HKSAR v. Ahmed Salim

HCMA 48/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 48 OF 2017

(ON APPEAL FROM STCC 3921 OF 2016)

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Before: Hon D’Almada Remedios J in Court

Date of Hearing: 27 June 2017

Date of Judgment: 5 July 2017

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J U D G M E N T

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1.The appellant was convicted of one count of taking employment while being a person in respect of whom a removal order is in force. [1]’ The Deputy Magistrate Mr. Poon Siu-bun (the magistrate) sentenced him to 22 months and 2 weeks’ imprisonment.

2.The appellant now appeals against both conviction and sentence.

Background

3.It was not in dispute that the appellant was subject to a removal order which was issued to him on 27 March 2007 and was still in force at the material time.  He was prohibited from taking up any employment, paid or unpaid in Hong Kong including the date of the offence on 3 October 2016.

4.The prosecution alleged that the appellant took up employment as an odd job worker at Tai Po, near a wet market. 

5.The defendant through his solicitor did not heavily challenge the prosecution evidence.  The defence case was that on the prosecution evidence the court could not draw an irresistible inference that the appellant was taking employment. 

6.The magistrate rejected the defence case.  He accepted on the prosecution case there was an irresistible inference that the appellant had taken employment as an odd job worker and found the charge proved beyond reasonable doubt. 

7.At the trial the principle issue to be determined was whether based on a police officer’s observation and other circumstantial evidence, was the magistrate able to draw the only irresistible inference that the appellant was taking employment. 

Prosecution case

8.The prosecution called one prosecution witness, PC 7315 (“PW1”).  On 3 October 2016, at about 9.10 pm when PW1 was patrolling along Tai Kwong Lane in Tai Po.  He saw the appellant was standing on the elevated tailboard of a parked Hong Kong-Mainland cross border truck (“truck”).  The tailboard was level with the container on the truck.  Also placed on the tailboard was a trolley.  Standing on the pavement next to the truck was a Chinese male.  Under PW1’s observation for about 2-3 minutes, the appellant was seen moving foam boxes from the container onto the tailboard and onto a trolley next to the truck.  He further placed two plastic bags of vegetables on top of the foam boxes.  At the time he was wearing a pair of labour gloves. 

9.PW1 saw the Chinese male gesturing and giving the appellant some instructions while the appellant was moving the boxes. The appellant was subsequently arrested. 

The defence case

10.The defendant elected not to give evidence or call any defence witnesses. 

The magistrate’s findings

11.The magistrate noted that the defence did not vigorously challenge the quality of PW1’s observation.  It was not even put to PW1 that the appellant was not at that time performing works as described by PW1 at the material time of PW1’s observation.

12.The magistrate accepted that PW1 was an honest and reliable witness and accepted his evidence.

13.The magistrate found that the appellant’s presence was not incidental and must have been pre-arranged.  He stood on the tailboard, as opposed to walking along the pedestrian pavement like a passer-by.  He had handled the foam boxes for 2-3 minutes. The container of the truck was filled with similar boxes. As such, the appellant must have had the approval of the truck owner before he could carry out those acts. The appellant had used a pair of gloves and a trolley in connection with his tasks.  The appellant also worked under the directions and instructions of the Chinese male.  He further found that some of the foam boxes moved by the appellant contained vegetables and the truck was parked in close proximity to a wet market.

14.Having considered all the above circumstances, the magistrate found that the only irresistible inference was that the appellant was taking employment as an odd job worker at the material time.

Grounds of appeal

15.The appellant was not legally represented at this appeal.  The appellant advanced the following grounds of appeal:-

(1) He claimed he tried to plead guilty at the trial but his solicitor refused to permit him to do so;

(2) He requested to be permitted to enter a plea of guilty;

(3) He contended that his solicitor told him this was a very simple case and that he did not need to give evidence or call any defence witnesses and

(4) He asserted that had he given evidence at his trial he would have said the following :-

a) it was not him moving the foam boxes;

b) it was not him standing on the tailboard of the truck;

c) at the material time he was only standing near the truck on the street;

d) he was standing there translating dialog between the person moving the boxes on the tailboard of the truck and the Chinese male;

e) he was not wearing any gloves at the time;

f) When the police approached the truck they mistakenly identified it was him moving the boxes and arrested him.

