HKSAR v. Bah Ebrima

HCMA 465/2018

[2019] HKCFI 314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 465 OF 2018

(On appeal from STCC No 2410/2018)

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J U D G M E N T

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1.After trial before a deputy magistrate, (“the Magistrate”), the appellant was convicted of one count of taking employment while being a person in respect of whom a removal order is in force, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance.  The appellant now appeals against his conviction.

2.A removal order was issued against the appellant on 26 August 2015.  He was not allowed to take up any employment in Hong Kong, whether paid or unpaid.

3.At about noon time on 20 June 2018, a police officer (“PW1”) was patrolling in uniform in the vicinity of Tung Choi Street when he found the appellant there.  He saw the appellant pushing a trolley of a street stall which sold suitcases (“the stall”) and then conveying about five to six suitcases, one by one to the ground of the stall.  It took the appellant about 30 to 45 seconds to do that.

4.The stall was in business.  The appellant got nervous when he saw PW1.  PW1 intercepted the appellant to conduct an investigation.  The appellant said to the officer that he was only buying a suitcase.

5.The appellant elected to give evidence.  He denied working or being employed.  He said that because he had to move out from where he lived by 30 June 2018, therefore, he had come to the stall to buy a suitcase to hold his clothes.  He picked a suitcase and the lady of the stall told him that it would cost him $500.  He negotiated with the lady and it was agreed that she would sell him a medium size suitcase for $400.

6.When he was checking a medium suitcase, PW1 tapped his shoulder and asked for his identification. Despite that he had explained to PW1 that he was only there to buy a suitcase, PW1 still arrested him.  At the time, he had $389 on his person. 

7.Having considered all the evidence, the Magistrate found that PW1 was a truthful and reliable witness.  His evidence was direct and simple.  He did not exaggerate and was not evasive.  There was nothing unreasonable in his evidence.

8.As regards the evidence of the appellant, the Magistrate queried that if all what the appellant had was $389, he would not be able to afford the big suitcase at $500 or the medium size suitcase at $400.  The Magistrate found it strange that in the circumstances, the appellant still picked up the suitcase to check the size. 

9.The Magistrate also found it inherently unlikely that he would spend all his money just to buy a suitcase to hold his clothes for the purpose of moving to another place.  Having evaluated the appellant’s evidence carefully, the Magistrate did not accept the appellant’s evidence.  The Magistrate did not find the appellant’s case to be credible and rejected it.  The Magistrate then drew as the only irresistible inference that the appellant took employment as an odd-job worker at the scene.

10.In his notice of appeal, the appellant stated that the length of PW1’s observation was too short to determine what he was doing and it was not the defendant’s case that he would use all his money to buy a suitcase.  That was all the money he had on his person at that time.  In today’s hearing, the unrepresented appellant basically repeated what he said to the Magistrate.  He maintained that he was not working, but only buying and checking a suitcase.  He added that there should be CCTVs on the street which could record what happened. 

11.From the Magistrate’s statement of findings, it is clear that the Magistrate analysed carefully all the relevant evidence before coming to her conclusion.  She correctly reminded herself of the burden and standard of proof.  She also directed herself properly on both the credibility and propensity limbs when considering the evidence of the appellant.  In my judgment, there is nothing unreasonable in PW1’s evidence.  There is no basis to suggest that the Magistrate wrongly believed PW1.

12.The Magistrate also adequately considered and dealt with the submissions made by the duty lawyer representing the appellant at trial.  In rejecting the case for the defence, the Magistrate gave cogent reasons to explain why she found the evidence of the appellant unreasonable.  The Magistrate was entitled to come to her conclusion. 

13.The Magistrate reminded herself that when drawing inferences from the evidence, the inference must be the only reasonable inference to draw from the proved facts.  She correctly considered the legal principles stated in R v Ip Po Fai, HCMA 1201/1995, on employment.  I agree with the Magistrate that the inference of employment was the only reasonable and irresistible inference that could be drawn in the present case.

14.The appellant now says that there should be some CCTVs installed in the street.  There was no such evidence at trial.  In any case, even if there were CCTVs installed by some shops or stalls in the street, it is only a speculation that what happened in this case might have been captured. 

15.In my judgment, on the totality of the evidence, the conviction is amply justified. 

16.The appellant’s conviction is neither unsafe nor unsatisfactory.  The appeal against conviction is, therefore, dismissed.

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

The appellant appeared in person