HKSAR v. Limbu, Sabina

HCMA 404/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 404 OF 2016

(ON APPEAL FROM STCC 1079/2016)

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Before: Deputy High Court Judge V Bokhary in Court

Date of Hearing: 24 February 2017

Date of Judgment: 27 February 2017

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J U D G M E N T

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1.The Appellant appeals against her conviction after trial in the Magistrates’ Court on a charge of breach of condition of stay contrary to Section 41 of the Immigration Ordinance, Cap 115.

2.The particulars of the charge read:

“ LIMBU, SABINA, you are charged that on 21st of March, 2016 in Hong Kong you did contravene a condition of stay in force in respect of you imposed by an immigration assistant on 5 February 2016, in that, while you were permitted to remain in Hong Kong for employment subject to the condition of stay that you shall only take such employment as approved by the Director of Immigration, namely, to work as a domestic helper for TAMANG BALA BAHADUR at the address specified in the employment contract numbered L307967, but you did perform odd jobs at G/F, Yen Po Court, No. 74–82 Wharf Road, North Point, Hong Kong, other than approved by the Director of Immigration.”

3.Having filed “Perfected Grounds of Appeal” on 25 October 2016, the Appellant’s solicitors later filed a document headed “Revised Perfected Grounds of Appeal” which, unsatisfactorily, contained nothing within itself to indicate what the revisions are. 

4.Told to indicate that, their initial response, by way of a second document headed “Revised Perfected Grounds of Appeal” only created confusion as to what the revisions are.  Eventually, the document was redrafted and renamed “Amended Perfected Grounds of Appeal”.  What the amendments are appear from this document.

5.Under the heading “Background”, this is what is said in paragraph 2 of the Amended Perfected Grounds of Appeal, in which document the Appellant is referred to as “D”:

“ 2. D was a domestic helper. She came from a countryside village in India and arrived in Hong Kong on 05.02.2016. Under the employment contract, she has to take care of the employer (male), his wife and the daughter (12 year-old student). On 21.03.2016, she was seen inside the kitchen of a restaurant operated by the employer’s wife. She was observed to have carried out, within a period of about 40 minutes, 5 acts: (1) passed a basket of bread through the servery window; (2) passed a basket of bread and a bowl of soup through the servery window; (3) washed more than one towel; (4) placed the washed towels on the kitchen bench; and (5) washed bowls and/or dishes.”

6.The evidence as to what the Appellant was observed doing came from a Labour Inspector who gave evidence as PW1.  In his Statement of Findings, in which the Appellant is referred to as “the defendant”, the Magistrate summarised what was observed by PW1 whose evidence he found reliable.  That summary is to be found in paragraph 6 of the Statement of Findings which reads:

“ (a) the defendant passed a brown basket of 4 pieces of bread from the kitchen to the wife at the dining area through the servery window, for the wife’s onward passing to the table occupied by PW1 and 2 other labour inspectors;

(b) at about 10 minutes later, the defendant passed another basket of bread and a bowl of soup from the kitchen to the wife at the dining area through the servery window, for the wife’s onward passing to another table occupied by 1 female customer;

(c) after a while, the defendant washed more than 1 white towel at the washing basin;

(d) the defendant then put the washed towel onto the working platform (described as working table in the sketch) next to the washing basin; and

(e) the defendant later washed several dirty dishes and bowls at the washing basin, after the wife took away the used dishes and bowls from another table of customer and took them to kitchen.”

7.In paragraph 22 of his Statement of Findings, the Magistrate said that the Appellant “did not seriously dispute PW1’s evidence, and explained her 5 acts as seen by him”.

8.In paragraphs 24 to 27 of his Statement of Findings, the Magistrate summarised the Appellant’s explanation.  Those paragraphs read: 

“ 24. The defendant said that on a normal day (namely not the day of offence when the daughter had a half-day holiday), she would spend a long period of daytime of about 4 hours in the restaurant at the kitchen, instead of at the contractual residential address; which was also in North Point and not far away. It is understood that she would spend lesser time at the restaurant on the day of offence because she needed to pick up the daughter early. She also said that she would stay there for 1 to 2 hours. In any event, it was a long period of daytime spent at the restaurant.

