HKSAR v. Islam Mirazul

HCMA 306/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 306 OF 2016

(ON APPEAL FROM STCC NO 4039 OF 2015)

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J U D G M E N T

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1.The appellant, Islam Mirazul, a holder of a Bangladesh passport, was subject to a removal order issued by the Immigration Department at the material time.  The appellant was released on recognizance which prohibited him from taking up any employment in Hong Kong.  The appellant faced one count of taking employment while being a person in respect of whom a removal order is in force.  He pleaded not guilty to the charge but was convicted after trial. The appellant now appeals against his conviction.

2.It is not in dispute that the appellant was arrested in November 2006 for having overstayed as a visitor.  On 4 December 2006, a removal order was issued by the Immigration Department against the appellant.  At the time of the offence in the present case, the removal order is still in force.  On 2 February 2007, the appellant was released on recognizance and he was aware that he was prohibited from taking up any employment in Hong Kong, paid or unpaid.

3.On the day in question, ie, 22 September 2015, Mr Ma, PW2, engaged a Mr Ho for transportation of goods.  Mr Ho provided a delivery truck and he met up with PW2 at the container terminal to pick up the goods.  When PW2 arrived at the container terminal, he saw a dark-skinned male working with Mr Ho.  When Mr Ho was moving the boxes to the truck, that dark-skinned male was moving in and out at the back of the truck.  After all the goods had been moved onto the truck, PW2, Mr Ho and that dark-skinned male all went to PW2’s home at Sheung Shui together in the same truck.  PW2 and the dark-skinned male were sitting next to each other during the journey.

4.Upon arrival, PW2 went into his home to pick up a trolley.  PC 10874 (PW1), was observing in the vicinity.  PW1 saw Mr Ho and the dark-skinned male move the boxes from the truck onto the ground.  After PW1 had observed for five minutes, he and his colleagues intercepted the appellant.  When PW2 returned, he saw the dark-skinned male was being investigated by a female police officer.  It is the prosecution case that the appellant was the dark-skinned male referred to by PW2 and PW1.

5.The appellant elected to give evidence but did not call any defence witness.  The appellant testified that he lived in Sham Shui Po at the material time.  On the day in question, he went to Sheung Shui to meet up with a friend.  It was his plan to go to Sheung Shui to return HK$20,000 to his friend.  However, upon arrival, his friend asked him to deliver the money instead to another friend in Sham Shui Po.  The appellant then walked to the MTR station.  He got lost on his way, but soon he met up with another friend at the material location.  His friend was moving carton boxes onto a trolley for a Chinese male.  As the appellant had lost his way, he approached his friend to ask for direction. After two to three minutes, a team of police officers approached, the appellant’s friend fled away and the appellant was intercepted.  The appellant denied he had ever worked.  He complained PW1 and PW2 had just mistakenly identified him.

6.The magistrate considered the evidence of the prosecution witnesses and the evidence of the appellant.  Of the evidence of PW1, the magistrate noted his evidence that he had observed the appellant for about five minutes.  For the complaint made by the defence that PW1 only observed the appellant for a short period of time during which PW1 had to spend time observing two other Chinese males,  the magistrate took the view that the evidence of PW1 showed that the appellant and the two other males were in close proximity and working near the back of the truck.  Of the three, the appellant was the person that PW1 was focusing on as he suspected the appellant was an illegal worker.  The magistrate accepted that though PW1 had to keep an eye for the other two Chinese males, he could still observe the appellant without being distracted.  For the complaint that PW1 had made no written record, nor did he mention in his examination-in-chief that Ho had given oral instructions to the appellant, the magistrate considered the complaint did not affect PW1’s credibility as it was clear from PW1’s evidence that he was focusing on the actions of the appellant rather than any oral instructions given by Mr Ho.

7.Of the evidence of PW2, the magistrate was aware of the complaints made by defence counsel, namely:

(1) PW2 did not pay much attention at the container terminal;

(2) he had fallen asleep in the car on the way back to Sheng Shui; and

(3) PW2 could not identify the photograph of the appellant in court, ie, P4, photograph E, page 28 of the appeal bundle.