Discussion

16.At his trial the appellant was legally represented by an experienced solicitor assigned by the Duty Lawyer Service[2].

Ground 1

17.I turn first to deal with ground 1.  Upon the appellant’s arraignment the following exchange took place[3]:

“CHARGE READ

BENGALI INTERPRETER: Defendant says, ...

DEFENDANT: Lawyer gives the answer.

COURT: I’m sorry, Defendant, you will have to answer the court directly.

MR PICKAVANT: And I’m expecting a not guilty plea. I am expecting that.

COURT: Yes.

DEFENDANT: I have not watched there. I went there to help people.

MR PICKAVANT: Okay.

COURT: I’ll take that as a not guilty plea, Mr Pickavant.

MR PICKAVANT: Grateful, thank you, your Worship.

COURT:  Yes”

18.At the hearing of the appeal the appellant clarified that the word ‘watching’ should have been translated as working.  The appellant submitted that even though he was not working or in employment he wanted to plead guilty at the trial.  This is clearly an equivocal plea.  From the above exchange it can be seen that in answer to the charge the appellant denied that he was working and stated he went there to help people.  These words indicate clearly that the appellant did not accept that he was guilty.  As the appellant had denied being in employment the magistrate was correct to enter a not guilty plea for the appellant.  There is no merit in his ground that the solicitor did not permit him to plead guilty. 

Ground 2

19.The appellant pursued his intention to enter a plea of guilty before me.  The time for arraignment is before the trial court and not at an appeal.  In any event upon my further enquiries with the appellant, he informed me that that although he sought to plead guilty he was not abandoning his appeal against conviction.  In the circumstances as the appellant was still disputing the commission of the offence, I continued to hear his appeal against conviction.

Grounds 3 and 4

20.This being an appeal from a magistrate, it was a rehearing before this court based on the material before the magistrate together with such further evidence as this court may allow to be introduced.  In HKSAR v. IP Chin-kei [2012] 4 HKLRD 383, McWalters J (as he then was) said this at p.403:-

“65. I would summarise the relevant legal principles as follows:

(1) An appeal under s.113 of the Magistrates Ordinance is conducted by way of rehearing on the evidence before the trial court supplemented by such further evidence as the appellate court might admit under its statutory power to do so.

…”

21.In ground 4 (a-f), the appellant sought to abandon his defence at trial.  He raised these matters for the first time before this court.  His case on appeal differed materially from that at his trial in that he did not accept he was on the tailboard of the truck moving boxes but he was standing on the street translating instructions given from the Chinese male to another person on the tailboard. 

22.While the appellant did not seek to adduce new evidence, his submissions amounted to such.  The reasons that this was not admitted into evidence at the trial is his claim that his solicitor told him he did not need to give or call evidence (ground 3). 

23.Under section 83V of the Criminal Procedure Ordinance Cap  221 it states :-

(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice—

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection (3), receive the evidence, if tendered, of any witness

(3) Subsection (1)(c) applies to any witness (including the appellant) who is a competent but not a compellable witness.

24.Section 118 of the Magistrates Ordinance, Cap 227 provides that the above subsections (1) and (6) to (7) of the Criminal Procedure Ordinance applies to magistracy appeals.

25.The appellant was legally represented at the trial.  Mr Pickavant’s closing submissions illustrate that the appellant was not disputing his moving of boxes on the tailboard of the truck.  Mr Pickavant relied on the similarities of the present case to the case of HKSAR v Bain Genaro Olivier HCMA 50/2009 (which will be set out later in this judgment) that there was no inference to draw on the present facts that the appellant had taken employment.  On the papers before me I am not convinced that the appellant was told not to give evidence.  The appellant accepted he was moving the boxes and on the tailboard of the truck, this new evidence is materially inconsistent to the case relied on at trial.  I did not think it just or necessary to receive this new evidence on appeal.

