HKSAR v. OSMAN GONI AND ANOTHER

HCMA 745/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIAVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 745 OF 2012

(ON APPEAL FROM STCC 3971 OF 2012)

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J U D G M E N T

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BACKGROUND

1.  The 1^st Appellant, Osman Goni (D1) was convicted after trial at Shatin Magistrates’ Court on 12 October 2012 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”, contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance, Cap. 115 (the Ordinance).

2.  The 2nd Appellant, MD Monir Hosen (D2) was tried at the same time as D1 but, in his case, he was convicted of: “Taking employment while being a person in respect of whom a removal order is in force”, contrary to sections 38AA(1)(b) and 38AA(2) of the Ordinance.

3.  The facts could hardly have been more straightforward.  These arose from the arrest of D1, D2 and two others at the scene of an apparently derelict metal shed close to an abandoned stone house. It was alleged that the four men, all originally from Bangladesh, were removing sheets of corrugated metal and taking them away from the shed in the course of employment.

4.  The other two arrested men were Ferosh who, for present purposes I shall refer to as D3, and Hossein Arif to whom I shall refer as D4.  They were each charged with an offence under sections 38AA(1)(a) and 38AA(2) of the Ordinance, the same as D1.

5.  Straightforward though the case was in the factual sense, the way it has been handled in the past reveals a complete shambles.  It may be that the prosecution and the courts must together share the blame for this.  I shall not attempt to identify where the blame lies but, for reasons of which I am not entirely certain, the trouble started when D4’s case was somehow allowed to proceed separately.

6.  If, as I am led to believe may be what happened, D4’s case was not immediately ready for trial because of some injury he had received whereas the other cases were ready to proceed, this was not, in itself, a satisfactory reason to split the trials.  The evidence of a joint enterprise was, for all practical purposes, identical against all the defendants and the danger of inconsistent verdicts arising from separate trials should have been foreseen and avoided.

7.  In the event, this is exactly what happened.

THE 1^ST TRIAL

8.  I will deal with the trials in the order they were heard.

9.  The first trial at Shatin Magistrates’ Court of D1 and D2, together with D3, before Ms Merinda Chow was concluded on 12 October 2012.

10.  The learned magistrate decided that “there was simply no good reason for [the defendants] to be [near Lampost EB5942, She Shan Tsuen, Lam Kam Road, Tai Po], except to work for money”.  She accepted as truthful the observation evidence given by the police and she rejected the claims of the defendants that they were only in the area because “they each had their own reason to move away from their current place, either because of increase of rent or personal preference”.  Hence, D1 and D2 together with D3 were convicted after the magistrate had referred to the relevant law and had drawn an inference that employment in the legal sense had been established.

THE 2^ND TRIAL

11.  The 2^nd trial involving D4 alone, was heard at Shatin Magistracy on 8 November 2012, less than a month after the first trial.  The case came before Mr David Cheung Chi Wai who, having heard the evidence against D4, acquitted him.  His basis for doing so was that, while he believed the evidence given by the police and disbelieved D4’s account as to his reason for his presence at the scene, he found it impossible to draw a “sole and irresistible reasonable inference” that “employment” had been established. In saying this, the learned magistrate had in mind the well-established principle enunciated by P Chan  J in The Queen v Ip Po Fai [1996] HKEC 1056 namely, that “it is clear that working at a place per se is not employment although, in the absence of other evidence, one may draw the necessary inference”.

12.  The prosecution had not produced any evidence about the ownership of the shed from which the sheets of metal were being taken and there was no direct evidence of any kind that the four men had been assigned to demolish the shed.  In such circumstances, the magistrate found that there were a number of possibilities which might provide an innocent explanation for what the men were doing, particularly if the shed had been abandoned.  Quite rightly, he was not prepared to speculate and, giving D4 the benefit of the doubt, he acquitted D4.

THE 1^ST APPEAL

13.  As if it were not bad enough already that three defendants (D1, D2 and D3) had been convicted on the same evidence that D4 had been acquitted, the case now took a further turn for the worse as it entered the appeal stage.

