HKSAR v. ISLAM, SHAHIDUL

HCMA 383/2024

[2025] HKCFI 870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 383 OF 2024

(ON APPEAL FROM STCC 1417/2024)

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J U D G M E N T

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1.  The Appellant was found guilty after trial by the Magistrate for a single charge of “taking employment while being a person in respect of whom a removal order is in force”, contrary to Section 38AA(1)  and (b)  and 38AA(2)  of the Immigration Ordinance, Cap 115. The Appellant now appeals against the conviction.

Prosecution’s Case

2.  As briefly summarised by the Respondent, on 15 April 2024, the immigration officer PW1 and her team conducted an operation at Haiphong Road Temporary Market.  At around 8 am, PW1 arrived at the market and the stall number 49-50-54-55 therein (“the subject stall”).  At that time, some stalls in the market were open but the subject stall was closed.  There was no lighting at the subject stall.  The display racks on the exterior of the subject stall for customers to choose from were covered with clothes. 

3.  Later, PW1 returned.  The subject stall was in operation and there was lighting.  The clothes covering the display racks were removed.  There were vegetables displayed on the display racks.  PW1 saw the Appellant standing inside the subject stall, in front of a table in the middle of the subject stall, the Appellant tied a transparent plastic bag which contained 9 onions and then took 10 tomatoes from a scale on the table to another transparent plastic bag and tied the bag.  PW1 and her team then approached and intercepted the Appellant. 

4.  During PW1’s observation, she did not see any person taking money or serving customers in the subject stall apart from the Appellant.  PW1 did not see any other person in the subject stall. 

5.  In cross-examination, PW1 agreed that the vast majority of the stalls in the markets was operated by people of South Asian origin. 

6.  In Admitted Facts, it was admitted that on 24 July 2020, the Appellant was released on recognizance form.  On 8 July 2020, a removal

order was issued against the Appellant and was served to the Appellant on 16 July 2020.  The said removal order was in force on 15 April 2024.  At all material times, the Appellant was aware that he was prohibited from taking up any employment, whether paid or unpaid. 

Defence’s Case

7.  The Appellant’s case was that he was a customer of the subject stall.  The Appellant said he lived in Jordan and went to Kowloon Park to exercise in the morning.  At around 8:10 to 8:15 am, he arrived at the market to buy vegetables because his friend told him that the prices were cheap.  He had visited the market before but he did not make any purchase on that occasion.  On that day, it was the second time he visited the market. 

8.  When the Appellant arrived at the subject stall, it was open.  The Appellant saw an Asian man inside the subject stall.  There was no other person there.  The Appellant first took some onions from the display racks and took a plastic bag that was hanging above the display racks.  The Appellant then placed the onions inside a plastic bag, tied it up, and placed it on the table inside the subject stall. The Appellant then went to get tomatoes from the display racks and brought tomatoes back to the table and tied them in a plastic bag.  The Appellant said he tied the onions and tomatoes in the plastic bags because they would otherwise fall from the table. 

9.  The Appellant planned to get some green-leaves vegetables, however the immigration officers arrived and intercepted him.  The Appellant told the officers that he came here to buy vegetables. 

10.  The reason he chose this stall was that once he entered the market, the subject stall was located in the front.  The display racks of the subject stall faced outwards for customers to choose from.  He cared about the price of the vegetables, but he did not know the prices of the onions and tomatoes he selected.  The prices were not displayed and he did not ask anyone about the price. 

11.  The Appellant said it was the shop practice of the subject stall for customers to select goods and place it on the table inside the stall, and to wait for staff to come and tell him the price.  This is the said shop practice. 

12.  The Appellant agreed that there was no indication at the scene indicating the subject stall adopted the shop practice.  The Appellant claimed that his friend told him that this was the practice of the subject stall.  Then, when being pointed out to the Appellant that Appellant said in examination-in-chief that he was not familiar with the subject stall, the Appellant claimed that he thought his lawyer was then asking about the identity of the owner of the subject stall. Later, when being asked whether anyone told him that this was the practice of the subject stall, particularly for this stall, the Appellant said he heard that most sales in this market were done in this way and “not necessarily in particular about the shop”. 

13.  As for the Asian man the Appellant saw at the subject stall, the Appellant first claimed that he did not know the identity of the man, did not know how the man was connected to the subject stall, and did not know whether the man was in charge of the subject stall.  However, later he claimed that he thought the man was from the subject stall. 

Reasons for Verdict

14.  The Magistrate considered that the issue of this case is whether the Appellant took employment on 15 April 2024.  The Magistrate found PW1 to be a credible and reliable witness.  For the time she returned to the subject stall, the Magistrate found that as the timing of the Appellant tying the plastic bags was admitted in the Admitted Facts, so any discrepancy did not materially affect PW1’s credibility and reliability.  The Magistrate found PW1’s evidence to be clear and cogent and saying that she was a fair witness. 

15.  As to the Appellant’s evidence, the Magistrate found the Appellant not being credible and reliable: 

(1)  Unlike the Appellant, any reasonable man would have made an enquiry about the prices before selecting the goods and placing them in plastic bags to be taken away. 

(2)  There is no evidence that the Appellant had visited other stalls and compared the price at other stalls. 

