HKSAR v. ASJAD BAIG AND OTHERS

HCMA 489/2018

[2019] HKCFI 148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 489 OF 2018

(ON APPEAL FROM STCC 2380/2018)

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J U D G M E N T

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1.  To all three appellants, I consider that the conviction of the three of you are unsafe and unsatisfactory and so I will order that your appeal against convictions are allowed.

2.  The three appellants were convicted after trial in the Magistrates’ Court, each facing a charge of taking employment whilst being a person in respect of whom a deportation order is in force, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115, Laws of Hong Kong, and they were each sentenced on 14 September 2018 to 22 months and 14 days’ imprisonment.

3.  All three appellants are appealing against their convictions and the first and the third appellants are appealing against sentence as well.

4.  This case is actually not unusual in that police officers, patrolling a large depot yard in Sheung Shui on the afternoon of 20 June 2018, had observed the three appellants in one of the container yards and, according to the evidence, this yard was approximately 6,000 square feet and was full of containers and there were two forklift trucks inside the yard and photocopiers and wooden pallets.

5.  The evidence came quite briefly from two police officers.  The first prosecution witness (PW1) saw the first appellant wearing gloves and holding an electric drill and drilling on the photocopiers and he said he observed this for about three minutes.

6.  Evidence of the second prosecution witness (PW2) said he saw the second appellant sitting in a forklift truck and the third appellant was standing on the upper level of a container pushing a white machine to the edge of the container and then the second appellant used the forklift to move the photocopier to the ground.  That process was repeated a second time and PW2’s observation was it was about three minutes.

7.  The first appellant is subject to a deportation order, whilst the second and the third appellants are Form 8 holders.  PW2 also mentioned that he saw two other non‑Chinese males in a white container after the arrest of the third appellant.

8.  There is also evidence from an independent witness, the third prosecution witness (PW3), Mr Cheng, who said he was working in the yard for two days and his job was to unload the photocopiers using the forklift and he said he saw three to four non‑Chinese persons in the yard, but did not know who they were.

9.  The learned magistrate, after reviewing the evidence, accepted the evidence of PW1 and PW2 as to what they saw.  However, where she has failed to fully explain is her finding, first of all, that the drilling work and that the work conducted by the second and the third appellants led her to consider that the only irresistible inference that all three appellants were under employment.

10.  Admittedly, it is not in every case that the prosecution has to provide an employer to give evidence to say that he did employ the three appellants and that the learned magistrate, with ample evidence, can make an irresistible inference that a particular appellant was working or taking up employment on a particular site.

11.  The learned magistrate observed at paragraph 27 that the yard was, and I quote, “an obvious workplace,” and that the first and the second appellants were seen working electric drills and driving a forklift and that since DW3 were hired to do at the yard similar to what the second and the third appellants were doing, therefore, the learned magistrate felt that in the circumstances that people do not work for free usually, she observed, and so at the end of the day, she found that she could draw the necessary inference that they were employed to do the work they were doing.

12.  I, having looked at the learned magistrate’s reasons, do not find that it is the only irresistible inference that could be drawn from the facts that were before her.

13.  As the Court of Final Appeal in the case of HKSAR v Ferosh [2014] 5 HKC 104 which Mr Cheung very kindly submitted to this court, the Court of Final Appeal did stress that in that case, which was similar, where the accused was found to have been working under employment in a derelict metal shed, observed that the facts does not give rise to the sole and irresistible inference of employment.

14.  Circumstances may be suspicious, but that does not equate with being able to draw the only irresistible inference in a case. Furthermore, as the learned magistrate in paragraph 25 of her Statement of Findings had observed that PW3’s evidence does not discredit the evidence of PW1 and PW2 in relation to the fact that PW3’s observation was that he saw other non‑Asian males in the yard on that day.

15.  The fact that neither PW1 and PW2 saw PW3 in the yard, when PW3 said he was working in the yard unloading a photocopying machine with a forklift, again, her reasons were scanty as Mr Cheung very correctly conceded and I, therefore, taking both matters into account, consider that the convictions were unsafe and unsatisfactory.  So, I am allowing the appeal and as far as the respondent’s application for a retrial is concerned, all three appellants say that they have no objection to a retrial.

16.  I have considered also the fact that all three appellants were sentenced in September to 22 months and 14 days’ imprisonment and so they have not served a substantial part of the sentence yet.

17.  The evidence in this case is not weak and so I consider the proper thing is to order a retrial in this case.

18.  The appeal against convictions and sentence is allowed and a retrial is ordered.