14.  Again, for reasons which may not be entirely clear, the appeal by D3 against conviction was allowed to proceed on its own before McWalters J on  1 March 2013 despite the fact that the appeals of D1 and D2 were listed on the same day.  It may well be that this severance of the appeals was due in part to applications for an adjournment by D1 who was seeking legal representation and by D2 who was seeking to adduce additional evidence on his appeal whereas D3’s appeal was ready to proceed.  In any event, for reasons I shall come to, with respect, these appeals should never have been allowed to be split.

15.  In the event, D3’s appeal against conviction (also HCMA 745/2012) was dismissed.

THE PRESENT SITUATION

16.  In the present proceedings, therefore, we have reached the stage where D3’s conviction has been confirmed on appeal, D4 has been acquitted on the same evidence and I am now faced, on the same evidence, with the appeals of D1 and D2 against conviction.

THE UNDESIRABILITY OF SEPARATE PROCEEDINGS FOR JOINTLY CHARGED DEFENDANTS/APPELLANTS

17.  If nothing else, this case highlights the very considerable importance which the Courts have constantly tried to emphasise that, in the absence of really powerful reasons (such as serious illness on the part of a defendant which is likely to lead to substantial delay in the trial of co-defendants), cases in which the evidence is common to all defendants should as a general rule be tried together.

18.  It is obvious that if joint trials, or appeals for that matter, are split, save where there are sound reasons for ordering severance, there is every chance that inconsistent results may occur, both as to conviction and sentence.

19.  Simply for ease of reference, this principle is covered in Archbold Hong Kong 2013 at paragraph 1-177 under the heading: “Severance as between defendants”.  The  relevant passage reads :

“In R v Moghal 65 Cr App R 56, CA (an appeal based on the fact that separate trials had taken place), it was said that it is only in exceptional cases that separate trials should be ordered for two more defendants who are jointly charged with participation in one offence. Similarly, it was said in R v Lake (1977) 64 Cr App R 172 at p 175, CA, that it has been accepted for a long time in English practice that there are powerful public reasons why joint offences should be tried jointly; the importance is not merely the saving of time and money; it also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence; if joint offences were widely to be tried as separate offences, all sorts of inconsistencies might arise; accordingly, it is accepted practice that a joint offence can properly be tried jointly, even though this will involve inadmissible evidence being given before the jury and the possible prejudice which may result from that; the practice requires that the trial judge should warn the jury that such evidence is not admissible as against a particular defendant or defendants. The court recognised that there could be exceptions to the general practice and that the application of general principles will be affected by the facts of individual cases. Observations to similar effect were made in R v Josephs and Christie 65 App R 253 at p 255, CA.”

20.  The same principle extends to defendants who plead guilty to the charge or charges they face when jointly charged with others.  The passage at paragraph D 12.77 in Blackstone’s Criminal Practice 2013 is helpful in making the point that sentence should normally be adjourned until the conclusion of the trial of any co-defendant who pleads guilty and in providing a clear exposition of the reasons for this.  It reads:

“Mixed Pleas from Co-accused

Where there are co-accused, one of whom pleads guilty and the other not guilty, normal practice is to adjourn sentencing the former until after the trial of the latter. In the event of a conviction, they can then both be sentenced together. The desirability of co-accused being sentenced on one occasion by the same judge has frequently been stressed. Separate sentencing may lead to unacceptable disparity in the ways they are respectively treated. Also, the judge will hear, during the course of the trial of the accused pleading not guilty, evidence indicating the gravity of the offence charged and the extent of each accused’s role in it, which information may ultimately assist him in sentencing the one pleading guilty.

The above principles were stated by Lord Goddard CJ in Payne [1950] 1 All ER 102, when he said:

‘[Where several persons are indicted together, and one pleads guilty and the other or others not guilty] the proper course is to postpone sentence on the man who has pleaded guilty until the other have been tried and then to bring up all the prisoners to be dealt with together because by that time the court will be in possession of the acts relating to all of them and will be able to assess properly the degree of guilt of each.’

