HKSAR v. Islam, Mohammad Jahirul

HCMA 56/2019

[2019] HKCFI 1917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 56 OF 2019

(ON APPEAL FROM STCC NO. 1862 OF 2018)

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Before: Hon S T Poon J in Court

Date of Hearing: 18 July 2019

Date of Judgment: 6 August 2019

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J U D G M E N T

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Introduction

1.The appellant was convicted after trial before Ms. Winnie Lau (“the Magistrate”) of one count of “Taking employment while being a person in respect of whom a removal order is in force”^[1]. He now appeals against the conviction.

Prosecution’s case

2.It was the prosecution’s case that police constable PC16353 (“PW1”) witnessed the appellant loading goods onto a pallet outside a unit (Room 610) in an industrial building (“Westley Square”).  The observation lasted for 5 minutes and the appellant was seen placing his hands onto the handle of the pallet jack after loading.

3.It was an admitted fact that at the material time the appellant was subject to a removal order which was issued against him on 6 March 2015.  The appellant remained in Hong Kong on recognizance and was not allowed to take up any employment.

4.At trial, the prosecution called only PW1 as witness.

Defence’s case

5.The appellant’s case was that he did not do what PW1 said he did.  He was in Westley Square because he agreed to meet up with his friend Mr Mithu Md A.R. (“DW”) there.  DW worked as a casual transportation worker and he worked there on the relevant day.

6.The appellant did not testify at trial but called DW as his witness.

The Magistrate’s findings

7.The Magistrate identified 3 main issues of the case, namely:

(a)  the identity of the offender;

(b)  assuming identity was established, whether the appellant was doing the acts as alleged by PW1; and

(c)  even if the appellant did the acts as alleged, whether the said acts amounted to taking employment.

8.The Magistrate found PW1 a credible and reliable witness. She said PW1’s evidence was unshaken under cross-examination and she found him telling the truth to the court.  She also said PW1’s version of evidence reasonable.

9.As regards the issue of identity, the Magistrate applied the Turnbull^[2] guidelines to consider the identification evidence and concluded that there was no room for any misidentification by PW1.

10.The Magistrate found that the goods were undoubtedly of value and that no reasonable person who was unconnected to the goods or not employed to convey the goods would have dealt with the goods in such a way as the appellant did as observed by PW1.  The Magistrate found that the only reasonable and irresistible inference was that at the material time, the appellant did the acts in the course of and for the purpose of an employment as an odd job worker.

Grounds of Appeal

11.In the Notice of Appeal, the appellant relied on the single ground that the Magistrate did not consider sufficiently the inherent improbabilities of PW1’s evidence, particularly in light of DW’s evidence and thus, the evidence is insufficient to found the conviction.

12.Mr McGowan, counsel for the appellant, essentially argued that the Magistrate has wrongly rejected DW’s evidence as unbelievable and accepted PW1’s evidence as credible.

Discussion

13.As acknowledged by Mr McGowan in his Written Argument, the appellate court will only revisit a magistrate’s findings of facts or credibility if the findings were plainly wrong. 

14.In rejecting DW’s evidence, the Magistrate had this to say:

“20. As to Mr Mithu’s evidence, I found it neither credible nor reliable. For example:

(i) according to Mr Mithu, he was going to meet the defendant for a meal on the material day and was aware of the availability of food in Kwun Tong. When questioned by the prosecution if he was going to offer the defendant something to eat in the restaurant, he replied that he had not fixed any place to eat. Further cross-examination showed that he had asked the defendant to go to the 6th Floor to meet him because the defendant would go to the next building, i.e., the ISS building, for signing. In my view, even if he had not fixed any place in mind, in terms of restaurant, to meet the defendant, he could have asked the defendant to meet and wait for him on the Ground Floor of the Westley Square or at the nearby ISS building. It was unreasonable for him to ask the defendant to come to meet him on the 6th Floor, as the 6^th Floor would be the place where he was supposed to be busy with his work and the defendant’s presence would have disturbed and/or affected his work;

(ii) his evidence under cross examination showed that the driver had not given the time as to when he (the driver) would return to the Westley Square. He also agreed that he could have asked the driver to call him five to ten minutes before his (the driver’s) arriving at the Westley Square to allow him (Mr Mithu) to have sufficient time to go downstairs for the papers, but he did not do so. If he had no knowledge as to the timing of the driver’s return to the Westley Square, I found it unbelievable that, being in possession of the driver’s phone number, he had not called the driver first for the driver’s arrival information before going downstairs for the papers and had chosen to leave the defendant waiting for him on the 6th Floor. Further, if, as alleged, the driver had already told him (Mr Mithu) that he would return to the Westley Square quickly before he (Mr Mithu) went up to the 6th Floor to collect the Goods, it should, in my view, have been obvious to him (Mr Mithu) that the driver might not have returned when he intended to go downstairs for the papers. I found it unreasonable that he had not asked the driver to give him a pre-arrival call before he went downstairs for the papers. He was not telling me the truth;

