HKSAR v. Zaib, Phool

HCMA 2/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 2 OF 2017

(ON APPEAL FROM STCC NO 4165 OF 2016)

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J U D G M E N T

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Introduction

1.On the 7 December 2016 the appellant was convicted after trial of one charge of “establishing or joining in any business while being a person in respect of whom a removal order is in force” contrary to sections 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.  He now appeals against his conviction only.

Background

2.On the 23 October 2016 the appellant was observed carrying 18 handbags on his arms and negotiating a sale with customers on the street in Central.  He was seen being paid $40.00 in cash after he had given a woman a pink handbag.  He was intercepted.  The prosecution alleged the appellant was seen selling merchandise of which he had a supply when he was prohibited from establishing or joining a business whilst released on an immigration recognizance.  The magistrate found beyond reasonable doubt the appellant was selling merchandise. The defence case was that he was an innocent bystander and a customer who was only carrying his own shopping; he was framed for the offence.

The Issue

3.The issue here is the credibility of the witnesses and the reliability of their evidence.

Admitted Facts

4.The appellant entered Hong Kong illegally and surrendered to the Immigration Department on the 12 May 2016.  He was released on recognizance on the 15 June 2006.  A removal order was issued by the Immigration Department against the appellant on the 8 September 2016 and served on him on 26 September 2016.  It remained in force on the date of this offence, 23 October 2016.

5.It was also agreed PW1, an assistant hawker control officer on duty in uniform, saw the appellant standing on the pavement outside Chater House, 8 Connaught Road on the 23 October 2016 and later that same day confiscated from him the 18 handbags the appellant was carrying.

The Prosecution Case.

6.PW1, the only witness, saw the appellant at about 1pm stood on the pavement outside Chater House in Central with many handbags draped over both arms.  He was talking to three women at the time, clearly peddling his bags even though PW1 could not hear the conversation.  The appellant was facing and looking at the women as they talked.  PW1’s suspicions were confirmed when he saw the appellant hand over a pink handbag to a woman who gave him $40.00.  The appellant put the cash into his own black bag.

7.This woman left with her pink bag and the appellant continued talking to the other two women.  At this point PW1 approached and revealed his identity to the appellant.  Subsequently after the appellant’s status was made known he was arrested by PW1.

The Defence Case.

8.The appellant gave evidence.  He is from Pakistan and speaks Urdu only.  He said that on the material day he was with a friend called Mr Haq walking around Central.  He came across a hawker selling handbags very cheaply.  He bought 18 bags to give away to his many family members in Pakistan.  He paid $960.00.  He said the hawker did not have any big plastic bags so he decided to carry the bags loosely without placing any in any shopping bags.  He carried on walking in Central with his friend when he was stopped by police.  He said the street was crowded and there were hawkers nearby.  He denied talking to any women or selling any of the bags he was carrying.

The Magistrate’s Findings

9.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.  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 magistrate’s finding as to the credibility of a witness unless it is satisfied that the finding is “plainly wrong”.

10.The magistrate accepted the evidence of the prosecution witness PW1. In a careful assessment of the evidence and submissions made she found PW1’s observations of how the appellant was interacting with women on the pavement and what he then did with one of his bags credible and believable.  She did not accept there was an attempt to frame an innocent as suggested.  She analyzed the evidence in detail and gave reasons why she accepted PW1’s evidence.

11.Likewise, for the defendants evidence she gave reasons why she did not believe him.  She carefully assessed his evidence whilst reminding herself of his previous good character; she found it to be unbelievable and rejected it. 

12.I quote from her statement of findings to show her clear analysis:

“17. Having carefully considered all the evidence and the final submission advanced by the Defence, I accepted the evidence of PW1 who impressed me as being both reliable and truthful in describing what occurred. PW1 remained unshaken under cross-examination, insisting on the veracity of his accounts. He gave his evidence in a straightforward manner.

18. I did not lose sight of the criticisms made by the Defence. For example, Mr. Li argued that it was in fact difficult for the defendant to remove the pink handbag to the lady from his arm when both arms were full of handbags. Mr. Li also argued that PW1’s observation only lasted for about 1 minute during which the defendant was seen talking to the ladies, showing all the handbags to them, passing one of those handbags to one of the ladies and finally receiving money from her. Mr. Li argued that it was impossible for the defendant to do all of the above in a minute.

19. Having considered all the evidence before me, I accepted the times that PW1 had given in his evidence were purely based on his estimation. Furthermore, I did not find his evidence inherently improbable or inherently incredible. I did not find any criticism made by Mr. Li on PW1 which could cause me to doubt his credibility and reliability.

20. I have carefully considered the evidence of the defendant. I did not find his evidence credible. I had the opportunity of seeing the 18 handbags seized from the defendant[1]. Some of the handbags were not small sized. I found it unreasonable for the defendant to carry them all in his hands without putting into the shopping bag, particularly when he said he went on sightseeing with his friend in Central thereafter. Moreover, the defendant even did not ask his friend to carry some of the handbags for him nor did his friend offer any assistance to him. I found his version of events totally unbelievable. I did not accept his evidence. The defendant did not impress me as an honest and reliable witness. I found him to be evasive and dishonest.

21.  Despite this rejection, I still had to consider the prosecution evidence and whether it could prove the charge beyond reasonable doubt.”

Grounds of Appeal

13.The appellant submitted orally that PW1’s evidence had to be fabricated because if PW1 was 7 feet away from him outside Chater House he would have seen him and not sold anything in front of him.  He would not commit an offence in full view of uniformed officers.

14.He stressed he did not speak English or Chinese so could not have negotiated a bag sale with the women.  He questioned why there were no photographs of him making the sale or evidence from any of the women.  There may have been a misunderstanding because the handbags he bought were not inside plastic bags and there were hawkers around in the area.  He was mistaken for a hawker instead of a customer.  He repeated his defence.

Considerations of Submissions

15.I find nothing unsafe, unsatisfactory or plainly wrong in the magistrate’s findings and am sure she has considered all significant and relevant evidence in reaching her findings.  She had no doubt the appellant did act in a way as observed by PW1 from not too far a distance.  PW1 had a good and clear view of the appellant.  The appellant was trying to and successfully sold one of his bags draped over both arms.  His defence he was carrying his own shopping in this manner was properly rejected as being farfetched.  I agree with the magistrate’s findings; they cannot be faulted.  One does not require to be fluent in any language to sell and barter as a hawker.

16.The appellant was no doubt hawking handbags and correctly convicted of this offence of establishing or joining in any business whilst a removal order applied to him.  The appeal against conviction is therefore dismissed.

Mr Lenny Cheng, Public Prosecutor, of the Department of Justice, for the respondent

The appellant appeared in person