HKSAR v. AHMAD,IMTIAZ

HCMA 600/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 600 OF 2013

(ON APPEAL FROM STCC 2789 OF 2013)

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J U D G M E N T

Background

1.  The appellant faced a charge of taking employment on 28 May 2013 while being a person who remained in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance, Cap 115.  He denied the charge and the case was heard before Magistrate Ms Amy Chan.  After trial, the magistrate convicted the appellant of the charge and sentenced him to 22 months’ imprisonment. 

2.  The appellant now appeals against both conviction and sentence. 

The agreed facts

3.  Before the magistrate, both parties agreed as admitted facts that the appellant entered Hong Kong illegally on 31 March 2009, that on 9 April 2009, he was released by the Immigration Department on a recognizance, and that he was prohibited from taking up any employment (whether paid or unpaid), establishing or joining in any business in Hong Kong.

The prosecution case

4.  The prosecution called PC33929 (PW1), the key witness. PW1’s evidence was to the effect that on 28 May 2013, the police launched an operation against illegal worker.  At 1325hrs, PW1 patrolled to an outdoor warehouse in Shek Wu Wai San Tsuen in Lok Ma Chau (“the Warehouse”). It was surrounded by fences of two metres high.  PW1 heard some metal moving sound when he was outside the fence.  This aroused his suspicion.  He looked into the Warehouse through a hole of 2 inches by 2 inches, about one metre above the ground, on the fence (“Observation Point”).  Through the hole, PW1 saw a South Asian man inside beside a truck, who was later identified to be the appellant, about 20 to 25 meters from him, wearing a blue short-sleeve upper garment, a pair of light-colour trousers and a pair of waterproof boots.  There were piles of metal rods on the ground.

5.  PW1 informed his colleagues through the beat radio and put the appellant under observation.  PW1 saw the appellant squatting down near the iron rods, counting and checking the metal rods with both of his hands.  The metal rods were tied together by wooden sticks and metal straps.  The appellant moved in front of and behind the iron rods.  Sometimes he moved near to the truck.  He also tidied up the wooden sticks and metal straps.  During PW1’s observation for 10 minutes, the appellant repeated those acts.

6.  PW1 informed his colleagues who entered into the Warehouse and PC8823 (PW2) intercepted the appellant for investigation. PW1 told PW2 over the beat radio that the appellant was the man whom he had previously put under observation. 

7.  When PW1 got into the Warehouse, he noticed that there were 17 bundles of metal rods in spiral pattern placed on the ground.  Each bundle was wrapped in white cloth.  There were 20 odd metal rods in each bundle. The metal rods were about two metres in length.  

8.  PW1 noticed that there were piles of metal pipes placed on the ground near the Observation Point.  They were stacked up to about one foot in height.  Five Chinese men were intercepted in the Warehouse at the area between the canopy and the metal pipes.  PW1 was unable to see these five men and the metal pipes whilst he was looking through the hole.

9.  Under cross-examination, PW1 agreed that the wooden sticks and metal straps on the metal rods were put on by high pressure so that the metal rods would not fall out.  During his 10 minutes’ observation, he only saw the appellant touching wooden sticks and metal straps with his hands.  As PW1 was at 20 to 25 meters away from the appellant, he was unable to see the appellant’s acts in detail.  PW1 agreed that the metal rods which were in bundles could only be lifted up by crane.

10.  When PW1 heard the metal moving sound, he felt that the sound was near to the Observation Point.  When he entered the Warehouse, he saw some metal pipes on the ground below the Observation Point.  The metal pipe was thicker than the iron rod.  However, a person could lift up a single pipe.

11.  PW1 made enquiries with the five Chinese males.  None of them admitted knowing, seeing or employing the appellant.  They told PW1 that they delivered and offloaded the iron pipes.  They claimed themselves to be transportation workers.