8.The magistrate considered, however, PW2 testified that he was with the dark-skinned male from the container terminal to Sheung Shui.  They had spent time moving boxes with each other.  PW2 was sitting next to the dark-skinned male during the journey back to Sheung Shui and the two had talked during the trip.  PW2 met Mr Ho at 9:15 am, and by the time of the police interception of the appellant, it was already 12:20 pm.  Taking into consideration PW2 had spent some time in breakfast, there was at least two hours of interaction between PW2 and the dark-skinned male.  During the whole period of time, even if PW2 was not focusing on the facial features of the dark-skinned male, he would still be able to recognise the dark-skinned male after a few minutes’ separation.

9.For the inability on the part of PW2 to recognise the defendant in the photograph E of P4, the magistrate accepted PW2’s explanation that the photograph was dark. The magistrate took the view that the fact that PW2 was unable to identify the person in the photograph does not mean he could not identify a person in broad daylight at the scene.  The magistrate noted that PW2 was not wearing glasses in court, but he was wearing glasses at the material time.  The magistrate concluded that PW2 could easily recognise the person he was with in daylight and had interaction with for two hours.  The magistrate considered that it was inherently improbable that PW2 would misidentify somebody who was wearing similar clothing as the defendant at the material time.

10.It was the defence case that there was another dark-skinned person at the scene, ie, the friend of the appellant, but the appellant never suggested that the appellant and his friend wore the same or similar clothing.  If the appellant and his friend wore the same clothing, it means that two different persons, two friends with similar look, just happened to bump into each other in Sheung Shui and wore the same clothing at the same time.  The magistrate found that to be inherently improbable.  If they wore different clothes, the magistrate found that it would be most unlikely that PW2 would misidentify the appellant as the defendant’s friend at the scene.  At the end, the magistrate accepted PW2’s evidence that he could recognise the person who was moving the boxes with him for two hours at the scene and at the container terminal.

11.The magistrate also considered the defence case in great detail.  The defence case was that there was an unknown person who had been moving boxes in Sheung Shui in the morning.  The person who had been moving boxes was a friend of the appellant, it just so happened that the appellant bumped into his friend in Sheung Shui shortly before the arrival of the police.  And in that short period of time, ie, two to three minutes, PW2 did not see the defendant’s approach.  On the part of the police officers, they did not see the unknown person flee.  Everybody, ie, PW2 and PW1, just confused the appellant with the unknown disappeared friend of the appellant. 

12.The magistrate rejected the defence case as inherently improbable.  At the end, the magistrate accepted the identification evidence of PW1 and PW2.  He found it proved beyond reasonable doubt that the appellant was the same dark-skinned male who accompanied PW2 from the container terminal to Sheung Shui.

13.The magistrate then considered the issue of employment.  Given his findings that the appellant was seen in and out of the truck at the container terminal; they travelled all the way from the container terminal to Sheung Shui, moving the boxes from the tailgate of the truck onto the trolley; given also the facts that the boxes belonged to PW2, PW2 had engaged Mr Ho, the truck owner, for the business of delivery of the boxes from the container terminal to PW2’s home in Sheung Shui, and given his findings that the appellant had accompanied PW2 and Mr Ho from the container terminal to Sheung Shui, then helped Mr Ho to unload the boxes from the truck, the appellant was obviously working for the delivery business.

14.The magistrate pointed out that there was no reason why the appellant would work for Mr Ho unless it was for employment.  The only irresistible inference he drew was that the appellant was being employed as an odd-job worker.  The magistrate found it proved beyond reasonable doubt that the appellant was being employed as an odd‑job worker at the material time.  Hence, he found the appellant guilty.

15.The appellant, in his homemade grounds, complained that there was no evidence, no photographs or no video showing he was working at the scene.  He also complained that PW2 failed to identify him in his photograph, ie, P4, photograph E, page 28 of the appeal bundle. 

16.Basically, the appellant reruns his defence before me today.  He says he was passing the thoroughfare where he met his friend at the time his friend was working there.  He wanted to talk to his friend so he stood beside him.  His friend was then working with two male Chinese workers.  The appellant submits it was quite impossible for the police constable to observe him for five minutes.  The appellant’s friend was busy working with two male Chinese workers.  As for the appellant, he was standing by the side of the road, talking to his friend for two to three minutes.  There was one vehicle parked at the scene and some police officers appeared by the side of that vehicle.  The appellant alerted his friend police officers were coming, his friend successfully escaped and fled towards a villa.  As for the appellant, he just stood there.  He was not working but was, nevertheless, intercepted by the police.

