HKSAR v. SAMBALOD, JUNIPHER RASONABLE AND ANOTHER

HCMA 182/2025

[2026] HKCFI 4627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 182 OF 2025

(ON APPEAL FROM STCC 886 OF 2025)

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J U D G M E N T

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Background

1.  The Appellants, Sambalod Junipher Rasonable and Guisinga Marcelino Jr Ganacias, were respectively the 2^nd and 3^rd defendants in the court below. I shall refer to them, as they were referred to at trial, as D2 and D3.

2.  D2 faced charge 2 and D3 faced charge 3. Both charges concerned the same offence, namely “taking employment while being a person in respect of whom a removal order is in force”. The particulars of charges 2 and 3, save for the name of the defendant, were identical, namely that on 4 March 2025, while being a person in respect of whom a removal order was in force, the defendant took employment, whether paid or unpaid, as an odd job worker in Kwai Chung.

3.  D2 and D3 were each legally represented in the court below. They pleaded not guilty to their respective charges. They were convicted after trial and were each sentenced to 22 months and 15 days’ imprisonment.

4.  On 13 February 2026, D2 filed a Notice of appeal against conviction (Form 101), together with a prisoner submission. He subsequently filed his grounds of appeal by a letter to the Court dated 19 March 2026.

5.  On 10 March 2026, D3 filed an application for extension of time for giving notice of appeal (Form 103), together with his prisoner submission. On 14 April 2026, D3 filed a Notice of appeal against conviction (Form 101).

6.  At the appeal hearing, D2 and D3 acted in person.

The Prosecution Case

7.  The prosecution alleged that D2 and D3 took employment by working inside the container of a goods vehicle parked at the loading bay area of an industrial centre in Kwai Chung. The defence case was that there was insufficient evidence to prove that they had taken employment.

8.  At trial, the prosecution and the defence agreed certain facts under section 65C of the Criminal Procedure Ordinance. Those facts included the following.

(A)  In respect of D2:

i.  On 15 November 2017, D2 surrendered to the Immigration Department for overstaying.

ii.  On 8 December 2017, a removal order was issued against D2 and served on him on 19 December 2017. The order remained in force on 4 March 2025.

iii.  On 23 April 2024, D2 was issued with an Immigration recognizance form, namely Form 8.

(B)  In respect of D3:

i.  On 7 July 2014, D3 surrendered to the Immigration Department.

ii.  On 25 July 2014, a removal order was issued against D3 and served on him on 29 July 2014. The order remained in force on 4 March 2025.

iii.  On 7 October 2021, D3 was issued with an Immigration recognizance form, namely Form 8.

(C)  At all material times, D2 and D3 each knew that he was prohibited from taking up any employment, whether paid or unpaid, or from establishing or joining in any business.

(D)  The loading bay area at 1/F, Vanta Industrial Centre, 21-33 Tai Lin Pai Road, Kwai Chung, was referred to as “the Scene”. A heavy goods vehicle loaded with a red container bearing registration mark JD 356 was parked at the Scene.

9.  At trial, the prosecution called five immigration officers, PW1 to PW5, and two Ilonggo interpreters, PW6 and PW7.

10.  The prosecution case concerned an incident on 4 March 2025 at 1649 hours, when immigration officers in plain clothes attended the Scene and observed the said red container containing six non-ethnic Chinese males and parcel boxes.

11.  PW1 said that he saw three males near the rear door area of the container. Two males were carrying a parcel, and a third male was standing beside or near the parcel. PW1 said that the lighting was good, his view was unobstructed, and he observed them from a distance of about five metres.

12.  According to PW1, the males appeared alert during his one-to-two second observation. He then approached them, identified himself, and instructed them to sit down. PW1 intercepted Male 1.

13.  Under cross-examination, PW1 stated that the floor of the container was about one metre above the ground and level with the bay area where he stood. He described Males 1 and 2 as lifting a parcel, while Male 3 was pushing another. He agreed that his notebook recorded that “three of them were loading boxes of goods”. PW1 confirmed that, during his observation, the males neither spoke nor received instructions, and that they had no equipment.

14.  The defence suggested that the lighting was dark, as shown in photograph Exhibit P8. PW1 disagreed and explained that the instant Polaroid photographs appeared darker than the actual scene.

15.  PW2 said that he saw six non-ethnic Chinese males inside the red container. Acting on instructions, he approached Male 2, who was shirtless and was later identified as D2. After PW2 asked D2 in English for an identity document, D2 replied, “paper on 11th Floor”.

16.  PW2 then guarded D2. At 1728 hours, PW2, D2, and another immigration assistant left the Scene. D2 led them to Room 1105 of the same industrial centre. Inside what appeared to be a warehouse, D2 retrieved a Form 8 from a white bag. The unused boxes in the room bore yellow-and-black tape with the ALiN logo, which was identical to the tape on the parcels inside the container. PW2 agreed that a female was present in the room and claimed to be D2’s girlfriend.

