HKSAR v. ALI ASGHAR

HCMA 158/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 158 OF 2013

(ON APPEAL FROM STCC 4929/2012)

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REASONS FOR JUDGMENT

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1.  On 30 May 2013 I granted the appellant’s application for leave to adduce an affirmation in support of an application for leave to treat his abandonment of an appeal against conviction as a nullity as well as that application. The respondent adopted, responsibly, a neutral stance in regard to the two applications. The appellant satisfied me by way of his affirmation and the promptness with which he sought to correct his actions that he had not appreciated the true nature, nor the consequences, of his purported abandonment of his appeal against conviction. He had also abandoned his appeal against sentence: he did not seek to revive it.

2.  I heard and dismissed the appeal, indicating that I later would provide my reasons for so doing: these are they.

3.  The appellant was convicted by the magistrate on 5 February 2013 of having committed the offence of taking up employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to ss 38AA(1)(a) and 38AA(2) of the Immigration Ordinance, Cap. 115. It was the prosecution case that on 16 October 2012 the appellant had been seen by a patrolling police officer operating a forklift truck and tidying up scrap material in a privately owned recycling depot at Tong Kung Leng, Sheung Shui. There were admitted facts that the appellant then remained in Hong Kong subject to a recognizance which prohibited him from taking up employment, paid or unpaid, and that he had no criminal conviction in Hong Kong.

THE TRIAL

4.  Although the police officer who arrested the appellant was accompanied by no fewer than seven colleagues, who were later supplemented by staff from the Immigration and Labour Departments, the prosecution called only him to testify. The magistrate ruled that there was a prima facie case for the appellant to answer. The appellant elected not to testify. He called two witnesses in his case: the first was a person who claimed to have been present as a potential customer in the recycling depot at the time the police were present; the second was a person who described himself as the "former owner" of the recycling depot which is now being operated by his son, but the current landowner, a Mr Kwan Tin-hin, the son being referred to at trial as Ah Hong. Ah Hong was not called as a witness by the appellant.

5.  The magistrate found as a fact that the potential customer had not been present in the recycling depot as he claimed and rejected his testimony in its entirety. She also rejected the testimony of Mr Kwan. She accepted the evidence of the police officer, finding him to be an honest and credible witness who testified in a “cogent and consistent manner”. She asserted that "The case depended entirely upon the credibility..." of the police officer.

THIS HEARING

6.  There were a number of criticisms directed towards the magistrate’s Statement of Findings. One that was justified was that she had drawn an inference adverse to the appellant in support of which there was simply no evidence - that he would have been unable to afford rental for accommodation. She was criticised for rejecting the evidence of the potential customer: she was fully justified in making that finding of fact, to which I shall return. She was criticised for observing that the photocopiers, which were being recycled, were "worth a fortune": in context, it is clear that all she was saying, albeit somewhat flamboyantly, was that they retained some value, a commonsense finding she was entitled to make. There were other criticisms too. The appeal process is not assisted merely by the recitation of a litany of perceived errors by the magistrate which it is hoped will end with the inevitable reversal of the magistrate's decision.

7.  Be that as it may, the now well-established principle is that an appeal from a magistrate is “…a rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so… Where the facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed…” (per Bokhary PJ in HKSAR v CHOU Shih Bin (2005) 8 HKCFAR 70).

8.  The observation of McMahon J in HKSAR v SHERLOCK, Kevin Patrick HCMA73/2009 in regard to the current role played by a magistrate’s statement of findings is also worth recalling:

“7.  ... it may well be that given that... appeals from magistrates’ convictions are dealt with by the Court of First Instance as re-hearings, grounds of appeal now serve little more purpose than to alert the appellate court and of course the respondent as to the areas of evidence or the aspects of the case which the appellant says were wrongly dealt with or analysed by the magistrate and which are particularly relevant to the re‑hearing on appeal.

8.  In regard to the re‑hearing the appellate court is at large and must come to its own finding of fact, giving weight to the reality that the magistrate’s assessment of the credibility of witnesses was made with the benefit of seeing and hearing those witnesses in person.” [Emphasis supplied]

THE PROSECUTION CASE

9.  A full transcript of the evidence was available to me. The evidence may be shortly summarised. The police officer said that in the early afternoon of 16 October 2012 he had arrived at the depot to find the main gate open; he looked inside; he noticed the appellant driving a light coloured forklift; this aroused his suspicions so he kept observation; whilst being driven by the appellant the forklift sometimes moved and sometimes was stationary; he followed it at a distance of approximately 10 metres; after the appellant had driven the forklift for approximately 10 metres he alighted, tidied up some cardboard which was on the ground and put it on a tray on the front of the forklift; the appellant looked in the direction of the witness and stopped what he was doing; the witness walked up to him; he spoke to the appellant in Cantonese but it was clear to him that the appellant did not understand; he used simple English and asked the appellant to produce his proof of identity to which the appellant responded by producing his recognizance.

