HKSAR v. KHAN MUHAMMAD ARSHAD

HCMA 123/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 123 OF 2017

(ON APPEAL FROM STCC 2516 OF 2016)

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J U D G M E N T

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1.  The appellant was convicted of 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[1] after trial. The appellant was sentenced to 22 months and 2 weeks’ imprisonment. He now appeals against both the conviction and sentence.

Background

2.  It was not in dispute that on 12 November 2013, the appellant was arrested by the police after sneaking into Hong Kong illegally from the Mainland.  On 27 December 2013, the appellant was released on recognizance by the Immigration Department.  During the period of recognizance, the appellant was aware that he was prohibited from taking up any employment, whether paid or unpaid.

3.  The prosecution alleged that the appellant took up employment as an odd job worker at Fanling as he was seen delivering vegetables to the Luen Wo Hui Market (market) at night. 

4.  The defence case was that he was in the proximity of the market but was not working.  He never delivered vegetables but was only waiting to take a taxi at Fanling to his friend’s house when he was arrested. 

5.  The magistrate[2] rejected the defence case.  He accepted the prosecution case and drew an irresistible inference that the appellant was being employed at the material time.  As a consequence he convicted the appellant of the charge.

The prosecution case

6.  At around 9 p.m. on 15 March 2016, PC14571 (PW1) saw a lorry parked outside the unloading area of the market at Wo Mun Street.  Three males alighted from the lorry and went to the back of the lorry.  Of these three males two were South-Asian males and one was a Chinese male.  The appellant was one of the South-Asia males, and he was wearing a blue shirt.  Another South-Asian male (“X”) was wearing a green shirt.

7.  Whilst at the back of the lorry X controlled the tailboard, and the appellant went up onto the tailboard.  The appellant then pulled out from the lorry a yellow pallet truck with 20 foam boxes on it.  The tailboard was then lowered. The appellant and X pushed the 20 boxes to the unloading area of the market. The appellant was pulling the pallet truck while X was pushing it.  PW1 then lost sight of both the appellant and X.

8.  At about 9:08 p.m., PW1 saw the appellant and X come back out of the market with the pallet truck and there were no boxes on the pallet truck.  The appellant and X then went to the rear of the Lorry.  This time X went onto the tailboard whilst the appellant pushed the button to raise it.  X took out seven foam boxes from the lorry, after which the appellant lowered the tailboard.  Together they pushed the pallet truck to the unloading area of the market.  PW1 then informed PC15403 (PW2) and PC 15482.

9.  On receiving information from PW1, PW2 and PC 15482 went to the carpark of the market.  PW2 saw two South-Asian males whose appearance and clothing matched the descriptions given by PW1. 

10.  PW2 and PC 15482 followed the appellant and X.  PW2 saw the appellant who was wearing a blue shirt pull the pallet truck whilst X was holding the goods on it.  PW2 followed them as they entered the corridor of the elevator entrance.  When PW2 and PC 15482 went to the elevator, they did not see the two males, but the display panel of the elevator showed that it stopped on the 1^st floor.

11.  PW2 and PC 15482 then entered the elevator and went up to the 1^st floor where they saw the appellant and X waiting in front of the elevator.  The appellant was pulling an empty pallet truck.  The appellant and X were intercepted.  The appellant was wearing a blue shirt, black pants and a pair of wellington boots.

12.  PW2 then took the appellant to the lorry.  PW1 identified the appellant as one of the two South Asian males whom he had observed earlier.  The appellant took out a backpack from the passenger seat of the lorry.  PW2 arrested the appellant at about 9:20 p.m.  During the investigation, the appellant brought PW2 to where he unloaded the goods.  There were foam boxes and containers which contained vegetables. 

The Defence case

13.  The appellant elected not to give evidence.  The defence case was that the appellant was not working, he was waiting for a taxi when he was arrested. It was a case of mistaken identity.  He called Raza Ali as his defence witness (“DW”).  At the time the appellant was going to see DW’s flat that night to see if he could rent DW’s flat.  At around 7 to 8 p.m., the appellant called DW and told DW that he was going to the flat.  The appellant later went to somewhere in Fanling where DW asked him to take a taxi to Sheung Shui bus terminal where he would pick up the appellant.  The appellant however did not turn up and DW could not reach him.

The magistrate’s findings

14.  The issues before the Magistrate was whether the appellant was correctly identified as the South-Asian male whom PW1 and PW2 observed and whether he was under employment.  In determining the issues, the magistrate had carefully considered and analyzed the evidence of the prosecution witnesses.  He was satisfied that both PW1 and PW2 were honest and reliable witnesses.  He rejected DW’s evidence. 

