HKSAR v. ABDULLAH, MOHAMMAD

HCMA 526/2018

[2019] HKCFI 918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 526 OF 2018

(ON APPEAL FROM STCC NO 2607 OF 2018)

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J U D G M E N T

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1.  The Appellant was charged with one count of “Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully”, contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance, Cap 115. Pleading not guilty to the charge, he was convicted after trial and sentenced to a term of imprisonment of 21 months.

2.  The Appellant now appeals his conviction only.

PROSECUTION CASE

3.  The case concerned a covert operation of the Immigration Department by sending 2 decoy officers to pretend as customers in a restaurant.  There is no dispute that the Appellant was inside the restaurant.  He had sneaked into Hong Kong illegally and was not allowed to take up any employment, whether paid or unpaid in Hong Kong.

4.  The prosecution called three immigration assistants as witnesses (PW1, PW2 and PW3).  At trial, the Appellant was represented by counsel assigned by the Duty Lawyer Service Scheme. The Appellant elected not to give evidence, nor did he call any defence witnesses.  The issue of the case was the identity of the Appellant.

5.  At about 17:31 hours on 8 July 2018, PW1 together with a colleague went to the restaurant located at G/F, 60 Po Tung Road, Sai Kung. Inside the restaurant, PW1 was in regular contact with his team leader to report his observations in the restaurant.

6.  PW1 observed three foreign males in the restaurant:

(i)  one male wearing a blue polo top (“the blue polo top male”);

(ii)  one male in an all-white chef outfit; and

(iii)  one male customer (“the Customer”).

7.  PW1 testified that the blue polo top male (not wearing glasses), subsequently:

(i)  greeted PW1 and his colleague and seated them at a table;

(ii)  placed 2 menus and 2 glasses of water on the table;

(iii)  stood at the beverage bar;

(iv)  used a big ladle to ladle some soup from a big soup pot into a bowl in the front of the kitchen;

(v)  placed a bowl of soup on PW1’s table and returned to the beverage bar to operate the coffee machine; and

(vi)  placed two cups of coffee on the beverage bar table.

8.  PW1 also testified that 1 foreigner female staff had taken orders from them. 

9.  At about 17:56 hours on the same day, the operation turned overt.  PW2 together with the team leader and members went into the restaurant.  They revealed their identities and purpose of the visit.  PW2 said he saw a male wearing blue polo top coming out from the back door (the rear exit).  As his outfit matched the description by the team leader, PW2 approached this male who was identified as the Appellant. PW1 said he had concentrated on the blue polo top male who had served him until he was approached by PW2.

10.  PW3 was tendered for cross‑examination.  He testified that he guarded the back door.  He saw two males attempted to flee from the back door of the restaurant.  The Appellant (not wearing glasses) was wearing a relatively darker blue polo top, while another arrested person (wearing glasses) was wearing light‑blue shirt which was of a very different tone from the Appellant’s upper garment.

11.  The prosecution case, put simply, was that the Appellant was the male wearing blue polo top who had served PW1 as a waiter.  He had taken up employment in the restaurant.

DEFENCE CASE

12.  The Appellant chose not to give evidence nor call any defence witnesses.  The Appellant had a clear record in Hong Kong. 

13.  The defence case was that the Appellant was not the person who served PW1.  As there were two South‑Asian males (one of them being the Appellant) arrested at the restaurant, both of them wearing similar outfit, and a customer sitting at a table was also a South‑Asian male, it was suggested that there was the possibility that the Appellant was not the person who served PW1.

14.  The issue at trial was the identity of the Appellant.

REASONS FOR CONVICTION

15.  The Magistrate correctly reminded herself of the standard of proof and gave herself proper direction in respect of the Appellant not giving or calling evidence. 

16.  She also noted that the Appellant had a clear record in Hong Kong and gave herself the relevant direction in favour of the Appellant.

17.  The Magistrate applied Turnbull guidelines when considering the identification evidence. 

18.  The Magistrate did not draw an adverse inference against the Appellant for his attempt to leave the restaurant through the backdoor.