(3)  The Appellant did not say that he would walk away if the price turned out to be high, and he could have remained and waited at the stall for the shop staff without taking the onions and tomatoes from the display racks. 

(4)  In cross-examination, the Appellant could have asked that Asian man about the prices. 

(5)  It was unusual for a customer to enter the inner area of the stall. 

(6)  There were no visible signs or indications to support the Appellant’s claim of the shop practice.  The Appellant initially stated that his friend informed him of the shop practice but later changed that he only heard that most sales in the market occurred this way. 

(7)  The Appellant initially claimed that he did not know whether the Asian man was connected to the subject stall but subsequently he said he thought the man was from the subject stall. 

16.  Further, the Magistrate stated that he bore in mind the case of R v Ip Po Fai, HCMA 1201/1995.  It was held that “working at a place per se is not employment”.  However the Magistrate, having considered all the evidence, held that the only reasonable and irresistible inference to be drawn was that the Appellant took employment on that day, particularly:

(1)  The subject stall was a place where workers were normally employed to perform work.  There were banners displaying the trading name, goods displayed for sale on the racks. 

(2)  The Appellant was seen tying the plastic bag, the market was in operation, and the clothes initially covering the display racks had been removed. 

(3)  The Appellant was seen tying the transparent plastic bags and there was no other customer at the scene. 

(4)  It was unusual for a customer to enter the inner area. 

(5)  The Appellant was the only person manning the subject stall. 

(6)  Any reasonable person not connected to the stall would not have performed such work as what the Appellant did, and there was no evidence to find that the Appellant was a volunteer or as a customer. 

17.  So all in all, considering all the evidence, the inference that the Appellant took employment as an odd job worker at the scene was the only reasonable and irresistible inference.  So the Appellant was convicted as charged. 

Grounds of Appeal

18.  The Appellant appeals against conviction but did not file any grounds of appeal. 

Respondent’s Reply

19.  The Respondent said that the crux of the case is whether the Appellant took employment at the material time and also put forward the following matters, highlighting the points of the case:

(1)  The Appellant was found to be the only person inside the subject stall, was seen tying up the bags.  If the Appellant was not employed to man the subject stall, it will be against common sense for any person to do what the Appellant did. 

(2)  There was nothing at the stall indicating the shop practice as suggested by the Appellant. As the Appellant being at the market only the second time, never having made any purchase in the market in the past, and having no special relationship to the subject stall,  the Appellant also ran the risk of being mistaken as thief of taking the goods like this. 

(3)  Appellant had not asked for the prices or compared the prices at different vegetable stores.

(4)  When PW1 first saw the subject stall, it was closed.  Later, when she returned some 15 to 30 minutes later, there was lighting at the subject stall, the clothes covering the display racks were removed, and the Appellant was the only person at the stall, and he was seen handling the onions and tomatoes. 

(5)  The Respondent submitted that no person who is unconnected to the stall would have performed such actions as being seen by PW1. 

20.  Therefore, the Respondent said the conviction should stand and the appeal against it should be dismissed. 

Consideration

21.  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.  The judge must be satisfied that the Appellant’s guilt has been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed.  On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which satisfy appellate court intervention to reverse the decision of the Magistrate to convict. 

22.  The court recognised that the 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 fact 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. 

23.  Now, firstly, the prosecution’s case mainly rested upon the evidence of PW1, who had observed what the Appellant did inside the subject stall.  Her evidence was not much disputed except the time taken for her to return to the stall.  However, as what the Magistrate had mentioned, as the time of observation was admitted, it did not materially affect her credibility and reliability. 

24.  The Appellant was seen inside the stall placing onions and tomatoes to plastic bags and then tying the bags.  There was no price tag nor any other person apart from the Appellant and the clothes initially covering the display racks had been removed when PW1 returned, about and within 15 to 30 minutes. 

25.  Upon receiving first-hand evidence from the witness, and through thorough analysis from the Magistrate, her evidence was accepted.  There was no basis for this court to overturn the Magistrate’s decision. 

26.  While for the Appellant’s evidence, he mainly stated he was there as a customer and he was told that prices for food there was cheap and there was shop practice for customers to select goods and place it on the table, followed by the staff telling customer the price. 

27.  The Magistrate also carefully considered the Appellant’s evidence and find that he was not credible and reliable, for the reasons that a reasonable man would have made enquiry for the price before selecting goods and placing inside a bag.  The Appellant had not even compared price at other stalls.  It is unusual for a customer to go inside the inner area of the stalls and there was no signs for supporting the Appellant’s claim for the said shop practice.  So clearly, the Magistrate had already duly considered the Appellant’s evidence and has sufficient basis and reasons to reject his evidence. 

28.  As to the findings of the employment, the Magistrate also stated that the subject store was a place where workers were employed to perform work.  The Appellant was seen tying the bags while there was no other customer or person there.  The subject store had lighting with vegetables on the display rack which was on business operation.  The Appellant was in the inner area manning the subject stall.  The Appellant would not have performed such work as volunteer or as customer. 

29.  So all in all, I do agree with the Magistrate’s findings and also find that the circumstantial evidence is so compelling that the only irresistible inference was that the Appellant was taking employment there.  On rehearing, I also found the charge had been proven beyond all reasonable doubt.  The conviction do stand and the appeal is dismissed accordingly.