A still stronger statement of the same principle occurs in the judgment of Boreham J in Weekes (1980) 74 Cr App R 161, where he said:

‘Here are made manifest the difficulties that arise when persons involved with others are sentenced before the full facts have been heard, particularly where a trial is to take place, as it was to take place here…. There may be exceptions but generally it is clearly right, it is clearly fairer and it is better for both the public and all the defendants concerned, that all are sentenced at the same time by the same court whenever that is possible.’ ”

21.  An example of these principles being applied in Hong Kong is to be found in R v Chan Kwok-hung [1996] 4 HKC 559.

22.  Turning now to the appeal stage in the present case, with the greatest respect to those involved in the decision to allow D3’s appeal to be heard separately from the appeals of D1 and D2, the same principles must again apply if inconsistent verdicts and disparity in sentencing are to be avoided.  It is for those very reasons that joint appeals are almost never, except in the most dire of circumstances, severed.  Severance not only wastes the time of the court by doubling the work, turning a single appeal, as here, into two appeals, it is not inconceivable that a different court will disagree with the result arrived at by an earlier court even though the essential evidence on which the alleged crime is based in each case is indistinguishable.

ASSESSMENT OF THE PRESENT APPEALS

23.  This is now the fourth time a court has examined the facts of this case, two at first instance and two at the appeal stage.  The inconsistency which has arisen as between D4 who was acquitted and D3 whose conviction has already been confirmed on appeal is glaring and most unfortunate.  Such a situation can only lead to a deeply felt grievance on the part of D1, D2 and D3 as they will almost certainly realise that, if their trial had come before Mr David Cheung at Shatin Magistrates’ Court, they would have been acquitted with D4. 

24.  Mr Andrew Li, for the respondent, argued that the magistrate’s approach to the evidence in D4’s case was flawed and thus had no relevance to these proceedings.  However, I consider that the approach taken by Mr Cheung in the second trial at Shatin Magistrates’ Court to have been unimpeachable.  The prosecution’s case against D1 and D2 and also D3 and D4 may possibly have been well-founded and may even probably have been well-founded.  In neither situation, however, would the standard of proof required in a criminal trial have been achieved as possible or even probable guilt is not the same at all as guilt about which there is no reasonable doubt and as to which the tribunal of fact is able to feel sure.

25.  In the result, so far as these appeals are concerned, and in spite of the able submissions advanced by Mr Li on behalf of the respondent, I shall allow the appeals of D1 and D2 as I am not sure what the facts established.  In any event, they fell short of proving ‘employment’ as the inference that D1 and D2 may have been doing something to benefit only themselves counterbalanced any inference that they were employed by someone to do the work of dismantling a disused and abandoned shed.

CONCULSION

26.  Each of these appeals is allowed.  The convictions of D1 and of D2 are quashed and so also are the sentences which were imposed on them.

27.  I would like to pay tribute to the excellent work done by Ms Kirsteen Lau and Mr S K Li on behalf of these two appellants.  They were instructed by the Bar Free Legal Service Scheme and this case is a shining example of the great benefits which can be derived from the Scheme.

28.  I would like to take this one stage further.  I have already referred to the grievance which inevitably will be felt by D3 who remains convicted on a charge of which his three co-defendants have now all been acquitted.  Without in any way anticipating the result which D3 might have if his case was to go before the Court of Final Appeal on a ground of substantial and grave in justice under section 32(2) of the Court of Final Appeal Ordinance, Cap 484, I consider that I would be failing in my duty if I did not suggest that such a course should be taken, coupled with an expeditious application for bail pending the possible grant of leave before the Appeals Committee.

29.  To this end, it is to be hoped that the Department of Legal Aid will see fit to give legal aid to D3 and to do so as a matter of extreme urgency.  I have no power to order this in these proceedings as D3 is no longer a party to them but I would like to add that if legal aid is given to D3, as I very much hope it will be, the Department should bear in mind that counsel in this case are already well-versed in the facts and the law and have thus far provided their excellent services free.

(M Stuart-Moore) Deputy High Court Judge