10.  The witness continued that he had asked the appellant what he was doing there. The appellant had replied that he had just come there to find his friend: he is also a Pakistani: he found his friend just for one to rent a house; after he had come to the depot he had met another friend who was a Hong Kong person who had asked the appellant to use the forklift to clear rubbish in the depot. The witness said that this was the effect of what the appellant had said to him although it was not verbatim. He then asked the appellant whether he was receiving any salary to which the appellant had responded in the negative. When asked to identify the friend who had asked him to help tidy up, the appellant had pointed to Ah Hong who then was being questioned by a woman police constable: the witness approached her and related to her his conversation with the appellant including the fact that Ah Hong had asked the appellant to help tidy up. He thereafter arrested the appellant. The witness also said that he had earlier observed the presence of Ah Hong who he had noticed had been dismantling some brackets or mechanical parts.

11.  In the course of the evidence of this witness a series of photographs as well as a sketch plan were produced in evidence. The sketch plan shows, inter alia, the route travelled by the forklift when being driven by the appellant according to the testimony of the prosecution witness. The photographs show the depot as well as two forklifts and a number of disused photocopying machines.

12.  The defence case put to this witness may be summarised as being an acceptance that he was present in the depot with the suggestion - but no evidence - that the purpose of his being there was to search for accommodation together with denials, first, that he had driven the forklift; and, second, that he had had a conversation with the prosecution witness in the terms deposed to by the witness.

13.  The issue, obviously, is whether or not the appellant had in fact been driving the forklift and tidying up the materials. Support for the denial that he had done so was said to be found in the testimony of the potential customer and Mr Kwan as each of them testified to a like effect - that each had gone to a toilet; en route each had noticed the position of two forklift trucks including one alleged to have been driven by the appellant; when each had emerged from the toilets and found the police to be present each noticed that those forklift trucks were in the same positions.

14.  When the prosecution witness was cross-examined he disagreed that he had suggested to the appellant that he had been driving the forklift and disagreed with the proposition that he had not witnessed the appellant doing so. He also disagreed with the suggestion that the appellant had not said Ah Hong had asked him to tidy up in the depot. It was suggested to him that when the witness had asked the appellant what he was doing there he, the appellant, said he had come there to go to the toilet and that the witness then had denied him the opportunity of doing so: the witness disagreed with both suggestions. He further disagreed that when he had said to the appellant that he had been driving the forklift the appellant had responded "How can I drive? Know. (sic)”; that the appellant went on to say "I no have living" and "I called a friend and he said that [the appellant] could take a bus and that the friend would help him.".

15.  It is convenient to deal with the issue of the conversation between the prosecution witness and the appellant at this stage as there is no evidence from the appellant or the defence witnesses about this conversation: the only evidence comes from the prosecution witness. The magistrate was informed that there was no dispute as to the voluntariness, but that there was a dispute as to its content. The magistrate, according to her statement of findings, decided that "... it would be unfair for the prosecution to rely on the conversation as evidence to inculpate the appellant." and decided not to place any weight on the conversation. It appears that this was in part because of her perception of the appellant's lack of command of English and in part because she disapproved of the fact that there had been no post record made of the conversation. That was an erroneous approach.

16.  The complaint was made on behalf of the appellant that a portion of the conversation was exculpatory which the magistrate ignored when she said that she would not place any weight on the entire conversation. It was open to her to decide just what had been said in the course of that conversation as that was what was at issue. It was clear from her Statement of Findings that she accepted the evidence of the prosecution witness as to the content of the conversation: obviously she accepted his rejection of the suggestions made on behalf of the appellant. That was consistent with her finding on the credibility of the prosecution witness. There was also support to be found for that approach in the testimony of the prosecution witness to the effect that he had made a report to the woman police constable about the identification by the appellant of Ah Hong as being the person who had asked him, the appellant, to tidy up in the depot: as a matter of logic he would not have made that report if the appellant had not pointed out Ah Hong to him. His evidence that he made that report was not challenged on behalf of the appellant.

17.  I was satisfied that the prosecution witness accurately relayed the tenor of the conversation between himself and the appellant. In my judgement the early part of the conversation, which Mr. Ross, who appeared for the appellant both here and below, suggested was exculpatory, verges on gibberish: I would place no weight on that. Insofar as the passages relating the request by Ah Hong to tidy up and that he had been doing so without receiving payment are concerned, I could see no good reason why full weight should not be placed on them although, in the context of this case, the outcome of the appeal would be unaffected by doing so.

THE DEFENCE CASE

18.  There was a discrete issue concerning the testimony of the first defence witness, the potential customer. The magistrate was criticised for making the finding of fact that the potential customer had not been present at the depot. The criticism was directed towards the fact that she had expressed her reason for making that finding to be the failure of the police to "have copied down his particulars.". With respect, that is an oversimplification of her reasoning for she also dealt with specific aspects of his evidence as well as generally describing him as being evasive. Reading the transcript, that appears to be an accurate description.

