HKSAR v. Karim Md Razaul and Another

HCMA 192/2017

[2018] HKCFI 534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 192 OF 2017

(ON APPEAL FROM STCC NO 4783 OF 2016)

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JUDGMENT

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1.The appellants (hereinafter referred as “D1” and “D2” as in their trial) sought to appeal against their convictions on charge 1 and charge 2 respectively after trial by Colin Wong, Esq., (“the Magistrate”) of “taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully”, contrary to section 38AA(1)(a) and section 38AA(2) of the Immigration Ordinance, Cap 115. They were each sentenced to 22 ½ months’ imprisonment.

THE TRIAL

The prosecution case

2.At the trial, both parties agreed as admitted facts that D1 and D2 illegally entered Hong Kong respectively on 16 June 2014 and 12 July 2015.  They were respectively released by the Immigration Department on a recognizance on 8 July 2014 and 20 August 2015.  They were aware that they were prohibited from taking up any employment, whether paid or unpaid, while they were released on such recognizance.  

3.It was the prosecution case that at around 3:55 pm on 1 November 2016, when a party of police officers including PC 9519 (“PW2”) patrolled to the vicinity of a scrapped metals recycling site in Pat Heung, New Territories, a lorry with the tailboard lowered were seen parking there and three males were standing on the tailboard of the lorry.  During a 10-minute observation by PW2 from the top of some abandoned vehicles, D1 and D2 moved some scrap metal from the lorry compartment and threw them to the recycling site.  The third male (hereinafter referred as “M3”) later went down from the lorry to the ground.  He stood next to the lorry and pointed at a direction.  D1 then threw scrap metal to that direction.  M3 also talked to both appellants.  When M3 talked to them, they looked focused and stared at M3.  After about 10 minutes of observation, PW2 informed his teammate.  Police officers arrived and intercepted the two appellants.  

4.PW1 was an employee of Pure Success Limited which operated the recycling site.  He testified that usually vehicles which were loaded with scrap metal would first be weighed on an electronic scale.  They would then unload the scrap metal.  After they unloaded the scrap metal onto the ground, the vehicles would return to the electronic scale. PW1 would then calculate the weight and pay the driver.  

The defence case

5.D1 did not give evidence but D2 elected to give evidence.  Apart from D2, no other defence witness was called.  

6.The defence case was that D2 and D1 were friends.  D1’s wife was pregnant and on the material day, they were planning to go to Tsim Sha Tsui to buy something for D1’s wife.  D2 also planned to arrange D1 to borrow money in Tsim Sha Tsui as well. 

7.While they were waiting for a bus, a lorry passed by.  The driver of this lorry was M3 who was also D2’s friend.  M3 offered to give them a lift to Tsim Sha Tsui.  After they boarded the lorry, M3 said he would first go to unload some scrap metal first before going to Tsim Sha Tsui.  M3 then drove them to the recycling site. 

8.While the three of them were in the recycling site, M3 unloaded the scrap metal on his own. The two appellants were only waiting around and did not work.  While they were waiting, M3 gave a gesture to indicate to the appellants where they could go for a smoke.  Suddenly, they were intercepted by some police officers and were later arrested for the offence.

9.Both appellants have no criminal record in Hong Kong. 

Issues at trial

10.The main issues at trial for the Magistrate to decide were as follows:

(i) Did the two appellants unload scrap metal from the lorry at the recycling site as described by PW2?

(ii) If yes, whether or not from such actions and the circumstances of this case it can be inferred that the appellants were taking employment at the material time?

GROUNDS OF APPEAL AGAINST CONVICTIONS

11.Ms. Elizabeth Herbert and with her, Mr. Holden Slutsky, raised three grounds of appeal against the convictions upon charges 1 and 2 on behalf of both appellants as follows:

(1) the Magistrate erred in finding that the only irresistible inference was one of employment; 

(2) the Magistrate erred in finding that a lorry is a usual place of employment; and 

(3) the Magistrate reversed the burden of proof (at paragraph 20 of the Statement of Findings). 

In view of the above factors, whether taken individually or cumulatively, it is submitted that the convictions of both appellants are unsafe and unsatisfactory.    

A CONSIDERATION OF THE SUBMISSIONS

12.It can be seen from the grounds advanced by both appellants that they took no issue of the finding by the Magistrate that they were at the material times unloading the scrap metals from the lorry to the recycling site as observed by PW2, the police officer.  After seeing and hearing D2’s giving of evidence in court, the Magistrate was fully entitled to reject the evidence of the defence case that they were just waiting around while M3 unloaded the scrap metal on his own at the recycling site.  This appeal now mainly focuses on whether the actions of the two appellants inside the recycling site and the circumstantial evidence were sufficient for the court to draw an irresistible inference that they were taking employments at the material times.    

