HKSAR v. DEWAN MD HATEM

HCMA 40/2024

[2025] HKCFI 1418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 40 OF 2024

(ON APPEAL FROM STCC 2459 OF 2023)

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J U D G M E N T

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1.  The Appellant was convicted after trial before the Magistrate for an offence of “taking employment while being a person in respect of whom a removal order is in force”, contrary to section 38AA(1)(b) and (2) of the Immigration Ordinance, Cap 115. The Appellant was sentenced to 22 months and 15 days’ imprisonment.

Prosecution’s Case

2.  As briefly summarized by the Respondent, on 9 January 2020, the Appellant was given a recognizance form by the Immigration Department. The Appellant was aware that he should not take up any employment, whether paid or unpaid in Hong Kong, while being released on recognizance.

3.  A removal order was also made against the Appellant on 31 January 2019, and the removal order was served on the Appellant on 13 February 2019. So the removal order was still in force on 8 August 2023. On 8 August 2023, at around 12:20 am, Mr Tse, PW1, parked his heavy goods vehicle (“the truck”) at a vegetable store (“the store”) located at the junction of Pei Ho Street and Tai Nan Street, Sham Shui Po.

4.  After parking the truck, he proceeded to open the tailgate of the truck and asked the people inside the store to unload the goods, which consisted of vegetables and other agricultural products from the truck. PW1 then went to the restroom inside the store.

5.  Meanwhile, PW2, PC26067, in his official uniform, was conducting an operation with his colleagues along Tai Nan Street. He saw the Appellant standing alone at the tailgate of the truck and controlling an electric pallet truck to move a pallet of goods, which were later identified to be 20 cartons of watermelons. The streetlights were illuminated, and PW2 observed the Appellant at a distance of about 5 metres away.

6.  PW2 then approached the Appellant, requested him to alight from the tailgate, and asked for his identification documents. It was discovered that the Appellant was a Form 8 holder, and PW2 arrested the Appellant. PW2 also confirmed that the photo, Exhibit P4(3), depicted the electric pallet truck and the 20 cartons of watermelons.

Defence’s Case

7.  The Appellant elected not to give evidence, but only called upon his friend, Mr Kabir, to give evidence. Mr Kabir said he had been acquainted with the Appellant for around 2.5 years.

8.  On 7 August 2023, the Appellant went to Tai Nan Street at around 6:30 pm to meet up with him to buy a mobile phone. At around 7 pm, he bought a mobile phone for the Appellant at $500. After the purchase, the Appellant followed him home, where they had dinner together with some friends.

9.  At around 12:15 am, that is the midnight of 8 August 2023, he asked the Appellant to buy some beers for him at a 7-Eleven store on Lai Chi Kok Road. The 7-Eleven store was only a 5 minutes’ walk from his home. He and his friends went down to search for the Appellant at around 12:30 am. When the Appellant had not returned, it was during the search that he found out that the Appellant was with the police.

10.  When being further questioned concerning the distance between his home and the 7-Eleven store, Mr Kabir stated that after getting downstairs from his home, it will only take approximately 2 minutes to walk down to the 7-Eleven store.

Magistrate’s Findings

11.  As to the evidence concerning PW2, PW2 stated that he did not utilize the police phone to capture photographs or records. The Defence argued that he should have taken pictures and recorded videos during the observation. However, the Magistrate disagreed with this contention as it would pose a distraction to observation and it would be exceedingly challenging to maintain focus on the observation task as well.

12.  And in fact, the Magistrate also considered that PW2 also explained that the lighting conditions were unfavourable for the phone camera to produce clear images and videos. The Magistrate found his explanation to be reasonable given the circumstances.

13.  As to the discrepancy between PW1 and PW2’s evidence, PW1 mentioned that the police had suspicion that someone had tampered with his driver’s seat while he was away using the restroom, while PW2, saying that his colleague, WPC 35185, had been present at the scene, did not search through PW1’s belongings at the driver’s seat nor did she suspect any theft.

14.  PW2 also explained that there were around 5 to 6 police officers involved in the operation, and WPC 35185 did approach the driver’s seat to check if anyone was present. So the Magistrate found that it is not surprising that other officers might have approached the driver’s seat and searched through PW1’s belongings.

