HKSAR v. DHILLON GURDEEP SINGH AND OTHERS

HCMA 8/2018

[2018] HKCFI 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 8 OF 2018

(ON APPEAL FROM STCC 3504 OF 2017)

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J U D G M E N T

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1.  This is an appeal by the 1^st, 2^nd and 3^rd appellants against their convictions by a magistrate[1].

2.  The 1^st and the 3^rd appellants were each convicted after trial on 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.

3.  The 2^nd appellant was convicted after trial on one count of “Taking employment while being a person in respect of whom a removal order is in force”, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap. 115.

The Prosecution case

4.  The Prosecution case was that on 18 July 2017, police officers conducted an operation against illegal workers.  At 1250 hours, PC 9519 (PW1) and PC 13489 (PW2) patrolled to the Tai Po Baptist Kindergarten (the kindergarten) in Tai Po.  The kindergarten was under renovation.  The 1^st appellant, the 2^nd appellant and another South-Asian male were seen carrying cabinets and wooden boards from the kindergarten to the pavement.  During the 10-minute observation, they were seen carrying cabinets and boards for three times.

5.  At the same time, the 3^rd appellant was seen by PW2 dismantling a cabinet inside the kindergarten with a hammer for 10 minutes.  PW2 was making his observation from about 10 metres away.  There was sufficient light and nothing obstructed his view.

6.  At 1300 hours, PW1 called for assistance.  The appellants were intercepted by other police officers.  They were later arrested and cautioned.

Admitted facts

7.  It was admitted that D1 and D3 remained in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, while D2 is subject to a removal order in force.  They were prohibited from taking up any employment either paid or unpaid.

8.  There was no dispute that the 1^st appellant and 2^nd appellant were seen conveying some wooden cabinets and wooden boards from the kindergarten located at no.32-38 Heung Sze Wui Square, Tai Po to the pavement of Heung Sze Wui Square on 3 occasions whilst they were under observation by police officers. 

Defence case

9.  The appellants elected not to give evidence and called no defence witnesses. It was the case of the appellants that there was no evidence of employment by conveying the furniture or by dismantling the furniture as this was consistent to an inference that were taking the furniture for their own future use.

Issues at trial

10.  The issues at trial were (i) whether the evidence was sufficient to show that the appellants had taken up employment and (ii) whether the 1^st to 3^rd appellants had taken up employment.

Magistrate’s findings

11.  The magistrate was satisfied that the appellants were found inside a kindergarten under renovation.  It was not a place that could be accessed by anyone.  The appellants’ work was consistent with odd job workers deployed to dismantle and remove the furniture.  The 1^st appellant was working in a team with the 2^nd appellant and another South-Asian male.  The 1^st and 2^nd appellants were moving furniture for three times.  A hammer was made available and was used by the 3^rd appellant for his work.  It was a line of work normally expected of employed workers.

12.  The magistrate rejected the suggestion that the appellants and the other worker might be taking the furniture for their own use.  The appellants elected not to give evidence and there was no evidence to support the assertion.  In any event, the magistrate did not find the assertion reasonable.  Judging from the condition of the furniture and the way they were dumped at the pavement, he did not accept the furniture was intended for future use.

13.  In the absence of other evidence, the magistrate found an irresistible inference that the appellants were employed to carry out the dismantling and removal work as odd job workers. 

Grounds of appeal

14.  The appellants were not legally represented at their appeal.  Although each appellant advanced his grounds of appeal they covered similar grounds.  Those grounds were as follows:

(1)   The furniture was picked up from outside the kindergarten but not from the inside of the kindergarten;

(2)   There were no photos or CCTV of either the 1^st and 2^nd appellants moving the furniture;

(3)   The appellants were moving the furniture because they were taking it for their own use;

(4)   The observation made by the police officer (PW2) on the 3^rd appellant was unreliable and incorrect since:

(i)   PW2’s observation was made from a long distance away;

(ii)   PW2’s observation was obstructed; and

(iii)  As PW2’s observation was from a long distance, he was unable to see the 3^rd appellant was using a tool to dismantle a cabinet.

(5)   No fingerprints were taken from the hammer to prove the 3^rd appellant had used it and if hammer was used by him why was the hammer not seized;

(6)   There were no photos or CCTV of the 3^rd appellant using the hammer;

(7)   At the time five people were arrested by the police yet only three of them were charged;

(8)   There was no evidence from an employer that they were employed to do odd jobs at the kindergarten; and

(9)   The magistrate erred in finding the police officers to be credible witnesses, the officers fabricated the case against them on insufficient and unreliable evidence.

