HKSAR v. MANVEER, SINGH

HCMA 404/2024

[2025] HKCFI 2978

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 404 OF 2024

(ON APPEAL FROM STCC 2760 OF 2024)

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J U D G M E N T

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1.  The Appellant was convicted after trial with one count of “taking employment while being a person in respect of whom a removal order is in force”, contrary to section 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap. 115, Law of Hong Kong. The Appellant was sentenced to 22 months and 2 weeks imprisonment. The Appellant now appeals against his conviction.

2.  The Admitted Facts were as follows, on 31 October 2023, the Appellant was arrested by the police after having landed in Hong Kong unlawfully. On 13 December 2023, a removal order was issued against the Appellant and served to him on 3 January 2024. The said removal order was still in force against the Appellant on 16 July 2024. At all material times, the Appellant was aware that he was prohibited from taking up any employment, whether paid or unpaid, or establishing or joining in any business.

3.  On 1 March 2024, the Appellant was released on recognizance and was issued with immigration recognizance form (the removal order as exhibit P2 and the recognizance form as exhibit P3).

Prosecution’s Case

4.  As briefly summarised by the Respondent, PC60163 (“PW1”), stated that on that day, that was 16 July 2024, at around 0406 hours, he was on duty at the vicinity of Cheung Sha Wan Wholesale Food Market. He was in plainclothes patrolling the food market, targeting illegal workers. He saw the Appellant who was wearing a blue T-shirt, dark coloured trousers and a pair of wellington boots. He found most workers wore the same kind of boots in the food market.

5.  PW1 saw the Appellant pulling a trolley walking towards some goods, he bent down and put the white foam box onto the trolley. PW1 then approached him and found inside the white foam box on the trolley were some fish with crushed ice. PW1 then revealed his identity and showed his warrant card to the Appellant. PW1 also drew a sketch indicating his movement when approaching the Appellant, exhibit P5A. It was also admitted that PC60175 took four photos of the case, exhibits P4(1-4). He also drew a sketch map for the case, depicted the scene, exhibit P5.

The Defence Case

6.  The Appellant elected to testify and called a defence witness, Mr Manpreet Singh, as referred by the Magistrate as “DW1”. The Appellant stated that he wanted to purchase a type of fish which was popular in India and Pakistan, and is also available in Hong Kong. He discussed the same with his friend, DW1. DW1 informed him the fish can be purchased at that market, Cheung Sha Wan Wholesale Food Market, however the said fish would only be available between 12 am and 5 or 6 am. DW1 also informed the Appellant that he would take the Appellant to the food market. DW1 asked him to wear gumboots as it was raining and splashy inside the food market.

7.  On that day, DW1 brought the Appellant to the food market on a motorbike and dropped him off. He also gave him HK$360 to HK$380 to get 3 catties of fish. As the Appellant was on his way to the food market, it rained. Therefore, he went inside the toilet to take shelter. After about 5 to 10 minutes, the Appellant came out from the toilet and walked towards the food market. About 30 to 40 seconds later, the police suddenly came from behind him and asked for his identification. Then the police told him that he was working there, but he denied. Then the police took him near a trolley with some foam box which was pulled there.

8.  The police then went to check the CCTV, came back after 15 to 20 minutes and started taking photos of the trolley which was near him. The police asked him to push the trolley, but he did not. At that time, there was only a few boxes around, but when the police arrested him, they brought over a lot of boxes. The Appellant denied touching the trolley or any foam box. He was just going to the market to buy fish, he was not working there.

DW1’s Evidence

9.  The Appellant said to him that the Appellant wanted to buy some fish to cook but was unable to find it. DW1 then suggested to go to the food market. DW1 would take him there on his way to work. On that day, DW1 drove a light goods vehicle, picking him up and took him to the food market. He also gave the Appellant HK$340 to buy fish and also asked the Appellant to save HK$100 to take a taxi home.

