HKSAR v. Rahman Ziaur

HCMA 113/2018

[2019] HKCFI 407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 113 OF 2018

(ON APPEAL FROM STCC NO 4760 OF 2017)

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Before: Deputy High Court Judge Gary Lam in Court

Date of Hearing: 5 October 2018

Date of Judgment: 21 February 2019

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J U D G M E N T

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1.The appellant was found guilty of an offence of “Establishing or joining in any business while being a person in respect of whom a removal order is in force[1]” after trial by Deputy Magistrate Jolie Chao (“the magistrate”). He was sentenced to 22 months and 2 weeks’ imprisonment.

2.He now appeals against his conviction.

3.The appellant was represented by The Duty Lawyer Service in the court below.

The prosecution case

4.The magistrate summarized the prosecution case in her Statement of Findings as follows[2] :-

“ 4. At trial, an “Admitted Facts” was agreed by the parties under section 65C of the Criminal Procedure Ordinance, and the prosecution only called one witness, namely PC 12849 (“PW1”).

5. It was undisputed that the Defendant was a subject of a removal order while it was still in force on 5 December 2017. Also, it was undisputed that the Defendant was aware that he was prohibited from establishing or joining in any business in Hong Kong at all material times. On 25 November 2016, the Defendant was released on recognizance.

6. On 5 December 2017, at around 5 to 6 pm, PW1 who was in plainclothes was patrolling in the vicinity of Tai Nam Street, Sham Shui Po. At around 5:55pm, he arrived at the vicinity of No. 274 of Tai Nam Street, and from the opposite side of the street, i.e. No 271 of Tai Nam Street, he saw a pile of clothes placed on the road outside Stall No. 41.

7. At the time, Stall No. 41 appeared to be closed and no one was doing business there. Nor was anyone watching over the pile of clothes. PW1 did not know why the clothes were there and, therefore, stayed behind to observe.

8. PW1 moved closer to Stall No. 21, which was the opposite of the Stall No. 41 and observed from the opposite. After observing for 1 to 2 minutes, he then saw a female walk to the pile of clothes and start selecting the clothes. Thereafter, while the female was still selecting the clothes, he walked closer to the clothes to observe and pretended to walk around like a pedestrian.

9. Meanwhile, PW1 also saw the Defendant coming out from the right hand side of Stall No. 41 and approached the female. Then, the Defendant conversed with the female. PW1 did not hear the whole conversation, but he only heard the Defendant said “a hundred dollars” in English to the female.

10. Then, PW1 also approached the pile of clothes and picked up a blue children coat. The Defendant said to PW1 “Fifty dollars” in English. PW1 therefore asked the Defendant, “Fifty dollars for this?” in English. The Defendant replied “Yes” in English. And then the Defendant stretched out his hand to PW1, indicating he wanted to collect money from PW1.

11. Immediately thereafter, PW1 revealed his police identity and checked the Defendant’s identity. At around 6 pm, PW1 arrested and cautioned the Defendant at Stall No. 41.

12. Later on the same day, PW1 took 4 photos and drew a sketch map of the scene.”

The defence case

5.The appellant elected to give evidence and but did not call any defence witness.  The magistrate summarized the defence case as follows[3] :-

“ 14.  The Defendant came from Bangladesh in 2015 and he was a torture claimant.  It was undisputed that, on the material day, the Defendant went to the International Social Service (“the ISS”) office at Kwun Tong at some point of time between 4 pm and 5 pm to retrieve monthly supplies.  There was no record of the exact time as to when the Defendant entered or left the office.

15.  The Defendant testified that he reached the office at 4:50 pm and left the office at 5:10 pm.  At the time, as he had just received the monthly supplies and cash of $200 from the office, he was carrying a big rucksack on his back, and with his hands holding two plastic bags full of daily necessity items such as shampoo, soap, tissue etc.  He then took MTR train back to Sham Shui Po and headed home.  He said he lived at No. 273 of Tai Nam Street, and it was near to the subject scene.  At around 5:55 pm, he came out from the Sham Shui Po MTR station and headed home.

