HKSAR v. Faisal Ali

HCMA 7/2019

[2019] HKCFI 1127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 7 OF 2019

(ON APPEAL FROM STCC NO 3698 OF 2018)

________________________

________________________

Before: Deputy High Court Judge Sham in Court

Date of Hearing: 4 April 2019

Date of Judgment: 9 May 2019

________________________

J U D G M E N T

________________________

1.This case is about illegal workers. In the afternoon of 11 September 2018, a patrol officer saw a lorry driving to a halt in the loading area of Block D of Telford Garden, Kowloon Bay.

2.Three men, one Chinese and two South Asian, jumped off, the driver (the Chinese man) walked to the back of the lorry, lowered the tailboard, and loaded some carbon boxes onto two wooden carts; the two South Asian men each pushed a cart to the lift area some 10 to 15 metres away.

3.Having observed it for 6 to 7 minutes, the officer stopped the South Asian men at the lift area for questioning (one of them was the appellant in this case).

4.Subsequently, both South Asian men were separately charged with an immigration offence. They were brought before a magistrate in the Shatin Magistracy where the other man pleaded guilty and was sentenced to 15 months’ imprisonment while the appellant’s case (pleading not guilty) was heard before another magistrate, Mr. Cheng Yu Kit, and was convicted of one count of “Taking employment while being a person in respect of whom a removal order is in force[1]”, and was given a prison term of 22 ½ months.

5.The appellant now appeals against conviction who was legally represented in the court below but on appeal is acting in person.

6.The appellant has not filed any grounds of appeal with the court. On the appeal hearing, I have ascertained from him what his grounds are, he said that his version should not have been rejected by the learned magistrate and add nothing further.

7.At trial, the appellant’s immigration status was not in dispute, that is he was the subject of a removal order and therefore was not allowed to work whether paid or unpaid.

8.The appellant testified at his trial saying that he was not working, he was there to see a friend, Mr Rizwan, to borrow money from him; Mr Rizwan also took to the stand to support the appellant’s version.

9.The issue of the case was whether the appellant was taking up employment at the time. The learned magistrate was fully aware of the facts in issue and the conflict of evidence on that issue.

10.He had given detailed reasons as to which witness was honest and which dishonest, which reliable and which unreliable. He accepted the testimony of the officer to be the truth and rejected the appellant’s. Although he also accepted the evidence of Mr Rizwan, the defence witness, he found it not to be inconsistent with the officer’s- he could be working there and asked his friend to come down just to lend him some money.

11.First of all, the learned magistrates found as facts that the appellant was riding in the lorry to come to the scene, pushing the cart full with carbon boxes from the loading area to the lift area and the loading area was a place of employment; he then went on to consider what inference he could draw from these circumstances.

12.The learned magistrate eliminated other possibilities such as the appellant was moving his own properties, or he was working as a self‑employed person, then he said the only inference to be drawn was that the appellant took employment as odd job worker on the material day.

13.There is evidence for the learned magistrate to come to the conclusion as he did, and the reasons given are good and valid. All this relates solely to matters properly within the province of a jury, i.e. the learned magistrate. I see no reason to interfere with it.

14.The appeal against conviction must be dismissed.  

Mr Pierre Lui, SPP of the Department of Justice, for the respondent

The appellant appeared in person