12.  The arresting officer, PC8823 (PW2), was at the request of the defence tendered for cross-examination.  PW2 confirmed that he did not see what the appellant did beside the truck before he entered the Warehouse.  He arrested the appellant upon the information given by PW1. He saw the appellant was wearing a blue top, light-colour trousers and a pair of waterproof boots.  When he first approached the appellant, the appellant was touching the metal rods at the time.

The defence case

13.  The appellant elected not to give evidence but called a friend, Chin Ming Cho (DW1), to testify.  DW1 said he was not in Hong Kong on the day in question.  The appellant telephoned DW1 and said he would visit him at his home which is near to the subject warehouse.  Later on, DW1 learned that the appellant was arrested by the police upon his return from China on the same day.

14.  DW1, 24 years old, had been living in a house on his own in San Tin Shek Wu Wai San Tsuen for 3 to 4 months’ time when the appellant was arrested.  DW1’s parents lived in a separate house next to his.  He had known the appellant for 7 to 8 months.  They first met in a bar in Tsim Sha Tsui. They became friends.  They often met and had meals and drinks in DW1’s home with a group of friends.

15.  DW1 had his own business in construction.  He did works for the People’s Liberation Army in Hong Kong.  He also had some businesses in China.

16.  DW1 told the court that there were 2 to 3 warehouses near his home.  The Warehouse was among one of them.  However, he had no idea of who was responsible for or to run the Warehouse. He explained that it was his family business.  He reserved several containers within the Warehouse for keeping his own working tools.  The remaining parts of the Warehouse had been rented to others for use.  DW1 confirmed that the metal rods did not belong to him.

17.  DW1 said there was a bridge connecting his house and an open area.  There was a channel discharging water below the bridge which got flooded sometimes.  DW1 explained that one could have access to different warehouses including the Warehouse though the gate in the open area near his home.  For safety reason, this gate was locked.  The appellant had previously come to the Warehouse but DW1 was not sure if the appellant knew the layout of the Warehouse.

18.  On the day in question, at about 11 am to 12 pm, whilst he was in China, he received a phone call from the appellant.  The appellant told DW1 that he planned to visit him at his home in Shek Wu Wai so as to drink and chat with him.  DW1 told the appellant that he was still in China.  He would not return to Hong Kong until after he had lunch and a meeting in China.  Having learned that, the appellant still proceeded to visit DW1. The appellant said he would wait for DW1’s return.

19.  DW1 testified that he had put his spare home key outside his house.  The appellant knew where DW1 had put it.  DW1 allowed the appellant to enter his house even if he was not at home.  DW1 did not know if the appellant had got into his house on that day.  It might be possible that the appellant had borrowed his waterproof boots to prevent his feet from getting wet when crossing the bridge. 

20.  DW1 returned to Hong Kong from the mainland after 11 pm on 28 May 2013.  He learnt from his family that the appellant had been arrested by the police.

Magistrate’s analysis of the evidence

21.  After reminding herself of the onus of proof and standard of proof, that the appellant was not required to prove anything, and that the appellant was a person of clear record with the consequent less propensity to commit the offence, the magistrate analysed the evidence before her.  She said in her Statement of Findings:

“28. The case depended entirely upon the credibility of the evidence of PWs. Having considered the whole circumstances of the PWs’ evidence and their demeanour in court, I found them to be honest and credible. They testified in a cogent and consistent manner. They were not shaken under cross-examination. I accepted that they testified of what they had seen, heard and known about the incident in the court.

29. PW1 said he heard some metal moving sound when he was outside the fence. He frankly admitted that metal rods which were tied up in bundles must be lifted by crane. It showed that PW1 testified of what he actually observed. He would not invent or fabricate evidence to implicate the Defendant.

30. PW1 stated that the sound was near to the Observation Point. PW1 could not see the pipes and the five men when he looked through the hole at the Observation Point. The five men were standing near the pipes. According to PW1, a man can lift up a single pipe. Having considered the whole circumstances, I had no doubt to conclude that the metal moving sound emanated from the iron pipes when the Chinese men moved them.