Magistrate’s Findings

10.  The Magistrate accepted the evidence of PW1, but disbelieved the evidence of the Appellant. The Magistrate stated that as the trial was only just about two months after the incident, so both the Appellant and DW1 should have been able to remember the events but there were material discrepancies between their versions. The Magistrate referred to the Appellant saying that DW1 picked him up in a motorbike while DW1 said it was a light goods vehicle which was his only car. The Appellant said DW1 gave him HK$360 to HK$380, but DW1 said it was only HK$340. The Appellant said DW1 told him to wear gumboots because it was raining and it was wet in the market, but DW1 did not mention telling the Appellant to wear gumboots in court.

11.  Further, the Magistrate did not accept the Appellant was wearing the wellington boots primarily for the raining weather and the floor conditions of the food market while he did not even bring any umbrella or raincoat. If the Appellant was simply going to buy fish, it would only take a short time and therefore it would not be necessary for the Appellant to wear the wellington boots. The Appellant was wearing the wellington boots that others in the food market were also wearing as well. And it was only 4 am in the morning, it was consistent with a work scenario at the fish market, and the fish market was an obvious place of employment.

12.  The Magistrate also pointed out that under the Marine Fish (Marketing) Ordinance, Cap. 291, Laws of Hong Kong, all fresh marine fish (except live fish) are required to be landed and sold wholesale at the wholesale fish markets operated by the Fish Market Organisation. The food market is one of these markets. The Magistrate stated that it was unlikely that the Appellant was self-employed as he did not have any financial resources to finance a trade in fish. Therefore, the Appellant was convicted on the charge accordingly.

Grounds of Appeal

13.  The Appellant stated the following grounds of appeal, basically repeating his evidence at the trial. The Appellant said that he was not guilty and he did not work there. He was not satisfied with the decision because the police gave the wrong statement. He was just walking and stood one place a while, a second, but the police caught him and took a picture with a trolley, and that trolley have one box. And the police stayed the Appellant there more than 30 minutes, and the police also checked the CCTV but they did not mention. And then the police said to him that he was driving the trolley, but he did not. Then they took the picture in a different angle. The Appellant stated that he was not working there, he just want to buy fish there because that shop opens at 12 to 1am and to 5 to 6am. Police also said to the court that the Appellant took the box from the many boxes placed on the trolley, but those other boxes were not there at that time when the police caught him.

Respondent’s Reply

14.  The Respondent summarised the grounds of the appeal stated by the Appellant as follows. Ground 1, inaccurate testimony given by the police. The Appellant alleged the evidence of PW1 was inaccurate as he was walking in the food market and then stood at one place for a second, then the police approached him and told him that he was working. The police then took him near a trolley with a white foam box which was pulled there. The police also stayed with him for around 30 minutes. However, the Appellant alleged those boxes were not there at the time the police arrested him. The Appellant said the police brought the boxes over there when they arrested him.

15.  On ground 2, about CCTV evidence, the Appellant said the police checked the CCTV but did not mention it in court.

16.  To ground 1, the Respondent was saying that the Magistrate had already carefully considered the Appellant’s evidence by itself and also as a part of the defence case, and rejected it. For the completeness, it may be useful to deal with two main grounds as challenges made by the Defence counsel during the trial below.

17.  The first challenge concerning that there was insufficient evidence or basis to establish employment of the Appellant. The Defence Counsel at the trial saying that it would be insufficient observation time, which only be one minute, and the defence said that this brief period is insufficient to establish that the Appellant was engaged in employment. The court will be aware that working per se does not equate taking up employment. Working per se is a neutral act and, in any event, the Appellant’s version is that he did not touch any of the boxes and any of the trolleys.

18.  Now, on the issues of taking employment, the Respondent also referred to the Court of Final Appeal case of HKSAR v Ferosh [2018] 21 HKCFAR 159 which gave the definition and the position of this area of the law. The case accepted the position in the R v Ip Po Fai HCMA 1201/1995 that evidence of a person actually working at the place of employment would not necessarily support an irresistible inference of employment.

