HKSAR v. Imran Ishtiaq Lone

HCMA 91/2019

[2019] HKCFI 1675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 91 OF 2019

(ON APPEAL FROM STCC NO 2498 OF 2018)

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J U D G M E N T

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1.The appellant was convicted of one count of taking employment whilst 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 Cap 115. He was sentenced to 22 months and 2 weeks’ imprisonment.

2.This is a case about two illegal workers.  On 27 June 2018 at about 7:25pm, police officers were patrolling in Sham Shui Po in the vicinity of a shop selling electronic appliances on Hai Tan Street. The appellant and a co‑accused (who pleaded guilty at an earlier date) were observed by police officers for about five minutes repeatedly moving air‑conditioners and other electronic appliances inside the cargo compartment of a truck.  The appellant was seen wearing a pair of workmen‑type gloves to do this loading.

3.Both men were intercepted and both produced Form 8 recognisance papers to identify themselves.  They were both subsequently arrested.  It was an admitted fact that a removal order was issued against the appellant on 23 December 2008 and it remained in force on the day he was arrested.

4.The appellant now appeals against conviction only.  He was legally represented in the court below but on appeal, he was acting in person. 

5.The appellant has filed a notice of appeal against conviction which contains general grounds but he filed no specific grounds of appeal.  At the appeal hearing, I gave him an opportunity to submit grounds to support his appeal.

6.The appellant submitted that he was not treated fairly during the trial.  He had shown his counsel a video sent to him by a stranger or passerby present that night and arranged for the accused to give evidence on his behalf but counsel’s advice was that the video was of no assistance and it was best if the co‑accused was not called.  He appeared to suggest that his counsel was incompetent.

7.The appellant then elaborated on this ground.  After the police had intercepted him, a passerby videoed the scene, including when some instant Polaroid photographs were taken by a woman police officer after arrest.  These photographs, exhibit P4, P9 and P10 were not taken by the police as proof of the appellant working but as a record of the scene and exhibits.  This Pakistani man was unknown to the appellant but told the police not to arrest him and claimed that the appellant was not working there.  The appellant agreed that the video was taken after the police had already started to investigate.  This meant after they were seen loading the truck.  Defence counsel was correct and that it was of no assistance to the appellant’s case.  There was no merit in this ground of appeal.

8.The co‑accused had been brought up to the magistracy by way of a body order in order to give evidence on behalf of the appellant.  Defence counsel did interview him.  The appellant said before the interview, he told his defence counsel that his co‑accused might ask for money in exchange for giving evidence and that he might later blackmail the appellant for money.  It would seem from the quite convoluted submissions that defence counsel advised the appellant not to call the co‑accused after what he had told her and after interviewing the co-accused.  I am not satisfied there is any evidence of incompetency by defence counsel that would require further submissions.  There was no merit in this ground of appeal.

9.He had an additional ground that trial counsel had drafted on his behalf and that was the magistrate had erred in finding that employment was the only inference to be drawn from PW1’s, the police officer, observation of the defendant.

10.At trial the admitted facts, exhibit P1, were substantial.  The appellant’s immigration status was not in dispute, he was the subject of a removal order and well aware that he was not allowed to work, be it paid or unpaid.  His arrest was not in dispute nor were the instant photographs taken after his arrest nor was the sketch of the scene and compartment of the truck.

11.The prosecution called one police officer only and the defendant elected not to give evidence.  The learned magistrate identified the following issues that arose in the trial; identification of the appellant and whether the appellant did the acts observed by PW1.  In submissions, defence counsel submitted that the alleged acts might not only infer employment.

12.The magistrate also correctly identified the burden of proof and standard of proof; she drew no inference from the defendant’s election not give evidence.  She analysed the evidence and submissions carefully.  She directed herself to the Turnbull guidelines when she considered PW1’s testimony and the reliability of the identification evidence.  She gave full reasons for why she believed the police officer and accepted his testimony as credible.  She gave full reasons why she found the identification evidence safe and reliable.

13.PW1 first saw the defendant from about 30 metres away in a well‑lit street with nothing to obstruct his view.  He continued to observe the appellant whilst walking towards the truck.  He observed the scene and the appellant’s actions for approximately five minutes before approaching him.  During that time the applicant repeatedly moved items into the cargo compartment of the truck.  The magistrate was satisfied that there was no mistaken identification and found that PW1 could see clearly what the appellant was doing on‑board that vehicle.

14.The magistrate was aware that working at a place per se is not employment and she went on to analyse whether the only inference to be drawn from the observations she found proved was that he was working.  She correctly identified the relevant authorities and distinguished this appellant actions.  She inferred that the truck was being filled with a large quantity of electrical appliances for delivery to somewhere.  They were not parked at a recycling yard.  These items were of value, belonged to somebody and being loaded into the truck by two men; the appellant wearing gloves.  In the absence of any evidence the appellant was there merely to give a helping hand, she drew the necessary inference in the absence of other evidence that he was under employment at the time for a financial benefit.

15.Having read her statement of findings, I am satisfied that the magistrate had not erred in finding that employment was the only inference to be drawn from PW1’s observation of the defendant.  There is no merit in this ground of appeal.

16.A magistracy appeal is an appeal by way of rehearing, that is to say, a rehearing on the evidence before the magistrate, the principles relating to a magistracy appeal have been reiterated in HKSAR v Ip Chin Kei & Ors [2012] 4 HKLRD 383 by McWalters J (as he then was). He said the appellate court is required to assess the evidence and come to its own conclusion and is required to make up its own mind as to whether that evidence proves the essential elements of the offence beyond reasonable doubt.  An appellate court will not depart from a magistrates finding unless it is satisfied that the finding is “plainly wrong”.

17.As far as the facts are concerned, the appellate court should appreciate that the magistrate enjoyed the advantage of having seen and heard the witnesses in court, whereas the appellate court can only rely on the transcript.  Whether a witness is credible or reliable is a matter entirely for the magistrate to decide.  If the findings of fact made by the magistrate are unreasonable or illogical or contain inherent improbabilities; or if in dealing with the evidence the magistrate erred in her reference to material facts, or omitted or failed to consider material facts, then the conviction will be rendered unsafe.

18.One of the issues was whether it was the appellant who was moving air‑conditioners into the compartment of a truck continually over a period of five minutes.  The other issue was whether the evidence proved was enough to draw the only reasonable and irresistible inference that what he was doing was in the course of employment and the purpose of employment.  The magistrate identified her these issues and found the prosecution identification evidence was reliable and that the evidence collectively considered together allowed her to draw that irresistible inference.

19.I have reassessed the evidence and read the transcripts.  The unchallenged evidence supports her findings.  The magistrate’s findings were not unreasonable, illogical or inherently improbable.  The magistrate did not fail to consider any material fact or misunderstood or misquoted any material fact.  I am satisfied magistrate fairly and properly consider the issues raised.  

20.This is not a case in which the conclusion is against the weight of the evidence nor is it one where the magistrate had not considered or evaluated the evidence properly.  There is no substance to this appeal against conviction.  I find no basis to interfere with the magistrate’s findings of fact and his assessment of the credibility of the witnesses and evidence.  The evidence proved beyond reasonable doubt the appellant was working; taking employment whilst being a person in respect of whom a removal order was in force at the time. Therefore, the appeal is dismissed.

Ms Hermina Ng, SPP of the Department of Justice, for the respondent

The appellant appeared in person