15.  In that sense, the Magistrate did not find any inconsistency between their evidence, and find that their evidence was clear, credible, and so accepted the evidence accordingly. And the Magistrate also considered that PW2, in fact, provided a comprehensive description of how he observed the Appellant utilizing the electric pallet truck to transfer the goods. He further noted that the Appellant was able to unload the goods onto the ground.

16.  The Magistrate particularly found PW2’s evidence accurate and precise, as he was positioned at a mere distance of 5 metres away from the scene, and there were sufficient lighting conditions facilitating his observation. So all in all, the Magistrate accepted the reliability and clarity of his observation.

17.  Now, concerning the evidence of the defence witness, the Magistrate found his evidence incredible and highly questionable. Firstly, concerning his evidence-in-chief, saying that the 7-Eleven store was just a 5-minute walk from his residence. But being further asked, he altered his evidence and asserted that the store was only 2 minutes away. When being cross‑examined, he also said it would take 5 minutes to walk from his 8^th floor apartment to the ground.

18.  So altogether, it would take at least 14 minutes to complete the walking distance. But the defence witness said the Appellant left his home at 12:15 am, but at around 12:30 am, it is only 15 minutes away. Then the defence witness became worried and went downwards to search for the Appellant.

19.  The Magistrate considered that it would at least require 14 minutes to walk back and forth. So the Magistrate found that it is obviously illogical for the defence witness to start worrying about the Appellant immediately only after a mere 15-minute interval. And also, the Magistrate considered that the Appellant was not acquainted with the area. Against this background, it would be highly implausible for the defence witness to request the Appellant to go out and purchase beer for him.

20.  And further, when questioned on whether the defence witness knew about the daily routines of the Appellant, the defence witness responded by saying that it would be a very personal matter that the Appellant would not tell him about. But being questioned about whether it might be the case that the Appellant had been taking up employment without telling him, Mr Kabir immediately rejected this notion.

21.  So the Magistrate considered that on the one hand, the Appellant would not tell him about his personal things. But on the other hand, the defence witness said the Appellant would share with him. So it consisted of contradictory versions that raised doubts about the consistency of defence witness’ testimony.

22.  The Magistrate also considered that there are other significant elements on the defence witness’ testimony that are highly implausible. The Magistrate concluded that there were sufficient grounds for the Court to reject his evidence in entirety. The Magistrate did consider the following matters:

(i)  There were only one man working at the tailgate of the truck;

(ii)  PW2 had a clear and unobstructed view at only 5 metres away;

(iii)  PW2 approached the Appellant immediately;

(iv)  PW2 inspected the identification document which identified that person as the Appellant; and

(v)  PW2 immediately arrested the Appellant at the scene.

23.  The Magistrate also bore in mind the legal principles laid down in R v Ip Po Fai HCMA 1201/1995 concerning the issue on employment.

24.  The Magistrate found that the truck was used to transport vegetables and agricultural products to the store, so they are not for personal use. And after PW1 went inside the store and requested people inside to unload the goods from the truck, the Appellant did as requested. The Appellant obviously possessed the necessary knowledge and skill to manoeuvre the electric pallet truck and secure the 20 carton boxes of watermelons thereon the truck and to transport to the designated place.

25.  No doubt, the Magistrate considered that this particular equipment demanded specialised skills and capabilities that were not universally possessed by everyone. The Appellant must be performing tasks for the store and there was no basis to conclude the Appellant performed the task for free or out of any sense of obligation or special relationship, therefore the inference that the Appellant took employment as odd job worker at the scene was compelling.

26.  The driver testified that he personally drove the truck to the location to deliver vegetables and agricultural products. The goods were not intended for personal use. After PW1 went inside the shop to ask the people inside to go and unload the goods from the truck, the Appellant was later discovered to be using an electric pallet truck to move the 20 carton boxes of watermelons.

27.  So the Magistrate considered that from all the circumstances, there is sufficient evidence for the Court to draw the irresistible inference that the Appellant was in fact taking up employment in the circumstances and therefore convicted the Appellant of the offence accordingly.

