HKSAR v. ALI ZULFIQAR

HCMA 286/2022

[2023] HKCFI 2151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 286 OF 2022

(ON APPEAL FROM STCC 66 OF 2022)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  The Appellant was convicted after trial of two charges of “Employing a person who is a prohibited employee and not lawfully employable”, contrary to section 17I(1)(b) of the Immigration Ordinance, Cap 115, and two charges of “Transferring an identity card to another person”, contrary to section 7AA(1)(a) of the Registration of Persons Ordinance, Cap 177.

2.  The issues at trial as pointed out by Ms Kwok for the Respondent, were whether the Appellant was:

(1) whether the Appellant was the employer of PW1 and PW2 on the date of the offence; and

(2) whether the Appellant had transferred the relevant HKID cards to PW1 and PW2.

Prosecution Case

3.  PW1 gave evidence that the Appellant had called him on 12 August 2021, telling him that there would be a job to do the following day for which he would be paid HK$500 a day. He met the Appellant on the following day in the Prince Edward MTR station. Together they went by the MTR to Fanling where they met up with a Chinese male (“the driver”) who was driving a car. Shortly after, PW2 arrived, then the driver drove the 3 of them to the Farmland in Fanling.

4.  PW1 said, on the way, the Appellant pulled out 2 HKID cards and gave one card to him and one card to PW2. He told both PW1 and PW2 to show the cards to the “boss” and that the cards had to be returned to him. At the Farmland, PW1 and PW2 then started construction works of erecting poles under the instructions of the Appellant.

5.  At the time when PW1 was arrested by the Immigration officer, when asked for his Identity card, PW1 said he had nothing. Subsequently, the Immigration officer searched his bag and found the HKID card which had been given to PW1 by the Appellant.

6.  Under cross-examination, PW1 admitted that in fact, it was a business partner of the Appellant who had called him on the evening of 12 August 2021, informing him that there was a job and told him to meet the Appellant in the morning. PW1 said he had never met the Appellant before 13 August 2021.

7.  PW2’s evidence was that on morning of 13 August 2021, the Appellant called him and told him there were jobs to be done. He was also told that he would be paid $400 for a day’s work and the Appellant asked him to go to Fanling.

8.  PW2 went to Fanling and met the Appellant, PW1 and the driver. On the way to the Farmland, the Appellant pulled out 2 HKID cards from his shoes and gave one to PW1 and other to PW2. PW2 said the Appellant told him to do registration with the card, and that the job to be done was that poles had to be erected. Both he and PW1 started working there, although upon entry to the Farmland, the security guard had questioned the authenticity of the HKID cards showed to him.

9.  Both PW1 and PW2 admitted that they had pleaded guilty to their offences. They were awaiting to be sentenced.

Defence Case

10.  The Appellant had claimed that he had known PW1 for about 5 months and PW2 for about one year. They often met in a restaurant in Sham Shui Po. The Appellant claimed that on 12 August 2021, a friend had told him that there would be a job to be done the following day, and that he would be paid $1,100.

11.  On the morning on 13 August 2021, the Appellant met PW1 and a Chinese male (“the driver”) outside the Fanling MTR station. The driver asked both the Appellant and PW1 for identity cards, and took pictures of the identity cards. Subsequently, PW2 arrived. They then all went to the Farmland. The Appellant alleged that it was the driver who guided them about the works.

12.  The Appellant said that both PW1 and PW2 had told everyone they had HKID cards and looking for job opportunities.

13.  The Defence also called DW2 who gave evidence that he and the Appellant would meet up with friends in a restaurant, and in the week prior to 13 August 2021, someone in the group claimed to have a job which needed 3 workers. Amongst the group, a Pakistani and an Indian said they had HKID cards and they needed the job, but DW2 could not identify them.

Magistrate’s Findings

14.  The learned Magistrate after reminding himself that both PW1 and PW2 were waiting to be sentenced at the time of the trial and that the Appellant had a clear record, considered that PW1 and PW2 gave clear, coherent and consistent evidence, and they had not been shaken under cross-examination. So at the end of the day, he accepted PW1 and PW2 as truthful and reliable witnesses.

15.  When considering the evidence of the Defence, the learned Magistrate did not find the Appellant to be a credible witness and did not accept his evidence as he found the Appellant was evasive. The learned Magistrate also noted that the Defence’s allegations that it was the Chinese driver who guided PW1 and PW2 to work and asked for their identity cards, were not put to the Prosecution witnesses.

16.  As to DW2’s evidence, the learned Magistrate was not impressed by him because he was dubious that DW2 could recall that a week before 13 August 2021, an Indian and a Pakistani had said they needed jobs, and that they had identity cards. DW2’s evidence was that this sort of meetings happened quite often, where they would share information about jobs available. So the learned Magistrate was not convinced that DW2 could recall that evening of 13 August 2021 so precisely.

17.  Having considered all the evidence, the learned Magistrate accepted the evidence of the two Prosecution witnesses, that it was the Appellant who arranged for them to work at the Farmland, and brought them to the Farmland, taught them what to do, and provided them with the HKID cards.

18.  Therefore, at the end of the day, the learned Magistrate found that there was an employer/employee relationship between the PWs and the Appellant, and that the Prosecution had proved its case against the Appellant.