Discussion

15.  I turn to deal with the grounds of appeal. 

Grounds 1 and 2

16.  It was an admitted fact that the 1^st and 2^nd appellants were carrying wooden cabinets and wooden boards from, that is inside, the kindergarten to the pavement on three occasions.  At their trial, defence counsel for the appellants based his submissions on the fact that the appellants were moving furniture from inside the kindergarten.  He sought to distinguish places of work.  It was his submission that moving furniture from a kindergarten under renovation was not per se the only reasonable inference of employment.  It was not the appellants case that they were moving the furniture found outside the kindergarten. 

17.  There was no requirement of photos or CCTV evidence as the prosecution was relying on PW1’s observation, in any event there was an admission by the appellants that they were moving furniture from the kindergarten.  This ground of appeal fails. 

Ground 3

18.  The magistrate was entitled to reject the suggestion that the appellants might be taking the furniture for their own use.  The appellants elected not to give evidence and there was no evidence to support their assertion.  The magistrate rejected the suggestion that they were dismantling or moving the furniture for their own use.  Photographs of the furniture are shown in exhibit P6[2], it was open to the magistrate to find that the furniture was not for their own future use judging by the condition of the furniture and the way they were dumped on the pavement. 

19.  There are no merits in these grounds.

Grounds 4,5 and 6

20.  The grounds relied upon by the appellants are a repeat of most of the submissions advanced at trial by their defence counsel and considered by the magistrate at the trial.  It was argued at the trial that PW2 might have made a mistake because of the distance between him and the 3^rd appellant, and that his evidence was unreliable because he failed to seize the tool that the 3^rd appellant was alleged to be using.

21.  The magistrate considered PW2’s observation position.  He found PW2 was able to see the action of the 3^rd appellant from his observation post.  He also considered the distances, lighting condition and that nothing was obstructing PW2’s view as well as the fact that the 3^rd appellant was using a hammer to dismantle a cabinet for some ten minutes.  The magistrate did not accept PW2 had misunderstood the 3^rd appellant’s action. 

22.  The magistrate accepted the explanation from PW2 that since he took a photo of the hammer, it was not necessary to seize the hammer. 

23.  The fact that there was an absence of fingerprints, CCTV or photo evidence of the 3^rd appellant’s action proves nothing one way or the other.  The magistrate had carefully analyzed the evidence and was entitled to arrive at his findings of fact on the evidence presented to him. 

24.  The magistrate carefully considered the issue of whether the 3^rd appellant was dismantling the cabinet as PW2 observed.  He was satisfied on the quality of the observation that the 3^rd appellant was dismantling a cabinet. 

25.  These grounds of appeal fail. 

Ground 7

26.  The appellants complain that there were five persons arrested together with them yet they were the only three charged.  The fact that other persons were not charged is irrelevant.  The charges were brought against the three appellants.  The magistrate properly considered whether the prosecution had proved the charges beyond reasonable doubt against the appellants on the evidence adduced.  There is no merit in this ground.

Ground 8

27.  The magistrate accepted there was no employer at the scene.  There was no evidence as to who employed them.  He found that it was not fatal to the prosecution case.  He said[3] :

“The appellants were found inside a kindergarten under renovation. It was not a place that could be accessed by anyone. The appellants’ work was consistent with odd job workers deployed to dismantle and remove the furniture.D1 was working in a team with D2 and another South-asian male. They were moving furniture for three times. Tool was made available to D3 for his work. It is a line of work normally expected of employed workers.”

28.  The magistrate observed that working at a place per se was not employment, although in the absence of other evidence, one may draw the necessary inference (he considered R v Ip Po Fai, HCMA 1201/1995, unreported in making the observation).

29.  On the evidence before the magistrate, he was entitled to draw the irresistible inference that the appellants were employed even though no employer was called to give evidence.

Ground 9

30.  The magistrate had the advantage of hearing and seeing the witnesses give evidence.  He evaluated their credibility and was entitled to accept their evidence.  I find no error in the magistrate’s decision. 

Conclusion

31.  Having carefully reviewed the evidence, I am satisfied that the magistrate was justified in reaching his conclusion that the appellants were employed to carry out the dismantling and removing work at the kindergarten under renovation.   

32.  The magistrate was entitled to have convicted the appellants on the evidence.  I am satisfied that the conviction was neither unsafe or unsatisfactory.  

33.  For these reasons I dismiss the appeal.