25. She was new in the job and in Hong Kong, came from a village in the countryside of India and not familiar with urban life, did not know the way to the daughter’s school, did not speak local language, and spoke Nepali and a little bit of English.  She was a slow learner, according to DW2.  Under the employment contract, she was to serve 3 people, namely, her employer DW2, his wife and their 12-year-old daughter.  She would wake up at around 6.30 am and then prepare food for the daughter.  At around 7.30 am, she would go with the wife to take the daughter to the school, return with the wife to the residential home later, and do household works.  At around 11.20 am, she would go with the wife to the restaurant to have lunch there, later go with the wife to the school to pick up the daughter, return together to the restaurant for the daughter to do her homework and for all 3 of them to have dinner at the restaurant.  And then the defendant would return to the contractual residential address with the daughter.  When the wife and the defendant goes to pick the daughter up at school, the restaurant will be closed.

26. She denied doing employment job at the restaurant.  She said that on arrival at the restaurant on the material day, there was no customer and that she did nothing and just sat there.  The wife cut bread, prepared 2 baskets of bread and heat the soup.

27. She did not regard it as part of the employment duties to do the 5 things which she had done.  She did not get extra money for passing bread and bowl of soup to the wife.  The basket of bread was very close to her in the kitchen, and it was just a hand-passing job.” 

9.The Magistrate said (in paragraph 23 of his Statement of Findings) that he found the Appellant’s evidence not credible and not reliable, and that he did not accept it.

10.In paragraph 32 of his Statement of Findings, the Magistrate said this:

“ 32. She also asserted that she sat inside the kitchen, but accepted that she was standing when she passed the basket of bread to the wife. Photo P6(6) showed the defendant inside the kitchen, which was a tiny place with 2 sets of stove/oven, a washing basin and 2 to 3 working tables. She could hardly have a seat there. In fact, the defendant must have stood in the kitchen, otherwise PW1 would not be able to see the defendant passing baskets of bread and soup through the servery window. The defendant was later seen standing in the kitchen doing nothing. The kitchen was, according to the defendant, a little bit warm; and I believed that it should be much warmer or even hot. If what the defence case was correct, the wife would need to work in the kitchen. One could tell from the photo that the wife was chubby. The defendant’s presence inside the kitchen would have obstructed the wife’s preparing food, using the stove/‌oven, etc. Would the defendant just stay inside this tiny and a little-bit-warm kitchen for a long period of daytime every day, and do nothing? The same arrangement of staying at the restaurant had been going on for a long period of time until the day of offence.”

11.In attacking the Magistrate’s view there expressed that the kitchen would be much more than a little bit warm and would even be hot, Counsel for the Appellant places reliance on a download from the Hong Kong Observatory’s webpage showing that the average ambient temperature in Hong Kong on the day in question, 21 March 2016, was about 17 degrees Celsius.  Counsel for the Respondent objects to that download as fresh evidence on appeal. 

12.I will proceed on the basis that, as appears from that download, the average ambient temperature in Hong Kong on that day was about 17 degrees Celsius.  A matter such as the average ambient temperature in Hong Kong on any given day is, in my view, not a matter on which our courts require evidence as such but instead a matter on which our courts can take judicial notice after inquiry.  In making such an inquiry, it is appropriate to consult what the Hong Kong Observatory has published on the matter. 

13.I should indicate that even if the matter was one for evidence, I would admit the download as fresh evidence on appeal in order to consider it in full for the purpose of seeing whether it affords a ground of appeal.

14.Of course, as I have indicated, I take judicial notice after inquiry that the average ambient temperature in Hong Kong on the day in question was about 17 degrees Celsius. 

15.Does that fact help the Appellant?  In my view, it does not.  The Magistrate was not concerned with the average ambient temperature in Hong Kong on that day.  He was talking about the temperature in the kitchen.  I do not think that he made in this respect any error on which this conviction ought to be quashed.

16.Having dealt at length with the issue of whether the irresistible inference was that the Appellant had on 21 March 2016 worked in the restaurant in breach of a condition of her stay, the Magistrate concluded that that was the irresistible inference.

