HKSAR v. AJIM MIAH

HCMA 300/2022

[2023] HKCFI 2609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 300 OF 2022

(ON APPEAL FROM STCC 3465 OF 2021)

________________________

________________________

________________________

J U D G M E N T

________________________

Background

1.  The Appellant was convicted after trial of one count of “taking employment while being a person in respect of whom a removal order is in force”[1], and was sentenced to 22 months and 14 days’ imprisonment. 

2.  The Appellant appealed against his conviction.

Prosecution Case

3.  It is not disputed that on 29 November 2021, PW1 was working at her vegetable stall on the 1^st floor in a Yuen Long market.  She had ordered via the online food ordering platform “Foodpanda”. It is also not disputed that the order was from a restaurant in Yuen Long.

4.  PW2, who was working at the restaurant, had received the order and printed out a receipt, which was exhibited as Exhibit P5.  She confirmed that a male delivery worker picked up the order.  She could only say that that male was not Chinese, but she could not identify him.  She could only say that although most “Foodpanda” delivery workers wore a uniform with the “Foodpanda” logo with a “Foodpanda” bag, the male who accepted the food item from her was not in uniform nor did he have a “Foodpanda” bag.  

5.  PW3 was an Immigration officer on duty and involved in the Immigration operation that day.  He gave evidence that he saw a South Asian male at about 1:11 pm, wearing a grey shirt, brown trousers and holding two bags of takeaway food walking out from the restaurant.  PW3 suspected that this male was a delivery worker and this male had then got on a bicycle and PW3 suspected that he was using it for delivery.  PW3 then followed this male.  Exhibit P11 in fact showed the route in which he used to follow the male.  

6.  PW3 gave evidence that he ran while the male was riding his bicycle, but at all times, that male was within 10 metres distance from him.  He never lost sight of that male.  Eventually, they arrived at the market and PW3 said the male then parked his bicycle on the ground floor of the market.  He saw the male take out the takeaway food, then went to the 1^st floor via the escalator. 

7.  PW3 followed the male at a distance of about 5 metres, and saw the male walk to PW1’s vegetable stall and placed the takeaway food on the table.  At that stage, PW3 then intercepted the male and there was no dispute that the person he intercepted was the Appellant.  

Defence Case

8.  At the close of the Prosecution’s case, the Appellant elected not to give evidence nor call any witnesses. 

Magistrate’s Findings

9.  The learned Deputy Magistrate found that all the Prosecution witnesses gave clear and cogent evidence, and he had no trouble accepting their evidence.

10.  The crux of the case is whether the Appellant was properly identified as the person who delivered the food from the restaurant to PW1. 

The Appeal  

11.  The focus of the appeal is centered on the identification of the Appellant as the delivery person.  Mr Donald, for the Appellant, focused his attention on the discrepancies in the evidence between PW1 and PW3.  He stressed the fact that PW1 said in evidence that the delivery man had arrived on her floor with his bicycle and had parked it near her stall.  She said the delivery worker was wearing a mask, and then after taking the food from the front of his bicycle, he handed her the two bags of noodles by placing them on a table, and she gave him 200 dollars.  The receipt was kept by her and was later seized by the Immigration officer. 

12.  PW1 said that after the delivery worker had walked 4 – 5 steps towards his bicycle, and was moving off with it, an Immigration officer then approached her, and told her that she could not take the food.  She said that when the delivery man was leaving after giving her the food, approximately 6 – 7 Immigration officers rushed up and grabbed hold of the delivery man and his bicycle.

13.  Mr Donald pointed out, however, when PW3 gave evidence, he not only said that he saw the Appellant park his bicycle on the ground floor, but that he had walked up to the Appellant and arrested him all by himself.  The other Immigration officers only arrived minutes later.  

14.  Mr Donald pointed out that the Appellant was an innocent bystander, and was not the delivery worker as alleged by PW3. 

15.  Mr Donald’s first ground of appeal was that the learned Deputy Magistrate had failed to correctly assess the inconsistences in the evidence of the Prosecution witnesses and the second ground of appeal that the learned Deputy Magistrate erred in accepting the evidence of the Prosecution witnesses.

Discussion

16.  There is no doubt upon reading the learned Deputy Magistrate’s findings, that he was well aware of the inconsistences between the Prosecution witnesses’ evidence, i.e. PW1 and PW3, and he considered very carefully their evidence.  The learned Deputy Magistrate was of the view that despite the inconsistences of PW1’s evidence as against that of PW3, PW1 was still a credible witness, but that she may have been mistaken because of the lapse of time.  PW1 in fact admitted that she could only remember generally the event on that day but not the details.   

