HKSAR v. HUSSAIN, MUSTANSAR

HCMA 686/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 686 OF 2016

(ON APPEAL FROM STCC NO 2518 OF 2016)

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J U D G M E N T

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Introduction

1.  The appellant was convicted after trial on one count of Taking employment while being a person who remained in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to s38AA(1)(a) and s38AA(2) of the Immigration Ordinance, Cap 115. He now appeals against his conviction only. 

2.  He was convicted on 24 October 2016 after trial and sentenced on the same date.  He then applied for the magistrate to review her decision and that was heard on 11 November 2016; an application she dismissed. 

Background and Issues

3.  The appellant was seen by police officers getting out of a parked truck and going to the rear of a restaurant.  He collected a pile dirty table cloths and took them away.  Meanwhile, another male unloaded a pile of clean table cloths from the same truck.  They were delivered to the same place and left there.  The dirty table cloths were subsequently loaded into the truck.  The appellant went back to the truck and was intercepted by the police at the rear. His immigration status was revealed.

4.  The issue the magistrate had to decide on related to the credibility of the witnesses.  When she rejected the appellant’s evidence and accepted the prosecution witnesses she then had to decide if the facts added up to the appellant taking up employment.  She did.

The Admitted Facts

5.  It was undisputed (in Exhibit P1) the appellant sneaked into Hong Kong unlawfully in 2015 and has remained here illegally ever since.  He was released on recognizance by the Immigration Department on 2 April 2015.  He was made aware and was aware he was not allowed to take up any paid or unpaid employment in Hong Kong whilst on recognizance.  He produced his recognizance form to PW1 after he was intercepted on 6 July 2016 at about 11:09 am.

The Prosecution Case

6.  The prosecution relied on two police officers, PW1 and PW2, to give evidence of their observations of the appellant on 6 July 2016.  PW2 was on patrol in plainclothes at about 11 am in Yuen Long when he saw two South Asian males alight from a stationary truck on Ma Tin Road.  He was some distance away from the rear of the vehicle.  He was far enough away he could see both driver and passenger alight from their respective doors.  He contacted PW1 and asked for her assistance to observe the men. 

7.  PW2 watched the appellant walk quickly empty handed to the rear lane behind a restaurant.  PW1 saw the man described by PW2 from about 20 metres away as the appellant began gathering and tying up loose and dirty table cloths inside a metal cage by the rear door of the restaurant.  He then pushed the metal cage or cart on wheels towards the direction of the truck. 

8.  PW2 also saw the other male, wearing a turban, unload another cart from the rear of the truck piled high with clean folded table cloths.  He then pushed this cart towards the rear of the same restaurant. 

9.  Then both PW1 and PW2 from their observation points saw the two men meet up between the truck and the rear door.  They were both seen talking to each other.  Then the man wearing a turban took the appellant’s cart and turned back towards the truck.  The appellant took the other cart with clean cloths and pushed it away.  PW1 moved towards the appellant and kept about 5 metres behind him.  He watched the appellant leave the cart in front of Shop 11 Yee Fung Garden and then walk back to the truck (P6 is a sketch of that address, the rear door, the truck and where the carts were pushed).  PW1 followed him and intercepted him at the rear of the truck. 

The Defence Case

10.  The defence case was the appellant went to Ma Tin Road to meet a friend to have lunch.  As it was raining he sought shelter to wait for his friend in the rear lane of the restaurant.  He then saw an old South Asian man wearing a turban limping and pulling a metal cage cart up a ramp.  He, out of kindness, went to help the man with his cart up that ramp.  He was then within moments intercepted by PW1 who accused him of working there.  He denied the observation evidence of PW1 and PW2. 

11.  The defence called Mr Singh Hardev, the male the appellant helped.  Mr Singh said he had a left leg problem and walked with a limp.  He was delivering a cart of clean table cloths to a restaurant.  He was driving the truck, was on his own and had no helper or assistant with him.  He unloaded the cage and started to push it towards the restaurant and a ramp there.  Suddenly the appellant stepped out to help him push the cart up the ramp.  He thanked the appellant and declined his offer to help him further.  He then delivered the cart to the restaurant himself.  He had never met the appellant before.  He too was suddenly apprehended at his truck and taken back to the police station. 

The Magistrate’s Findings

12.  The issues here relate to the credibility of the witnesses and the weight of the evidence; both being questions of fact to be determined by the magistrate.  This appeal is an appeal by way of rehearing on the papers.  The principles relating to a magistracy appeal have been reiterated in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383 by McWalters J (as he then was).  An appellate court will not depart from a magistrates finding as to the credibility of a witness unless it is satisfied that the finding is “plainly wrong”.

13.  The magistrate accepted the evidence of the prosecution witnesses.  In a careful assessment of the evidence and submissions made she found the prosecution witnesses’ observations of the appellant credible and believable.  She did not accept there was an attempt to frame an innocent as suggested.  She analyzed the evidence and gave reasons why she accepted PW1 and PW2’s evidence; finding them reliable.

