HKSAR v. BALJINDER SINGH

HCMA 307/2018

[2018] HKCFI 2450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 307 OF 2018

(ON APPEAL FROM STCC 596 OF 2018)

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J U D G M E N T

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1.  The appellant was found guilty of an offence of “Taking employment while being an illegal immigrant” [1]after trial by Magistrate Winnie Lau (“the magistrate”). He was sentenced to 22 months and 2 weeks’ imprisonment.

2.  The appellant now appeals against his conviction.

3.  The appellant was represented by the Duty Lawyer Service in the court below.  In this appeal, the appellant acted in person.

The prosecution case

4.  The prosecution called only 1 witness to give evidence.

5.  The appellant sneaked into Hong Kong on 1 January 2016.  He surrendered to the Immigration Department on 6 January 2016.  He was issued an Immigration Recognizance Form on 16 February 2016.  He was aware that he should not take up any employment, paid or unpaid, in Hong Kong[2].

6.  In the morning on 7 February 2018, Immigration Assistant Mr Tai (PW1) was on duty in plain clothes observing the setting up of hawker stalls in the vicinity of Tung Choi Street, Mongkok.  At 11:15 am, outside Shop B, Hung Kwong Building, No 2 Tung Choi Street, PW1 saw a male foreigner holding a metal pole at a hawker stall; he was putting the metal pole into a hole on the ground.

7.  PW1 went forward to reveal his identity in English and asked the male foreigner to show his identity document.  The male foreigner (ie the appellant) showed his recognizance form to PW1.  As a result, the appellant was detained and cautioned for the present offence.

The defence case

8.  The appellant elected not to give evidence or call any defence witness.

The magistrate’s findings

9.  In her Statement of Findings, the magistrate gave her reasons[3] as follows:

“ 10. I have carefully considered all the evidence and submissions. I find PW1 a credible and reliable witness. He had told the truth to the court. Under cross-examination, he was unshaken. His evidence was reasonable.

11. He disagreed to the case put by the defence that (i) when PW1 and his teammates arrived at the scene the defendant was actually walking towards PW1 and then got intercepted; (ii) the defendant was not inserting any metal pole into the ground; (iii) the defendant was not working or taking any employment at the time; and (iv) all the defendant was doing was just walking by in the vicinity.

12. I note that he observed that foreigner male from a distance of two to three metres; there was nothing in between them to obstruct his view of that foreigner male; the lighting condition was sufficient; his description of the clothing of that foreigner male; there were no other people around other than that foreigner male, PW1 and PW1’s teammates; and the duration of his observationwas about five seconds. Bearing in mind the Turnbull directions, I am sure of the qualities of PW1’s observations and that his identification of that foreigner male, that is, the defendant, was correct. I am able to rule out the possibility that it was an honest but mistaken identification.

13. I see no reason to doubt PW1’s evidence. I believe and accept his evidence. I find that the defendant was inserting the metal pole into the hole on the ground at the subject hawker stall as observed by PW1.

14. Working at a place per se is not employment, although, inthe absence of other evidence, one may draw the necessary inference: R. v. Ip Po-fai, HCMA 1201/1995.

15. According to PW1’s evidence, the white canvass materialswhich had been erected on the neighbouring hawker stall [ExhibitP3(1)] next to the metal pole erected by the defendant were some sort of shelter for a hawker stall. It can be seen from the photos that, at the subject hawker stall, apart from the metal pole erected by the defendant, there were also piles of white materials which appeared to be similar to the said white canvass materials and a large number of metal poles on the ground. Most of the said metalpoles were lying on the ground next to the metal pole erected bythe defendant. There were also parts on the metal pole erected by the defendant which appeared to be consistent with those used for the purpose of connecting other metal poles. The neighbouring hawker stall and the hawker stall opposite the subject hawker stall were in a state of having been assembled and not in business operations. The offence took place at 11.15 am. All of the said evidence is, in my view, consistent with PW1’s observation that the subject hawker stall was in the state of being assembled.

16. I find that the only reasonable and irresistible inference is that the defendant was, at the material time, assembling or erecting the subject hawker stall.

17. As revealed in P1, the defendant was an illegal immigrant and was aware that he was not to take up employment, whether paid or unpaid, in Hong Kong. I find that no reasonable person who was unconnected to the subject hawker stall would have done such work.

18. I bear in mind that the defendant does not need to prove anything. On the facts proved by the prosecution and found by me, there is no evidence before me to show or suggest that therewas any special relationship between the hawker stall owner and the defendant. There is also no evidence before me to show or suggest that the defendant might have been a mere helping hand. I also do not find that there is any evidence to support any innocent explanation for the defendant’s presence and actions there, including the possibility of his doing something there for his own benefit. I find that the only reasonable and irresistible inference is that the defendant was assembling the subject hawker stall for the purpose of employment and in the course of employment. He was clearly taking employment as an odd job worker.

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20. I find that the facts of the present case are clearly different from those of HKSAR v. Ferosh, FACC 2 of 2014. In my view, unlike the derelict metal shed in Ferosh, the subject hawker stallincluding the metal poles and white materials clearly belonged tosomeone and was an obvious place of business and employment can reasonably be expected thereat. As analyzed above, there were parts on the metal pole which were consistent with those used for connecting the poles, I don’t find it surprising that the defendant had erected the metal pole with bare hands without any tools. This also showed that the nature of the assembling work was relatively simple. Further, given the short duration of the observation and the defendant was intercepted by PW1 before the assembling work was completed, I don’t find it surprising that there was no evidence of payment and of any control being exercised over the defendant by the employer.

21. There are no material discrepancies, omissions and/or improbabilities in the overall prosecution case.

22. I am satisfied that the prosecution have proved beyond reasonable doubt all the elements of the offence and convict the defendant of the charge.”

Grounds of appeal

10.  The appellant said the magistrate’s decision is wrong.  He submitted that PW1 had observed him for only 5 seconds.  He claimed that he was drinking beer and on his way home when PW1 intercepted him on the street.  He did not work at the hawker stall as alleged by PW1.

My considerations

11.  Mr Daryanani for the respondent submitted that the magistrate was well aware of the duration of PW1’s observation of the appellant (namely 5 seconds).  She has mentioned it in her brief oral reasons for verdict[4].

12.  The defence case put to PW1 had nothing to do with mistaken identification. The magistrate has nevertheless duly reminded herself of the Turnbull directions.  The appellant did not give evidence at trial. The magistrate was entitled to take the view that there was no evidence to contradict the prosecution case.  What the appellant said in the appeal hearing is not evidence.

13.  In my view, the crux of the prosecution case is what PW1 sawthe appellant doing rather than how long the observation lasted.  As a juror, the magistrate has accepted PW1’s evidence.  She has found as a fact that the defendant was inserting a metal pole into a hole on the ground at the subject hawker stall.  She then concluded that no reasonable person who was unconnected to the subject hawker stall would have done such work. I agree with the magistrate.

14.  I have reminded myself of the principles on “re-hearing” in magistracy appeals stated in HKSAR v Chou Shih Bin [2005] 1 HKLRD 838 and HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.  I find no flaws in the magistrate’s reasoning or findings.  The magistrate has thoroughly evaluatedthe prosecution’s evidence as well as the case put by defence counsel.  Heranalysis is sound and with proper evidential basis.  I see no reason to disturb the magistrate’s findings.

15.  I dismiss the appeal against conviction.