HKSAR v. Arif, Muhammad Bilal and Another

HCMA 588/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 588 OF 2016

(ON APPEAL FROM STCC NO 2504 OF 2016)

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Before:  Deputy High Court Judge Woodcock in Court

Date of Hearing: 9 March 2017

Date of Judgment:  30 March 2017

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J U D G M E N T

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Introduction

1.On the 14 October 2016 both appellants were convicted after trial and both sentenced to a 22 months and 2 weeks’ term of imprisonment.  The 1^st appellant was convicted of one charge of Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong illegally contrary to s38AA(1)(a) and s38AA(2) of the Immigration Ordinance， Cap 115.  The 2^nd appellant was convicted of one charge of Taking employment while being a person in respect of whom a removal order is in force contrary to the same Ordinance but s38AA(1)(b).  They both now appeal against their conviction and sentence.

Background

2.The prosecution alleged the appellants were seen working in the early hours of the morning of 17 March 2016 inside a truck unloading boxes of vegetables in the Yuen Long area when they were prohibited from taking up employment.  The magistrate found beyond reasonable doubt the appellants were working and inferred they were employed to convict them as charged.  The defence case was that they were both innocent bystanders asking for directions in the area when framed for the offences. 

Issues

3.The issue here is the credibility of the witnesses and the reliability of their evidence.  When the magistrate rejected the appellants evidence and accepted that of the prosecution witness he then had to decide if the facts he found proved added up to the appellants taking up employment. 

Admitted Facts

4.Exhibit P1 is the admitted facts and it was agreed both appellants, due to their immigration status here, were prohibited from working or taking up employment in Hong Kong. 

5.On the 17 March 2016 PW1, a police officer, was on patrol at about 1:30 am in Tan Kwai Tsuen, Yuen Long near a warehouse.  It was admitted at about 2 am he and a colleague he had summoned intercepted both appellants; arresting them both at around 2:50 am.  Both appellants had produced recognizance forms issued by the Immigration Department when asked for identity documents.  A 3^rd police officer took photographs of the scene that same morning, P4(1-9).

6.Lastly it was admitted the 1^st appellant had a clear record in Hong Kong. 

The Prosecution Case

7.On the 17 March 2016 there was a police patrol and operation in the Yuen Long area and PW1, a police officer, saw light coming from inside a warehouse at about 1:30 am.  His curiosity was aroused due to the late hour and he went to discover the source of the light.  He saw inside the warehouse a parked truck and light coming from its rear compartment.  He then saw the appellants on the tailboard of the truck moving boxes of vegetables from inside the truck to a pallet truck.  They were unloading the truck.  They worked in tandem to unload and lower the boxes to the ground level. 

8.After 10 minutes, at 1:40 am PW1 called for assistance and when ready after investigation he later arrested the 1^st appellant whilst his colleague arrested the 2^nd appellant. 

The Defence Case

9.The 1^st appellant gave evidence and recounted how he and the 2^nd appellant had been at a BBQ party on a beach in Tuen Mun early that day from about 3pm.  After this gathering, they both had a dinner invitation to a friend’s home, a Mr Bashir Arfan in the Yuen Long area.  They took a minibus at about 11 pm from Tuen Mun.  After they got off the minibus they realized they were lost.  The 1^st appellant was unable to call Mr Bashir as his mobile had no battery power.  They both wandered around Yuen Long for a while.  They saw a Chinese man working in a warehouse and asked him for directions when the police intercepted them and then arrested them both. They were framed for these offences.

10.Mr Bashir gave evidence for the defence.  He repeated the invitation he had extended to the two appellants.  They spoke at about 8 pm but after 11 pm he could not reach the 1^st appellant by phone.  They did not show up at his Yuen Long home as arranged.

The Magistrate’s Findings

11.The Magistrate accepted the evidence of the prosecution witness, PW1.  In a careful assessment of the evidence and submissions made he found PW1’s observations of the appellants in the truck’s compartment credible and believable.  He did not accept there was an attempt to frame innocent men as suggested.  In dealing with PW1’s credibility he found him reliable.  He analyzed the evidence in detail (paras 12-17 of his Statement of Findings) and gave reasons why he accepted PW1’s evidence.

12.Likewise, for the 1^st appellant’s evidence the magistrate gave reasons why he did not believe him.  He carefully assessed his evidence whilst aware of his clear record.  He found it to be incredulous and rejected it. 