16.  On his way, he first used $20 to buy a pair of socks at a place behind Stall No. 41, and then he saw PW1 standing next to the subject pile of clothes.  As winter was coming, he wanted to buy a jacket for himself.  He thought that PW1, a Chinese male, was selling the clothes at the time, so he went over to pick up an adult size blue jacket from the pile of clothes.  He asked PW1 in Cantonese, “How much is it?”  PW1 replied in Cantonese, “You say (你講)”.  The Defendant therefore suggested in Cantonese, “Fifty dollars (五十鈫)”, and at the same time he opened his hand with five fingers straight to show a gesture of fifty dollars.  Once he said this, PW1 immediately arrested him.

17.  In gist, it was the Defendant’s case that he was misunderstood by PW1 to be the seller.  He was, indeed, a customer.  He also denied he had talked to a female before talking to PW1.  The Defendant denied of establishing any business in Hong Kong.”

The magistrate’s findings

6.The magistrate has properly reminded herself of the burden and standard of proof[4]. She has also directed herself on the appellant’s good character[5]. In her Statement of Findings, the magistrate gave her reasons as follows[6]  :-

“ 20. The issue in this case was whether the Defendant had established a business of selling clothes in Hong Kong at the material time. The evidence mainly came from PW1.

21. In closing submissions, the Defence commented the evidence of PW1 about the observation and the sequence of events to be contrary and changing all the time, when comparing his evidence at the start of his evidence in chief and subsequent evidence. His evidence was also different from the record in his notebook, and PW1 only first mentioned that he was not standing still during the observation when clarified by the Court.

22. I had examined again, very carefully, the evidence of PW1. I did not agree with the defence submissions. Overall, PW1 had been consistent in giving the details and the elaboration about his exact position, and the sequence of events were consistent in chief and in cross-examination. There was also no contradiction with his notebook. As PW1 rightly pointed out during cross‑examination, it was a sequence of events, so his detailed description in Court upon questioning could be understandable.

23. The defence also criticised PW1 for not investigating with people in the adjacent stall or with the owner of Stall No. 41, giving no details of the female, or failing to seize other clothes in the pile of clothes. I did not see the necessity of him doing such investigation at the time given his evidence of the conduct of the Defendant and the conversation between him and the Defendant. PW1 had explained his reasons for not doing so, and nothing from his evidence was unreasonable.

24. Overall, I had carefully assessed the evidence of PW1 and observed his demeanour in the witness box. His testimony was clear and to the point, and was not shaken under thorough cross‑examination. I found him to be an honest and reliable witness and I accepted his evidence to be the truth.

25. I had also carefully assessed the evidence of the Defendant. I found his evidence to be inconsistent, illogical and incredible.

26. For example, the gist of his evidence in chief was to demonstrate how he had to carry his monthly supplies all the way back from Kwun Tong ISS office to Sham Shui Po. He testified that his hands were carrying bulky plastic bags and he was also carrying a backpack. As such, he was not able to conduct any business at the time. However, his evidence about how he could have no hand to conduct business was directly contradicted by his evidence that he was able to free up his hand to choose the blue jacket on the floor, buy socks, get out his wallet and pay, and to demonstrate a five gesture at the time.

27. His evidence that he was carrying bulky items which showed that he was eager to get home as soon as possible was also contradicted by the very fact that he chose to buy the winter clothing immediately after he came out from the MTR station. If he claimed that the items were so heavy and bulky, there was definitely no imminence in him in buying the socks, and then the jacket at all, especially the blue jacket which he claimed to buy was $50 worth, and it was a quarter of the money he had just received from the ISS. He would not have done all these so hastily as he had claimed. He did not even check or try the jacket before offering a price.

28. Furthermore, the Defendant claimed that he thought PW1 was selling the clothes immediately after he saw him near the pile of clothes. The first sentence he spoke to PW1 was in Cantonese, “How much is it?” He also admitted that there were no price tags or price shown nearby, and he had never seen PW1 before. It was unreasonable for him to have immediately concluded that PW1 was selling clothes at the time.

29. Moreover, when the Defendant was giving evidence about the $50 gesture, his evidence was changing about what he did with his hand, when he knew that the Prosecution challenged about his hand being free at the time.

30. All in all, I had observed the Defendant’s demeanour in the witness box. I noted that he frequently did not answer the questions put to him in a straightforward manner. For the above reasons, I found that the Defendant had not impressed me to be honest and reliable, and I rejected his evidence without hesitation.