Ground (1)

13.Ms. Herbert cited a numbers of authorities in her written submissions which will be discussed below. It is submitted that the principles in those cases when applied to the present case show that there was insufficient evidence of employment such that an irresistible inference of employment should not have been drawn.   

14.Ms. Herbert first submitted that many indicia of employment as listed in Poon Chau Nam v Yim Siu Cheung [1] are absent in this case and there was only minimal evidence in relation to the “degree of control” by the employer.  The only evidence relevant to a degree of control exerted by anyone over D1 or D2 was one instance of pointing by M3 followed by one instance of Dl throwing the metal in that direction which is inconclusive.  

15.Further, it is submitted that this case bears striking similarities to Bain Genaro Oliva [2], Ferosh [3] and Chow Kin Cheung [4].  In each of those cases, it was decided that an inference of employment could not be drawn.  In Bain Genaro Oliva (supra.), the main prosecution witness observation was of a single instance over a relatively short amount of time (10 minutes).  Further, both cases involved loading/unloading of items onto/off of a lorry and in both cases the only evidence was the observation with no evidence as to the owner of the goods or lorry. 

16.In Ferosh (supra.), the court ruled that the prosecution evidence merely established that the appellant and his co-accused were observed carrying out some form of manual work at a derelict metal shed.  Given the condition of the shed, it was not an obvious place of employment, and there was no evidence as to whom either the shed or the sheets of metal the appellant was assisting to dismantle belonged.  Moreover, there was no evidence that the four men were doing that work for an employer rather than for themselves, nor the degree of control being exercised over them by any employer.  There was no evidence of any payment of the work or the basis of any such remuneration.  There was no evidence of who had provided the hammer or crowbar.  There was no evidence of any safety or other work-related equipment at the site.  (see para 18) 

17.In Chow Kin Cheung (supra.), an appellant was convicted after trial of “being the employer of a person not lawfully employable”.  He was observed to pay a person to remove a cabinet from a shop to a nearby refuse collection point.  The appeal is allowed on the basis that the mover was rendering a removal service on his own account.  That makes it clear the mere fact that a person is working for another does not necessarily mean there is a relationship of employment between them. 

18.Relying on the above authorities, Ms. Herbert submitted that in the present case, there is no evidence as to who rented or owned the lorry.  Also, there is no evidence as to whom the scrap metal belonged.  There is no evidence that the appellants were working for an employer rather than themselves and there is insufficient evidence of control in this case.  There is no evidence of remuneration and both appellants allegedly moved the scrap metal using their bare hands and there is no evidence of any equipment at all.   

19.Each case has its own facts and very often the decision of the outcome of a particular case is very much fact-sensitive and therefore one must be very careful when comparing different cases and distinguishing the facts before applying the decision of one case to another.  

20.Depending on circumstances, contract of employment might arise in relation to a specific engagement.  The modern approach to the question whether one person is another’s employee is to examine all the features of their relationship against the background of the indicia of employment with a view to deciding whether, as a matter of overall impression, the relationship was one of employment.[5]

21.In the present case, I do not agree that there is no evidence as to who owned or rented the lorry.  D2 already gave evidence to the effect that M3 was the driver of the lorry and he was to unload the scrap metal at the back of his lorry to the recycling site and according to the evidence given by PW1, the operator of the recycling site, he would pay the driver according to the weight of the scrap metal using an electronic scale.  Therefore, it is not difficult to infer that the scrap metal belonged to M3 and he would sell them to PW1 or else why he would bother to drive his lorry to carry them all the way to unload the same onto the recycling site?  The lorry was, for all intent and purposes, a transportation equipment used by M3 to collect and deliver the scrap metal and whether M3 in fact owned or rented the lorry is not particularly crucial in this analysis.  It is also abundantly clear that M3 was not an employee of the recycling site.  As said, the Magistrate has already rejected D2’s evidence that they were just waiting around and doing nothing when M3 was unloading the scrap metal inside the recycling site on his own.  As to why they were unloading the crap metal, it must be remembered that it was never the defence case during the trial that the two appellants were rendering a service as movers to M3.  Based on the fact that they only used their bare hands to remove the scrap metals and did not bring along their own tools such as gloves or trolleys or other equipment, there is in my view no sufficient basis to infer that the appellants were working for themselves as self-employed workers rather than odd job workers employed by an employer on a casual basis.  

