HKSAR v. WONG SO PING

HCMA746/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.746 OF 1999

(On Appeal from SPCC 3344 OF 1999)

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REASONS FOR JUDGMENT

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1. The appellant was convicted by the learned Magistrate on 28 June 1999 after trial of the offence of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap.115. The particulars of the charge were that the appellant, on 25 May 1999, in Hong Kong contravened a condition of his stay by taking up employment as an odd job worker in the construction site at Metro City Phase III when it was a condition of his stay in Hong Kong, imposed on 1 May 1999, that he should not take up any employment, paid or unpaid, during his stay in Hong Kong. The appellant was sentenced to two weeks' imprisonment, and the learned Magistrate also activated in full a two months' prison sentence suspended for two years imposed on the appellant in WSCC3770/1998 on 24 March 1998 in respect of a previous similar offence.

2. I had dismissed the appeal after hearing both parties in submission. In dismissing the appeal, I had ordered that the bail of the appellant be revoked and that the two weeks' sentence imposed by the Magistrate for the offence for which he was convicted to be served immediately.

3. I further ordered that the two months' suspended sentence activated by the learned Magistrate to be served by the appellant consecutively to the two weeks' sentence imposed by the learned Magistrate. Totally, therefore, the appellant will have to serve a sentence of two months and two weeks from the date of dismissal of the appeal against conviction.

4. I now give my reasons for dismissing the appeal against conviction.

5. It was not disputed that the appellant was permitted to stay in Hong Kong as a visitor from 1 May 1999 to 30 July 1999 on the condition that he should not take up any employment, paid or unpaid.

6. The facts of the case, as found by the learned Magistrate, was that PC52211, who was on illegal immigrants patrol duty at the construction site at Phase III, Metro City, Tseung Kwan O, at around 11 am on 25 May 1999, came across the appellant on the 8th Floor at that construction site. The appellant was at that time standing on a scaffold erected on the outer wall, holding a trowel in his right hand and a piece of wooden board in his left hand and using them to plaster the outer wall of the building with white grey ash mixed with water. PC52211 had observed the appellant through a window, and after satisfying himself that the appellant was working on the scaffold, plastering the outer wall, PC52211 approached the appellant asking for his identity card. The appellant, after climbing back onto the building from the scaffold, then produced his Chinese permit. After examining his Chinese permit on which the condition of the appellant's stay in Hong Kong was stamped, PC52211 arrested the appellant.

7. There was also evidence given by PC52211 that after he had arrested and cautioned the appellant, the appellant said in answer to that caution "Ah Sir, I am prepared to go upstairs to look for a job". However the learned Magistrate took the view, quite rightly, that it was dangerous to rely on these words alleged to have been said by the appellant because firstly, the words were barely comprehensible and secondly the learned Magistrate found that the appellant spoke Cantonese with a country accent such that PC52211 may have misunderstood what the appellant said.

8. The appellant gave evidence at the trial that the day before his arrest, he had gone to Tseung Kwan O to visit relatives and had stayed overnight there. The next morning, his sister's mobile phone, which he was carrying, rang. The appellant took the call and the caller was his friend Lam Wang Man ("Lam"). After telling his friend Lam where he was, Lam said to the appellant that he too was in Tseung Kwan O and had an emergency to handle. Lam then asked the appellant to meet him on the 8th Floor of the construction site opposite the King Lam Estate bus stop. Lam further explained to the appellant that he wished to give the appellant some money which the appellant was to mail to Lam's relatives in China. The appellant then went to the 8th Floor of the construction site but failed to locate Lam. Instead, the police officer approached the appellant on the 8th Floor and asked him if he came up to look for a job. He told the police officer that he came to look for a friend. The appellant also testified that he was not working at the construction site nor was he holding anything, and he was not standing on the scaffold.

9. In cross-examination, the appellant said he came to know Lam in the Mainland where they had exchanged telephone numbers. Under re-examination, the appellant also testified that he had entered the site through the entrance where there were several guards but who did not stop him.

10. Having considered all the evidence in this matter, the learned Magistrate rejected the evidence given by the appellant. The learned Magistrate accepted the evidence of PC52211 with one exception. He did not attach any weight to what was allegedly said by the appellant under caution for the reasons already stated.

11. A number of points have been taken in relation to this appeal against conviction. All these points taken relate to findings of facts by the Magistrate.

12. The first point taken is that there is necessarily a discrepancy between what the appellant is alleged to have said under caution by the police officer and the fact that the police officer testified to seeing the appellant working on the 8th Floor. If there was such a discrepancy, this had been resolved by the learned Magistrate when he decided to give no weight to what was allegedly said by the appellant under caution for the reasons given. In that way he had resolved whatever discrepancy there may have been.