17.In paragraph 67 of his Statement of Findings, he said:

“ 67. From the totality of evidence, I draw the only irresistible inference and find that on 21 March 2016 in Hong Kong, the defendant was working in breach of her condition of stay in that she was working by doing non-domestic work at the kitchen of the restaurant by passing baskets of bread twice, preparing the soup, washing towels and utensils in the kitchen on a commercial basis, and she was doing this at the restaurant and working outside of DW2’s residence.”

18.Amended Perfected Ground of Appeal 1 is extremely lengthy.  I will set it out in full. It reads:

“ Ground 1

3. The learned Magistrate erred in law in making inconsistent findings of fact, in making findings without or without sufficient evidence, in failing to give reasons or adequate reasons on his findings, failing to consider relevant material and taking into consideration irrelevant material.

PARTICULARS

(i) The learned Magistrate on the one hand found that at the material time, there were only 2 tables of customers thus there was no need for D to lend a helping hand [19 §34; 21 §40]. On the other hand, the learned Magistrate stated [23 §47] that he did not believe that the wife could alone handle everything in the restaurant. These 2 findings are inconsistent to each other.

(ii) The learned Magistrate found that the 2^nd basket of bread and the soup prepared by D was never intended for D’s consumption. The learned Magistrate also found that it was unlikely that the customer and D would have the same soup in mind. The learned Magistrate further found that he was sure that the soup prepared by D was all along intended for the customer. [17 §28] There is no evidence that D could not have the same soup as that of the customer. The restaurant is only a very small restaurant. It is the contractual duty of D’s employer to provide food to D, or food allowance shall be paid to D. (exhibit P3: employment contract) [55 §5(b)] Further, after saying he was “sure that the soup prepared by the defendant was all along intended for the customer”, the learned Magistrate went on to extrapolate that “it supported the conclusion that there was a duty on the defendant to prepare and pass the soup to the customer”. [17 §28] There was no logical or causal connection between the two statements; that is to say, even assuming for argument’s sake that the statement “the soup was all along intended for the customer” is true (which is denied by D), such statement does not make it more (or less, for that matter) likely whether there was a duty on D to prepare and pass the soup to the customer. Therefore, the learned Magistrate has erred in finding such connection where none exists. In addition, the learned Magistrate also stated that “without such duty, the defendant could simply ignore the wife’s request.” [17 §28] Again, the fact that D did not ignore the wife’s request does not necessarily imply the existence of such a duty and the learned Magistrate has erred in making such invalid inference. The fact that D did something outside the scope of duty imposed on her under the domestic worker employment contract could be easily explained. It could be due to her misconception that such duty existed where there was actually none, or it could be because D chose to do the wife a small favour to please the wife, even when D suspected or even knew she was under no duty to do so.

(iii) The learned Magistrate found that the priority must be for the wife to serve the customers by working in the kitchen herself, instead of allowing D to occupy the kitchen to prepare for her own meal in the kitchen. The learned Magistrate ignored the fact that the wife, being the wife of D’s employer probably had to provide meals for D pursuant to D’s employment contract. There is nothing wrong with the wife allowing D to prepare her own meal in the kitchen. The learned Magistrate also ignored or did not properly consider the fact that the wife had cooked the pizza (also the pasta) in the kitchen. There is no evidence that the wife’s work in serving the customers was hindered in any way with D’s presence in the kitchen. There is no evidence that priority was not given to the wife in serving the customer by cooking the food ordered. The learned Magistrate’s finding is not supported by evidence.

(iv) The learned Magistrate commented that D’s evidence that she prepared the meal for herself did not sit well with DW2’s evidence that the wife would cook for them in the restaurant most of the time, including D [17 §29]. In fact there is nothing inconsistent between D’s evidence and DW2’s evidence. D’s evidence was that the wife heated the soup after they arrived at the restaurant. D’s evidence was preparing the soup for herself. [133/K] She did not cook the soup. The learned Magistrate erred in failing to consider such evidence or misapprehended the evidence.

