HKSAR v. BELLAL HOSSAIN

HCMA 267/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 267 OF 2016

(ON APPEAL FROM STCC 4026 OF 2015)

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REASONS FOR JUDGMENT

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1.  The appellant appealed against his conviction of an offence of taking employment while being a person in respect of whom a removal order is in force contrary to section 38AA(1)(a) and 38AA(2) of the Immigration Ordinance Cap 115. At the hearing of the appeal I dismissed his appeal. Below are my reasons.

Issues at trial

2.  There were two issues at the trial.  The first issue was as to the credibility of witnesses, principally whether the appellant was observed to have worked in the recycling depot; and the second issue was whether he took up employment there.

Admitted facts

3.  It was agreed by admitted facts that the appellant is and was at all material times a holder of a recognizance form issued by the Immigration Department (commonly known as Form 8) which prohibited him from taking up any employment in Hong Kong, whether paid or unpaid.  A removal order was issued against him on 20 May 2015 and served on him on 28 May 2015. 

The Prosecution case

4.  The Prosecution case was that on 20 October 2015 at around 1025 hours, WPC 1396 (PW1) and her team were on duty at Shek Wu Wai, Lok Ma Chau, Hong Kong.  There was a recycling depot surrounded by hoardings about two meters tall.  Inside the depot, there was a compactor, a bulldozer, scrap metals and other items for recycling.

5.  At 1030 hours, PW1 saw a South-Asian person (“Male 1”) sitting on the bulldozer, while the appellant and another South-Asian male (“Male 3”) were next to the bulldozer.  Male 1 was operating the bulldozer to move some second-hand waste or scrap metals from one place to another.  Meanwhile, the appellant and Male 3 did the same job, each moving scrap metal from one place to another, which was close to the compactor.  The appellant and Male 2 repeated the same operation over and over again.  The observation lasted for 5 minutes.

6.  At 1035 hours, PW1’s colleagues arrived at the depot.  Another officer (PW2) arrested the Appellant.  After interception, the appellant said that his bag was in a hut inside the depot.  They then went to retrieve the appellant’s bag.

Defence case

7.  The appellant elected to give evidence.  He alleged that on that day, he went to a park in Yuen Long near his residence where he met his friend.  His friend asked whether he wanted to work.  He replied in the negative.  Despite not wanting to work, he still followed his friend to the recycling depot in question.  They went there by minibus.  The journey there took about 20 to 25 minutes.  After alighting from the minibus, they walked for approximately 10 minutes to reach the recycling depot.

8.  Upon his arrival at the recycling depot, the appellant told his friend he was not feeling well.  His friend told him that there was a hut where he could stay.  The appellant then went to the hut to rest.

9.  The hut was located outside the depot however the appellant reached the hut by entering and going through the recycling depot.  The hut was vacant, but had one sofa which he used to lie down on and fell asleep.

10.  After he woke up, the appellant tried to look for his friend, but in vain.  When he walked through the depot, he was intercepted by the police.

Magistrate’s findings

11.  The magistrate[1] accepted the evidence of both the police officers, PW1 and PW2 finding them to be honest and reliable witnesses.  He rejected the appellant’s evidence.

12.  Having considered all circumstances and the facts, the magistrate concluded that the only irresistible inference was that the appellant was working in the recycling depot as an odd-job worker, thereby taking employment while being a person in respect of a removal order which was in force.

Grounds of appeal

13.  Initially at the hearing of the appeal the appellant requested for a reduction of his sentence.  He was however informed that he had abandoned his appeal against sentence and this hearing related to his appeal against conviction only. 

14.  In his oral submissions, he repeated his case he gave in his evidence at the trial.  He reiterated he was not working at the recycling depot.  He was only there with his friend.  He stated that the magistrate erred in accepting the evidence of the observing police officer, PW1.  He contended that there was no evidence whether by photos or video taken of him working at the scene.  If PW1 had really observed him working for about five minutes there should have been independent evidence in support of PW1’s evidence. 

Discussion

15.  Turning to the issue regarding the credibility of witnesses and weight of evidence.  Credibility and weight are questions of fact for the magistrate to determine. 

16.  The magistrate gave a full and careful assessment of the evidence.  He was fully alive to the issues.  He found the prosecution witnesses evidence was not shaken in cross-examination and found them honest and reliable.

17.  The magistrate fully explained why he rejected the evidence of the appellant in its entirety and was well aware that the appellant had a clear record. 

18.  There is no justification for going behind the magistrate's finding on the credibility and reliability of the prosecution witnesses and the rejection of the appellant’s evidence.  He had the added advantage of having seen and heard the witnesses give their evidence.

19.  The magistrate was fully justified in reaching his conclusion as to the credibility of witnesses and weight of this evidence. 

20.  In considering whether the appellant was employed as an odd-job worker the magistrate took into account that the location was a recycling depot.  The appellant was seen moving scrap metal from one place to another next to a bulldozer, which is heavy machinery for recycling work.  He carried this out repeatedly for approximately five minutes.  There were two other males doing similar work as the appellant. 

21.  Despite there being no direct evidence to show any special relationship between the appellant and the recycling depot owner, the magistrate was still entitled to consider all the evidence as a whole and draw an irresistible inference against the appellant that he was employed as an odd job worker. 

Conclusion

22.  On all the evidence before the magistrate he was fully justified in reaching his conclusion that the appellant had been shown to have committed this offence.

23.  In the circumstances the appeal against conviction is neither unsafe nor satisfactory and the appeal is dismissed.