31. PW1 said the five Chinese men denied knowing, seeing and employing the Defendant. They claimed to be transportation workers offloading the iron rods. Such evidence was hearsay and inadmissible as to the truth of their assertions. It only showed their reaction when they faced the enquires made by PW1.

32. …

33. The Defendant elected not to give evidence. This is his rights. No adverse inference would be drawn against him.

34. I had opportunity to see and hear the DW1’s testimonies. I found that there was simply not a ring of truth in his testimony. He had been evasive in answering to straight forward questions by both the Defence and the Prosecution in relation to who is responsible for the Warehouse. Who runs the Warehouse? Questions had to be asked more that [sic] once before he could give an answer. He explained that he did not understand the questions asked. At the end, he said the Warehouse belonged to his family. He reserved several containers within the Warehouse for putting his own working tools. The remaining parts of the Warehouse had been rented to others for use. I found that DW1 was not forthcoming and frank about who actually own the Warehouse.

35. DW1 said he was in China when the Defendant called him but he would return to Hong Kong after the lunch and the meeting. He gave the impression that he still managed to meet the Defendant shortly after. However, when he was asked when he actually returned to Hong Kong on that day, he replied it was after 11pm. Had it been the case, DW1 should have asked the Defendant not to visit him or come at a later time on that day. I did not believe DW1’s evidence that the Defendant coming to visit him even learning DW1 was not in Hong Kong.

36. DW1 did not know if the Defendant had got into his house. He said that the Defendant might have borrowed his waterproof boots to prevent his feet from getting wet when he crossed the bridge. This is only DW1’s speculation. From the photo taken on the day in question, it showed that it was a sunny day. Even from the photos produced by the Defence, it did not appear the bridge to be wet or slippery. The explanation offered by DW1 why the Defendant wore the waterproof boots was totally untrustworthy.

37. Due the above reasons, I rejected DW1’s evidence entirely. I found that he was not honest and credible.

38. In any event, DW1 was out of Hong Kong at the material time. He did not know what had actually happened in the open area of the Warehouse.  Even if I accepted the fact that the D came to Lok Ma Chau on knowing that DW1 was not there, why he would stay in the Warehouse.  He was seen checking and counting the metal rods.  Why he paid particular regard to the metal rods.  This is totally unthinkable.”

22.  The magistrate reminded herself of the relevant authorities on “employment”, and on how inference can properly be drawn on an employment relationship, such as R v Ip Po Fai HCMA 1201/1995, HKSAR v Chan So Bing (陳素冰) HCMA506/2005, HKSAR v Lau Chi Wai (柳志惠) HCMA 302/2003 and HKSAR v Singh Jaya Mahohar HCMA 516/2010.

23.  On the basis of her finding that that appellant was dealing with the iron rods in the Warehouse in a way as stated by PW1, the magistrate continued:

“46. On the face of the Prosecution case, there was no evidence on a system of work, direction of command and control from anyone. However, I found that the Defendant’s presence in the Warehouse was not incidental. It must have been pre-arranged.

47. The metal rods were placed in the middle, well-exposed part of the Warehouse (P4). They were neatly tied up by wooden sticks and iron straps and wrapped in white cloth. Judging from the state of these metal rods, they must be of some value. However, the Defendant was seen checking, counting and touching the metal rods for ten minutes. He moved around the metal rods and the truck. The person-in charge/owner of the Warehouse would not have missed the presence of the Defendant. They should have been eager to enquire and stop him from doing the same.

48. I found that the Defendant must have the approval of the owner/person in charge of the Warehouse before he could deal with the metal rods in the private place within the Warehouse. In my view, no reasonable person, who was unconnected to the Warehouse, would have done or allowed to do such work.

49. As seen from the sketch (P4) and photos (P3), there was nothing of interest to a visitor. This Warehouse is located in Lok Ma Chau. The event happened at about 1.30pm. The Defendant was seen wearing a pair of waterproof boots in a sunny day. I found that there was simply no good reason for the Defendant to be there, except to work for money.