19.  The case also concerning the interpretation of previous decision of the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung [2007] 10 HKCFAR 156 and HKSAR v Chow Kin Cheung [2013] 1 HKC 246 that the mere fact that a person is working for another, that does not necessarily mean there is a relationship of employment between the two.

20.  The Respondent also referred to the case of HKSAR v Masih Shamoon and others HCMA 357/2017:

“11. In my view, employment subsists on the basis of an employer and employee relationship, … when one of the parties work for the other party, he regards the other party as his employer, and the other party acknowledges their mutual duties or obligations, and further, fiduciary duties exist between the two of them.”

21.  So even if the magistrate’s view is correct at the very least, a common understanding should exist between the person who employs and the person who is employed.

22.  Respondent also referred to the case of HKSAR v Hari Arshdeep Singh HCMA 124/2019:

“ … What is clear is that there must be something more than an observation of somebody merely carrying out work in order for the prosecution to ask a magistrate to draw the only reasonable or compelling inference that the defendant was employed.”

23.  Respondent submitted that there was indeed sufficient evidence in this case to infer employment based on the following facts. That would include that PW1 saw the Appellant wore a blue T-shirt, dark coloured trousers and a pair of wellington boots, and he found most of the workers wore the same kind of boots in the food market. He saw the Appellant pulling a trolley and while walking towards some goods, bent down and put a white foam box onto the trolley. And the police also found some fish with crushed ice in the white foam box.

24.  The food market is a wholesale market. The Appellant’s explanation that he wanted to purchase fish for self-consumption is not credible. Even if there was a wholesaler who was willing to sell some fish to the Appellant for self-consumption, DW1 would have informed the Appellant of the name and stallholder so that the Appellant could have directly approached that particular wholesaler for the fish. However, no name or stall numbers was mentioned by the Appellant. He said he wanted to ask Indians, which is clearly not credible.

25.  The food market is an obvious place of employment. Public would be unlikely to visit this place given it is a wholesale food market. Therefore, any person present there would likely be there as they are employed for some task in the food market. The time of the arrest was at 0406 hours in the morning. At this early hour, unlikely that any member of the public would visit the food market given it is a wholesale fish market. The Appellant is a recognizance holder, it is unlikely that he would have sufficient funds to have invested in any of the wholesale fish business. Therefore, all in all, the Respondent was saying that the Magistrate was clearly entitled to draw the only reasonable and irresistible inference, that the Appellant was employed.

26.  The Respondent also replied to ground 2 about the CCTV evidence. Essentially, PW1 said that the Appellant was pulling a trolley and then put a foam box with the fish in it, but the Appellant’s version was that he did not touch any of the boxes or any of the trolleys. The Respondent was therefore saying that the CCTV would have been conclusive evidence of what actually happened.

27.  The Respondent checked the police notebook of PC60175 which stated that he went with PC28184 to the control room at the said address to view the CCTV. And the police witness statement of PC60175 also stated that he went with PC28184 to the control room at the said address to check the CCTV footage and observed AP’s actions matched what PC60163 described. They then returned to continue making inquiries of AP. Therefore, the Respondent was saying that the CCTV appeared to have been relevant as the CCTV footage apparently matched with what PC60163 said. So, on that basis, it is accepted that CCTV evidence would have been a material piece of evidence. However, the CCTV were not seized.

28.  The Respondent had also asked the case officer to check with the food market if they still have the CCTV, but it was replied that there was no copy of the CCTV. However, the CCTV issue was not even discussed in the trial. It was noted in the Admitted Facts that the Appellant was arrested about an hour after the observation. The Magistrate could have clarified with PC60175 why was it necessary to check the CCTV before the Appellant was arrested. The Respondent was saying that the Magistrate and the Defence Counsel should at least inquire with the Prosecution at the trial why the CCTV were not seized.