31. I bear in mind the legal authorities in relation to “establishing of businesses or joining in any business”.

32. In HKSAR v. Chen Cai Lu (陳彩彔) HCMA462/2007, Judge Tong considered the meaning of “establishing the business” and said that it will include managing the operation, and acts of running and continuation of the business. And the meaning of “establish” is not confined to the moment which the company was set up.

33. In HKSAR v. Mizanur Rahman HCMA90/2011, Judge Fung said, “Establishing the business means setting it up on one’s own account.”

34. On the evidence I accepted, I have considered the following factors in this case:

(1) Although according to PW1’s observation, at the beginning no one was looking after the pile of clothes on the street (which included at least more than five clothes from the undisputed photo), the Defendant was the first person who approached the female who was selecting the clothes and talked to her immediately. PW1 overheard the Defendant saying “A Hundred Dollars” in English to the female. Shortly thereafter, when PW1 picked up the blue children jacket, the Defendant initiated the conversation and offered the price of “Fifty dollars” to PW1. When PW1 asked him again, “Fifty dollars for this?”, the Defendant replied in English and stretched out his hand, indicating that he wanted to collect money from PW1.

(2) In light of the above, the Defendant did actively greet and converse with two potential customers and had knowledge about the price of the goods sold. He offered the price of the blue children coat himself. He even stretched out his hand to collect money from PW1. In the circumstances, these were all acts of the business of selling clothes and the business must be operating at the material time.

(3) At the time, the stall behind the pile of clothes, i.e. Stall No. 41, was obviously closed and only the Defendant was observed to have any direct relationship with this pile of clothes.

(4) Similarly, although the neighbour stalls were open and sold clothes, none of those stall owners had any direct relationship with this pile of clothes and the potential customers throughout the observation of PW1.

(5) At the time, other stalls on the same street were in business, and it was time for business to be open in these hawker stalls.

(6) The Defence submitted that as PW1 agreed that the Defendant had with him one rucksack at his back and two plastic bags full of items, the Defendant could not have brought in these jackets which were bulky and fluffy and set up the business all by himself. There was nothing for him to carry these things around. I did not agree. From the undisputed photo, it showed clearly that there was a big [cloth] (sic) beneath the pile of clothes. As such, no container or bags was required to carry these clothes around. By simply wrapping these clothes using this [cloth] (sic) underneath, it would enable one to carry these clothes around easily. It is not uncommon for people to set up small hawking business in such a way.

(7) Furthermore, given the small number of clothes sold and there were no other equipment or tools around, it was a clearly small‑scale hawking business on the road, which one person was sufficient to establish or run.

(8) Likewise, the Defence submitted that as it was agreed that the Defendant did go to the ISS office between 4 and 5 pm, this fact together with the fact that he was carrying some personal items with him, as agreed by PW1, and that the Defendant lived nearby suggested that he would not be the one establishing the business at the time. I must also say none of these facts preclude him from hawking. These facts were neither here [nor] (sic) there. I must add that it was the Defendant who claimed he left the ISS office at 5:10 pm and therefore he did not have enough time to set up the business, but I had already rejected his evidence as a whole. More importantly, it was an admitted fact that he was in the office between 4 and 5 pm, and by the time of PW1’s observation, it was already by 5:55 pm. The Defendant would have sufficient time to come back to Kwun Tong to set up the business if he wished to do so.

35. Applying the aforementioned facts of this case to the legal principles and, in the absence of other evidence, I found that the only irresistible inference to be drawn was that the Defendant had established a business of selling clothes in Hong Kong.

36. Based on the above reasons and the evidence I accepted, I found that the prosecution had proved beyond reasonable doubt.  I found the Defendant guilty of the offence.”

Grounds of appeal

7.The appellant is represented by Mr Danny Fung in this appeal.

8.Mr Fung raised the following grounds of appeal:

(1)  The rejection by the learned magistrate of the appellant’s entire testimony was erroneous in that it was based on a material misunderstanding of that testimony and manifestly unreasonable in the circumstances.

(2)  The learned magistrate erred in law in convicting the appellant for having established the material business of selling jackets without any evidence showing that he had done so on his own account.

(3)  The learned magistrate erred in failing to consider other viable alternatives from the evidence adduced.

(4)  The learned magistrate’s findings were inconsistent with and contrary to the evidence of the only witness for the prosecution, PW1.

(5)  The learned magistrate convicted the appellant on the basis of inferences drawn by her that were not irresistible and were unsupported by the facts.

