HKSAR v. RAHMAN MD SALIM AND ANOTHER

HCMA 82/2022

[2022] HKCFI 2441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 82 OF 2022

(ON APPEAL FROM STCC 2451 OF 2021)

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J U D G M E N T

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1.  The 1^st and 2^nd Appellants, each faced 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)  & (2)  of the Immigration Ordinance, Cap 115.

2.  The particulars charged them that on 10 August 2021, they took employment, whether paid or unpaid, as an odd job worker at Tsing Yi. 

3.  After trial, both were acquitted.  It was then that they applied for costs and the application was refused.  This is an appeal against that order of refusal of costs.  

4.  There is no issue taken that both Appellants were under removal orders at the time when they were arrested for this case. The Prosecution relied on one witness, Sergeant 1893 (“PW1”), who said that he was making observation in an industrial building, at a carpark on 1/F.  He saw five males, the two Appellants and three Chinese males.  He drew on a sketch at Exhibit P7B, as he observed from a distance of about 4 to 5 meters.

5.  PW1 said that during the time of the observation, he saw the 2^nd Appellant pushing a computer desk on a trolley and he marked the position where the trolley stopped.  Under cross-examination, he agreed that he saw the 2^nd Appellant pushing it for only a few seconds.  He also marked the route of the computer desk.   

6.  PW1 said he also observed the 1^st Appellant who was inside the truck organising the goods.  His impression was that one of the Chinese males was giving instruction to the 1^st Appellant as to how to organise the goods.  However, he could not hear what was said and he also agreed that the computer desk was an obstruction to his sight of what the 1^st Appellant was doing.    

7.  The Defence elected not to give evidence and not to call any witnesses. 

8.  The learned Magistrate, after carefully analysing the evidence of PW1, accepted PW1’s observation that the 2^nd Appellant was pushing the computer desk, but he did not accept that the 1^st Appellant was given instruction by the Chinese male.  But he said the 1^st Appellant was organising the goods inside the cargo compartment.    

9.  The learned Magistrate very fairly, in the circumstances, thought that although the event was highly suspicious, he could not draw the only irresistible inference that they took on employment as odd job workers.  He said there were no evidence as to why they were doing what they were observed to be doing.  He also made the observation that there was no evidence as to the ownership of the goods, and so he gave the benefit of the doubt to both Appellants, and acquitted them.     

10.  Mr Pickavant then applied for costs.  The learned Magistrate, after considering the application, said that he regarded the Appellants as having brought suspicion upon themselves, and/or misled the prosecution into thinking the case against them was stronger than it was.  So he refused costs.  This is the subject matter of this appeal. 

11.  Mr Pickavant submitted basically four Grounds of Appeal.  In fact, Grounds (1), (2)  and (3)  could be considered together.   

12.  Grounds (1), (2)  and (3)  deal with whether the learned Magistrate had committed an error in law and on the facts, in finding that the Appellants’ observed actions amounted to highly suspicious conduct in the context of the charges laid against them.  Ground (4)  which is the next separate ground, is that the learned Magistrate erred in law and on the facts, in finding that the Appellants had also brought suspicion upon themselves and/or misled the prosecution into thinking that the case against them was stronger than it was by proffering no explanation at all during the investigation. 

13.  Dealing with Ground (4)  first, Mr Pickavant submitted that accusing them of proffering no explanation was not fair because they were never asked by PW1 what they were doing there.  In his submission, he referred to several cases, and the fact that if they were not asked, it was not right that they are then criticised for not offering an explanation. 

14.  However, as Ms Ho pointed out, it is an admitted fact that both Appellants were arrested and cautioned at the time, so they did have an opportunity to offer an explanation as to why they were there.      

15.  Did the learned Magistrate erred in law and in fact to find that the action of the Appellants is highly suspicion?  The fact of the case was that, it was 8:46 pm on 10 August 2021, it was inside an industrial building on the 1/F of the carpark.  The truck is a transportation truck with a name of a company printed on the side.  The 1^st Appellant was seen inside the truck dealing with the goods inside the truck, and the 2^nd Appellant was pushing a computer desk to the tailboard of the truck. 

16.  I agree with the learned Magistrate that in those circumstances, these actions were highly suspicious and I do not consider that he had made an error in law or on the facts that these were highly suspicious circumstances. 

17.  Mr Pickavant referred to several Court of First Instance cases relating to the fact that in different cases, the Judge of the Court of First Instance had allowed an appeal relating to refusal of costs order.  Of course, as I had observed to Mr Pickavant, each case must turn on its own facts.  Of course the general law is that a defendant is entitled to remain silent when cautioned.  However, in the case of Lau Tsz On[1] cited by Ms Ho, where Barnes J in her judgment, cited the case of Cheng Kam Kuen v HKSAR[2], where Andrew Cheung J (as he then was)  considered this very point and he said at paragraphs 27 to 33 of the judgment that:

“17. …the principle of the matters a court has to take into account when dealing with applications for costs following an acquittal where a defendant exercised his right to remain silent, refused or failed to disclose his defence or proffered an explanation at the investigation stage or failed to disclose his defence before the trial”

18.  Barnes J went on at paragraph 18 and said:

“Put simply, the overall conclusion A Cheung J reached after considering and analysing the Hong Kong and Australian authorities was when considering the question of costs, it did not mean the court could not take into account the refusal or failure to disclose one’s defence before the trial or proffer an explanation at the investigation stage, done in the exercise of the right of silence. The court should, while not depriving the defendant of his right of silence, make assessment on the facts of each case to decide if the defendant should be paid costs out of public revenue.”

19.  In this case as one can see from the learned Magistrate’s Statement of Findings, at paragraph 39, he did consider the case of Cheng Kam Kuen, and came to the conclusion that the 1^st and 2^nd Appellants had also brought suspicion upon themselves and/or misled the prosecution into thinking the case was stronger than it is, if they indeed had an innocent explanation but they chose to withhold such explanations. 

20.  I totally agree with the observation cited by Barnes J of the case of Lau Tsz On which Andrew Cheung J (as he then was)  had reached this conclusion after considering the Hong Kong and Australian authorities on this point.

21.  As I often said, the law is a living creature, it continues to improve and continues to inculcate some common sense and logicality into the criminal law.  I cannot see that the learned Magistrate had made any error in law or on the facts in not giving costs to both Appellants, and as Ms Ho had submitted, it is the learned Magistrate’s discretion unless I can find that he did commit an error in making that discretionary order, and I do not so find.    

22.  So the appeal is dismissed.