Grounds of Appeal

28.  Mr McGowan put forward the following grounds:

(i)  The learned Magistrate erred in his analysis and evaluation of the evidence;

(ii)  The learned Magistrate did not treat the prosecution and defence witness “even-handedly”; and

(iii)  The learned Magistrate failed to give the Appellant, a man of clear record, the “benefit of doubt”.

29.  In his written submission, Mr McGowan put forward, saying that the key witness, PW2, a uniformed officer on patrol with a number of other colleagues, however, was the only witness to the offence and despite modern technology, provided only oral account of what he claimed to have seen. And he said that there was a companion, WPC 35185, but it seems that the WPC 35185 did not even make a witness statement to this case.

30.  So in the circumstances, if WPC 35185 was indeed next to PW2, how come she would not take up the “recording” role or at least making a witness statement?

31.  And concerning the evidence itself, the Appellant would say that there was discrepancy between PW1 and PW2’s evidence because PW1 said he saw “a police officer rifling through the objects at the front of the vehicle. That officer said he suspected someone was stealing from the vehicle and asked if [PW1] had lost anything.” The police had told him that “they suspected the ‘South-Asian’ to have been stealing from his vehicle”.

32.  So neither this nor the “rifling”, but aligning all this evidence, searching evidence was adequately explained from the PW2’s evidence. For PW2’s evidence, he had a phone with a video function and had no reason not to use it. And as the Appellant put forward, if he had been able to have an unobstructed view on the Appellant, in the same case, the Appellant would also have an unobstructed reverse view of the uniformed officers.

33.  PW2 denied that there had been a search of the vehicle. He disagreed that WPC 35185 was searching PW1’s belongings. And more importantly, the Appellant said that there had not been any step taken to identify the employer in the circumstances.

34.  Further, PW2 also gave the extraordinary multiple hearsay answer that the WPC’s investigation revealed that the Appellant had indicated to PW1 that he was the goods delivery worker. So the Appellant would say, that would surely be another reason for calling the WPC, but the prosecution chose not to do so.

35.  Concerning the defence witness, all his account concerning time was clearly just an estimation of the circumstances instead of the exact time as quoted by the defence witness. And the defence witness also said they went looking because the Appellant were not very familiar with the area and the Appellant had left his shirt and small mobile phone behind. And more importantly, that he had actually made a call to the Appellant that had been unanswered. That tells every reason why they would go down to search and worry about the whereabouts of the Appellant.

36.  Now, concerning the defence witness answering the Appellant’s situation, the Appellant would share everything, but he had not told the defence witness that he was working illegally. The “daily activities” was “very personal”, but not clearly defined. He disagreed that there was a chance that the Appellant would not tell him if he was working there.

37.  So all in all, concerning the assessment of the evidence, how possibly that the PW2’s evidence would be accepted, particularly that there had not been any evidence what the WPC had been doing and what her suspicions would be. There was no evidence at all from PW2 that there had been any other female officers in the operation. So there is not sufficient proof to convict the Appellant in the circumstances.

38.  On ground 2, concerning the rejection of defence evidence, the Magistrate found that it was “highly implausible” for the defence witness to request the Appellant as a “relative stranger” to go down to buy beers. But clearly, the Magistrate ignored the defence witness’ evidence that the Appellant and the defence witness had bought drinks from that shop previously, and it was only 2 minutes away, down a straight road, and that the surroundings were visible for the time being. So there is no reason to reject the defence witness’ evidence at all.

39.  And on ground 3, both the defence witness and the Appellant were of clear record. It warrants the defence witness that he had asked the Appellant to go down to get the drinks and not vice versa, not on the Appellant’s own volition to go down.

40.  So in all these circumstances, the defence had raised reasonable doubt. The conviction is unsafe, it should be quashed accordingly.

Respondent’s Reply

41.  On ground 1, the Respondent submitted that the Magistrate had conducted a full and careful evaluation of all the evidence in this case. For example, the Magistrate already found PW2’s explanation of why he did not take any picture or video during his observation to be reasonable. PW2 also explained that his phone had limited resolution and the lighting conditions were unfavourable for the phone to capture clear images and videos.