(v) The learned Magistrate found that D’s assertion that she stayed in the kitchen in order not to disturb the customers of the restaurant is not credible. The learned Magistrate further found that D’s presence in the kitchen would disturb the wife’s work in the kitchen. [17 §30] There is no evidence that D’s presence in the kitchen would disturb the wife’s work in the kitchen. Rather, there is evidence that the wife has cooked the pizza according to PW1’s order and probably the pasta for another customer. There is no evidence that D’s presence in the kitchen had disturbed the wife in carrying out such work.

(vi) The learned Magistrate found that for D to spend a long period of daytime in the kitchen of the restaurant doing nothing is not reasonable, not logical and defied commonsense. [17 §30; 23 §47] The learned Magistrate overlooked the evidence that D came from a village in India, was new in Hong Kong, unable to speak the local language and a slow learner [169/H–I], and she used to go out either with the employer, the wife or the daughter, thus for safety, D could not stay at home alone and that was why D used to go the restaurant with the wife almost every day. [167/A–D]

(vii) The learned Magistrate found that D’s evidence that she washed only the utensils used by her for her own meal, and that she did not wash bowls for the restaurant. The learned Magistrate was of the view that D’s evidence was contradicted by PW1’s evidence. [19 §36] This is misconceived. PW1 did not say that D washed the bowls and dishes used by the customer. All PW1 said was that “after a while, I saw the [wife] took away the used bowl(s) and dish(es) from the table of another customer and put them into the kitchen. Then I walked past the kitchen and went into the washroom again. At that time, I saw D was washing several dirty dishes and bowls at the washing basin.” PW1 did not say that D was washing the bowl and dish from the customer. In fact there were bowl and dish remaining in the washing basin after the police arrived and arrested D. It shows that D might not be washing the bowl and dish from the customer at the time when she was seen by PW1. The learned Magistrate found that the bowl and dish left in the sink were different from those washed by D. [20 §36] The learned Magistrate erred in finding that D was washing the bowl and dish used by the customer.

(viii) The learned Magistrate found that by reason of the number of times which D had traveled from the residential home to the restaurant, D must have known her way from the restaurant to the residential address. [18 §31] This is neither here nor there. D might know the way herself. But the fact remains that the employer might not want her to get into safety issues thus D had been with the employer, the wife or the daughter when D went outside, or D would be taken to the restaurant (when the daughter went to school, the employer went for work, and the wife needed to operate the restaurant [167/A–D].

(ix) The learned Magistrate found that there was no reason for D to spend a long period of daytime in the kitchen of the restaurant. [29 65] The learned Magistrate found that D could have stayed inside the storeroom. [19 §33] The learned Magistrate erred in overlooking DW2’s evidence that for safety, D was taken by the wife to the restaurant almost every day (except on the days when the daughter did not have school) [167/B–D; 176/A]. The fact that D could have stayed anywhere else inside the restaurant is neither here nor there. D was not cross-examined on why she did not choose to stay inside the storeroom. In any event, it does not appear that the storeroom is a more suitable place for D to stay.

(x) The learned Magistrate took issue with D’s evidence that she would be sitting inside the kitchen, when she was seen by PW1 that she was standing. The learned Magistrate referred to a photo showing a part of the kitchen and found that D could hardly have a seat inside the kitchen. [18 §32] There is no evidence that D had nowhere inside the kitchen to sit. She was not cross-examined in this regard. She might sit on a small stool; she might sit on a cartoon box, or even a bin. In reality, a person might not sit for long hours even if he is allowed to do so. D must have the liberty to sit, stand or walk, or to do something she chose to. D’s evidence that she sat in the kitchen should not be taken too narrowly and literally.

(xi) The fact that there were a bowl and dish and utensils left unclean in the washing basin of the kitchen (exhibit P6(3)) when PW1 went past the kitchen after using washroom and the situation remained unchanged after the police arrived and took photos demonstrated that D was likely not washing the bowls and dishes for the restaurant.  However, the learned Magistrate did not find that weakens the prosecution case.  The learned Magistrate was of the view that it depended on the standard of hygiene and the degree of cleanliness of D with respect to utensils, and whether D wished to clean a number of utensils in one go.  [20 §36]

(xii) D said that but for the arrest, she would have gone with the wife to the school to pick up the daughter. The daughter came with her friend to the restaurant because D and the wife were late. The learned Magistrate found that this assertion was contradicted by the employer’s evidence that there was no need to pick up the daughter, as there was prior arrangement for the daughter to return to the restaurant with friends. [21 §39] This is neither here nor there. D was a domestic helper who would just follow the wife in picking up the daughter. She might or might not know any prior arrangement for the daughter to return to the restaurant with friends.