26.Basing this appeal on the material before the magistrate, the defence case at trial was the moving of foam boxes on the tailboard of the truck was insufficient evidence of employment.  Mr Pickavant relied on Bain which he submitted bore identical or very similar facts to the present case.  In that case, the only evidence against the appellant was that he was seen packing vegetables into foam boxes and placing the foam boxes into a lorry for about 10 minutes.  In that case the defendant, who was a foreign domestic worker, was acquitted because the magistrate was not satisfied there was sufficient evidence to prove he was being employed at that time.

27.The magistrate in the present case distinguished the present case from that of Bain.  He found that the circumstantial evidence in the present case was compelling and cogent to find the irresistible inference that the appellant was in employment.  In arriving at his conclusion he said[4] :

“I find that at the material time and location the Defendant was indeed performing work as observed through (i) positioning himself on the tailboard of the truck, (ii) moving and placing foam boxes and plastic bags of vegetables onto a trolley atop the tailboard and/or onto the tailboard itself, (iii) wearing gloves in the course of carrying the above acts, and (iv) undertaking the above acts under the directions and/or indications of the Chinese male present thereat.”

28.The magistrate[5] further found that the appellant’s presence at the material location and time was not incidental and must have been pre-arranged.  He found the appellant was observed to have positioned himself atop of the tailboard of the truck, as opposed to have being a mere passer-by. 

29.The magistrate had carefully assessed the evidence before him, he found that the appellant was atop the tailboard of the truck and not on the street.  I have reviewed the evidence I find no error in the magistrate’s approach or conclusion. 

30.There are no merits in any of the appellant’s grounds of appeal. 

31.I am satisfied and sure that the magistrate was fully entitled to convict the appellant on the evidence. 

32.The conviction was neither unsafe or unsatisfactory. For these reasons I dismiss the appeal. 

Appeal against sentence

33.The appellant contends that the sentence was too severe.  He sought for his sentence to be reduced on humanitarian grounds.  He requested to be released forthwith so that he could care for his wife who was soon to undergo surgery in Hong Kong and to take care of his mother in Bangladesh.  He submitted that he realized that he and his wife (who is a foreign domestic helper employed in Hong Kong) could not arrange or expect a future in Hong Kong and therefore wanted to leave Hong Kong as soon as possible to set up home with her in Indonesia. 

34.He requested that the 40 days he spent in administrative detention in 2007 be taken into account and his sentence reduced accordingly.

35.In sentencing the appellant, the magistrate took into account the appellant was 40 years of age and is a torture claimant.  Although he had previous convictions under the Immigration Ordinance they were not similar to the present offence and no enhancement to the starting point was made.  There was no application to deduct the time spent in administrative detention advanced in mitigation before the magistrate.

36.He took into account the sentence guideline of 15 months’ imprisonment after a plea of guilty in respect of section 38AA offences which was laid down in HKSAR v Usman Butt [2010] 5 HKLRD 452.  

37.Seeing no reason to depart from the said guideline the magistrate adopted a starting point of 22 months and 2 weeks’ imprisonment for the present case.

38.Pursuant to section 67A of the Criminal Procedure Ordinance Cap 221 the offence must relate to the administrative detention before any time spend in administrative deduction is granted.  In this case it is not, therefore the appellant is not entitled to any reduction under that section. 

39.Although no discount is applicable under section 67A, I see no reason to exercise my discretion to make any deduction for the administrative detention to address any injustice or unfairness to the appellant. 

40.The humanitarian grounds advanced by the appellant on this appeal are not factors which warrant a reduction of his sentence.  The sentence imposed by the magistrate was neither wrong in principle nor manifestly excessive.

41.In the circumstances the appeal against sentence is dismissed.

Mr Derek Wong, SPP of the Department of Justice, for the respondent

The appellant appeared in person