14.  Likewise, for the defendant’s evidence, the magistrate gave reasons why she did not believe him whilst bearing in mind and warning herself he had a clear record.  She carefully assessed his evidence, the evidence of his witness and found it to be incredulous and rejected both their evidence.  Their recollection of events and actions was too precise for a passing act of kindness that was not of great significance.  This means she suspected they concocted their evidence. 

15.  She did not accept the appellant’s explanation as to why he was waiting in the rain in the rear lane of the very same restaurant he was going to eat in whilst waiting for his friend.  Why not go inside, out of the rain, get a table and wait for his friend? Especially as he had been there before and spoke English.

16.  The magistrate did not find it fatal to the prosecution’s case they did not brush for fingerprints from the carts, not take photographs of the appellant’s handling and pushing the carts nor find any gloves the appellant should have been wearing if doing this type of work. 

Grounds of Appeal

17.  In his oral submissions, the appellant repeated the defence presented during the trial.  He said the observation evidence was not enough to prove he was taking up employment.  He doubted PW2’s ability to see him alight from the truck from his position at a lamppost behind the long and tall truck.  The appellant wondered why the police did not take photographs of him working if they had him under observation for around 10 minutes.  He also doubted they would stand in the rain watching him for as long as that. 

18.  He submitted the lighting in the rear alley was not sufficient under rainy and dull conditions for PW1 to see him properly from a distance of 20 metres. It is possible he is the victim of a mistaken identity.  He highlighted discrepancies in their evidence as far as timings of observation are concerned.  PW1 said she watched the appellant for 2 minutes and PW2 said he had the scene under observation for 10 minutes.  The appellant submitted it was not possible for PW1 to see all she said she saw him do in 2 minutes.  It was also not reasonable for PW2 to describe it as 2 minutes for the appellant and the other man to alight from the truck and not explain why.

19.  He said he was not dressed to work and was wearing a good T-shirt and jeans. 

20.  Lastly the appellant said there was no proof he received any financial benefits or wages.  He said there were no documents found such as delivery notes of table cloths which one would expect in such a service business transaction. 

Considerations of the Grounds and Submissions

21.  I do not find the magistrate erred in concluding the evidence of PW1 and PW2 safe and reliable.  She had the advantage of observing firsthand the witnesses giving evidence.  She was in the best position to assess their evidence and from the papers I find she did it carefully.  She accepted it as proven facts the appellant got out of the truck and then went to collect a cart full of dirty table cloths.  He then took a cart of clean table cloths from another male from the truck and delivered it.  He then returned to the same truck after having delivered it.  I found no legal error in her analyses of the evidence, witnesses and submissions.

22.  The respondent submitted PW2’s position by the lamppost as seen in photographs 3 and 4 of P3 at page 21 of the appeal bundle was clearly far enough to see the sides of the vehicle and the men alight.  PW2 said himself he was not stood stock still, he could move with ease to see more clearly (pages 43S and 44A of the bundle).  I agree and this ground fails.  PW2 was also not asked during the trial why he says he watched the men alight for 2 minutes. 

23.  The respondent also submitted the observation evidence was not hindered by poor lighting conditions.  I agree from the papers identification evidence was good and credible.  The officers were in plain clothes, it was not raining heavily, just drizzling and it was 11 o’clock in the morning.  The officers were obviously close enough to see the appellant clearly and see what he was doing. 

24.  In considering the other grounds of appeal submitted, the clothes of the appellant did not suggest he was not dressed for this type of work.  Timings given are usually an estimate and not precise.  In any event this was not a material issue raised during the trial.

25.  Lastly a lack of gloves, delivery notes or documentation exchanged or delivered by the appellant is not fatal.  This truck was full of carts with clean cloths and clearly delivering them to eateries.  Dirty table cloths would be collected it seems.  This is the business conducted and paperwork would depend on the arrangements made between the parties.  There is nothing in this ground.

26.  From the papers, I find nothing unreasonable or inherently improbable in the findings of the magistrate or that the magistrate has misunderstood or failed to consider any significant aspect of the evidence presented. 

27.  The magistrate drew the irresistible inference based on facts she found proved the appellant was working and was employed at the material time.  In paras 33 to 35 of her statement of findings she set out the facts she relies on to draw that necessary inference. 

28.  She considered the relevant authority R v Ip Po Fai HCMA 1201/1995. Working in a place is not per se employment but “in the absence of any other evidence, it is easy for the court to draw the necessary inference that a person is in employment” (para 34).  The magistrate was satisfied that the sole and compelling inference here on the facts was that the appellant was in employment.  The truck was used for the purposes of collecting dirty linen and delivering clean linen in return.  The photos show more carts laden with clean cloths inside the truck.  There were carts used for the purposes of transporting and collecting linen to be picked up.  The appellant was facilitating this by doing the physical work of changing carts. 

29.  I too am satisfied on the evidence that the only irresistible inference that can be drawn is that the appellant was taking employment and it was proved beyond reasonable doubt.  On the totality of the evidence, it must be the only irresistible inference. 

30.  The grounds of appeal and submissions heard are without merit.  I have assessed the papers and I agree with the magistrate’s findings.  The conviction is not unsafe, unsatisfactory or plainly wrong.  I accordingly dismiss the appeal against conviction.