17.  PW3 said that at 1649 hours, he arrived at the Scene, entered the red container, and saw six non-ethnic Chinese males inside. At the far end of the container, he observed three males standing on parcels at a higher level and moving one parcel upwards. He said that the parcel measured about 90 cm × 55 cm × 61 cm, and that the lighting was sufficient.

18.  PW3 instructed those three males to stop and crouch. He saw PW4 intercept D3.

19.  PW4 said that he intercepted D3 and asked him in English for an identity document. D3 replied, “my paper in Unit 5 of 11^th Floor”. PW4 and D3 then went to Unit 5 on the 11^th Floor, where D3 retrieved a Form 8 from his bag. Under cross-examination, PW4 admitted that he had mistyped the date as 3 March in his notebook.

Special Issue

20.  The prosecution sought to produce the verbal admission made by D3 at the Scene and the post-recorded notebook of PW4, marked as Exhibit P18.

21.  The magistrate ruled D3’s admissions inadmissible on the grounds that PW4 had failed to caution D3 before questioning him, and that the verbal communication at the Scene was conducted only in English, without the assistance of a Tagalog or Ilonggo interpreter.

Defence Case

22.  Both D2 and D3 elected not to give evidence and did not call any defence witnesses.

The Magistrate’s Findings

23.  In gist, the magistrate accepted the prosecution witnesses as honest, credible, clear and straightforward. He rejected the defence challenges concerning poor lighting, the alleged inconsistency between “loading” and “lifting or pushing”, the omission of the 4:19 pm arrival time, and PW4’s mistyped date. He treated those matters as immaterial.

24.  The magistrate found that D2 and D3 were inside a container at a loading bay, moving large parcels with four other males during normal working hours. He also found that the parcels were heavy, that matching ALiN-logo carton boxes were found in a nearby 11th-floor warehouse, and that D2’s and D3’s bags containing their identity documents were found there.

25.  The magistrate distinguished HKSAR v Ferosh[1], holding that the present case plainly involved a place of employment. He drew a “unique and irresistible inference” that D2 and D3 were employed to work there. He found that both D2 & D3 had taken employment while subject to a removal order, and convicted them after finding that the prosecution had proved the case beyond reasonable doubt.

D2’s Grounds of Appeal

26.  D2 set out his grounds of appeal in a letter dated 19 March 2026. He contended that his conviction was wrongful and was based on insufficient and improperly admitted evidence.

27.  He argued that the prosecution case relied entirely on the observation of PW1, which he said was inherently unreliable due to multiple compounding factors. He further asserted that, on the offence date, he was wrongly arrested while he was topless and waiting for a lift with his girlfriend after leaving a gym in the same building.

D3’s Grounds of Appeal

28.  D3 did not specify any grounds of appeal in Form 101. From his application for extension of time for giving notice of appeal (Form 103), D3 contended that there was insufficient evidence to prove his guilt, as there was no direct evidence that he was working and no employer had identified him as working for them. He further argued that the magistrate had already found the investigation and interrogation of him to be unfair, and that his liberty should not be taken away merely on the basis of a statement.

Respondent’s Submissions

29.  The Respondent’s submissions may be summarised as follows.

30.  The Respondent submitted that the magistrate had the advantage of seeing and hearing the witnesses in court. The magistrate correctly identified the issues in the case and evaluated the evidence in detail. He gave cogent reasons for finding the evidence of PW1 to PW4 reasonable, and for finding all prosecution witnesses reliable and credible.

31.  In respect of D2, the Respondent submitted that his complaints about insufficient evidence and unreliable observation were without merit. PW1’s evidence was materially supported by PW2 to PW4. The magistrate properly rejected the defence challenges concerning the lighting conditions and the alleged inconsistency between “loading” and “lifting or pushing”.

32.  The Respondent also submitted that D2’s claim that he was merely waiting for a lift after leaving a gym with his girlfriend was unsupported by any evidence adduced at trial, particularly since D2 did not testify and did not call any witnesses. The evidence instead showed that D2 led officers to Room 1105, where his Form 8 was found in a bag, and where ALiN-logo cartons matching the parcels in the container were also found.

33.  In respect of D3, the Respondent submitted that his argument that there was insufficient evidence to prove guilt was unfounded. PW1 to PW3 gave clear evidence that D3 was one of six males inside the open red container and was involved in lifting and moving large parcels. The magistrate was entitled to accept that evidence. He had already rejected the defence challenges concerning poor lighting and the alleged inconsistency between PW1’s notebook description of “loading boxes of goods” and his oral evidence of lifting or pushing parcels. The Respondent submitted that the magistrate properly treated the notebook entry as a general description and the oral evidence as a more detailed account. There was no material inconsistency affecting credibility.

