HKSAR v. MEHMOOD ASIF

HCMA 511/2021

[2022] HKCFI 1230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 511 OF 2021

(ON APPEAL FROM STCC 1740 OF 2021)

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J U D G M E N T

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1.  The Appellant was convicted, after trial, for one offence of “taking employment while being a person in respect of whom a removal order is in force”, contrary to section 38AA(1)(b)  and 38AA(2)  of the Immigration Ordinance, Cap 115.

2.  He appealed against his conviction.  There is no objection from the applicant and the respondent to the application being determined on the papers without a formal hearing.

Prosecution Case

3.  The Appellant having sneaked into Hong Kong illegally, was arrested by the police on 17 March 2008.  He was released on recognizance on 25 March 2008. A removal order was issued against him on 2 September 2016.  On the day of the offence, the removal order was still in force.

4.  It was an admitted facts that the Appellant was aware that he was prohibited from taking up employment, whether paid or unpaid.[1]  

5.  A shop, namely “SUFI H.K. Limited” was opened for business on 7 June 2021.  On that day, an Immigration Officer (“PW1”)  disguised as a customer, went to the shop and picked a bottle of juice.  He saw that the shop was a grocery shop selling various items such as clothing, shoes and drinks. 

6.  There were altogether three staff members at the shop, namely a non-Chinese female, a Chinese male and the Appellant.  The Appellant was sitting on a chair in the middle of the shop.  The non-Chinese female was at the cashier area, and the Chinese male was sorting out the goods. 

7.  The Appellant was seen to have sat on the chair for about 10 minutes.  PW1 went to the non-Chinese female for payment, however, the non-Chinese female put the juice into a red plastic bag without collecting payment. 

8.  PW1 saw that another customer holding a red plastic bag was paying the Appellant.  Thus, PW1 went up to the Appellant to pay and handed over a $100 banknote.  PW1 then asked the Appellant if the juice was $15, and the Appellant replied, “$10 is okay”, and gave PW1 $90 in change.  PW1 saw the Appellant put the $100 banknote into his pocket, and the $90 change was taken out from his pocket.

Defence Case

9.  The Appellant elected not to give evidence, and did not call any witnesses.

10.  According to the defence at the time at the trial, they asserted that there is no evidence that the Appellant was employed by the shop, and he may have been in the shop helping others to give change. He could have been a friend of some staff of the shop, and invited the learned Magistrate to consider that the prosecution had not proved beyond reasonable doubt that he was “taking employment”.  

Magistrate’s Findings

11.  The learned Magistrate had no trouble in accepting the evidence of PW1 and noted that from the evidence available, the only irresistible inference to be drawn was that the Appellant was taking employment at the material time.  

Grounds of Appeal

12.  The Appellant again raised two grounds of appeal, namely:

(1)  The prosecution had not managed to prove an employer and employee relationship between the Appellant and the shop; and

(2)  There is insufficient evidence to draw an inference of employment.

Discussion

13.  There is no doubt that on a magistracy appeal, the case is treated as a rehearing on the evidence as found by the learned Magistrate.  As Ms Mok pointed out in the case of HKSAR v Masih, Shamoon & Others[2], Zervos J, as he then was, said that employment under section 38AA(1)  under the Immigration Ordinance is where a person does work for or renders services to another, and it may or may not involve remuneration for the work or services done.

14.  Further, as Ms Mok pointed out, in the case of 香港特別行政區政府訴陳素冰 [3], it was said that working per se is a neutral act, and it includes unpaid work.  In the absence of other evidence, the Court may come to the irresistible that inference at the performance of certain work, was to fulfill the duty under an employment contract.[4]

15.  As DHCJ To pointed out, under normal circumstances, a person would not help others to perform the work of an employee to facilitate someone else to earn money.  Therefore, without other evidence, the Court could infer that the person was taking employment.

16.  In the present case, since there is no evidence on the existence of an employer, Ms Mok relied on the case of HKSAR v Zafar Adnan[5] that when the Court said that once it is proven the defendant has taken employment in the sense of acting pursuant to an employee and employer relationship, it is not necessary to prove the identity or identifying particulars of the employer.[6] 

17.  Therefore, Ms Mok submitted that the learned Magistrate was entitled to rely on the evidence of PW1 to draw an irresistible inference that the Appellant was “taking employment” under the Ordinance, since there was no evidence whatsoever to suggest that the Appellant had any special relationship with anyone connected with the shop.  

18.  It is trite that the Court should speculate on different reasons without basis in evidence for why the Appellant was in the shop.  It is especially not for this Court to agree to the suggestion made by counsel for the Appellant that the Appellant could have been in the shop because he was there due to a special relationship with someone in the shop. That would be pure speculation. 

19.  This is the type of case where each case turns on its own facts. The suggestions made by the Appellant that he could have been in the shop, just to help to give change, or that he was in fact the shop owner, or rather than an employee, all that are pure speculation. 

20.  Having read the Statement of Findings of the learned Magistrate and submissions of counsel, I have no doubt whatsoever that the learned Magistrate was correct to draw the irresistible inference on the facts as he found, that the Appellant was “taking employment”. 

21.  There is no merit whatsoever in this appeal, so the appeal is dismissed.