HKSAR v. Quintos, Neolita Cervera

HCMA 122/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 122 OF 2016

(ON APPEAL FROM KCCC NO 4128 OF 2015)

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J U D G M E N T

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Introduction

1.The appellant, Ms Quintos, Neolita Cervera, was the 2^nd defendant in KCCC 4128/2015.  She pleaded not guilty to one charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance and Regulation 2(4) of the Immigration Regulations, Cap 115, Laws of Hong Kong. The appellant was convicted after trial and was sentenced to 3 months’ imprisonment.  She appeals against her conviction.  The appellant was granted bail, pending her appeal.

2.The appellant was legally represented at her trial but is not represented today. 

3.At the trial of the appellant, five witnesses testified for the prosecution, namely:

(1) PW1, Mr Wong Chi-keung of Home Affairs Department;

(2) PW2, Mr Fu Chi-keung of Home Affairs Department;

(3) PW3, WPC13775;

(4) PW4, Mr Lau Man-kin, interpreter of UI86765; and

(5) Sergeant 51500.

4.The prosecution case can briefly be stated as follows:  at about 6pm on 5 November 2015, PW1 and PW2 of the Home Affairs Department carried out an undercover operation.  They posed as customers looking for guestrooms at Rich Hotel on 11^th Floor, Block E of Chungking Mansions, Tsim Sha Tsui. They were greeted by the appellant outside the entrance to the hotel.  The appellant opened the door by entering a password on the electronic door pad installed on the main door.  After gaining entry into the hotel, the appellant went to the reception counter located at the end of the corridor.  There, she retrieved two electronic door keys from two envelopes.  The appellant then led PW1 and PW2 to their respective rooms and introduced the basic facilities of the rooms to the witnesses.

5.When the party returned to the reception counter, the appellant proceeded to registration by asking PW2 to produce his passport.  The appellant wrote PW2’s name and the rental cost, which was $1,300, on a piece of paper.  She also signed on that piece of paper and gave it to PW2 as a temporary receipt. PW2 then handed over the “marked moneys” to the appellant.

6.At this juncture, the operation turned overt and the appellant was later arrested by the police.

7.The appellant did not testify on the general issue.  A defence witness, Mr Ho Chun-wang Thomas, testified for the defence.  The defence witness was one of the owners of the hotel and other licenced guesthouses located at the 6^th Floor and 9^th Floor of Chungking Mansions.  The defence witness testified that at the time of the offence, the hotel in question was in the process of applying for a licence.  He used the hotel as a reception counter to other guesthouses only.  The witness said he was not involved in the operation of the guesthouses including the hotel in question.  He did not know if his staff had used the hotel as an unlicenced guesthouse or whether his staff employed the appellant to work at the hotel.

8.The defence witness testified that he came to know the appellant for over a year and they became close friends for over three months.  He allowed the appellant access to the hotel by giving her the password for the purpose of using the internet service only.  The appellant would normally inform him before going to the hotel but on the day in question, she did not.

9.The magistrate, in her statement of findings, directed herself on the burden and standard of proof.  She directed herself that the appellant was less likely to commit a criminal offence because the appellant had a clear record. The magistrate first considered the evidence of the defence witness and rejected it.  The magistrate found that it was wholly unreasonable for the defence witness, as a businessman, to let his staff run the guesthouses without any supervision or control.  In particular, the defence witness even said he did not know whether the guesthouses were making any profit.  The magistrate also considered that it was unreasonable for the witness not having any security concern because all the room keys were kept in the hotel’s reception counter.

10.The magistrate then went on to consider the evidence of PW1 and PW2. The magistrate found that the evidence of the two witnesses was straightforward and direct as well as unshaken under cross-examination.  The magistrate reckoned the minor inconsistencies between the evidence of the two witnesses but considered that these inconsistencies did not affect their credibility. The magistrate found that PW1 and PW2 were honest and reliable witnesses and she accepted their evidence in the entirety.

11.The magistrate considered HKSAR v Ip Po Fai (unreported, HCMA 1201/1995), for the proposition that working in a place per se is not employment, although in the absence of evidence, one may draw the necessary inference.  The magistrate, having considered all the evidence in the case, came to conclusion that there was a system of work and/or work instructions and/or commands given to the appellant.  She drew the only reasonable and irresistible inference that the appellant was employed to work at the hotel at the material time.

12.The appellant, in her homemade grounds of appeal against conviction, put forward 11 grounds of appeal.  She filed two written submissions in support of her grounds of appeal.  Most of the grounds of appeal argued by the appellant concerned the evaluation of the evidence by the magistrate.  Two of the grounds cause me concern, ie, ground 5 and ground 6.  Ground 5 and 6 read:

“(5) The learned magistrate erred in law by first considering the defence evidence and whether the appellant was in the guesthouse as a guest of DW. In so doing, the learned magistrate placed a burden of proof on the defence.

