HKSAR v. Pabita Raut

HCMA 551/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 551 OF 2016

(ON APPEAL FROM STCC NO 1947 OF 2016)

______________

______________

________________________

J U D G M E N T

________________________

Introduction

1.On the 2 September 2016 the appellant was convicted after a trial of one charge of “Taking employment while being a person in respect of whom a removal order is in force” contrary to section 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115.  The appellant was sentenced to a 22 months and 2 weeks’ term of imprisonment.  She now appeals against both conviction and sentence.

The Prosecution Case

2.The appellant is a holder of a Nepalese passport and subject to a removal order dated 25 November 2015 issued by the Immigration Department.  She was released on recognizance and admitted she knew full well she was prohibited from taking up employment in Hong Kong. 

3.It was also undisputed immigration officers, including PW1, arrived at a Vietnamese restaurant in Jordan, Kowloon at about 1:08pm to 1:10pm on the 2 June 2016 and found the appellant inside the restaurant kitchen.  They came to spot check the identity of workers in the premises. 

4.The prosecution relied on PW1 to say the appellant was seen by him washing up dishes in a basin inside the kitchen.  He asked her and others there to produce their identification documents at the same time as showing them all his warrant card.  His evidence was that she then took off her apron and hung it up.  She also took off her wellington boots.  He assumed she was about to fetch and show him her identity card, instead she crawled through the food hatch into the serving area of the restaurant where she was intercepted by a colleague of PW1.

5.The appellant was subsequently arrested.  She was allowed to return to the kitchen to retrieve her personal belongings.  PW1 saw her retrieve her mobile phone and her slippers from the top of a pile of carton boxes inside the kitchen.

The Defence Case

6.The appellant gave evidence and told the court she had just received a $200 subsidy from the International Social Services in their offices nearby and went to this restaurant to eat; her friend called Didi worked there.  She ordered a bowl of noodles.  She wanted to share her food with her friend so went to the kitchen door and called out her name to attract her attention.  Without entering the kitchen, she turned away from the door when her friend did not respond.  At this moment, two immigration officers stood in front of her and pushed her into the kitchen asking her for identification.  This is contrary to the admitted facts that stated she was seen in the kitchen but it seems this contradiction was not addressed at trial. 

7.She became nervous because she did not have her identification documents on her and was scared she would be arrested.  She crawled through the food hatch from the kitchen to the restaurant out of fear and to get away.  She denies she ever washed any dishes, wore an apron or wellington boots.  She certainly did not store her personal belongings, her mobile and slippers inside the kitchen. 

The Issues

8.The magistrate had to decide on the credibility of the witnesses.  When he rejected the appellants evidence and accepted the prosecution witnesses he then had to decide if the facts added up to the appellant taking up employment. He did.

Magistrate’s Findings

9.The magistrate accepted the evidence of the prosecution witnesses especially that of PW1.  In a careful assessment of the evidence and submissions made he found PW1’s observations of the appellant in the kitchen credible and believable.  He did not accept there was an attempt to frame an innocent as suggested.  In dealing with PW1’s credibility he found him reliable as he did PW2 and PW3.  He analyzed the evidence in detail (para 10 of his statement of findings) and gave reasons why he accepted PW1’s evidence.

10.Likewise, for the defendants evidence he gave reasons why he did not believe her.  He carefully assessed her evidence whilst aware of her clear record.  He found it to be incredulous and rejected it. 

11.He very properly did not place any weight on the fact the appellant tried to escape through the food hatch.  He did not take it as an indication of guilt.  He also did not place any weight on the suggestion there was an employee work card purportedly belonging to the appellant which was not in her real name.  This evidence was hearsay because the person who showed the immigration officers her work card was not called to give evidence.

12.He found on the facts he believed credible the appellant was washing dishes in the kitchen and believed he could draw the irresistible inference she was under employment according to the authority of HKSAR v Ip Po Fai, HCMA 1201/1995.

Grounds of Appeal

13.I have heard from the appellant and received the respondent’s submissions.  In essence, the appellant repeated her defence and stressed she was not working in the kitchen at the time.  She submitted there was insufficient proof to convict her.  In particular, she questioned why there were no photographs of her working produced in evidence.  She also questioned why if she was really wearing an apron and boots did PW1 let her take them off. As for sentence, she was at a loss to understand why it was so lengthy; asking for mercy and a reduction in it.

The “Plainly Wrong” Test

14.The issues here relate to the credibility of the witnesses and the weight of the evidence; both being questions of facts to be determined by the magistrate. 

15.This appeal is an appeal by way of rehearing on the papers.  The principles relating to a magistracy appeal have been reiterated in HKSAR v Ip Chin Kei[2012] 4 HKLRD 383 by McWalters J (as he then was).  An appellate court will not depart from a magistrates finding as to the credibility of a witness unless it is satisfied that the finding is “plainly wrong”.  I quote Zervos J in HKSAR v Fok James Alistair [2015] 4 HKC 247, at para 10 where he explains the “plainly wrong” test:

“10. In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, whether the finding was one that no reasonable magistrate could have reached.”

16.I have considered the magistrate’s findings and he obviously carefully assessed the evidence.  He was alive to all issues submitted.  He found the defence case lacking and rejected it.  He found PW1 reliable and credible. 

17.There is no reason or justification to go behind his findings on the credibility of the witnesses.  He had the advantage of hearing and seeing the witnesses give evidence and study their demeanor.  His conclusion is fully justified and I agree with his conclusions.

18.The magistrate found on the evidence the appellant was working in the kitchen.  She was washing dishes in a staff-only area and had on an apron and wellington boots to do the task.  Her personal belongings were stored in the staff-only area.  I am satisfied from the evidence and papers that the sole and irresistible inference of employment can be drawn and the elements of this offence can be proved beyond reasonable doubt.  Therefore, the appeal against conviction is dismissed.

Sentence

19.In arriving at his sentence the magistrate considered the relevant authority of HKSAR v Usman Butt & another [2010] 5 HKLRD 452. The Court of Appeal laid down the guideline of 15 months’ imprisonment on a plea for section 38AA offences.  Here, the appellant was convicted after trial and lost the benefit of a discount after a plea of guilty.  Hence the sentence of 22 months and 2 weeks is correct following the guideline.  Of course a sentencing magistrate can depart from it if there are certain mitigating factors such as a voluntary surrender to the authorities, merciful reasons or strong humanitarian grounds.  Here the appellant did not present any mitigation that merited a departure from the norm. 

20.In this case, there is nothing to show the magistrate passed a sentence which is beyond the guideline laid down or which fails to take into account any mitigation to the benefit of the appellant.  I therefore find the sentence of the magistrate correct and is not manifestly excessive or wrong in principle.  I also dismiss the appeal against sentence.

Ms Ma Ka Na, Clara, Senior Public Prosecutor of the Department of Justice, for the respondent

The appellant appeared in person