HKSAR v. TOP, BAHADUR CHAND

HCMA776/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 776 OF 2010

(ON APPEAL FROM STCC 2845 OF 2010)

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J U D G M E N T

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1.  On 1 September 2010, the appellant was convicted after a trial before Miss L.K. Loh, Magistrate of an offence of taking employment whilst being a person in respect of whom a removal order was in force which is an offence contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap. 115 (“The Immigration Ordinance”). He was sentenced to be imprisoned for 18 months.

2.  This is his appeal against his conviction.

3.  The appellant is a Nepali national.  It was an admitted fact that after he first arrived in Hong Kong on his Nepali passport he was permitted to remain as a visitor until 19 October 2004.  It was also an admitted fact that he did not leave Hong Kong on that day, and on 29 June 2006 was arrested for overstaying.

4.  On 28 November 2006, a Removal Order was made against the appellant under section 19(1)(b) of the Immigration Ordinance and a recognizance with respect to the Removal Order was entered into by him on 17 July 2007.  It was an admitted fact that he was aware that he was not permitted by reason of that recognizance from taking up any employment, whether paid or unpaid.  That Removal Order was in force on 1 June 2010.

5.  The offence alleged took place on 1 June 2010 at premises described as the Shangri-La Curry House which was located at the ground floor of 114 On Ning Road in Yuen Long (“the restaurant”).

6.  The evidence was that at about 9 p.m. a party of Immigration Officers went to these premises.  They did so intending to check on the immigration status of some of the employees.

7.  PW1 who was the 1^st immigration officer who gave evidence said that at about 8:55 p.m. on that evening, he together with PW2 entered the kitchen of the restaurant.  He saw the appellant kneading dough in front of a shelf, and on this shelf was a bowl of flour and several other pieces of dough.

8.  PW1 asked the appellant for his identification documents.  The appellant’s immediate response was to remove his apron and then take out the recognizance paper from his trouser pocket.  Given that PW1 had observed that the appellant was employed in the premises at that time he was immediately arrested.

9.  PW2 was also an immigration officer who was present in the kitchen of the restaurant with PW1 and the appellant.  His responsibility, as it transpired, was to take photographs of any persons who was arrested.  PW1 said that because the appellant had been wearing the apron when first observed, he instructed him to put it back on before photographs were taken of him in the kitchen of the restaurant.

10.  Subsequently the appellant was taken back to Immigration Department premises at Kowloon Bay.  Further photographs of him wearing the apron were taken there.  He was interviewed under caution with the assistance of a Napali interpreter.  It suffices to say for the purposes of this appeal that he denied that he was employed in the restaurant that evening and said that he had gone there to visit a friend.

11.  The defence case in the trial was that the Immigration Department Officers had fabricated their evidence against the appellant.  In particular it was put to PW1 that he had not observed the appellant as he had said in his evidence, but in fact that the appellant was simply standing in the kitchen and that PW1 had instructed him to put the apron on for the express purpose of framing him for the offence that he was ultimately charged with.

12.  It was the defence case that in the course of the appellant being photographed by PW2, the restaurant owner entered into the kitchen saying words to the effect that : “He [the appellant] is not working here, why you put the apron on him?”  This was denied by PW1 and PW2.  Neither the appellant nor the person who is alleged to have made that statement were called to give evidence in the defence case.

13.  The evidence of PW1 and to a lesser extent PW2, was the subject of extensive and far ranging cross-examination.  At the heart of that cross-examination was the suggestion that the evidence of PW1 was a fabrication and that he and PW2 had in effect put their heads together to ensure that they gave evidence consistent one with the other.

14.  The magistrate was clearly alive to the significance of truthfulness of the evidence of PW1, and to a lesser extent of PW2.  It was apparent from the exchanges which occurred in the course of the cross-examination of these witnesses that the appellant’s case was that these officers were untruthful and unreliable.  The magistrate in the final analysis concluded that this was not so.  She was satisfied that all of the prosecution witnesses and, more particularly PW1 and PW2, were truthful and reliable witnesses.

15.  In the course of this appeal much of the material before the magistrate has been re-visited.  I have had the opportunity of reading the transcripts of the evidence of all relevant witnesses, including their cross-examination.  I have had the advantage of seeing the written submissions which were placed before the magistrate at the conclusion of the trial.  I have been referred to those matters which are said would justify a conclusion (which the magistrate did not reach) that there must be a lurking doubt about the evidence of the prosecution witnesses.

16.  It is apparent to me that there was before the magistrate an abundance of material upon which she could conclude that the appellant had committed this offence.  The magistrate was clearly alert to the fact that the prosecution case was almost entirely dependent on the evidence of PW1.  She concluded that he was a truthful and reliable witness and the process by which she reached that conclusion is to my mind in the main part unimpeachable.

17.  One criticism which is made by Mr Wan requires me to address it more specifically and that is this.  At one point, towards the end of the trial, the magistrate was asked to examine the apron which the appellant was alleged to have been wearing when first observed by PW1.  This was done because the assertion then being made was that had the evidence of PW1 been correct then the apron should have borne marks of flour or oil or both at the place where he took it from his neck.

18.  The magistrate in response to this speculative submission made on the appellant’s behalf made reference to the fact that people who would be familiar with the use of pastry might or might not expect to see marks of this nature. The criticism being made is that the magistrate has taken on board her own experience of these matters.

19.  I am satisfied that this was an observation which was made in response to the speculative submission made by the appellant’s counsel (there was no evidence to justify that speculation).  I am satisfied that the magistrate when she addressed this matter was not addressing it in the context of evaluating the evidence of PW1.  It may have been better to not engage in this dialogue because the submission itself was without merit.  Nevertheless I am satisfied there is no justifiable criticism because of this.  It does not in any manner or form in my opinion undermine the magistrate’s assessment of the evidence of PW1.

20.  The substance, of the grounds of appeal is that the magistrate should have determined that there was a lurking doubt in the prosecution case.  She had no such doubt.  Nor do I.

21.  Having read the transcripts of the evidence I am satisfied that the verdict was entirely proper.  I have considered with care the submissions made by Mr Wan on the appellant behalf.  Nevertheless in the final analysis I am satisfied that the conviction is neither unsafe nor unsatisfactory and the appeal is dismissed.