HKSAR v. Davinder Singh

HCMA 167/2018

[2018] HKCFI 1668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 167 OF 2018

(ON APPEAL FROM STCC 4649 OF 2017)

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JUDGMENT

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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 in respect of whom a removal order is in force, contrary to section 38AA(1)(b) and (2) of the Immigration Ordinance (Cap 115). He appeals against conviction.

2.The prosecution’s case was that the Appellant took up employment as an odd job worker in Mongkok.  It was formally admitted at the trial that there was a removal order in respect of the Appellant in force on 29 November 2017.  An immigration assistant, who was PW1, gave evidence that on that day in Mongkok he saw the Appellant pushing atrolley loaded with canvas.  The Magistrate accepted PW1’s evidence thathe saw that.  PW1 also said that the Appellant had admitted under caution to being employed to set up a stall.  But there were language difficulties, and the Magistrate attached no weight to the admission of which PW1 gaveevidence. The Magistrate also attached no weight to PW1’s evidence that the Appellant had been wearing gloves.

3.The Appellant did not give or call evidence.  The Magistratereferred to the criminal burden and standard of proof, and drew no adverse inference against the Appellant for not giving or calling evidence.

4.The Magistrate found it proved beyond reasonable doubt that the Appellant was pushing a trolley loaded with canvas.  The only reasonable inference to draw from that in the circumstances was, the Magistrate concluded, that the Appellant had taken up employment.  As to the circumstances, the Magistrate said this:

“ 22. I note that the material place is where the Ladies’ Market is situated, where stalls were set up by putting up the canvas. The observation was made at around 10 am, exactly the time when stalls are getting ready to operate. It is indeedthe observation of PW1 that other stalls were getting ready and being set up. The canvas loaded on the trolley was the kind of canvas which were used in the stalls.

23. The appellant, being a recognizance holder, would have no business whatsoever with the canvas. In the absence of other evidence, I draw as the only inference that the appellant must be employed as an odd job worker to set up the stall.“

5.The Appellant’s grounds of appeal attack the evidence that he had made an admission and that he was wearing gloves.  His grounds of appeal also assert his innocence.  The attack on that evidence is irrelevant since the Magistrate attached no weight to the alleged admission or to the evidence that the Appellant was wearing gloves.  The assertion of innocence takes the matter no further since the trial of course proceeded on the footing that the Appellant was denying guilt and that the prosecution bore the burden of proving his guilt beyond reasonable doubt.

6.There is no proper basis for disturbing this conviction.

7.The appeal is therefore dismissed.

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

The Appellant appeared in person