42.  And secondly, concerning the inconsistency between PW1 and PW2, concerning that the PW1 saw a police officer searching through his belongings, but PW2 said that the WPC did not search through PW1’s belongings.

43.  The Magistrate had already mentioned that there were around 5 to 6 police officers involved in the operation. And the women police officer did approach the driver’s seat to check if anyone was present, but other officers might have done the same and even searched through PW1’s belongings. The important point the Respondent would like to say was that PW1 did not attribute the search or suspicion of theft to the WPC or any other female police officer.

44.  And thirdly, although the police did not identify the employer of the Appellant, the Magistrate already noted that this was not a case where the truck was found in the middle of the road without anyone except the Appellant. The circumstantial evidence was sufficient for the Magistrate to draw the only irresistible inference that the Appellant took up employment.

45.  And on top of that, the Respondent would also like to highlight the circumstances that PW2 did not give evidence saying that whether WPC was in fact aware of the Appellant’s action. That also may explain why the WPC was not called upon by the prosecution to give evidence in this case. And when asked PW2 on why there was no attempt to determine where the goods were being delivered to, PW2 gave a reasonable explanation that it was close to midnight and that he believed it would be difficult to find out what company had employed the Appellant.

46.  And for any possible admission by the Appellant to WPC, and in fact the Magistrate, in no part of his Statement of Finding, relied on any of above hearsay evidence. So ground 1 should fail.

47.  On ground 2, the Respondent also said the Magistrate had already carefully analysed the evidence of Mr Kabir. And during cross‑examination, Mr Kabir agreed that it would take at least 14 minutes to walk from his apartment to the 7-Eleven store. So it would be quite illogical, as what the Magistrate found that, why Mr Kabir would start worrying so soon, just after a mere 15-minute interval. And Mr Kabir also claimed to be fully aware that the Appellant was not familiar with the area and the Appellant only visited him every 3 to 4 months. So it is also highly implausible why Mr Kabir would ask the Appellant to buy beers for him.

48.  And when cross-examined defence witness as to whether he knew about the daily routines of the Appellant, Mr Kabir said that it was a very personal matter. But the defence witness also outrightly rejected the version that it might be the case the Appellant had taken up any employment. So the Magistrate found the defence witness actually be contradicting himself.

49.  The Respondent would also like to point out that during the examination-in-chief, Mr Kabir never mentioned that he and the Appellant went to the 7-Eleven store to buy drinks before returning to his home. And also, Mr Kabir testified it would take 5 minutes to travel from his home to 7-Eleven store, but further, also explained it would further take 2 minutes to walk from his building to the 7-Eleven store.

50.  But under cross-examination, Mr Kabir gave evidence that it would take 5 minutes to simply get downstairs. So clearly, he had not been consistent with his evidence concerning the time taken actually from his home to the 7-Eleven store. And the Respondent also submitted that if Mr Kabir was in fact so concerned about the Appellant getting lost in the area, it would not have made any sense for him to ask the Appellant to buy the drinks in the first place.

51.  And also, if Mr Kabir was in fact aware the Appellant had left his phone in his home, it would make no sense for him to call the Appellant in the first place. During cross-examination, Mr Kabir very specifically said that he won’t tell you the itinerary of himself. Mr Kabir’s answer was a clear “No”.

52.  The Respondent submitted that the itinerary is a very specific term that includes a person’s routine. The Magistrate did have basis to find that Mr Kabir was contradicting himself when he insisted that the Appellant must inform him if he had been taking up employment. So the Magistrate had abundant reasons to reject the evidence of Mr Kabir.

53.  As to the other grounds of appeal, the Respondent would simply say that it would be inaccurate to say that there is no independent evidence supporting PW2’s evidence because the truck was parked at the scene and the tailgate of the trucks was opened. There was an electric pallet truck and the cartons of watermelons at the scene, as shown in the photo, Exhibit P4(3).