50. Though there was no direct evidence of mutual responsibilities or obligations and fiduciary duties between the two persons as stated in the case of Lau Chi Wai (柳志惠), with this background, the inference that the Defendant was taking employment thereat is compelling. This is the only reasonable inference to be drawn in the whole circumstances.

51. The Defendant was dealing with the metal rods within the Warehouse. It is the work for the odd job worker. A person would not do the work of an employee and earn money for another person for no reason. I had rejected DW1’s evidence. Hence, in the absence of other evidence, it is easy for the Court to draw an inference on the employment relationship.

52. In reaching my verdict, I had carefully considered the submission of Mr Middleton [for the Defendant]. Nothing said by Mr Middleton causes me to doubt the only inference to draw is that the Defendant took employment as odd job worker in the Warehouse.

53. For the above reasons, I found that the Prosecution had proved every elements of the charge to beyond reasonable doubts. Accordingly, I found the Defendant guilty.”

Appeal against conviction - discussion

24.  The appellant is unrepresented.  He has not specified any ground of appeal in his notice of appeal (Form 101).  Before me, with the assistance of the Urdu/English interpreter, the appellant complains that PW1 agreed in cross-examination that no photograph was taken of the hole at the Observation Post, for which the magistrate should not have accepted PW1’s evidence.  He also complains that PW1’s evidence that he did not see the five Chinese men in the 10 minutes of observation through the hole.  From the way he addresses me, it is obvious that he is complaining about the magistrate’s findings of fact against him.

25.  Appeals from the magistrates’ courts are dealt with by way of re-hearing, based on the evidence that had been adduced before the magistrate, see HKSAR v Chou Shih Bin [2005] 1 HKLRD 838. Where facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed: see ibid, at p 845B.

26.  Ms Winnie Mok, for the respondent, submits that it is clear that the crux of the present case hinges on the credibility and reliability of witnesses.  In such a situation, the magistrate was in the best position to assess the credibility and reliability of witnesses and to make findings on the evidence she decided to accept. 

27.  The magistrate considered the evidence of the prosecution witnesses carefully. After considering the whole circumstances of the prosecution witnesses’ evidence and their demeanour when giving evidence, the magistrate found them to be honest and credible.  They testified in a cogent and consistent manner and were not shaken under cross-examination. Their evidence was accepted by the magistrate to be the facts of the case.  Ms Mok submits that this is a finding of fact and credibility that the magistrate was perfectly entitled to reach after considering the evidence of the prosecution witnesses. 

28.  The magistrate had also made careful consideration as to whether the appellant’s behaviour in the warehouse as observed by PW1 could amount to “taking employment”.  She considered the principles in relevant authorities cited in her statement of findings (see paragraph 22 above).  As demonstrated in the authorities, whether a person was “taking employment” is a question of fact to be determined based on the evidence of each case.  Although working in a place per se is not employment, in the absence of other evidence, it is easy for the court to draw the necessary inference that a person is in employment.

29.  Ms Mok submits that the magistrate had correctly come to the conclusion that the appellant was taking up employment at the material time.  The magistrate had correctly identified and analysed the following pieces of evidence to support her finding in this regard:

(i) Although there was no evidence of any system of work, direction of command and control from anyone, the appellant’s presence in the Warehouse must be pre-arranged. 

(ii) Looking at the way that the metal rods were placed and arranged, such metal rods must be of some value, and the appellant was seen to be checking, counting and touching the metal rods for 10 minutes in an exposed area of the Warehouse.  The presence of the appellant at the Warehouse was obvious and would not be missed by the person-in-charge of the Warehouse.  If the appellant’s presence and actions in the Warehouse were unauthorised, the person-in-charge would have stopped him. Hence, the appellant must have the approval of the person-in-charge of the Warehouse to deal with the metal rods there.

