HKSAR v. AHAMED LEBBE, SAFIN

HCMA 651/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 651 OF 2016

(ON APPEAL FROM STCC NO 1310 OF 2016)

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J U D G M E N T

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Introduction

1.  On the 15 November 2016 the appellant was convicted after trial of one charge 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 Immigration Ordinance, Cap 115.  The appellant was sentenced to a 22 months and 2 weeks’ term of imprisonment.  He now appeals against conviction.

Background

2.  The prosecution alleged the appellant was seen working inside a scrap metal or recycling yard when he was prohibited from taking up employment whilst released on an immigration recognizance.  The magistrate found beyond reasonable doubt the appellant was working and inferred he was employed to convict him as charged.  The defence case was that he was an innocent bystander framed for the offence.

The Issue

3.  The issue here is the credibility of the witnesses and the reliability of their evidence.

Admitted Facts

4.  The appellant entered Hong Kong in September 2006 unlawfully.  He surrendered to the Director of Immigration in June 2007 and released on recognizance in July 2007.  A removal order was issued by the Immigration Department against the appellant in 2014 and served on him on 10February 2014. It remained in force on the date of this offence, 11 April 2016.  On 7 April 2014 the appellant was released on recognizance. The appellant agrees he was well aware of the fact he was prohibited from taking up employment.

The Prosecution Case

5.  On the 11 April 2016 at around 12:10pm, the police with immigration officers conducted an operation in the area of Shun Wan Road, Tin Shui Wai, New Territories.  Prosecution witness PW1, a police officer heard noise of machinery and activity inside a recycling yard there and went to a higher position to peer into the premises.  He saw evidence of a recycling scrap yard.

6.  PW1 saw the appellant wearing denim jeans and wellington boots paving the ground with cement using a shovel and rack.  He said he watched the appellant use a shovel to shovel cement made up in the forklift truck scoop and place it on the ground.  The appellant then used the rake to spread the cement out.  He did this twice.  PW1 was about 15 meters away from the appellant at the time with a clear view of him and what he was doing.  PW1 then entered the yard and intercepted the appellant as he worked.  He found no person responsible for the yard.  The photos exhibit P5 clearly depict the yard, its contents and the appellant stood in boots next to fresh cement spread over the ground.

7.  This joint operation was on a large scale targeting this area, there were many officers and vehicles there; other arrests were made. PW1’s evidence was that in this particular recycling yard only the appellant was arrested.

The Defence Case

8.  The defence case was that the appellant was framed for this offence.  He had a pelvis or hip injury and said bathing or swimming in a waterfall near this area was good for his injury.  He was on his way there to bath in the waters that day with a friend, his defence witness (“DW”). They took a bus to the remote area and then had to walk some distance to the waterfall.  There are many photos of the route they took to the waterfall in exhibits D1 and D2 but none of the waterfall itself.  They had to walk past this recycling yard.  At some point he and his friend split up so he could go and buy some beers.  His friend went to the waterfall first. He bought beers but was intercepted by officers in uniform.  He was asked for his identification papers and taken inside the yard along with a Chinese male also intercepted.  He was framed for this offence.  He was not in the recycling yard at the material time nor had he taken up employment there.

9.  The defence witness gave evidence of their trip to Tin Shui Wai to bathe in a waterfall.  They spilt up when the appellant went to buy beer whilst he went to the waterfall on his own.  He was carrying the appellant’s clothes.  He waited there for half an hour and then tried the appellants mobile.  When the appellant did not answer he went home without going to look for the whereabouts of the appellant.

The Magistrate’s Findings

10.  The issues here relate to the credibility of the witnesses and the weight of the evidence; both being questions of facts 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”.

11.  The magistrate accepted the evidence of PW1.  In a careful assessment of the evidence and submissions made he found PW1’s observations of the appellant in the recycling yard credible and believable.  He did not accept there was an attempt to frame an innocent as suggested.  He analyzed the evidence in detail and gave reasons why he accepted PW1’s evidence; finding him reliable.

12.  In particular, he said the photographs taken by PW1, exhibit P5, show the appellant stood next to wet cement, wearing footwear suitable for working with cement and the tools used.  They support his observation of the appellant laying wet cement on the ground.

13.  Likewise, for the appellant’s evidence he gave reasons why he did not believe him.  He carefully assessed his evidence, the evidence of his witness DW and found it to be incredulous and rejected both their evidence.

14.  He found their evidence contradictory on an important fact; where were they when they split up.  The appellant said at the bus stop they split up but the defence witness said they walked a kilometer before they split up pointing to photo 14 of exhibit D1 as the location where the appellant turned back to buy beer.

Grounds of Appeal

15.  In his written and oral submissions, the appellant repeated the defence presented during the trial.  He reiterated he was not working at the yard and was only walking near it when intercepted and framed.  He said that PW1 was not the officer who arrested him nor did he take the polaroid photographs exhibited as P5.  The appellant felt aggrieved because PW1 was not the arresting officer so he did not accept his evidence.

Considerations of the Grounds and Submissions

16.  I do not find the magistrate erred in concluding the evidence of PW1 was safe and reliable.  He had the advantage of observing firsthand the witness giving evidence.  He was in the best position to assess PW1’s evidence and from the papers I find he did it carefully.  He accepted it as a fact it was PW1 who observed, then arrested and photographed the appellant.  I see no error in this finding and like him I find no reason not to believe the evidence of PW1.

17.  The magistrate drew the irresistible inference based on facts he found proved the appellant was working in the recycling yard and was employed at the material time.  In paras 16 to 20 of his statement of findings he sets out the facts he relies on to draw that necessary inference.  He was referred to the authority HKSAR v Ferosh, FACC 2/2014 by defence counsel and the magistrate went on to correctly distinguish it from the facts of this case he found proved here.

18.  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.

19.  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.