HKSAR v. BAIN, GENARO OLIVA

HCMA50/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 50 OF 2009

(ON APPEAL FROM STCC 7411 OF 2008)

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J U D G M E N T

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1. The appellant was charged with an offence contrary to section 41 of the Immigration Ordinance, Cap. 115.  This is an offence which is generally described as being “in breach of a condition of stay”.  The appellant, a domestic helper was pursuant to the terms of his contract of employment, required to work only at the premises of his employer at Flat 2404, 24/F, Block B, Kai Tin Towers, Lam Tin in Kowloon.

2. He pleaded not guilty to the charge and was acquitted after a trial before Mr W.C. Li Magistrate.  On the day of his acquittal, counsel on his behalf applied for an order that the prosecution pays his costs of the trial.  The magistrate refused that application and this is the appellant’s appeal from his refusal to make an order for costs. 

3. The prosecution’s case in the trial was that on 29 May 2008, the appellant was employed as an odd job worker in the vicinity of the Shui Wo Street Municipal Services Building in Kwun Tong.  If that allegation was correct then he was in breach of his condition of stay in Hong Kong. 

4. When the magistrate refused the application for an order for costs, he said “that the appellant had brought suspicion upon himself by his conduct”.  In his written reasons dated 12 January 2009, which were prepared after the notice of appeal was filed, the magistrate confirmed that the appellant by his conduct has brought suspicion upon himself adding that the conduct of the appellant on the face of it cried out for an innocent explanation which was not forthcoming.  In addition to that he said that the appellant’s acquittal was “technical in nature” inasmuch as there was no direct evidence that what the appellant was doing was in the nature of employment. 

The prosecution’s case

5. The prosecution’s case was that on 29 May 2008 in Shui Wo Street, Kwun Tong, officers from the Immigration Department observed the appellant to be packing vegetables into foam boxes which he then loaded onto a nearby lorry.

6. As it transpires, those officers assumed that he was there employed to do that.  They approached the appellant after having observed him for a short period of time and requested that he produce his identify card, which he did.  It was established that he was a domestic helper.  He was then arrested on the premise that he was in employment in breach of his condition of stay.

7. In appears that the evidence of the immigration officer was to this effect, nothing more, nothing less.  There was no other admissible incriminatory evidence against the appellant.  The evidence of the immigration officer was simply that of observing him packing vegetables into the foam boxes and placing those into the lorry.

8. The appellant elected not to give evidence in the trial and the magistrate acquitted him (quite properly, in my opinion, having read the transcript of the evidence).  The only evidence, as the magistrate said, was that the observation of the appellant’s packing vegetables was for a period of some 10 minutes or so.

9. It is apparent from the exchanges between the magistrate and Mr Wong (who was the counsel for the appellant in the trial and before me) that the magistrate was not satisfied beyond a reasonable doubt that the appellant was employed on that day at that site.  The magistrate accepted in these exchanges that the appellant’s acts as described by the immigration officers were insufficient to establish beyond a reasonable doubt that he was there in employment. 

10. The magistrate said of the prosecution’s case :

“All it is, you saw the man moving vegetable from the ground from plastic baskets in the foam boxes and then from there onto the lorry for 10 minutes.  He was not asked, when there’s every opportunity for the officers to say ‘what are you doing?’  He could have said anything.  I mean, the defendant could have said anything, or he might have remained silent.  I don’t know.”

11. The magistrate’s concern was that the immigration officer did not ask the appellant whether or not he was there being employed.  They assumed he was but that was insufficient to establish the offence as the magistrate quite properly realised.  There could well have been an innocent explanation for his action.  There may well have been an incriminatory response.  But the simple fact of the matter was that the questions weren’t asked then and there and absent any other evidence the essential elements of the offence were not established.  The magistrate concluded the evidence was sufficient to establish a prima facie case but no more.

12. Given the above, it is difficult to see how the magistrate concluded as he did when refusing the application for costs, that the appellant had brought suspicion upon himself by his conduct.  If the evidence of the observation was insufficient absent other evidence to establish that he was employed then it is difficult to see how his not giving an explanation, when he wasn’t asked to give one, could amount to bringing suspicion upon himself.

13. When acquitting the appellant the magistrate indicated that his behaviour on that day was highly suspicious and that this was compounded by his not proffering an explanation when he had every opportunity to do so.  However almost immediately after this observation the magistrate emphasizes that he was not then and there asked to do so. 

14. In refusing the application for an order for costs the magistrate said this :

“I refuse costs, there’s no reason, no reason for the defendant to be doing what he was found doing.  There can’t be any explanation for it.”

This is in direct conflict with the magistrate’s earlier observations to the effect that the appellant was not asked to explain what it was that he was doing.  As it transpired, the undisputed evidence, as I understand it, was that the appellant was asked what he was doing and his reply was that he was loading vegetables.

15. In effect the magistrate has refused the appellant his costs because he has exercised his right to silence and that by this has brought suspicion upon himself.

16. Two matters are significant in this regard.  First, the appellant, as the magistrate found, was not given the opportunity at the scene to comment.  Second, the circumstances where an accused may properly be said to have brought suspicion upon himself by not proffering an explanation for his presence or conduct which may be said objectively to be suspicious absent such an explanation, must be very rare indeed.  As McMahon J said in HKSAR v. Tsang Chun Chiu William, HCMA403/2002 at paragraph 14 :

“… In seems to me to be difficult to describe a defendant who merely has not revealed his defence prior to trial, as unreasonably having brought suspicion upon himself or as having misled the prosecution in any way into thinking their case was stronger than it really was.  A defendant is generally entitled not to reveal his case …”

Nothing said or done by the appellant can possibly be said to have unreasonably brought suspicion upon himself.  Neglecting to voluntarily offer an explanation for his presence that day did not bring suspicion upon himself in the circumstances of this case.

17. In the present case, the appellant did not exercise his right to silence as he was entitled to.  He was not given the opportunity to do that.  Whilst the appellant subsequently exercised his right to silence at the police station, the exercise of that right and the document with respect to that, did not form part of the evidence in the trial before the magistrate.  The magistrate was entirely focused quite properly upon the evidence which was before him.

18. It is in this regard that it is proper to observe that nothing said or done by him at the time of his arrest could be said to have brought suspicion upon himself or to have misled the prosecution in any way. 

19. A failure on the part of the prosecuting authorities to properly investigate an offence, as this is in effect what the magistrate found, does not disentitle an accused from his costs when he is acquitted. 

20. To be guilty of the offence charged the prosecution were required to establish that the appellant was employed at the location where he was arrested.  Whilst his actions of loading the vegetables into the boxes and thereafter onto the lorry for some 10 minutes or so might be sufficient to raise a suspicion that he was employed, it would not have been in this case an irresistible inference that he was so.  More was required. 

21. As to the suggestion by the magistrate that the acquittal of the appellant in the trial was “technical in nature”, the magistrate said this :

“The burden was on the prosecution to satisfy the court beyond all reasonable doubt that the work that the appellant was doing was in the nature of employment.  I gave the benefit of the doubt to the appellant that the work might not be in the nature of employment given the short period of time in the observation.”

22. With respect to the magistrate that is not an acquittal based on a technicality.  It is an acquittal based on the premise that the prosecution cannot establish an essential element of its case.  To suggest that this appellant should be deprived of his entitlement to his costs for these reasons is untenable. 

23. In the circumstances the appeal is allowed.  I will order that the appellant be paid the costs of the appeal and below in a sum to be agreed and if not agreed, to be taxed.