22.The appellants also contended that there is insufficient evidence of control in this case.  Mr. Glen Kong, SPP of the respondent emphasized what PW1 had observed of the three males inside the recycling site:

(i) PW1 only communicated with M3;

(ii) at first, all three males were working on the tailboard;

(iii) then M3 got off the tailboard and did not move scrap metal from the lorry.  He was only standing nearby while the appellants were moving scrap metal;

(iv) when M3 pointed to a direction, D1 would follow that gesture and throw metal to the same direction; and

(v) when M3 talked to the appellants, they looked focused and stared at him. 

23.PW2’s evidence of the above observation was challenged by the appellants at trial but the Magistrate finally accepted, and in my view properly,his evidence with cogent reasons given at para. 13 of his Statement of Findings.  (This finding was never challenged in the present appeal.)  Based on the above observation, I disagree with the appellant’s that there is insufficient evidence of control and in the contrary, I would say the evidence of control by M3 over the two appellants in the form of giving instruction to them in process of removing the scrap metals during the observation was so obvious and overwhelming.

24.There may be no evidence of remuneration in the present case as submitted by the appellants but given the fact that the appellants were intercepted by the police even before all the scrap metals were unloaded, it is not surprising at all that they were not yet paid for their work at that time.  On the other hand, even if there was evidence of payment by M3 to the appellants, I really cannot see how the payment could be correctly classified as payment for service rather than payment for wages based on the above analysis.  

25.Lastly, it is said that there is no evidence of equipment and the appellants were using their bare hands to remove the scrap metals.  Given the nature of their work, the fact that there was no work equipment found is, in my view, neither here nor there.  

26.I also entirely agree with what the Magistrate said when he rejected the submission by the defence that it could be a one-off arrangement and the appellants may just be contractors rather than employees:-

“ … an employment can be a short term, one-day employment. Just because it is one-day employment does not equate to self-employed [sic].” (para. 21 of the Statement of Findings)

27.In R v Ip Po Fai (unreported) HCMA 1201/1995, Mr. Justice Patrick Chan (as he then was) held that:

“ … working at a place per se is not employment, although in the absence of other evidence, one may draw the necessary inference.”

Mr. Kong also referred me to HKSAR v Chan So Bing [6] HCMA 506/2005 (unreported, 18 August 2005) in which Mr Justice Anthony To held:

“ 15. Generally, this inference is very reasonable and also an inevitable one. Although Hong Kong people are very helpful, generally a person will not for no reason assist others to perform employment duties and earn money on their behalf. So in the absence of other evidence, the court may draw the inference of employment very easily. But if there is other evidence, for example,to show the existence of some special relationship between the person doing the work and the alleged employer such as a relationship of relatives and friends, this will then provide other possible inference for his work and prevent the court from drawing the only inference of employment. Likewise, if the case reveals some facts which may explain why the alleged employee was doing the work, this will also constitute an inference which prevents the court from making the only inference of employment. Examples like, a son helping his father in delivery or a voluntary worker helping a newspaper hawker who has fallen ill to sell newspaper at his stand. There are other inferences the court may draw. If the doing of work is based on some obligations other than those of employment contracts, the court then cannot draw the only inference of employment. If a young man for no reason assists others in delivery, there will be no difficulty for the court to draw the only inference that his doing of the work is to perform the contractual obligations of employment. …” (unofficial translation) [7]

28.Following Chan So Bing (supra.), in the present case, there is no evidence to show that there is a special relationship between M3 and the two appellants.  Although D2 had said in evidence that M3 was his friend and he offered a lift to them to go to Tsim Sha Tsui at the material time, the Magistrate had already found D2’s story unbelievable and rejected his evidence.  In any event, it is never the defence case that the appellants were just helping out M3 out of their friendship.  On the contrary, D2 even said they were just waiting around and doing nothing whilst M3 was working on his own.  As the matter stands, in the absence of other evidence, I agree that there is no reason to suppose that these two appellants would assist M3 to remove the scrap metals for free or out of any obligation or special relationship. 

Ground (2)

29.Ms. Herbert submitted that just as in Ferosh (supra.), D1 and D2 were not found in a restaurant, shop or construction site but in a scrap metal recycling site (where they were not employed) on a lorry.  There was no evidence as to whom the metal belonged or to whom the lorry belonged.  Further, there was no evidence of any signage and/or logo etc on the lorry.  However, despite these factors the Magistrate still held that they were movers for lorry, which is a usual place for employment. 

30.It is submitted that this finding is plainly wrong as a lorry is merely a vehicle and is not an “obvious place of employment” per se.  Further, in Bain Genaro Oliva (supra.), under very similar circumstances to the present case, there was no finding that the lorry was a usual place of employment.