(iii) The Warehouse was located at the remote area of Lok Ma Chau, with items that were of no interest to a visitor.  Yet, the appellant was seen to be dealing with the metal rods, wearing water boots in a sunny day.  There is simply no good reason for the appellant to be there at the Warehouse dealing with the metal rods at the material time, except to work for money.

30.  It is therefore clear from PW1’s evidence that the appellant was performing specific duties at the Warehouse at the material time.  The description of PW1 as to what he saw the appellant doing gave rise to the only irresistible inference that the appellant was working at the Warehouse at the material time for money. 

31.  The magistrate also gave careful consideration to the defence case.  She drew no adverse inference to the appellant’s decision not to give evidence.  She had considered DW1’s evidence carefully and found that there was not a ring of truth in it.  She observed DW1’s demeanour in giving evidence and found him to be evasive and dishonest.  This is a finding on credibility that the magistrate was perfectly entitled to reach.  Furthermore, as claimed by DW1, he was not in Hong Kong on the material day.  There is no way for DW1 to know exactly what the appellant did on that day, whether the appellant actually visited DW1’s home and why the appellant was in the Warehouse.  Hence, DW1’s evidence could offer little assistance to the court in the fact-finding process and the magistrate was entitled to reject his evidence.

32.  Ms Mok forcefully submits that based on the evidence of the prosecution witnesses that the magistrate had correctly accepted, the only irresistible inference that could be drawn from the evidence is that in dealing with the metal rods as described by PW1, the appellant was taking employment at the material time.  The conviction is firmly based on evidence and is safe and satisfactory.  The appeal against conviction is unmeritorious and should be dismissed.  I agree with all the above submissions of Ms Mok.

33.  Regarding the appellant’s complaint that no photograph was taken of the hole at the Observation Post, he submits that there was in fact no hole on the fence, and therefore PW1’s evidence of his observation for 10 minutes over the appellant was false.  I do not consider that this point helps the appeal.  First, the appellant did not give evidence before the magistrate and he could not simply rely on the absence of the hole on the fence that he tells me now as if it were evidence.  Second, the magistrate, as she said in her Statement of Findings, could only decide on the actual evidence before her, and not evidence that there might have been.

34.  The appellant also says that he was tortured by the police officers at the scene. He even says that he was brought inside the Warehouse forcefully by the police in order to have his photograph taken inside the Warehouse so as to falsely accuse him. 

35.  Through the file of this appeal, there is no mention of this alleged torture.  The appellant did not give evidence or adduce any evidence of such alleged torture before the magistrate.  It is not a matter properly within the ambit of or helping this appeal.

APPEAL AGAINST SENTENCE

36.  Again, no specific ground has been raised against the sentence passed by the magistrate, save the ground of the sentence being too severe as contained in Form 102.

37.  The Court of Appeal in HKSAR v Usman Butt & another [2010] 5 HKLRD 452 reviewed the authorities and laid down the guideline sentence of 15 months’ imprisonment upon a plea of guilty in relation to Section 38AA offences.  The appellant was convicted after trial.  As such, the magistrate was correct in imposing a starting point of 22 months and 2 weeks’ imprisonment (15 months + 7.5 months).  After deducting the 10 days that the appellant had spent in administrative detention, the magistrate sentenced the appellant to 22 months’ imprisonment. 

38.  It is abundantly clear therefore that the sentence imposed by the magistrate is in accordance with the sentencing guideline and hence appropriate.  It is neither manifestly excessive nor wrong in principle.

Conclusions

39.  I consider that there is no error in the findings of fact made by the magistrate that resulted in her finding the appellant guilty of the offence charged.  In my judgment, nothing in the magistrate’s Statement of Findings makes the conviction unsafe or unsatisfactory.  In the result, I dismiss the appeal against conviction.

40.  The sentence imposed by the magistrate is well in accordance with the sentencing guideline in this kind of cases as laid down by the Court of Appeal in Usman Butt.  Not only is the sentence not manifestly excessive, but also it cannot be criticized at all.  In the circumstances, the appeal against sentence must also be dismissed.