HKSAR v. Mahamoud Osman Mahamed

HCMA 30/2018

[2018] HKCFI 367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 30 OF 2018

(ON APPEAL FROM STCC 3434/2017)

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J U D G M E N T

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1.The appellant was charged with one count of taking employment while being a person in respect of whom a removal order is in force with its contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance (Cap 115).

2.The particulars are that the appellant took employment whether paid or unpaid as an odd‑job worker in Mongkok.

3.The evidence for the Prosecution is that the appellant was a Form 8 holder and he was not allowed to take up any employment, paid or unpaid, in Hong Kong.

4.The evidence came from two police officers who were called as PW1 and PW2.  On 6 September 2017, PW1 and PW2 were patrolling Tung Choi Street, the appellant was seen squatting in a stall outside 50 Tung Choi Street and at that time he was twisting a screw and moving the metal bar near a working table.  He then moved the table up and down and afterwards picked up an iron bar from the ground and walked towards a blue cabinet. When the appellant noticed PW1, he immediately squatted down and put down the iron bar and then walked in the direction of Soy Street.  PW1 intercepted the appellant.

5.After both prosecution witnesses gave evidence, the appellant then elected to give evidence and he said he was in the vicinity because he was there to buy some cheap football jersey.  The appellant asserted that he had gone to near 5 Tung Choi Street where he was arrested and he did not go in any stall until the police stopped him and falsely accused him of working there.

6.The appellant during the trial was represented by counsel instructed by the duty lawyer service.  The learned magistrate then carefully assessed the evidence and found that he accepted the prosecution witnesses’ evidence and did not believe the appellant’s evidence.  The learned magistrate then considered the law in relation to whether in law the appellant could be said have been in employment.  After considering all the relevant cases, the learned magistrate found that at the time, the appellant was adjusting the height of the table, fixing a screw and obviously setting up the stall at that time.  The appellant was therefore working at the time and there was no evidence of any special relationship between the appellant and the shop or shop owner.  The only irresistible inference is that the appellant was working under employment at that time.

7.On appeal, the appellant is unrepresented and the appellant maintained that he was not working at that time and there is insufficient evidence to convict him.  This is entirely a question of fact upon which the learned magistrate was entitled to find from the evidence before him.  And from the fact found by the learned magistrate, he was entitled to draw the only irresistible inference that the appellant was under employment at that time.

8.I do not find that there are any grounds to interfere with the conviction, so the appeal against conviction is dismissed.

Ms Elisa Cheng PP, of the Department of Justice, for the respondent

The appellant appeared in person