HKSAR v. Kaleem, Muhammad

HCMA 200/2018

[2018] HKCFI 1526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 200 OF 2018

(ON APPEAL FROM STCC 4461 OF 2017)

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JUDGMENT

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1.The appellant Kaleem Muhammad was charged with an offence 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 sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance, Cap 115.

2.He pleaded not guilty and was convicted after trial by Deputy Magistrate Jolie Chao (the magistrate) at the Shatin Magistrate’s Court.  The appellant was sentenced to 22 months and 2 weeks’ imprisonment.

3.The appellant lodged an appeal against conviction.

Prosecution case

4.It is an admitted fact that the appellant had sneaked into Hong Kong illegally and was released on recognizance (Form 8) at the material time.  The appellant was aware that he should not take up any employment, whether paid or unpaid.

5.The prosecution called two witnesses.  PW1 was the manager of a restaurant located at Skyline Tower in Kowloon Bay.  According to PW1, the restaurant hired tablecloths from a company named Pak Lee and, between 3 pm and 5 pm each day, Pak Lee would park its vehicle outside the backdoor of the restaurant to collect dirty tablecloths and to supply clean ones.  On 15 November 2017 he noticed a non‑local had come to collect the tablecloths at around 3:30 pm.

6.PW2 was a police officer conducting an operation on 15 November 2017.  He arrived at the vicinity of the restaurant at around 3:25 pm and he entered the restaurant from the front door.  The restaurant was not in operation so he headed towards the backdoor.  He saw the appellant pushing an iron cage full of tablecloths into the restaurant through the backdoor.  After entering the restaurant, the appellant turned left and placed the cage there.  The appellant then left through the backdoor.  PW2 followed him and saw the appellant collect or take up a metal board placed on a flight of steps leading to the road outside the backdoor of the restaurant.  PW2 went and intercepted the appellant.  PW2 asked for the appellant’s identity document.  The appellant went to the passenger seat of a Medium Goods Vehicle (MGV) parked near the backdoor of the restaurant to get his Form 8 and his mobile phone.  PW2 arrested the appellant for the offence outside Skyline Tower.

7.It was the prosecution case that on 15 November 2017 the appellant was found taking up employment as an odd job worker in Kowloon Bay while being a person who had remained in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully.

The defence case

8.The appellant gave evidence and he also called a defence witnesses (DW1).

9.The defence case was that the appellant and DW1 are friends.  Through DW1 the appellant came to meet a Chinese man named Cheung (whose name is the same as the owner of the MGV parked outside the backdoor of the restaurant on the material day).  DW1 himself ran a logistics company and he had a sub‑contract from Pak Lee and he had in turn subcontracted that to Cheung.  In particular, he had subcontracted the job of collecting tablecloths from and delivering them to the restaurant to Cheung.  Three days before 15 November 2017, DW1 told the appellant that he wanted to buy a car and asked the appellant to go with him.  On 15 November 2017 at about 2 pm, DW1 called the appellant and asked the appellant to meet him at Kowloon Bay at about 3:30 pm.  DW1 told the appellant that Cheung could pick him up outside the Tuen Mun MTR station at 2:30 pm and give him a lift to Kowloon Bay.  The appellant met up with Cheung and they arrived at the restaurant.  As the appellant needed to use the washroom he followed Cheung to alight the MGV and entered the restaurant through the backdoor.  As a cage was in his way he pushed the cage aside.  He looked around and could not find the washroom so he turned and left.  Almost immediately he was intercepted by PW2.  When asked for his identity papers he immediately produced the Form 8 from his pocket.  The appellant explained to PW2 that he was not working there, but that he was going to the washroom when questioned by PW2.  The appellant said he even wet his pants at the scene.

10.DW1 explained that he was stuck in traffic so he was late for the appointment with the appellant.  He was unable to contact either the appellant or Cheung.  DW1 testified that he had never asked the appellant to work for Cheung.

11.The defence case was that the appellant did not take up employment. He did push the cage which blocked his way when he was looking for the washroom.  The appellant did not collect or pick up any metal board outside the restaurant.  He did not collect the Form 8 from the MGV.

Magistrate’s findings

12.After reminding herself of the legal principles and the issues involved, and having analysed the evidence before her, the magistrate accepted the evidence of the prosecution witnesses and rejected those of the appellant and DW1.  On the facts she found proved, she came to the only and irresistible inference that the appellant was working at the time when PW2 saw him and that the appellant was “employed” to work there, after referring to the case of R v Ip Po‑fai HCMA 1201/1995.

Grounds of appeal

13.In his homemade grounds of appeal, the appellant basically claimed that he did not work there, that it was wrong for the court to convict him.

14.In court the appellant made the same submission.

My consideration

15.An appeal under section 113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so.  Where the facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first‑hand which the magistrate enjoyed as the hearing is on papers.  (See Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 and Raymond Chen v HKSAR [2011] 2 HKLRD 189.

16.I have carefully considered the Statement of Findings.  I am in total agreement with the fact‑findings of the magistrate.  The magistrate has the benefit of seeing and listening to the evidence.  Apart from the observation done by PW2 the policeman, the evidence of PW1 (that he noticed a non‑local coming to collect the tablecloths at around 3:30 pm on the date in question) was important.  The story given by the appellant and DW1 was indeed too incredible.  I am also of the view that their story was contrived in order to explain why the appellant went to the restaurant with Cheung on board the MGV and why he was inside the restaurant and was seen pushing a cage by PW2.

17.I am also of the view that on the facts found by the magistrate, the only and irresistible inference to be drawn was that the appellant was working there.  The evidence also points to the only and irresistible inference that the appellant was “employed” by someone to work there.

18.For these reasons, the conviction was not unsafe and I dismiss the appeal.

Ms Ho May Yu Lily, Senior Public Prosecutor of Department of Justice for Respondent

Appellant, in person