HKSAR v. CHEUNG KIM FUNG

HCMA45/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 45 OF 1998

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J U D G M E N T

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1. The Appellant was convicted by a Magistrate of three offences of aiding and abetting the breach of condition of stay, in that, he had on various occasions aided and abetted his Filipino maid to contravene her condition of stay by aiding and abetting her to take up employment as a part-time domestic helper at three different addresses, doing part-time jobs for three different employers.

2. The prosecution's case relied on the evidence of the Filipino maid who gave evidence that during the four months she worked for the Appellant, she never received any wages from him which was the reason why she said she had to rely upon these part-time jobs in order to survive. The Magistrate found that she was an honest and reliable witness. Nevertheless, he had some reservations about a particular point in her evidence and the point was whether she had ever received wages from the Appellant.

3. In his Statement of Findings, the learned Magistrate said that he had reservations about this aspect. Even though he did not expressly make a finding of fact that she had received any wages from the Appellant, the reason that he did advance, to my mind, in fact, amount to such a finding and in effect amount to a finding by him that he was not accepting her evidence that she had not been paid any wages. Even though it is true that a tribunal of fact is entitled to accept a portion of a prosecution witness' evidence and reject the other portion, where the portion which is rejected is an integral part of that witness' evidence and forms the substratum of that prosecution witness' evidence, then, depending on the circumstances of a particular case, it is usually difficult for the tribunal of fact to then say that despite the tribunal's disbelief on that particular aspect, the tribunal was nevertheless accepting the rest of that prosecution witness' evidence.

4. I found that this particular aspect of PW1's evidence was a vital part of her evidence, i.e. had she been paid any wages by the Appellant and if not was that the reason why she was forced to take up these part-time jobs. In the light of the reservations by the learned Magistrate on that aspect, in my judgment, he should not have then gone on to accept the rest of her evidence to found this conviction against the Appellant.

5. Furthermore, another difficulty in the prosecution's case is the fact that none of these three part-time employers were called to give evidence for the prosecution to support the fact that the Filipino maid did in fact do part-time jobs for them. Two of these people were allegedly friends of the wife of the Appellant and I can perhaps understand the prosecution having misgivings about any benefit to be derived from calling these people. But nevertheless, an attempt should have been made to call them to give evidence to support the testimony of PW1. The complaint by Mr Josiah Lee is really that a Magistrate, having expressed reservations about an important aspect of the prosecution witness' evidence, should not have then gone on to accept the rest of her evidence. Mr Lee also complained that the learned Magistrate had acted upon the assumption that the part-time work had been done when in fact there was no evidence other than from PW1 that those part-time jobs had in fact been done.

6. I have dealt with those matters. In my judgment, in the circumstances, the convictions have been rendered unsafe and unsatisfactory, and I would allow the appeal against conviction.