(6) Having wrongly placed a burden of proof on the defendant, the learned magistrate further erred by finding the DW was unable to discharge that burden before consideration of the prosecution evidence.”

13.Mr Daryanani argues in paragraph 14 of the respondent’s further skeleton submission that:

“It is accepted that under the heading of analysis of evidence, the learned magistrate examined the evidence of the appellant first at paragraph 13 of the statement of finding and disbelieved it. She then examined the evidence of the prosecution witnesses ‘PW1 and PW2’ at paragraph 31of the statement of findings and believed it. It is also accepted this order of examining the defence case before the prosecution case is not recommended for reasons stated in paragraph 20 of HKSAR v Ejegi Edwin Robert, HCMA 502/2010. [Paragraph 20 is reproduced] for ease of reference:

‘(20) In this end result I am disturbed by the process by which the magistrate proceeded to conviction.  The magistrate determined that the appellant’s account was untruthful before she considered the prosecution witnesses’ evidence.  She did not apply the same test when doing this.  This is unacceptable.  It is imperative, in my opinion, that only in the most exceptional circumstances, for example when the prosecution evidence is not contested, that a magistrate should consider the defence evidence before that of the prosecution.  To do as this magistrate did gives the impression that unless the defendant’s evidence or witnesses are believed, then he/she will be convicted.’ ”

14.The respondent also cites and relies upon the case HKSAR v Wan Ming Yee [2012] 5 HKLRD 240.  The respondent cited paragraph 18 which states:

“I agree, generally speaking, when assessing credibility, it is improper for a magistrate to assess the evidence of the defence first. However, this point does not necessarily in itself enable a conviction to be quashed.”

15.The respondent submits that there were reasons why the appeal against conviction was allowed in the case of Ejegi.  The respondent argues that in the present case, reading the statement of findings as a whole, the magistrate was not reversing the burden of proof.  The respondent argues that there is not much difference between the defence and prosecution version of the events in the present case.  The magistrate was examining the defence witness’s evidence to see whether it can raise a reasonable doubt.

16.I do not agree with the respondent’s submission that there is not much difference between the defence and the prosecution version of events in the present case.  At the trial, it was contended that D2 was forced to write the temporary receipt and it was dictated to her by PW2.  The evidence of PW1 and PW2 was in dispute.  In my judgment, there was no good reason why the magistrate should depart from the norm and analyse the evidence of the defence witnesses before that of the prosecution witnesses.  In my judgment, the magistrate, by first considering the defence evidence and finding, as she did, that the defence witness failed to prove that D2 was his close friend, fell into the same error as the magistrate in Ejegi Edwin Robert did.  The magistrate said in paragraph 30 of the statement of findings:

“From the evidence of Thomas, D2 was his close friend. He invited and allowed D2 to enter and stay in the unit to use and enjoy the internet connection service and that D2’s appearance at the unit was mere coincidence. Nevertheless, I do not accept Thomas’s evidence for the following reasons:

(a) Other than sheer allegation, Thomas failed to prove that D2 is his close friend. With the exception of some brief personal background, DW did not know D2’s family, what she do in her pastime and where she resides.” (emphasis added)

17.In my judgment, the passage quoted does give one the impression that the magistrate had reversed the burden of proof.  She placed the burden on the defence to prove that the appellant was a close friend of the defence witness.

18.The respondent submits that the magistrate examined the evidence of the defence witness first only to see whether it can raise a reasonable doubt.  The magistrate stated the following in paragraph 29, before she examined the evidence of the defence witness:

“Ultimately, it would be a question of fact depending on the evidence in this case to decide whether D2 was working as an employee or otherwise. In this regard, I shall first consider the evidence given by Thomas.”

19.In my judgment, the magistrate examined the evidence of the defence witness as the first part of her fact-finding process to determine whether the appellant was a close friend of the defence witness not, as the respondent submits, to see whether the defence evidence raises a reasonable doubt.  In my judgment, the magistrate did err in law by first considering the evidence of the defence witness when there was no good reason to do so.  She also erred in law by placing a burden of proof on the defence.

20.Ground 5 and ground 6 succeed.  It is only just that the appeal against conviction should be allowed. 

21.The respondent applies for retrial and the appellant has no objection to a retrial.  In my judgment, it is in the interests of justice that this case should be retried before another magistrate.  For the reasons given, I allow the appeal.  The conviction is quashed, sentence is set aside and I order the case be retried before another magistrate.

22.All the bail terms will remain unchanged except for the reporting condition.  The appellant is only required to report to Tsim Sha Tsui Police Station between 6 to 9 pm once a week on Wednesday.  All the other terms remain unchanged.

Mr Prakash L Daryanani, Senior Public Prosecutor of the Department of Justice, for the respondent

The appellant appeared in person