29.  So given the police were at the CCTV observation point, it would have been easy to ask the management of the food market to provide a copy of the CCTV. The Respondent was saying that this was not a case where the Defence Counsel had viewed the CCTV and decided not to pursue this matter deliberately for tactical reasons. So it might be argued that the Defence Counsel had a duty to inquire with the Prosecution as to why the relevant CCTV were not seized. It could even be argued that there may be a stay of proceedings application on the missing of the CCTV. So the Respondent was saying that it may be a case of material irregularity, referring to the case of R v Holgate (No 1) [1996] 3 HKC 315: “It was necessary for the judge to demonstrate that the applicant’s evidence had been fairly evaluated with these matters in mind and that his trial was fair.”

30.  As there was a material irregularity and there was no mention by either Prosecution or Defence of the CCTV, apart from the evidence of the Appellant, and there was no analysis by the Magistrate of the absence of the CCTV, the Respondent was saying that the Magistrate should have directed her mind as to whether Prosecution deliberately failed to seize the CCTV. That may have contradicted or undermined the Prosecution’s case.

31.  However, the Respondent was still saying that despite of the material irregularity, conviction can still be confirmed, even with the issue of CCTV, because there was sufficient evidence from all the circumstantial evidence for the Magistrate to draw the irresistible inference. And in the appeal it was a rehearing on all the evidence before this Court. From all the circumstantial evidence, particularly that the Appellant was in the wholesale food market in the morning, 0406 hours, wearing wellington boots like the other workers. The Respondent was saying that there was overwhelming evidence that he was guilty as charged, so the appeal should be dismissed accordingly.

Consideration

32.  In the Hong Kong Court of Final Appeal case HKSAR v Hui Lai Ki [2024] HKCFA 7, it was held that the Magistracy Appeal is conducted by way of rehearing on the evidence before the trial court. The judge must be satisfied that the Appellant’s guilt had been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. On such a rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which satisfy appellate intervention to reverse the decision of the Magistrate to convict.

33.  The Court recognised that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witnesses evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Yet, despite those limitations, it remains a duty of the appellate court on appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

34.  This is quite a straight-forward case where the Prosecution mainly rely on the observation of PW1, of which the Appellant mainly contest and referred to ground 1 as stated above. The Appellant said PW1 had made wrongful statement, alleged that the Appellant had pulled the trolley or placed the box containing fish and ice inside on the trolley, while the Appellant simply stated that he did not even touch the box or the trolley at all. The Magistrate had the advantage of receiving evidence first-hand. After careful consideration, particularly as PW1’s observation under normal lighting with an unobstructed view, the Magistrate accepted his evidence. There is no basis to disturb his findings.

35.  On the other hand, the Magistrate also duly considered the evidence of the Appellant and his witness. Having pointed out that the material discrepancies, including the different transportation taken to the market, the actual sum of money given and whether the Appellant had been told to wear gumboots, then went on to make the finding that their evidence was inherently incredible. Likewise, the reasons were sound and the Magistrate’s findings cannot be faulted. Therefore, ground 1 must fail.

36.  Secondly, concerning the CCTV, the Respondent accepted that that may cause a material irregularity in this case. However, all along the Prosecution was not relying on any CCTV evidence, nor was this even raised by the Appellant during trial. So even that there may have evidence about the checking of the CCTV, it was not revealed that anything unusual or contradicting any prosecution evidence. Therefore, any failure to collect the CCTV was really neither here nor there and that should not even be considered causing any material irregularity at all.

37.  Further, any suggestion or possibility of contradictory or undermining prosecution evidence is also purely speculative, without any actual evidential basis. Therefore, this ground also fails.

38.  Lastly, on the issue of taking employment, the Magistrate and the Respondent had referred to a number of significant features of the circumstantial evidence in this case which must point to the irresistible inference of employment. That would include, but not limited to, the Appellant wearing the same wellington boots like other workers; the Appellant was seen pulling a trolley and later on placing a box containing fish and ice on the trolley; and it was about 4 am in the market which only provide wholesale services instead of individual purchases. So the evidence of the Appellant taking employment there was compelling.

39.  On rehearing basis, I am also satisfied that the Appellant’s guilt had been proven beyond all reasonable doubt. Therefore, the conviction do stand and the appeal is dismissed accordingly.