13. The second point taken was that photographs of the appellant taken in the police station some 20 minutes after his arrest did not show his clothing to be either dusty or dirty. This, therefore, conflict with the fact that the appellant was working at the construction site. The learned Magistrate had considered this point and came to the conclusion that from the photograph taken of the appellant back at the police station, it was not readily discernible whether his clothings were dusty or not. This is a question of fact which the learned Magistrate had considered and dealt with in his Reason for Findings.

14. Thirdly, it was submitted that since the learned Magistrate had made a specific finding that the appellant was neither wearing a helmet nor safety belt, this, therefore, should have cast some doubt as to whether the appellant was working in the manner described by the police officer. Once again, this is a question of fact which the learned Magistrate had considered and dealt with in this way. The learned Magistrate came to the conclusion that since the appellant was not a person lawfully employable, therefore, it was not strange or remarkable that he should be working without such safety equipment.

15. The fourth point taken was that since there were no photographs taken to show that there were wet ash on the trowel, wooden board and plastic bucket produced in evidence, that should have created a doubt whether or not the appellant was using those tools in his work at the material time. The evidence of wet ash on these equipment came from the police officer, which evidence the learned Magistrate accepted. The lack of any photographs to corroborate the police officer's evidence does not entitle the Magistrate to speculate otherwise, nor does it compel the learned Magistrate to disbelieve the police officer.

16. Fifthly, it was submitted that the chain of evidence relating to the trowel, the wooden board and the bucket, being exhibits P3, P4 and P5, were neither admitted by the defence nor proved by the prosecution. In so far, as the defence that was run, there was no allegation of any tampering with these exhibits. Moreover, these exhibits were produced by prosecution to show merely that they existed. They were not produced to show the condition of them in relation to any issue arising in the case.

17. Next, it was alleged that the learned Magistrate had wrongly allowed the prosecution to adduce into evidence Exhibit P5 (i.e. the bucket) without PW1's testimony. This allegation is wholly misconceived. What happened was that during the proceedings before the learned Magistrate, the learned Magistrate had commented to the prosecutor that he should have led evidence from PW1 in relation to the bucket before seeking to produce it in evidence, or else he would be leading evidence from PW1 by first producing the bucket. As it turned out, there was no objection by defence counsel as to the production of this bucket, and that after the bucket was produced, PW1 had given evidence that the bucket was beside the appellant at the material time. I therefore take the view that there was nothing wrong or improper for this exhibit to have been produced into evidence.

18. The second ground of appeal was that the learned Magistrate had rejected the appellant's evidence without properly evaluating it. The learned Magistrate had this to say when rejecting the evidence of the appellant :

" I rejected the testimony of the appellant. It was not credible. I did not believe that the appellant and Lam co-incidentally happened to be both in Tseung Kwan O. I did not believe that they would agree to meet at such a location. The reason for the meeting did not make sense to me. I could not understand why Lam could not mail the money himself, why he needed the appellant's help."

19. The learned Magistrate had given full and, in my view, proper reasons for rejecting the appellant's evidence. Once again this is a question of fact for the learned Magistrate as he had the benefit of seeing the witnesses including the appellant give their testimony from the witness box.

20. The third ground of appeal alleges that the learned Magistrate wrongly failed to consider in a proper manner whether the appellant was guilty of breach of condition of stay. The learned Magistrate having found from all the evidence that the appellant was working at the said construction site and there being no dispute as to the condition imposed for the appellant's stay in Hong Kong, I cannot see how the learned Magistrate could have been said to have wrongly failed to consider in a proper manner whether the appellant was guilty of breach of condition of stay. The central issue in the case being whether or not the appellant was working at the construction site as alleged by the police officer. This is a question of fact for the learned Magistrate to decide from the evidence. I therefore cannot see any merits in this ground.

21. The fourth and last ground of appeal alleges that the learned Magistrate exercised his function non-judicially by drawing inferences from the incompleteness of the tale given by the police officer by treating the appellant as if he had elected not to give evidence. The learned Magistrate was fully aware of the evidence given by the appellant, had fully dealt with it in his findings, and had rejected that evidence of the appellant. There is not the slightest indication in his findings to show that the learned Magistrate had acted in any way other than properly in dealing with and rejecting the appellant's evidence. It is wholly wrong to say that the learned Magistrate had dealt with the case as though the appellant had not given evidence. The case of R v. Sharmpal Singh [1962] AC 188 relied on by Mr Sher does not, in my view, assist or advance the appellant's case any further.

22. Whether these points argued by the appellant were taken singly or collectively, this appeal against conviction was wholly unmeritorious for the above reasons.