19.  Having carefully considered all the evidence, the Magistrate found all the prosecution witnesses to be credible and reliable.  As regards the issue of identity which the Magistrate identified as the main issue, the Magistrate found beyond a reasonable doubt that the Appellant was the blue polo top male, who PW1 observed doing the various work. 

20.  The Magistrate found as the only reasonable and irresistible inference that the Appellant was doing the acts as observed by PW1 in the course of and for the purpose of employment. The Magistrate therefore convicted the Appellant as charged.

GROUNDS OF APPEAL

21.  In the Notice of Appeal (Form 101), the Appellant stated only the general grounds that the evidence was insufficient to found the conviction.  At the appeal hearing, the unrepresented Appellant reiterates that he was not the person who served the immigration officers.  He was only in the restaurant to pray and he never did the acts as described by PW1.

THE COURT’S CONSIDERATION

22.  At the hearing on 24 January 2019, I expressed my concern about the identification of the Appellant as the Statement of Findings was not very clear about the circumstances of the arrest and how the Appellant was identified as the waiter who had served the immigration officers. I was under the impression that the Appellant had left the restaurant. He was only subsequently arrested because of his clothing by PW2, without subsequent identification by PW1. I therefore adjourned the case to call for the transcripts of the evidence of all the prosecution witnesses to examine the evidence of identification in particular. The hearing was resumed on 20 February 2019 when the transcripts were ready and served on the Appellant.

23.  The transcript showed that while there was no specific identification of the Appellant by PW1 at the scene or dock identification at trial, PW1 actually saw PW2 intercept the blue polo top male.  PW1 confirmed that he had not lost sight of the blue polo top male, except for about 10 seconds, and he had concentrated on this waiter until he was approached by PW2 (see transcripts pages 9K-N and 11M). It would appear from the transcript of evidence that the Appellant had not successfully left the restaurant.

24.  Therefore, while the identity of the Appellant was in issue, the crux of the case turned on the credibility of PW1, who had not lost sight of the Appellant before he was caught.  As mentioned above, the Magistrate found PW1 - 3 credible and reliable witnesses.

25.  In a magistracy appeal which is heard by way of “re‑hearing”, the appeal court will only depart from a magistrate’s determination of witness credibility if it is “plainly wrong”: HKSAR v Fok, James Alistair [2015] 4 HKC 247. 

26.  There was no dispute at trial that there were two South‑Asian males arrested by the immigration officers.  While one of them was the Appellant wearing blue polo top, the other one who attempted to escape was wearing a blue colour shirt.  There was suggestion that the immigration officers had mixed them up.

27.  The Magistrate was alive to this issue and applied the Turnbull guidelines, which in my view might not be necessary in the circumstances of the case. The crux of the matter is the credibility of PW1.

28.  The Magistrate noted that the other arrested person was only wearing a light blue coloured shirt and that he was wearing glasses, his appearance and clothing were clearly different from the Appellant’s.

29.  The Magistrate also noticed that a customer of the restaurant was a South‑Asian male.  However, as PW1 testified, the customer never left his seat throughout the observation of PW1.

30.  Having considered the possibility of mistaken identification and found PW1 as a credible and reliable witness, the Magistrate was sure that the Appellant was the person who served PW1. 

31.  In my judgment, such a finding of fact was one that the Magistrate was entitled to make. The Magistrate gave sufficient reasons to explain her decision.  It cannot be shown that the Magistrate’s finding was plainly wrong.  There is no basis for me to interfere with such a finding.

32.  The Magistrate properly considered the concept of employment in the context of the relevant offence[1].  In my judgment, the Magistrate’s drawing the inference that the Appellant was taking up employment in the restaurant cannot be faulted.

33.  By way of re-hearing, I am satisfied that the evidence of the prosecution can prove the charge beyond a reasonable doubt.

CONCLUSION

34.  For the reasons given, the conviction is not unsafe or unsatisfactory.  The appeal against conviction is therefore dismissed.