HKSAR v. Sanneh Madi

HCMA 587/2017

[2018] HKCFI 109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 587 OF 2017

(ON APPEAL FROM STCC 2869 OF 2017)

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J U D G M E N T

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1.The Appellant appeals against his conviction and sentence of 22 months and 2 weeks for an offence of taking employment while being a person in respect of whom a removal order is in force contrary to section 38AA(1)(a) and 38AA(2) of the Immigration Ordinance Cap 115.

Admitted facts

2.It was admitted at trial that the Appellant a Gambian passport holder is and was at all material times a holder of a recognizance form issued by the Immigration Department (commonly known as Form 8) which prohibited him from taking up any employment in Hong Kong, whether paid or unpaid.  A removal order was issued against him on 21 April 2016 and served on him on 18 May 2016.

The Prosecution case

3.The Prosecution case was that on 26 July 2016 police officers were conducting an operation against illegal workers.  At 0015 hours PC 12721 (PW1) and his colleague PC 15404 patrolled to 29-31 Tung Choi Street, Mong Kok (Ladies Market). At that location he saw the Appellant tidying boxes and metal rods inside a mobile stall.  At that time the stall was closed, and there was no one else in the stall. 

4.After an observation of about one minute, PW1 and his colleague approached the Appellant and revealed their police identity.  At that point, the Appellant turned away and fled. After giving chase for a short period, the Appellant was intercepted outside 28 Soy Street.  The Appellant was then arrested.

Defence case

5.The appellant elected to give evidence.  He denied working or being employed.  He said he went to the Ladies Market at around 9.30 pm on 25 July 2017 to shop for a Bluetooth speaker.  He had purchased one from the Ladies Market about one year ago, but the speaker was broken.  He was looking for an identical replacement. 

6.In the Ladies Market, the Appellant spent hours looking for the speaker.  Yet, he was unable to find an identical item.  Eventually at around midnight, the Appellant arrived at a stall which was closing.  He asked for a Bluetooth speaker from the shopkeeper.  The shopkeeper directed him to look for the speaker himself in the packed boxes. 

7.When the Appellant was searching through the boxes, he saw two men walking towards him (PW1 and his colleague).  Having concern for his own safety, he started to run.  He said he did not know the men were police officers. 

8.The defendant called Mr. SAIDY Lamin (DW) as a defence witness.  Mr Saidy was a friend of the Appellant.  He said he bumped into the Appellant at around 9 pm on 25 July 2017 when he was entering Mongkok MTR station.  The Appellant told him that he was going to buy things from the Ladies Market. 

Issues at trial

9.The issues at trial were (i) whether the Appellant was observed to have worked at the scene by a police officer (PW1) and (ii) whether the evidence was sufficient to show that the Appellant had taken up employment.

Magistrate’s findings

10.The magistrate[1] accepted the evidence of the police officer PW1.  He rejected the Appellant’s evidence.  He concluded that PW1 had seen the Appellant tidying boxes and metal rods, which was consistent with the procedure and task of closing the stall at the end of the day, at midnight.  He found that the Appellant was working inside the stall. 

11.Having considered all the circumstances and the facts, the magistrate concluded that the only irresistible inference was that the Appellant was working in the stall as an odd-job worker employed to carry out the task of tidying and closing the stall, thereby taking employment while being a person in respect of a removal order which was in force.

Grounds of appeal

12.In the Appellant’s homemade grounds of appeal[2] he advanced three grounds of appeal against conviction. 

Ground 1

13.The first ground relied upon by the Appellant was that the Magistrate erred in disregarding the evidence of the defence witness who acknowledged that the Appellant had told him that the Appellant was going to the market to buy something.

14.The Magistrate considered DW’s evidence.  He noted that all DW could say was that he had bumped into the Appellant in Mong Kok about three hours prior to the incident.  Even if the Appellant had told DW that he was going to buy things in the Ladies Market, it was only proof that the Appellant had told DW something but was not the truth that the Appellant had actually gone there for shopping.  The Magistrate therefore found that the evidence of DW was not of any weight. 

15.The Magistrate was correct in placing no weight on DW’s evidence and finding that the evidence of DW was of no assistance in determining what the Appellant was actually doing at the material time that PW1 was making his observation of the Appellant.

Ground 2

16.The second ground the Appellant advanced was that the Magistrate erred in rejecting the Appellant’s explanation for his flight (i.e. the Appellant was in fear for his safety) as the Police officers had rushed to him and not identified themselves to him.

17.The Magistrate found the explanation given by the Appellant for his flight incredible.  He accepted the police officers evidence that when they approached the Appellant they did nothing offensive or aggressive towards him.  The Magistrate found the Appellant was unreasonable to feel threatened and needed to flee in the circumstances. 

18.The Magistrate was entitled to find that the Appellant’s explanation for fleeing was unreasonable. 

Ground 3

19.The Magistrate erred in finding that PW1 was a credible witness as he failed to take into account the evidence of PW1 that he could not remember if the relevant temporary stall was completely dismantled or not after the Appellant’s arrest.

20.As correctly pointed out by the Magistrate, the important part of PW1’s observation was the action by the Appellant in the stall. Whether PW1 could remember whether the stall had been completely dismantled after PW1 had chased after the Appellant, intercepted the Appellant and returned to the stall with the Appellant was not an important part of PW1’s observation.

21.The status of the stall when the Appellant was taken back was not material for the purpose of assessing the reliability of PW1’s evidence. 

22.I can find no basis to interfere with the Magistrate’s assessment and acceptance of PW1’s evidence and rejection of the Appellant’s and DW’s evidence.

23.I am satisfied that the conviction was neither unsafe or unsatisfactory.  Accordingly the appeal against conviction is dismissed. 

Appeal against sentence

24.The Appellant appealed against his sentence of 22 months and 2 weeks’ imprisonment.

25.The Appellant submitted that the sentence was excessive as he was a first time offender. 

26.In sentencing the Appellant, the Magistrate correctly applied the tariff sentence laid down in HKSAR v Usman Butt & Anor^[3]. The Magistrate saw no reason to depart from the tariff sentence.  He also saw no reason to reduce the sentence from the relevant starting point.  

27.The sentence was neither wrong in principle nor manifestly excessive.  Accordingly, the Appellant’s appeal against sentence is dismissed.

Mr Glen Kong, PP of the Department of Justice, for the respondent

The appellant appeared in person