HKSAR v. KARIM, MD RAZAUL AND ANOTHER

HCMA 192/2017

[2018] HKCFI 2168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 192 OF 2017

(ON APPEAL FROM STCC NO 4783 OF 2016)

______________

______________

______________

____________________________

REASONS FOR DECISION

____________________________

1.  On 17 March, 2017, the two applicants were respectively convicted after trial in Shatin Magistracy of one count of “taking employment while being a person who remains in Hong Kong without theauthority of the Director of Immigration after having landed in Hong Kong unlawfully”, contrary to section 38AA(1)(a) and section 38AA(2) of the Immigration Ordinance, Cap 115 and they were each sentenced to 22 ½ months’ imprisonment. Their appeals against convictions were dismissed on 14 March 2018 in the Court of First Instance.

2.  By a Notice of Motion dated 22March 2018, the applicants sought clarification under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 of what are said to be four points of law of greatand general importance involved in my decision of to dismiss their appeals.

3.  On 8 June 2018, after hearing the submissions made on behalfof both the applicants and the respondent and after carefully considered the four questions raised by the applicants, I came to the conclusion that all of the questions now raised on this application did not involve any point of law of great and general importance. 

4.  In the result, I decline to certify that any such points of law of great or general importance arise from my judgment.  Nonetheless, I shall deal with each point of law in turn and the following are the reasons for my decision.

The four points of law

5.  The points of law which were said to be of great and general importance by the applicants are as follows:

(1) Whether the prosecution can prove employer/employee relationship when a group of people are working and/or performing something that may be described as work together?

(2) Whether the applicants can be convicted of taking employment, when the prosecution cannot prove beyond reasonable doubt that the person giving directions was an employer, and/or the said person was giving instructions for and on behalf of the employer, when the courts below found that the said person exercised control and gave instructions to the applicants?

(3) Whether a vehicle can be an obvious place of employment when there is no evidence of ownership and/or evidence that it was used in connection with a business?

(4) Whether, before drawing an inference of employment, the Court must first ascertain the existence of a business and the nature of such business?

6.  In the first point, it was submitted that the employer/employeerelationship cannot be proved based on the mere fact that a group of people are working and/or performing something that may be described as work together.

7.  In the second point, it was submitted that based on the existing authorities, one cannot go so far to conclude that one person is another’s employee based on the sole indicia of employment present, specifically thatof the giving of directions and/or instructions, without any further evidence to suggest that those directions and/or instructions were being given as an employer or on behalf of one.

8.  It is further submitted that from all the evidence before the magistrate, the mere observation that the two applicants and the male (M3) were working together inside the scrap metal recycling site is insufficient toprove the existence of employment.  Furthermore, nothing in the testimony of PW1 and PW2 and the admitted facts pointed against the applicants and/or M3 that there was an element of employment (eg there is any common intention to employment) that would constitute establishment of an employee/employer relationship during the investigation at scene, albeitthe magistrate refused to accept the explanation offered by the 2^nd applicant.

9.  The respondent replied that whether an employer/employee relationship can be proved in a particular case will depend on the particularcircumstances of that case.  Factors such as a group of people have workedtogether, a person in the group has given instructions to other people in thatgroup, how the instructions were given and in what capacity the person wasgiving instructions are all features that the Court can examine to determinewhether the people in the group were taking employment at the material time.  They are not the sole determining factors.

10.  The modern approach to the question whether one person is another’s employee is to examine all the features of their relationship against the background of the “indicia of employment” with a view to deciding whether, as a matter of overall impression, the relationship was one of employment.[1]

11.  I entirely agree with the respondent and it is clear to me that Points 1 – 2 only go to the sufficiency of evidence to support an “inference of employment”.  As such, they are simply factual issues and do not raise any points of law of great and general importance.

12.  In the third point, the applicants relied on the Court of Final Appeal case of HKSAR v Ferosh [2]and submitted that the lorry on which the three males (including the two applicants) were seen removing the scrap metals from the lorry to the yard was not an obvious place of employment.

13.  The applicants contended that the vehicle did not display any logo or insignia.  Further, there was no evidence as to whom the vehicle belonged.  The vehicle was, at the material time, located inside a scrap metal recycling yard but there was evidence from PW1 that they were not the employees of the yard but they were there to sell their scrap metals to the yard.  However, despite this, the magistrate found that the vehicle was an obvious place of employment and this findingwas upheld on appeal.

14.  I was puzzled as to why the ownership of the lorry has a bearing on whether it is an obvious place of employment.  It is submitted that an unmarked vehicle with no evidence of ownership must be more akin to an unmarked shed in Ferosh than a restaurant, shop or construction site.