31.It is submitted that this erroneous finding may well have been the key reason as to why the court readily drew an inference of employment despite the lack of evidence in the case.  It is submitted that in the circumstances of this case it cannot be said that the lorry was a ‘usual place of employment’ and since it likely impacted the finding that the only irresistible inference was one of employment the convictions are unsafe. 

32.In reply, Mr. Kong submitted that Bain Genaro Oliva (supra.) was an appeal case in relation to costs only.  The comments made by Mr. Justice Saw in his judgment were mainly for the purpose of determining costs.  It is also unclear whether it was argued before the court if a lorry was a usual place for employment.  

33.In addition, unlike Ferosh (supra.) in which the offence location was a disused and abandoned shed, the two appellants were found working with a lorry in the recycling site in the present case.  Mr Kong cited two magistracy appeal cases Khan Muhammad Arshad [8] and Leung Han [9] which both demonstrated that it is not unusual for lorries or trucks to be used as places for employment.  More importantly, the lorry in the present case was filled with scrap metal for sale in the recycling site, which is undoubtedly another usual place of employment akin to a restaurant, shop or construction site as suggested in Ferosh (supra.). 

34.I entirely agree with the respondent’s submission and this ground can be disposed of without any difficulty.  Given the background of the facts of the present case and the nature of the work duties alleged coupled with the undisputed evidence from PW1 that he would pay the driver of the lorries for the scrap metal they unload into his recycling site, I entirely agree with the Magistrate that the lorry is a usual place of employment for the purpose of unloading the scrap metals by the two appellants.    

Ground (3)

35.Ms. Herbert contended in this ground that the Magistrate reversed the burden of proof (at para. 20 of the Statement of Findings) when he said:

“ … There is no suggestion from. the 2^nd Defendant [A2] or any evidence that defendant operated an unloading business. There is no suggestion from defendants or any evidence that defendants were doing the work because there is a special relationship between the defendant and the owner of the scrap metals or M3.”

36.It is submitted that the prosecution bears the burden of proving the elements of the charge and the relevant element in this case being ‘taking employment’. In this case, the prosecution was asking for an inference to be drawn on the basis that it was the only irresistible inference to be drawn in the circumstances.  It was therefore not for the appellants to suggest what else they could have been doing at the time but for the prosecution evidence to demonstrate that employment is the only irresistible inference in the case.  Whether there was evidence or suggestion by the defence, she said the Magistrate would still have to satisfy himself that the only irresistible inference was one of employment. 

37.It is therefore submitted that paragraph 20 of the Statement of Findings indicates a shift in burden from the prosecution to the defence, which likely impacted the finding that the only irresistible inference was one of employment.  In light of this material irregularity, it is submitted that the appeal should be allowed on this ground and the appellant’s conviction set aside. 

38.Mr. Kong submitted in reply that the appellants have taken the relevant paragraph of the Magistrate’s Statement of Findings out of context.  According to him, it is clear that the Magistrate has, after having rejected the defence case, all along considered whether an irresistible inference of employment can be drawn from the facts proved by the prosecution.  By stating that there was no suggestion from the appellants that they were operating an unloading business and that there was no suggestion from them that they were doing the work because there was a special relationship between them and the owner of the scrap metals or M3, the Magistrate simply confirmed that there was no contrary evidence or explanations in the present case for him to consider so that he might not draw the irresistible inference that the appellants were under employment. 

39.After reading the whole Statement of Findings, I must say the criticism by the appellants on this ground is misconceived.  I totally agree with the submission by the respondent that the complaint was unfounded and in my view, it was just a matter of expression and interpretation by the Magistrate.  There is no doubt that all the Magistrate was trying to say was that the only possible inference he can draw was employment as there was not even an iota of evidence which indicated any other alternative relationship.  The Magistrate has not reversed the burden of proof as contended by the appellants.  Accordingly, this ground also fails.

CONCLUSION

40.For these reasons, I am satisfied that the there is no substance nor any merit in any ground of appeal advance on behalf of the two appellants.  The inference that the two appellants were taking employments at the material times was one the Magistrate was fully entitled to draw in light of the circumstantial evidence in this case.  Despite the able submissions made on the appellants’ behalf, I find no basis to interfere with the Magistrate’s finding of facts and the conclusion that he has reached. 

41.The appeal is accordingly dismissed. 

Mr. Glen Kong, SPP (Ag), of the Department of Justice, for the respondent

Ms. Elizabeth Herbert and Mr. Holden Slutsky, assigned by Bar Free Service Scheme, for the 1^st and 2^nd appellants