(xiii) It is DW2’s evidence that he had hired domestic helpers before, and that during the initial period of employment, he also treated the domestic helpers the same way as he treated D, i.e. not to allow D to be alone at all times.  [170/A–E]  The learned Magistrate failed to consider such evidence.”

19.Particular (i) ignores the fact that at paragraph 38 and 40 the Magistrate was referring to the position at the particular time of the observation, while at paragraph 47 the Magistrate was referring to the restaurant generally. 

20.Particular (ii) identifies some remarks by the Magistrate which are open to question; but none of the matters set out in Particulars (ii) renders the Magistrate’s view of the facts on the whole of the evidence unsafe or unsatisfactory.  Nor does any of the matters set out in Particulars (iii) and (iv). 

21.As for Particular (v), it was open to the Magistrate to take the view referred to therein.  

22.There is no reason to think that the Magistrate overlooked the defence evidence referred to in Particular (vi).  He was not obliged to treat that evidence as evidence which was or might have been true. 

23.As for Particular (vii), taking the totality of PW1’s observation in context of the evidence as a whole, the Magistrate was entitled to take the view that it contradicted the Appellant’s evidence.

24.The Magistrate was not obliged to treat the defence evidence referred to in Particular (viii) as evidence which was or might be true. 

25.As for Particular (ix), the Magistrate’s particular view that the Appellant could have stayed in the storeroom is open to question, but it does not, when taken in context, appear to form a vital part of his overall view of the facts.

26.As for Particular (x), it does not point to the Magistrate having taken the Appellant’s evidence too narrowly or literally.

27.Nothing in Particulars (xi) or (xii) points to the Magistrate having taken any view of the facts not open to him.

28.There is no reason to think that the Magistrate failed to consider the defence evidence referred to in Particular (xiii).  He was not obliged to treat that evidence as evidence which was or might have been true.

29.The assertion in paragraph 4 of Amended Perfected Ground of Appeal 1 that the Magistrate would have found the Appellant not guilty if he had properly considered the particulars to that ground, is not made out.

30.Amended Perfected Ground of Appeal 2 reads:

“ Ground 2

5. The learned Magistrate erred in finding that the only irresistible inference on the facts is that D was under employment in doing the 5 acts: (1) passed a basket of bread through the servery window; (2) passed a basket of bread and a bowl of soup through the servery window; (3) washed more than one towel; (4) placed the washed towels on the kitchen bench; and (5) washed bowl or dish.” 

31.The circumstances found proved beyond reasonable doubt by the Magistrate have to be viewed fairly and realistically.  When they are so viewed, it is clear that the inference that the Appellant had on 21 March 2016 worked in the restaurant in breach of a condition of her stay is an inference which the Magistrate was entitled to regard as irresistible and the only reasonable one in all the circumstances.  He did not fail to give the Appellant the benefit of any reasonable doubt. 

32.Amended Ground of Appeal 3 reads: 

“ Ground 3

7. The learned Magistrate erred in law in ruling that if D decided to wait at the restaurant, she must do nothing. [19 §34]” 

33.Taken in context, it is clear that when the Magistrate said “If she decided to wait at the restaurant, she must do nothing”, he meant that she must do nothing amounting to working at the restaurant. 

34.The last Amended Perfected Ground of Appeal, namely Amended Perfected Ground of Appeal 4, is that the conviction is unsafe and/or unsatisfactory.  That is not made out.

35.There is no basis on which to disturb this conviction.

36.Accordingly, the appeal is dismissed.

Ms Rosa Lo, SPP of the Department of Justice, for the respondent

Mr Ernest Yuen, instructed by How & Co, for the appellant