19.  The prosecution witness was asked by the magistrate whether there was any other person present inside the recycling depot apart from Ah Hong and the appellant and he responded that, after the incident, other colleagues had located another Chinese person, who would have been Mr Kwan, in the office. It was quite clear from a dispassionate reading of the evidence of the prosecution witness that it was his evidence that there were only three persons - the appellant, Ah Hong and Mr Kwan - present in the depot that afternoon.

20.  It is to be noted that this evidence was not challenged during cross-examination, despite the fact that it clearly was known at that stage that it was, at its lowest likely, that the potential customer would be called as a witness.

21.  It was the evidence of the potential customer that he had been in the depot prior to the arrival of the police; he had gone into a toilet where he had remained for some 10 minutes before emerging into the depot to find the police present; he had then remained in the depot for an hour or more observing what was going on there and also looking at the photocopiers in the depot.

22.  It was his testimony that during this period of an hour or more none of the police officers had made any enquiries of him or even so much as asked his identity.

23.  These were private premises. They were fenced. There were eight police officers present. The magistrate described it as being “unreasonable” that the police would not have noted his particulars: behind this finding was the testimony of the prosecution witness who said he had noted down the names of the two the Chinese males, Ah Hong and Mr Kwan, at that time. I go further than does the magistrate: it simply would be contrary to common sense to suggest that, if the potential customer truly had been present in the premises, an unknown fourth person, the police would have ignored him entirely.

24.  It was the submission of Mr. Ross that the evidence of the potential customer could not be lightly dismissed because of his assertion that he had only been approached to be a witness a couple of days before the trial and because his testimony accorded with that of Mr Kwan. I was satisfied that that witness was not present in the premises as he testified. It followed that all of his testimony fell to be rejected.

25.  Consequently, the only evidence that there was in the appellant's case was that of Mr Kwan. He testified that he had returned to the depot from the mainland and had then gone into a toilet where he had spent over five minutes changing and washing his clothes; he emerged from the toilet and saw a number of police officers present; Ah Hong was very close to him at this stage and they were approached by two officers, one male and one female; Ah Hong had been repairing a forklift; the police officers had claimed that Ah Hong had employed the appellant which Ah Hong had denied saying that the appellant was there "... for the purpose of renting a place.".

26.  Mr Kwan then testified that when he had returned from the mainland he had noticed the positions of two forklifts and that "they were never moved", they were in the "same positions" when he came out of the toilet. This was urged to be a singularly significant feature of the defence case. The magistrate certainly approached it on that basis but, with respect, she appears to have missed the point. The evidence of Mr Kwan was that when he returned to the recycling depot and before he went into the toilet he had not seen anyone around in the depot. He came out of the toilet and there were police officers, Ah Hong and the appellant present. It was self-evident therefore that events had occurred during his time in the toilet. The witness, in fairness to him, did not claim to have been aware of what had happened during that period.

27.  The evidence of the prosecution witness described his arrival on the scene when he observed the forklift already in motion and being driven by the appellant to where it finally came to a halt. He could not say, therefore, from which initial position the forklift had been driven but only where it had ended up. In these circumstances, there is nothing significant in Mr Kwan’s evidence that the forklift was in the same position on both occasions when he saw it as there was more than ample time for everything that the prosecution witness had observed during the three minutes he had kept the appellant under observation to have occurred whilst Mr Kwan was in the toilet. In my judgement, even if Mr Kwan were telling the truth about the position of the forklift it simply did not avail the appellant.

28.  Mr Kwan then introduced photographs of other containers which had been adapted for use as accommodation and which he described as being approximately 1000 meters away from the area of the office located in the depot. This witness also be said that he had seen the appellant previously when he had come to rent accommodation. However his testimony as it then unfolded showed that he was simply repeating the purpose of the appellant's alleged earlier visit to the premises as related to him by his son or sons. It is not clear why the prosecutor did not object to this evidence, which Mr. Ross realistically conceded in this hearing to be hearsay, nor why the magistrate not only did not react to it being tendered but not only allowed cross-examination on it and went on to make references to it in her Statement of Findings.

29.  It was clear from the testimony that Mr Kwan had no personal knowledge of whatever arrangements may have been made with the appellant. The testimony can only have been advanced for the purpose of proving the truth of its contents, which it could not do. Although it may have tended to prove what the son or sons had said to Mr Kwan or the state of mind of Mr Kwan, neither of those were issues in the trial: they were thus of no relevance. This evidence simply was not admissible.

THE RESULT

30.  Removing entirely the testimony of the potential customer and ignoring the inadmissible portions of Mr. Kwan's testimony, all that was left of the appellant's case was the submission concerning the significance of the positioning of the forklifts which I have already addressed and a number of other minor descriptive matters which are neutral in effect, none of which went to the issue of whether or not the appellant drove the forklift and in doing so had taken up employment.

31.  There did not seem to me to be any justification for going behind the magistrate's finding on the credibility and reliability of the prosecution witness. I accepted his evidence that he did observe the appellant driving the forklift and tidying up materials in the recycling depot: that constituted employment, albeit perhaps unpaid.