HKSAR v. Harbhajan Singh and Another

HCMA 85/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 85 OF 2017

(ON APPEAL FROM STCC NO 4236 OF 2016)

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Before: Deputy High Court Judge Stanley Chan in Court

Date of Hearing: 22 June 2017

Date of Judgment: 17 November 2017

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JUDGMENT

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1.The two Appellants were each charged with one count of “taking employment while being a person in respect of whom a removal order is in force”[1]. After trial, both Appellants were convicted by Magistrate Ivy Chui who imposed a prison term of 22 months and 2 weeks on each of the Appellants. They now appeal against both their conviction and sentence. At trial, both Appellants were represented by Duty Lawyer but they were unrepresented in this appeal.

The prosecution case

2.The 1^st Appellant (A1), holder of an Indian passport, entered Hong Kong as a visitor on 12 July 2001 and was allowed to stay till 14 July 2001.  A1 was arrested by the police on 10 May 2007.  On 14 June 2007, A1 was released on recognizance by the Immigration Department.  A removal order was issued against and served on A1 on 17 November 2011 and 21 November 2011 respectively.  On 25 October 2016, A1 was a person in respect of whom a removal order was in force.  A1 was arrested on 25 October 2016.

3.The 2^nd Appellant (A2), also holder of an Indian passport, came to Hong Kong on 8 October 2014 but his permission to land was refused.  A removal order was issued against and served on A2 on 13 January 2015 and 19 January 2015 respectively.

4.On 29 January 2015, the Immigration Department issued an immigration recognizance to A2.  On 25 October 2016, A2 was a person in respect of whom a removal order was in force.  A2 was arrested on 25 October 2016.

5.On 25 October 2016, a police constable (PW1) and his colleagues were in plainclothes and were patrolling in the area near No 6 Roundabout, Container Port South, Kwai Chung.  PW1 saw two medium goods vehicles and one light goods vehicle parking in the shape of a triangle with their tailboards facing each other.  The tailboards were open and overlapped with each other[2]. 

6.PW1 also saw three males, including A1 and A2, standing on the tailboards.  A1 was seen moving and conveying a pallet of goods from the compartment of a vehicle to another one.  Similarly, A2 was also seen conveying a pallet of goods from the compartment of a vehicle to another one.  Both Appellants were seen moving and conveying pallets of goods in a similar way.

7.Both Appellants elected not to give evidence on the general issue at trial.

Grounds of appeal against conviction and sentence

8.Both Appellants filed Forms 101 and 102 on 22 February 2017 and they relied on the printed wording of these forms[3]. The wife of A1 wrote a letter, together with some medical documents relating to their daughter and copies of their Indonesian passports, to this Court pleading for lenience in sentence.

9.In the appeal hearing, A1 claimed that there was no evidence to prove that he was moving the pallets of goods.  A1 said the police officer lied.  A2 also made a similar allegation that the police officer lied and made up the story.  Both Appellants said they did not work at the time, and asked for a shorter sentence.

Considerations

10.An appeal under the Magistrates Ordinance is by way of rehearing of the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit.  On a rehearing, the appellate court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence to the requisite standard.  It follows that the appellate court is also required to ensure that all proper procedural steps were adhered to and safeguards were put in place as to the admissibility of such evidence as was relied upon by the court below.

11.In her statement of findings, the Magistrate:

“… accepted the evidence of PW1 who impressed me as being both reliable and truthful in describing what occurred. … I was satisfied that the three goods vehicles, namely SJ 4465, DZ 3928 and LB 4708, were parked in Mei Wong Car Park with open tailboards facing each other. PW1 then saw D1 [A1] and D2 [A2] standing on the tailboards of the vehicles together with one Chinese male. During PW1’s observation, D1 [A1] was seen pushing three pallets of the goods from the compartment of SJ 4465 to the compartment of LB 4708 while D2 [A2] was seen pushing three pallets of goods from the compartment of SJ 4465 to the compartment of DZ 3928.”[4]

The Magistrate further considered the issue of employment, and after considering the primary facts that were proved, she:

“… drew an irresistible inference that they were employed to move and convey the goods there. I found they were conducting themselves in circumstances where they were providing manual work. … I found both defendants could not be a mere helping hand. It was the work for the odd job worker. Each defendant taking employment thereat was compelling. This was the only reasonable and irresistible inference to be drawn in the whole circumstances that they were moving and conveying the goods there at the material times for money.”[5]

12.I agree with the observations and judgment made by the Magistrate who labelled PW1 as a reliable and truthful witness.  From the primary facts so proved, the Magistrate was entitled to draw the irresistible inference which led to the conviction of both Appellants.  The Appellants were providing manual labour at the material time, and they were taking employment while each of them was a person in respect of whom a removal order was in force.

13.As regards appeal against sentence, there was no specific grounds put forward by the Appellants.  The Magistrate followed the sentencing direction promulgated by the Court of Appeal[6]. I cannot see any grounds to suggest that the sentence so imposed was manifestly excessive or wrong in principle.

Conclusion

14.Having considered all the circumstances of the case and for the reasons given above, I rule that the appeal against both conviction and sentence made by both Appellants must be refused.

Ms Human Lam, Public Prosecutor of the Department of Justice, for the Respondent

Both the 1^st and 2^nd Appellants appeared in person