My considerations

9.Grounds 1 and 4 are related to the findings of fact made by the magistrate as a juror.

10.I have reminded myself of the principles on “re‑hearing” in magistracy appeals stated in HKSAR v Chou Shih Bin [2005] 1 HKLRD 838 and HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.  I find no flaws in themagistrate’s reasoning or findings.  She has thoroughly evaluated the evidence of both sides. Her analysis is sound and her findings were made with proper evidential basis.  I see no reason to disturb her findings.

11.The magistrate has given a detailed analysis of the appellant’s evidence and valid reasons for rejecting the same at paragraphs 26 to 29 of her Statement of Findings.  Contrary to Mr Fung’s submissions, the magistrate, in my view, did not misunderstand the appellant’s evidence.  The appellant was carrying a big rucksack on his back and in each hand, a plastic bag filled with a month’s supply of daily necessity items such as shampoo, soap, detergent, tooth paste and tissue.  I see nothing wrong for the magistrate to describe the 2 plastic bags as “bulky”.  I also agree with the magistrate it is unbelievable that the appellant would buy a jacket without trying it on.

12.About the cash allowance received by the appellant, his evidence was he received $200 on that day.  It matters not how much he would receive in total each month.  He was a torture claimant and apparently had to rely on the support of an NGO to maintain his living in Hong Kong.  It is incredulous that he would spend $50 out of the $200 he received that day on a jacket which he did not even try.

13.Ground 1 fails.

14.PW1’s evidence is clear that when the lady was selecting clothes (from the subject pile of clothes), the appellant came out and said to that lady “$100” in English[7]. The only reasonable inference must be that the appellant greeted the lady and told her the price of those clothes (be it $100 for 1 or more than 1 items, which does not matter for the purpose of this case). 

15.The photographs taken by PW1[8] as well as a question asked by the appellant’s counsel when he cross-examined PW1 clearly showed that the pile of clothes was placed on a bedsheet[9] (or a big piece of cloth).  I agree with the submission of Mr Daryanani, counsel for the respondent, that by the appellant’s conduct of offering to sell the clothes to the lady passer‑by and then PW1, the manner in which the clothes were laid out and the relatively small quantity of the subject pile of clothes, the only reasonable inference is that what PW1 had witnessed and experienced was the appellant’s small scale hawker operation.  Mr Fung’s attack on the lack of investigation into the nearby hawkers and stalls has no force.

16.Ground 4 fails.

17.In respect of Ground 2, Mr Daryanani has rightly pointed out that no money changed hands nor was there any haggling was because in the first instance, the lady apparently did not find the clothes suitable and decided not to buy any; and in the second instance, the “customer” was PW1, a police officer who arrested the appellant.  There is not the slightest hint of evidence which remotely suggests that the appellant was helping out another person.  The evidence which proves that the appellant ran the clothes selling business on his own account is overwhelming.

18.Ground 2 fails.

19.In respect of Ground 3, Mr Fung relied on the legal principle[10] stated in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 to argue that the magistrate has failed to turn her mind to equally or more viable alternatives (such as the appellant was a potential customer or was assisting in the business of another person) before convicting the appellant.  But there is caveat to invoke that principle ― there must be a proper evidential basis[11].

20.Once the magistrate has accepted PW1’s evidence and rejected the appellant’s evidence, there is simply no evidential basis for her to consider other “viable alternatives” as suggested by Mr Fung.  Once again, the evidence proving that the appellant was NOT a potential customer is overwhelming.  Similarly, there is simply no evidence showing that he could possibly be assisting in the business of another person. Even on a re‑hearing, I have no hesitation in rejecting those “viable alternatives”.

21.Ground 3 fails.

22.Ground 5 is related to the drawing of inferences by the magistrate.  It is in essence a catch‑all summary of Grounds 1 to 4. 

23.This case is a battle between the evidence of PW1 and the appellant’s.  The magistrate clearly understood their evidence.  Her analysis of the evidence is sound and she gave cogent reasons for the findings of fact she made.  There is no substance in this ground.

24.Ground 5 fails.

25.The appellant’s conviction is safe and satisfactory.  The appeal is dismissed accordingly.

Mr Prakash Daryanani, SPP, of the Department of Justice, for the respondent

Mr Danny Fung and Mr Navin Babani, instructed by the Bar Free Legal Services Scheme, for the appellant