, which includes the following:

(1) the agreed evidence that the Appellant was having a day off on the date of the offence[5];

(2) the Appellant was found by the rear door of the Restaurant[6];

(3) the Appellant was found alone[7];

(4) no evidence of any relationship between the Appellant and the Restaurant or the manager[8];

(5) the undisputable evidence of PW1, who testified that the Restaurant lighting was on; that the manager was present; and that he spoke with the manager and checked the BR Cert[9];

(6) the sketch[10] which showed the layout of the Restaurant and indicated where the Appellant was intercepted (found by the rear door, not sitting in the main dining area consuming food);

(7) the photographs[11] which depicted (a) the Appellant standing next to the used dishes and bowls in the foreground tray; they contained leftover food; (b) the dishes stacked up; (c) the washing basin in the kitchen filled with water and floating foam;

(8) the Appellant was wearing gloves[12] and gumboots[13] while standing next to the used dishes inside a restaurant, not a fashion boutique;

(9) the gloves were used to protect hands from hot water and harsh detergent;

(10) the gumboots were used to prevent slipping on the wet kitchen floor; and

(11) the gumboots were heavy and dirty[14].

35.  The Statement of Findings shows that the magistrate took into account all the circumstances of the case (including those mentioned in paragraph 34), not just the 5-second observation, in finding that the Appellant was working as a dishwasher.

36.  Mr Allan said “…the magistrate placed great weight on the gloves and the boots. The gloves were not thick plastic gloves and the boots were heavy boot covered with dirt. Again, the magistrate assumed the pair of gumboots was used for working in a dirty environment rather than as a pair of fashionable footwear.”

37.  Regarding what Mr Allan said in paragraph 36, one must not lose sight of the circumstances of where and when the Appellant was found wearing the gumboots. What Mr Allan said defies common sense.

38.  Mr Allan argued that there was no evidence from the Restaurant’s employer, manager or staff regarding the Appellant’s employment. Nevertheless, the evidence mentioned above was sufficient for the magistrate to draw the irresistible inference that the Appellant was employed there.

39.  Mr Allan further argued that there was no CCTV evidence. In light of the circumstances mentioned above, I am certain that if there had been any at the material time, it would have been adverse to the Appellant.

40.  Mr Allan raised the point that the magistrate reversed the burden of proof, quoting paragraph 23 of the Statement of Findings. However, it was only an extract. The whole text is as follows:-

“23. In the present case, there was no evidence explaining why the defendant was doing what she did in the Restaurant at the location of the interception at the material time. Per Macrae JA, as he then was, in HKSAR v Yu Fat-tai, it is not the function of the court to conjure up fanciful defences (assuming it would even be a defence) and place them before a fact-finder without any credible basis in the evidence. Having said that I reminded myself that the benefit of any reasonable doubt must be given to the defendant.”

41.  Clearly, the magistrate did not reverse the burden of proof onto the Appellant. Rather, the magistrate rightly noted that because the Appellant elected not to testify, there was simply no evidence to contradict or undermine or explain the prosecution’s case. Furthermore, the magistrate correctly reminded himself that the burden of proof remained on the prosecution[15], and he found that the prosecution had proved all the elements of the offence beyond a reasonable doubt.[16]

42.  I have carefully considered the grounds of appeal and find them to be without merit.

43.  I have also carefully considered the Statement of Findings. The magistrate made a fair assessment of the evidence and properly exercised his residual discretion to exclude the Appellant’s verbal and written replies, provided both at the scene and in the Immigration office.

44.  Besides, the magistrate fully and properly considered all the evidence. In his analysis, he correctly directed himself regarding the burden and standard of proof. He reminded himself that the Appellant had a clear record which meant he had a lower propensity to commit a crime. He directed himself not to draw adverse inferences from the Appellant’s decision not to testify. Furthermore, he correctly cited authorities regarding what constituted employment.

45.  Having properly considered all the evidence, the magistrate drew the only irresistible inference that the Appellant was taking employment at the Restaurant on the date of the offence, which was not the location set out in her foreign domestic contract. He found that the prosecution had proved all the elements of the offence beyond a reasonable doubt.

46.  I have conducted this appeal by way of rehearing. The evidence in this case is overwhelming. I agree with the magistrate’s analysis of the evidence and come to the same conclusion: the prosecution has proved all the elements of the offence beyond reasonable doubt. The Appellant is guilty as charged. Accordingly, the conviction stands and the appeal against conviction is dismissed.