34.  As to D3’s complaint that he should not have been convicted “just for a statement” and that the investigation was unfair, the Respondent submitted that D3 had misunderstood the magistrate’s reasons. The magistrate had already ruled D3’s admissions at the Scene and in PW4’s post-record notebook inadmissible, because PW4 had failed to caution D3 before questioning him and because there was no interpreter at the Scene. Those admissions therefore formed no part of the evidence relied upon for conviction.

35.  The Respondent further submitted that the magistrate correctly drew an irresistible inference of employment from the combination of the circumstances, including the location and timing, the coordinated manual labour involving six males moving heavy parcels, and the fact that the Appellants’ personal effects were stored in the adjoining warehouse. The Respondent submitted that the convictions were therefore safe and satisfactory.

Discussion

36.  The Court of Final Appeal in HKSAR v Hui Lai Ki[2] held that an appeal under section 113 of the Magistrates Ordinance is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power. The judge must be satisfied that the appellant’s guilt has been proved beyond reasonable doubt on the evidence, failing which the appeal must be allowed. The Court held that, on such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the magistrate’s decision to convict. The Court recognised that an appellate court conducting a rehearing is subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. It must therefore exercise caution when considering findings of fact based on oral testimony. Despite those limitations, it remains the duty of the appellate court, on an appeal by way of rehearing, to come to its own conclusion on disputed issues of fact or law.

37.  Turning to the Appellants’ grounds of appeal, I note that the arguments advanced at the appeal hearing had already been raised by their respective duty lawyers in closing submissions at trial.

38.  The magistrate was clearly alive to the challenges raised by the defence and properly dealt with each of them. In particular, he dealt with PW1’s observation of what D2 and D3 were doing, and the circumstances under which that observation was made. The magistrate explained why he found the defence challenge to the lighting condition at the Scene untenable[3]:

“20. The defence submitted that the lighting condition at the scenes was dark as shown in the photographs taken there. PW1 had explained they were instant polaroid photographs which did not reflect the actual lighting conditions. In my view, it was common knowledge that the darkness or brightness of a photograph depended on the functioning of the aperture of the camera. Further, according to the evidence, there was some lighting at the top-rear part of the container; thirdly, it was a loading bay area. By common sense, there must be some lighting around so that people could move the goods; fourthly, the distance between the observation officer and the males was quite close. Having considered all the circumstances, I was of the view that the lighting condition was sufficient for the officer to make the observation.”

39.  I find the magistrate’s reasoning sound and reasonable.

40.  Having dealt with the issues raised by the defence and having found the prosecution witnesses honest and credible, the magistrate made the following findings[4]:

“25. On the evidence of the prosecution, I made the following findings of facts:

(1) the scene was a loading bay area of an industrial centre;

(2) the goods vehicle carrying a container parking there;

(3) the rear doors of the container were opened;

(4) six males and some large parcels were inside the container;

(5) D2 and D3 were lifting and moving the large parcels with four other males inside the container;

(6) it needed two or three males to lift up the parcels. There must be some contents inside the parcels with certain weight;

(7) the logos of the parcels were the same as the unused cartoon boxes found in Unit 5 of 11^th floor of the said industrial centre;

(8) there were goods and unused carton boxes inside the Unit 5 of 11th Floor of the said industrial centre. Obviously, it was a warehouse;

(9) both D2’s and D3’s personal bag containing their most important identity document were found inside the said unit.

26. The defence relied on the case HKSAR v. Ferosh FACC2/2014 that the inference of employment was not the sole and irresistible inference to be drawn from the evidence. In the said case, the defendants were observed to be carrying out some form of manual work at the derelict metal shed which was not an obvious place of employment, like a restaurant, shop or construction site. In my view, the facts of the present case was entirely different from that of the cited case.

27. For the findings of facts I made, the scene was obviously a place of employment. It was a loading bay area for goods vehicle. D2 and D3 were found moving the parcels with four other males inside the container. It was normal working hour. Further, both D2’s and D3’s personal bag containing their most important identity document were found in Unit 5 on the 11th Floor of the same industrial centre. The said unit was a warehouse.

28. Taking all into account, I was of the view that a unique and irresistible inference could be drawn by the court that there was an employment between someone and D2 and D3 for them to work there. I accordingly drew the said inference. I found that they did take employment at the material time. I also found that D2 being a person in respect of whom a removal order was in force.”

41.  Having considered the Statement of Findings, I am of the view that the magistrate applied the correct legal principles when assessing the evidence. His findings were well supported by the evidence. In convicting D2 and D3, the magistrate considered the evidence against each of them separately and reminded himself that D3 had a clear record.

42.  In respect of the grounds of appeal advanced by both Appellants, I agree with the Respondent’s detailed written submissions. There is no merit in the appeals against conviction.

43.  Having considered all the evidence, including the photographs and sketches, and having conducted the appeal by way of rehearing, I am satisfied that the prosecution proved all the elements of charge 2 against D2 and charge 3 against D3 beyond reasonable doubt.

44.  D2’s appeal against conviction is dismissed.

45.  Likewise, D3’s appeal against conviction is dismissed.