15.  Taking into consideration the facts that the appellant was seen removing and delivering vegetables from a lorry at an unloading bay near the market and then delivering them to the market at night twice, the magistrate concluded that the only irresistible inference was that the appellant was being employed at the material time.

Grounds of appeal

16.  The appellant who was acting in person reiterated his defence.  He denied he was the person working.  He submitted that he was mistakenly identified as the person working. 

17.  He recited the points raised in his defence counsel’s closing submissions at trial.  Those being that PW2 was an unreliable witness as he had a faulty memory.  As for PW1 he had wrongly identified the appellant as the one who was delivering vegetables. 

18.  The thrust of his grounds of appeal was that the magistrate erred in finding the prosecution witnesses credible. 

Discussion

19.  I turn first to deal with the identification of the appellant.  The issue here is if PW1 and PW2 correctly identified the appellant as the person delivering the vegetables.

20.  The appellant submitted that during the time of observation it was dark and thus he was wrongly identified by PW1 as the person delivering the vegetables.  The magistrate was alive to the fact that the observation took place at night.  He however accepted PW1’s evidence that there was sufficient street lighting to see the appellant. 

21.  The magistrate was satisfied that when PW2 bought the appellant back to the lorry this was shortly after PW1’s observation of the appellant.  PW1 had clearly remembered the clothing, build and appearance of the appellant.  PW1 confirmed that the appellant was the same person he had observed earlier on and was the one wearing the blue shirt.  He was satisfied that PW1 and PW2 had observed the one and the same person which was the appellant.

22.  Regarding PW2, the appellant complained that he had a faulty memory.  The magistrate dealt with the memory of PW2 when he said this[3]:

“Regarding PW2, defence complained he has faulty memory. It relates to the identification documents. During examination-in-chief, he said defendant took out his recognizance form from the backpack. PW2’s witness statement record the same. However, under cross-examination, PW2 confirmed defendant’s identification was brought to police station later. PW2 honestly accepted his mistake. This does not affect his honesty. I find it is minor in detail and the discrepancy would not affect his reliability. ……

I have carefully considered PW2’s evidence: he honestly accepted his own mistakes and defence complaints are minor details in this case. The focus of his evidence, where he saw two males, including defendant, pulled the pallet truck and boxes and later intercepted with pallet truck without boxes, was not affected by any inconsistency or contradiction. His evidence was also supported by PW1’s evidence that two people were moving goods with a pallet truck at night in the market. PW1 also confirmed one of the two males intercepted by PW2 was the defendant”.

23.  The magistrate had given careful consideration to this inconsistency.  He was entitled to accept it was minor and one that did not affect PW2’s reliability.  I find no error in the magistrate’s assessment of PW2. 

24.  The issue of credibility is a question of fact.  The credibility and reliability of any particular witness is solely within the assessment of the magistrate.  It is only where the findings of the magistrate are shown to be plainly wrong that the conviction can be rendered unsafe or unsatisfactory. 

25.  The magistrate had the advantage of seeing and hearing the witnesses.  He was in the best position to assess the credibility and reliability of the witnesses.  I see no justification to go behind the findings of magistrate.  The magistrate was entitled to find that PW1 and PW2 were honest and reliable witnesses. 

26.  In finding PW1 and PW2 to be credible witnesses, I am satisfied that he was fully justified in drawing the irresistible inference in finding that the appellant took employment at Fanling as an odd job worker. 

27.  The conviction is neither unsafe nor unsatisfactory.  The appeal against conviction is dismissed.

Appeal against sentence

28.  The appellant requested the court to have mercy on him and release him immediately.  He stated that it was drawing close to the end of Ramadan and a festival will be coming up soon.  He sought to be released so that he could speak to his family to make them happy over this important festivity.

29.  The appellant is aged 31.  He came to Hong Kong to seek refuge because he was involved in a life endangering land dispute in Pakistan.  He is a torture claimant.  He was of clear record. 

30.  In sentencing the appellant the magistrate considered the relevant authority of HKSAR v Usman Butt & another [2010] 5 HKLRD 452.  The Court of Appeal laid down the guideline sentence of 15 months upon a plea of guilty in relation to section 38AA offences. 

31.  There were no mitigating factors to reduce the starting point put forward.  The appellant’s grounds for his early release are unmeritorious. 

32.  The appellant was convicted after trial as such the correct starting point to be adopted is one of 22 months and 2 weeks’ imprisonment.  The sentence imposed by the magistrate was in accordance to the guideline.  The sentence is neither manifestly excessive or wrong in principle.

33.  The appeal against sentence is dismissed.