54.  And PW1 also gave evidence that he had asked the people in the store to unload the goods from the truck. In addition, the Magistrate found PW2’s evidence to be clear and credible and he was able to provide a comprehensive description of how he observed the Appellant utilizing the electric pallet truck to transfer the goods only from a distance of only 5 metres away without any visual obstructions.

55.  And the Magistrate also found that there was only one man working at the tailgate of the truck. PW2 had a clear view. PW2 approached the Appellant immediately and identified the Appellant in the circumstances at the scene. So the evidence of employment was more than sufficient in the circumstances, particularly in mind of the case of R v Ip Po Fai. So the conviction is safe and satisfactory. The Appellant’s appeal should be dismissed accordingly.

Consideration

56.  In the Court of Final Appeal case, HKSAR v Hui Lai Ki [2024] HKCFA 7, it was stated that the Magistracy Appeal is conducted by way of rehearing on the evidence before the trial court. 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 decision of the Magistrate to convict.

57.  The Court recognised that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of facts based on oral testimony. Yet, 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.

58.  On ground 1, the Appellant essentially criticised the Magistrate’s evaluation on PW2’s evidence on the following areas, namely:

(1)  The failure of PW2 in using camera or phone for recording the observation and among 5 or more officers, only PW2 be the witness;

(2)  Discrepancy of PW1 and PW2’s evidence on the search of PW1’s driver’s seat;

(3)  The failure to taking steps to identify the employer, if any; and

(4)  PW2’s further reveal of WPC’s evidence as to the possible admission of the Appellant but there was no forthcoming evidence on this area.

59.  However, after going through the statement of finding, the Magistrate had indeed succinctly dealt with all the above matters:

(1)  The use of phone or camera would only pose distraction to PW2’s observation and PW2 also stated that the lighting conditions was unfavourable for taking down the images;

(2)  PW2 did mention WPC had approached the driver’s seat to see if anyone was present and there were other officers who might have searched through the truck. There was no inconsistency with PW1’s evidence;

(3)  PW2 already explained that, it would be difficult to find out what company employed the Appellant and it was not the case that the trucks were stopped in the middle of the road where the Appellant was the only person there.

(4)  PW2’s account of the hearsay evidence formed no part on the statement of findings.

60.  So clearly, the Magistrate had the advantage of receiving evidence first-hand, having duly analysed the evidence in detail and accepted PW2’s account, the criticism on the evaluation of PW2’s evidence was without merit. Ground 1 fails.

61.  On ground 2, about treating defence witness’ evidence differently. Likewise, the Magistrate had also gone through and analysed defence witness’ evidence thoroughly. Though the timing on journey to and from home to 7‑Eleven store was only an estimate, as pinpointed by the Magistrate, it was really illogical for defence witness to start worrying so soon, but at the outset asking the Appellant to go down and buy drinks at an unfamiliar area to the Appellant.

62.  Further, as stated by the Respondent, while the defence witness was saying that the Appellant had left the phone behind, so why would defence witness still try to call the Appellant at the first place? And besides, defence witness, on the one hand, outrightly rejecting that the Appellant would have taken employment, while on the other hand, telling that the Appellant would not disclose personal matters to him.

63.  The Magistrate was right to say that this was contradictory and there was indeed sufficient reason to reject defence witness’ evidence on all the circumstances. So, ground 2 also fails.

64.  On ground 3, about failure to give credit to Appellant’s clear record, particularly it was defence witness asking the Appellant to go down instead of the Appellant on his own volition. Clearly, the Magistrate had considered and dealt with all the background circumstances of the case, and in fact, there was ample evidence inferring employment.

65.  As summarised by the Magistrate, there was only the Appellant working at the tailgate, and PW2 had a comprehensive and unobstructed view nearby. The truck was transporting vegetables and not for personal use, and the Appellant was also seen controlling the electric pallet truck to transport the goods, which requires special skill and knowledge. No doubt, the Appellant must be performing tasks for the store, and the inference of employment was indeed more than compelling. So this ground also fails.

66.  On rehearing of considering all the evidence before this Court, I am also satisfied that the Appellant’s guilt had been proven beyond all reasonable doubt. Therefore, the conviction do stand, and the appeal is dismissed accordingly.