15.  This submission, however, overlooked the important fact that the lorry in this case was not just an ordinary lorry parked on a street; it was a lorry parked inside the scrapped metals recycling yard with the tailboard filled with scrapped metals lowered at the material times.  The two applicants were seen removing the scrapped metals from the lorry to the yard under the direction of M3.  That was why at paragraph 34 of my Judgment, I held that:

“ … Given the background of the facts of the present case and the nature of work duties alleged coupled with the undisputed evidence from PW1 that he would pay the driver of the lorries forthe scrap metal they unload into his recycling site, I entirely agreewith the Magistrate that the lorry is a usual place of employmentfor the purpose of unloading the scrap metal by the two appellants.”

16.  I therefore totally agree with the respondent that the lorry in the present case was filled with scrap metal for sale in the recycling yard, which is undoubtedly a usual place of employment for unloading, moving and selling scrap metals.  As the respondent rightly submitted, “…Putting the lorry and the recycling yard together, it is simply unarguable for the Appellants to now claim that they were not in a usual place of employment for the purpose of unloading scrap metal by them.”

17.  The point is clearly not reasonably arguable and it does not raise any point of law of great and general importance.

18.  In the fourth and the final point, the applicants contended that the existence of and nature of the business ought to be determined before an inference of employment with that business can be drawn.  It was submitted that failing which, it would be impossible to decide the question whether one is working for the employer or one is working on his own account.  In the present case, on all the evidence, no such determination had been made.

19.  Again, I was baffled by this submission as it obviously overlooked the finding by the magistrate which has already been confirmed by me in paras 20 – 21 of the Judgment.  I shall do no better than to recap what I have said in those paragraphs:

“ 20. Depending on circumstances, contract of employment might arise in relation to a specific engagement. The modern approach to the question whether one person is another’s employee is to examine all the features of their relationship against the background of the indicia of employment with a view to deciding whether, as a matter of overall impression, the relationship was one of employment.⁵

21. In the present case, I do not agree that there is no evidenceas to who owned or rented the lorry.  D2 already gave evidence tothe effect that M3 was the driver of the lorry and he was to unload the scrap metal at the back of his lorry to the recycling site and according to the evidence given by PW1, the operator of the recycling site, he would pay the driver according to the weight of the scrap metal using an electronic scale.  Therefore, it is not difficult to infer that the scrap metal belonged to M3 and he would sell them to PW1 or else why he would bother to drive his lorry to carry them all the way to unload the same onto the recycling site?  The lorry was, for all intent and purposes, a transportation equipment used by M3 to collect and deliver the scrap metal and whether M3 in fact owned or rented the lorry is not particularly crucial in this analysis.  It is also abundantly clear that M3 was not an employee of the recycling site.  As said, the Magistrate hasalready rejected D2’s evidence that they were just waiting aroundand doing nothing when M3 was unloading the scrap metal insidethe recycling site on his own.  As to why they were unloading the crap metal, it must be remembered that it was never the defence case during the trial that the two appellants were rendering a service as movers to M3.  Based on the fact that they only used their bare hands to remove the scrap metals and did not bring along their own tools such as gloves or trolleys or other equipment, there is in my view no sufficient basis to infer that the appellantswere working for themselves as self-employed workers rather than odd job workers employed by an employer on a casual basis.”

___________________

⁵   HKSAR v Chow Kin Cheung [2013] 1 HKC 246, at paragraph 9

20.  As correctly pointed out by the respondent, it is clear that boththe magistrate and I have already found that the applicants were employed in a business of unloading and moving scrap metals which would in turn be sold to the recycling yard.  Such findings have expressly built into the analysis of the Statement of Findings and the Judgment respectively.  In sodoing, we have specifically rejected any suggestions of self-employment orthat the applicants have assisted M3 (ie the person gave them instructions) toremove scrap metals for free or out of any obligation or special relationships. 

21.  The so-called fourth point of law was therefore a complete red-herring and a total disregard of the clear analysis already made both in the Statement of Findings as well as the Judgment.

Conclusion

22.  The legal principles in this area of law are well settled.  The four questions cannot be said to raise a point of law of general importance. Rather, they simply involve no more than the application of well-known legal principles to the evaluation of facts in the present case and revolve around the only triable issue, viz, whether there is sufficient factual basis,direct or circumstantial, to draw the necessary or only and reasonable inference that the two applicants were taking employment at the time of the offence.

23.  I therefore decline to certify the questions posed.