HKSAR v. Dewan, Aslam and Another

HCMA 38/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 38 OF 2017

(ON APPEAL FROM STCC NO 3298 OF 2016)

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BETWEEN

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J U D G M E N T

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1.These two Appellants appeared at a joint trial in the Magistrates’ Court at which the 1^st Appellant was the 1^st Defendant, and the 2^nd Appellant was the 2^nd Defendant.  I will refer to them as the 1^st and 2^nd Defendants.

2.They each faced a charge laid under the Immigration Ordinance (Cap 115).  Those charges arose out of the same incident, being one at a metered car park in Fanling on the night of 22 August 2016.  The charge against the 1^st Defendant was that at that car park that night, he, while being a person in respect of whom a removal order was in force, took employment as an odd-job worker, contrary to Sections 38AA(1)(b) and 38AA(2).  It was an admitted fact that he was at the material time a person in respect of whom a removal order was in force.

3.The charge against the 2^nd Defendant was that at that car park that night, he, while being a person who was remaining without authority after having landed unlawfully, took up employment as an odd-job worker, contrary to Sections 38AA(1)(a) and 38AA(2).  It was an admitted fact that he was at the material time a person who was remaining without authority after having landed unlawfully.

4.Both Defendants were convicted after trial.  Each appeals against his conviction.  Neither of them wrote anything additional to the pro forma grounds of appeal in his Notice of Appeal Against Conviction in Form 101.

5.At the hearing of the appeal, they sought the production of two photographs taken by the police.  I permitted that.  One photograph shows the 1^st Defendant with a backpack on his back.  The other shows the 2^nd Defendant with a backpack on his back.  Neither photograph shows what the defendant depicted was wearing on his feet.

6.The recollection of one of the two police constables called by the prosecution was that the 1^st Defendant was wearing slippers while the 2^nd Defendant was wearing shoes.  This witness disagreed with the suggestion by the defence that both Defendants were carrying backpacks when they were intercepted, but could not be sure if they had backpacks with them before that.  His evidence might have been wrong in that respect, but this does not mean that his evidence could not be relied upon to convict.

7.As to the Appellants’ argument that the work could not have been done while carrying backpacks or wearing slippers, I see no reason why that would be so.

8.The prosecution called two witnesses, each a Police Constable.   Neither Defendant gave or called evidence.  The Magistrate found both prosecution witnesses honest and reliable.

9.As to what each Defendant did at the car park concerned on the night in question, the Magistrate said this in his Statement of Findings:

“ 38. In the circumstances, and having carefully taken into account of the quality of PW1’s observations including sufficiency of lighting and distance etc., I find that at the material time and location:

(a) The 1^st Defendant was indeed performing work as observed by PW1 by (i) untying the iron chains at the tailboard of the truck, (ii) lowering or causing to be lowered the said tailboard, (iii) entering into the storage compartment of the truck, and (iv) unloading boxes of vegetables from the said storage compartment by placing them on the tailboard.

(b) The 2^nd Defendant was also performing work as observed by PW1 through (i) unloading boxes of vegetables from the tailboard of the truck, (ii) placing or moving such boxes onto a vacant parking space nearby and (iii) lining such boxes and/or stacking them up in an organised fashion on the vacant parking space as shown in Exhibit P4(3).”

10.Having made those findings as to what each Defendant did, the Magistrate then turned to consider whether, in respect of each of them, the only reasonable inference was that he had taken up employment as charged.

11.After considering a number of authorities, the Magistrate said this in the last four paragraphs of his Statement of Findings:

“ 48. On the basis of approximately 15 minutes of the 1^st and 2^nd Defendants respectively performing work duties at scene, and there being no evidence suggestive or indicative of a special relationship between either of the Defendants and the truck driver, I find that each of the Defendants could not have been working at the material time and location otherwise than in the course of employment.

49. Given the location of the metered car park and the industrial nature of its surroundings, I also reject the submission of the Defendants that they were at the time possibly handling the vegetables for their own consumption or buying the same for their “extended group”. There is no evidence to support such contentions and indeed I see no reason why in such circumstances the alleged delivery could not have been made directly to or at least closer to a residential area.

50. I have no doubt in holding that the inference that each of the Defendants was taking employment as odd job workers is compelling and it is the only reasonable and irresistible inference to be drawn from the evidence accepted and in the absence of other evidence.

51. In the premises, I find that the Prosecution has proven every element of the 2 separate charges against each of the 1^st and 2^nd Defendants beyond all reasonable doubt.  Accordingly, I find the 1^st Defendant guilty of Charge 1 and the 2^nd Defendant guilty of Charge 2.”

12.The Magistrate expressly acknowledged each Defendant’s right to silence, accurately referred to the burden and standard of proof and took each Defendant’s good character into account in his favour.  In no respect was there any error in the Magistrate’s approach.  There was evidence on which he was entitled to convict each Defendant as he did.

13.After considering everything each Defendant said, I find no basis on which to disturb either of these convictions.

14.Both appeals are therefore dismissed.

Ms Audrey Parwani, SPP of the Department of Justice, for the respondent

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