Grounds of Appeal

19.  On appeal, Mr Sherry for the Appellant, submitted two grounds of appeal.

20.  Ground 1 was that the learned Magistrate had failed to properly analyse the issue of whether there was an employment relationship between the Appellant and PW1 and PW2.

21.  On Ground 2, Mr Sherry submitted that the learned Magistrate had wrongly found the offence to be proved beyond reasonable doubt solely on the evidence of PW1 and PW2 alone.

Motion to admit fresh evidence

22.  Before the appeal, Mr Sherry applied for new evidence to be received on appeal. As Ms Kwok correctly pointed out the Court of Final Appeal in the case of Mohammad Mahabobur Rahman v HKSAR[1] had set out the following conditions to be satisfied before fresh evidence could be received on an appeal, and they are:

(1) the fresh evidence is likely to be credible;

(2) it would have been admissible in the courts below;

(3) it is relevant to an issue in the appeal;

(4) there is a reasonable explanation for the failure to adduce it in the courts below; and

(5) the court is satisfied that it would afford a ground of appeal.

23.  In support of his motion, the Appellant submitted an affirmation where he listed out why he wanted these fresh evidence to be adduced. However, nowhere in his affirmation did he provide any reason as to why this has not been done in the trial.

24.  The Appellant, as Ms Kwok pointed out, was legally represented in the Court below. Therefore, there is no reason why that could not have been done at the trial.

25.  Therefore, I refuse the motion to admit fresh evidence on the appeal.

Discussion

26.  On behalf of the Appellant, Mr Sherry submitted on Ground 1 that the learned Magistrate had failed to properly consider if there was any employment contract between the Appellant and PW1 and PW2, and what the terms were.

27.  As we all know, in this area of employment, the contract is very often implied, and is often a very loose arrangement of work and payment. There is nothing wrong with the learned Magistrate basing his findings that there was an employment relationship on the evidence of PW1 and PW2.

28.  As Ms Kwok pointed out, the arrangement for both Prosecution witnesses to work on the Farmland was made by the Appellant who took them both there and promised that they would be paid at the end of the day. Both PW1 and PW2 considered the Appellant to be their boss, and that they followed his instruction and worked at what he told them to do. The Appellant was also the person who provided them with the identity cards on the way to the Farmland.

29.  As Ms Kwok pointed out in paragraph 51 of her written submissions, the learned Magistrate had invited submissions from Counsel for the Appellant on whether subcontractors can be regarded as employers.

30.  At the time, Counsel appearing on behalf of the Appellant had agreed that ultimately it was a matter for the learned Magistrate to decide whether he believed that the Appellant’s version was true or might be true.

31.  It is therefore clear from the learned Magistrate’s Findings that he did consider very minutely the evidence of all the witnesses, and finally came to the conclusion that the Prosecution witnesses were honest and reliable witnesses, whereas the Appellant was not worthy of belief. And also that the Defence witness was not able to assist the Court as to the issue of whether the Appellant was the employer of the two Prosecution witnesses.

32.  So, I do not consider that Ground 1 has any merit.

33.  In relation to Ground 2 of the appeal, as regards the Charges 2 and 5 (transferring an identity card to another person), again the learned Magistrate had relied on the evidence of PW1 and PW2 that it was the Appellant who had given them the identity cards while in the car on the way to the Farmland in Fanling.

34.  Both of them said that upon arriving at the Farmland, the security guard initially questioned whether the photographs on the identity cards did match the appearance of both the Prosecution witnesses. It was the Appellant who argued with the security guard on that matter, and eventually won approval from him for the two Prosecution witnesses to enter the Farmland. Upon entering to the Farmland, it was the Appellant who gave them instruction to work and would be paying them after the work was done. The learned Magistrate had found that both Prosecution witnesses were credible and reliable witnesses, therefore, the learned Magistrate was entirely correct in relying on their evidence to convict the Appellant on Ground 2.

35.  The learned Magistrate was aware at the time of the inconsistency between PW1 and PW2 as to whether the driver took photographs of the identity cards. He was aware of this inconsistency but did not regard this inconsistency in any way affected the credibility of the Prosecution witnesses. In fact, it stands to reason that the driver was indeed a small player in the events that occurred that day, and the fact that PW2 did not remember this particular incident was not at all surprising.

36.  Having considered the submissions and the learned Magistrate’s Statement of Findings, I was of the view that there is no merit in Ground 2 of the appeal.

37.  As to Ground 3, as Ms Kwok very properly pointed out, the Court of Appeal in Chan Hing Kai[2] said:

“93. It was open to the Judge to direct the jury that they could take into account the lack of puttage in assessing the weight to be attached to the applicant’s evidence on this matter. …”

Although it is generally not appropriate “for the Judge to make a comment to the effect that an adverse inference as to credibility may be drawn against the applicant. …”[3].

38.  As Ms Kwok rightly submitted the learned Magistrate merely pointed out the failure to put certain matters to the Prosecution witnesses and went no further.

39.  There is no merit to Ground 3.

40.  I, therefore, at the end of the hearing, dismissed the appeal against convictions on both charges.