HKSAR v. Nawaz Habib

HCMA 34/2018

[2018] HKCFI 1299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 34 OF 2018

(On appeal from STCC 1552/2017)

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J U D G M E N T

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1.The Appellant was convicted after trial in the Magistrates’ Court on a charge 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 (2) of the Immigration Ordinance, Cap 115.  He appeals against that conviction, doing so on the pro forma grounds of appeal set out in Form 101. 

2.It was formally admitted that at the material time the Appellant was remaining without authority after having landed unlawfully, was on recognisance and was prohibited from taking up any employment either paid or unpaid.

3.The prosecution’s evidence was to the following effect.  The Appellant and another man were observed moving stacks of plastic crates from one vehicle to another, doing so three times in the course of two minutes.  The Appellant was then intercepted and arrested. 

4.At the trial, he neither gave nor called evidence.  The case put on his behalf was that he was intercepted somewhere else and that the prosecution’s case was fabricated by the police. 

5.At the hearing of the appeal, he in effect sought to give evidence.  He also said that he had somebody in court who could have given exculpatory evidence on his behalf.  At the trial, he was represented by a duty lawyer.  I see no proper basis for not proceeding with this appeal on such evidence as was given. 

6.The Appellant said that PW2, who was working at the scene, said that he, i.e. the Appellant was not working there.  Actually what PW2, who is Chinese, said is that “they”, referring to South Asians, “all looked the same” to him and that he could not say with certainty that the person he worked with was in court. 

7.With the criminal burden and standard of proof in mind and after taking the Appellant’s clear record into account in his favour in respect of propensity, the Magistrate accepted the prosecution’s evidence and concluded that the only inference to draw from what the Appellant was seen doing was that he had taken up employment.

8.Having considered everything said before me, I am satisfied that there was evidence on which to convict and that the Magistrate made no error in the course of reaching the conclusion that the Appellant was guilty. 

9.Accordingly, the appeal is dismissed.

Mr Prakash L Daryanani, SPP of Department of Justice, for the Respondent

The Appellant appeared in person