17.  I have no doubt that PW1 was trying her best to tell the truth as far as she could remember.  The event of taking delivery of food is not an unusual one for her as for many people.  Therefore, it is understandable that upon accepting delivery of the food, she was not focused on either the delivery worker or how the food was delivered.  Except of course, that it was delivered by a male and she made sure that the food was in fact the food she ordered from “Foodpanda”.  

18.  It is clear, however, from the evidence according to PW1, that when the delivery worker went to his bicycle and mounted it, she was approached by an Immigration officer to not take the food, and at the same time, she noticed that the delivery worker was stopped by Immigration officers. 

19.  Mr Donald asserted that the Appellant was in the market place on a wholly innocent purpose.  However, I would note that the Appellant did not give evidence, so there is no evidence whatsoever as to what he was doing in the market area.

20.  There is no doubt therefore, from the evidence of both PW1 and PW3 that the person who delivered the food to PW1 was the person arrested subsequently by the Immigration officers.  The learned Deputy Magistrate did a thorough and careful analysis of the evidence of PW1 and PW3, and he properly drew the irresistible inference that the person whom PW3 saw, taking the food from the restaurant and subsequently delivering it to PW1, was the Appellant.   

21.  Since there was heavy reliance on the evidence of PW1, the transcript of the evidence of PW1 was called for.  Mr Donald made further submissions, in effect repeating his previous submissions that PW1 was adamant she witnessed the whole process, including the fact that the delivery worker had pushed his bicycle and left, and after he pushed his bicycle, he walked 4 – 5 steps before he was intercepted by the Immigration officers. 

22.  Therefore, even on PW1’s evidence, the person who delivered the food to her was also the person who had been intercepted by the Immigration officers, although there are discrepancies between the observation of PW1 and PW3.

23.  As Mr Cheng for the Respondent, submitted in his submission, on the question of how inconsistencies should be approached, Stock VP, as he then was, pointed out in the case of HKSAR v Okafor[2], which was referred to by the learned Deputy Magistrate: 

 “(3)  Where there is material and obviously inconsistent or contradictory testimony on an important issue, a tribunal should, if the statement against interest is admitted, generally explain, even if briefly, how the contradiction has been resolved or, if it be the case, why it does not matter.  I have emphasised the word “material” because there is an unhealthy obsession amongst some counsel with immaterial inconsistencies in evidence, both internal to the testimony of one witness or as between witnesses.  Whilst inconsistencies may be of the kind that truly affect reliability, inconsistencies should be approached realistically recognising that some inconsistencies are, with the passage of time, inevitable; some are more apparent than real especially when one remembers that witnesses when testifying are often apt to use loose language; sometimes the questions to which answers are given are obscure or double-barrelled; sometimes the witness is merely confused; although, of course, there are occasions when an inconsistency is such that the evidence should not be relied upon.  The reliability of a witness’ testimony is more often truly tested by inherent probabilities and improbabilities, a direction of cross-examination which is too seldom utilized precisely because it is too often considered that establishing an inconsistency is the be-all and end-all of cross-examination.”

24.  It is often the case that inconsistencies are pointed out and used as “comforting crumbs” to try to persuade a court on appeal that the presiding Judge had made a mistake in relying on a particular witness’s evidence whose evidence was inconsistent on some factual basis with another witness.  

25.  As pointed out by Stock VP, as he then was, the reliability of a witness’s testimony “is more often truly tested by inherent probabilities and improbabilities”. 

26.  In this case, there is no doubt that inconsistencies between PW1 and PW3 existed.  It existed because of probably memory failure or confusion, and had nothing to do with the main impact of their evidence.

27.  As I have noticed above, there was no question that PW1 saw the delivery worker walked to his bicycle and walked with his bicycle 4 – 5 steps when he was then stopped by Immigration officers. So there is no doubt that the person who delivered the food to her was the person stopped by Immigration officers and according to PW3, he was the person who stopped the food delivery worker, who then was revealed to be the Appellant. 

28.  I have no doubt at all upon reading the Statement of Findings of the learned Deputy Magistrate, that he had carefully analysed all the evidence of the Prosecution witnesses, and including assessing the inconsistencies, and at the end of the day found against the Appellant.

29.  I find that there is no merit in the grounds of appeal, and that the conviction was not unsafe or unsatisfactory, nor did the learned Deputy Magistrate make any error in law.    

30.  So the appeal is dismissed.