17.The appellant stresses that he did not work on the day in question; his friend was working there.  He has the photograph of his friend in his mobile phone and can produce the photograph of his friend to court.  The appellant also submits that though he had not worked on the day in question, he is prepared to plead guilty and to get the one-third reduction.  The appellant also complains that he was confused at his trial.  He asks me to look into the evidence of PW2 carefully.  He complains that the identification evidence of PW2 is not reliable, PW2 was unable to recognise the appellant from the photograph P4(E).  Finally, the appellant asks for justice.

18.Mr Wong, for the respondent, submits that for the complaint that PW2 was unable to identify the appellant from P4(E), the defendant was standing against a very dark background in P4(E) and it is one thing that the witness was unable to identify a person by a photograph, it is a different matter whether he can recognise a person when hitherto he had sufficient opportunity to see that person face to face. 

19.The respondent submits that the magistrate had considered the evidence with great care. Eventually, the magistrate came to the conclusion that the switch of persons as suggested by the appellant was inherently improbable.  The magistrate had considered the issues of identification and employment in his reasons for verdict.  There is no merit in any of the grounds argued by the appellant, and hence the appeal should be dismissed.

20.I have considered all the matters urged by the appellant and the submissions made by Mr Wong. Most of the matters raised by the appellant had in fact been considered by the magistrate.  The appellant says he wants to produce the photograph of his friend which is kept in his mobile phone.  The appellant was represented by counsel at his trial.  The appellant says he has this photograph of his friend kept in his phone.  No doubt that photograph was also available at the time of his trial.  If the appellant thought the photograph of his friend was material to his defence, he could have produced the photograph at his trial and showed it to PW2. 

21.The appellant says though he had not worked on the day in question, he wants to plead guilty to get the one-third reduction.  I am not prepared to entertain the request of the appellant, I am only dealing with the correctness or otherwise of the conviction.

22.The appellant says he was confused at his trial by the lawyers.  But the fact remains, the appellant gave evidence at his trial and what he told me today is basically the same as what he told the court at his trial.  I do not think the appellant was confused at all.  His defence was fully placed before the magistrate. 

23.Of the complaint made about the identification evidence of PW2, it is obvious from the statement of findings prepared by the magistrate that he had considered the issue of identification with great care. The magistrate had considered the time that PW2 had spent with the dark‑skinned male since PW2 joined Mr Ho and the dark-skinned male at the container terminal.  During the whole period of time, PW2 had time to work with the dark-skinned male.  There was interaction between the two.  And the magistrate also noted that when PW2 returned to the scene, he saw that the same dark-skinned male was being investigated by a female police officer.

24.I agree with the respondent’s submissions that the quality of the photograph that PW2 was asked to look at is not very good. As noted by the magistrate, PW2 was not wearing glasses in court, but he was at the time when the offence took place.  It is one thing that a person is unable to identify a person depicted in a photograph, it is not the same to say that that person is unable to see an actual person in broad daylight at the scene.  The magistrate had considered all the criticisms made of PW2’s identification evidence by defence counsel at trial. The magistrate had the advantage of seeing and hearing the evidence of the witnesses in court.  The magistrate is quite entitled to accept the identification evidence of PW2 on the evidence before him.

25.As for the evidence of the police officer, PW1, it is true that at the time, he had to observe three persons, but it was the appellant that he was focusing upon as he suspected the appellant was an illegal worker.  On the evidence before the magistrate, he was quite entitled to accept the evidence of the police officer which was supported by the evidence of PW2.

26.As for the evidence of the appellant, the magistrate was aware of the clear record of the appellant.  He had analysed the evidence of the appellant and gave reasons why he rejected the defence version.  On my part, I can see no fault in the reasoning process of the magistrate. 

27.The grounds of appeal and the complaints made by the appellant are bereft of merits.  I have considered the evidence afresh.  I come to the same view as the magistrate did.  The appeal against conviction is therefore dismissed.

Mr Wong Chun-hin Derek, SPP of the Department of Justice, for the respondent

The appellant appeared in person