(iii) further, there was no evidence from him to show or suggest that he had asked the defendant or the staff of Kadori to attend to the Goods before he left for the papers. He also testified to the effect that the defendant had not at any stage touched the Goods. If, as alleged, the defendant had nothing to do with the Goods, Mr Mithu would not, in my view, have expected the defendant to attend to the Goods while he was downstairs waiting for the driver. As such, if Mr. Mithu was indeed hired to collect the Goods and thus had responsibility over the Goods until they reached the driver’s vehicle, I found it unreasonable for him to choose to leave the Goods unattended in the corridor of the 6th Floor and expose them to risks of theft, damage and/or being interfered with by other people. Even if I had to consider on the basis that the said risks might not have crossed Mr Mithu’s mind by reason of the defendant’s presence on the 6th Floor, I was of the view that, when the defendant did not pick up his call, he should have been concerned about the Goods and taken steps to find out what happened to the Goods and the defendant. Not only did he take no action in that regard but also chose to wait downstairs for the driver for almost another hour for the papers before returning to the 6^th Floor;

(iv) moreover, if, as alleged, the staff did ask him to bring the outstanding papers and he had already pulled the Goods out of Room 610, the said evidence showed that he was allowed to take the Goods before submitting the rest of the papers. As such, it should, in my view, have been a practical obvious and efficient step to Mr Mithu, as a casual transportation worker, to go downstairs with the Goods first and bring the papers to the staff after putting the Goods in the driver’s vehicle. There was simply no reason for him not to do so;

As analyzed above, I found that his actions and reactions were unreasonable, illogical and wholly inconsistent with his claim that he was hired to collect the Goods, responsible for conveying the Goods to the driver’s vehicle and did handle the Goods as described by him. His account of events was inherently improbable.  He was just making up stories to justify the defendant’s position.  I disbelieved his evidence, his account of events and his innocent explanations for the defendant’s presence on the 6^th Floor.  I did not believe that he had dealt with the Goods as he claimed.  I rejected his evidence.  Despite my rejection of his evidence, no adverse inference could be drawn against the defendant.  My rejection of his evidence was not determinative of the issues as the burden of proof was on the prosecution.”

15.The evidence of DW was that on the day before the relevant date, he and the appellant agreed to meet up for lunch on the next date.  In the morning of the relevant date, DW received instructions from his employer to collect goods from the 6th Floor of Westley Square.  He therefore asked the appellant to meet him there between 1:30 to 2 p.m.  DW stated that the pallet jack belonged to the driver and that the goods were already in that condition when they were in the office of the company where he collected them from.  He had put the pallet jack underneath the pallet and pulled the goods out of the office.  As he was doing that the staff of the company asked him to supplement some necessary papers from the driver downstairs before taking the goods away.  He was about to go downstairs but the appellant happened to arrive on the 6th Floor, thus he asked the appellant to wait for his return and he went downstairs, leaving the goods on the pallet jack on the 6th Floor.  As he waited for the driver downstairs, he called the appellant but his call was not picked up.  After waiting for about 1 hour and 10 to 15 minutes, he got the papers from the driver and returned to the 6th Floor.  The goods were outside the office in the same way when he left them but the appellant was not there.

16.In my view, the Magistrate has rightly rejected the evidence of DW and her analysis cannot be faulted.  There was no reason for DW to ask the appellant to meet him on the 6th Floor where DW was supposed only to stay there briefly.  Moreover, it was inconceivable why DW would wait downstairs for over an hour for the driver without trying to ascertain from the driver when he would be arrived and allowed the goods and the appellant staying on the 6th Floor in the meantime.  DW’s evidence was simply incredible.

17.Mr McGowan submitted that the Magistrate ought not to have accepted PW1’s evidence as he provided no logical reason why he did not start doing the so called “floor sweep” from the top floor of the building but chose to start at the 6th Floor where coincidentally he spotted the appellant working there. 

18.Mr McGowan submitted that the version of the appellant that PW1 in fact followed the appellant to enter Wesley Square should be preferred.

19.With respect, there was no evidence whatsoever suggesting that PW1 had followed the appellant to enter Wesley Square. Besides, if the appellant was followed by PW1 to Wesley Square, it would be highly unlikely that DW did not see PW1 before he left 6th Floor if DW’s evidence was true.

20.The Magistrate dealt with the appellant’s argument as follows^[3]:

“the defence questioned as to why PC16353 and his partner had chosen to go to the Westley Square to conduct a search, and the coincidence for them to start floor-sweeping on 6th Floor while there were higher floors in that building. PC16353’s evidence under cross examination showed that he and his partner were patrolling in the industrial area of Kwun Tong immediately before they came to the Westley Square. He had not seen the defendant before the incident and did not notice the defendant entering the Westley Square. He and his partner intended to conduct floor-sweeping and chose to start at 6th Floor as it was the middle floor of the Westley Square. He agreed that he and his partner could have started the floor-sweeping from the top floor; however, they did not do so and it was a coincidence that they had taken the elevator to go up directly to the 6th Floor and the defendant happened to be there. He denied the suggestions put to him by the defence that they had seen the defendant going into the Westley Square and taking the lift and had gone to 6th Floor after watching the defendant stopping at 6th Floor [See paragraph 18 above for the suggestions put to PC16353 by the defence]. I found his explanation under cross-examination reasonable, credible and reliable and saw no reason to doubt it. I did not consider the said coincidence to be inherently unlikely as submitted by the defence.”

21.The Magistrate is entitled to form such a view.

22.In the premises, there is no reason for me to disturb the factual findings of the Magistrate.  There is no merit in the appellant’s appeal.

23.The appeal is accordingly dismissed.

Mr CHAU Tin Hang, Anthony, ADPP(Ag.), of Department of Justice, for the Respondent.

Mr. James H. M. McGOWAN, instructed by Messrs. Choy Yung & Co., for the Appellant.