13.The magistrate rejected the defence submission that PW1 could not observe the appellants because his view from the right of the vehicle was obstructed by baskets, boxes and the pallets in the compartment of the truck.  PW1’s explanation he could see all but the most inner part of the compartment because of boxes was accepted.  He said the pallets near the open rear end were about waist height so he could see over them and see the appellants clearly. 

14.In any event, the magistrate believed the observation was for over a period of 10 minutes and the appellants were moving around and not stationary. The magistrate was satisfied PW1 could clearly and easily see what both men were doing at the rear of the truck.

15.The magistrate also rejected the submission there was something untoward going on when the men were intercepted at 1:40 am but not arrested until 2:50 am.  It was accepted the investigation and search of the warehouse took time.  Other members of PW1’s team did not arrive until about 2 am and then the premises were searched with a Chinese male being questioned before the appellants were arrested.  This time lapse does not discredit PW1’s observation evidence. 

16.The magistrate did not accept the defence evidence.  He was of the view that their story was implausible.  Their evidence of trying to look for DW2’s home for hours whilst drunk without an address or directions was rejected.  There was unbelievably no request for directions from this friend even when the 1^st appellant knew his mobile battery power was low. 

17.Mr Bashar gave evidence he lived in Yuen Long but agreed his Form 8 Recognizance Form sets out his address as being in Sheung Shui.  The magistrate doubted he did live in Yuen Long. 

18.The appellants got on a minibus at about 11 pm for a journey of not more than 15 to 20 minutes.  They were then intercepted at 1:40 am still lost according to the appellants.  They were asking directions from the first man they came across when intercepted by the police.  The magistrate did not believe they were wandering around for over 2 hours nor had not met anyone before then. 

19.After accepted the observations of PW1 the magistrate bore in mind that working per se did not always mean taking up employment.  He considered all the relevant authorities and the following facts relevant.  He found them on board a vehicle moving boxes of vegetables, a large quantity.  The vehicle was a cross-border vehicle clearly used for the purposes of a business.  There was evidence of other boxes with similar markings already in the grounds of the warehouse indicating it was a storage area.  There was a system of work adopted by both appellants using a pallet truck to unload boxes to the ground. 

20.The magistrate found all those factors relevant and allowed him to draw the only and irresistible inference the appellants were employed to unload the boxes according to the authority of The Queen v Ip Po Fai, HCMA 1201/1995. 

Grounds of Appeal

21.I have heard from the appellants and had the 1^st appellant’s letter read to me.  The 2^nd appellant adopted everything said by the 1^st appellant.  I have also received the respondent’s submissions. In essence, the appellants repeated their defence, said they were both drunk when looking for their friend’s home and stressed they were not working on the truck in the warehouse at the time.  The 1^st appellant said they saw a Chinese male and only asked for a phone charger and then directions to Tsim Sha Tsui.  They pointed out the lack of a witness to prove they were employed there other than a police officer such as the truck driver or an employer. 

22.They submitted the magistrate was wrong to reject Mr Bashar’s evidence of his address.  The 1^st appellant was prepared to produce a tenancy agreement to prove his address was in Yuen Long and not Sheung Shui. As for sentence, they were at a loss to understand why it was so lengthy; asking for mercy and a reduction in it.

The “Plainly Wrong” Test

23.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. 

24.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.”

Discussion

25.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. 

26.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 studying their demeanor.  His conclusion is fully justified and I agree with it.

27.In finding the appellants were employed he took into account the relevant authorities when considering what defines employment.  He also identified the pertinent factors.  He took into account what PW1 saw them both do for 10 minutes, where they were relevant to the goods they were unloading and the time of the morning they were doing this.  I am sure on the evidence when considered as a whole the magistrate rightly drew the only irresistible inference against both appellants. 

28.In the circumstances the appeal against conviction is neither unsafe nor unsatisfactory; the appeal against conviction for both appellants is dismissed.

The Appeal against Sentence

29.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 s38AA offences.  Here, the appellants were 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 appellants did not present any mitigation that merited a departure from the norm either upon conviction or during the appeal.

30.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 appellants.  I therefore find the sentence of the magistrate correct and it is not manifestly excessive or wrong in principle. I also dismiss the appeals against sentence.

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

The 1^st and 2^nd appellants appeared in person