HKSAR v. Khalil, Mahammad Ibrahim

HCMA 581/2018

[2019] HKCFI 2128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 581 OF 2018

(ON APPEAL FROM SHATIN MAGISTRACY

CASE NO STCC 2068 OF 2018)

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BETWEEN

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REASONS FOR JUDGMENT

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1.The Appellant was convicted after trial before a Deputy Magistrate (“the Magistrate”) of one charge of Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance, Capp 115, Laws of Hong Kong.

2.In essence, the Appellant was alleged to be taking up employment, whether paid or unpaid, as an odd job worker at Kwai Chung.

3.The Appellant was dissatisfied with the conviction and appealed against conviction.

4.After hearing submissions from both sides, I dismissed the appeal and said I would provide reasons later. Here are the reasons.

Grounds of Appeal

5.In his Form 101, the Appellant has not provided any grounds of appeal.

Appellant’s submissions

6.The Appellant simply submitted that he was innocent and that he had given a statement in Bengali which was translated into English and provided to his lawyer at trial which statement would show he was innocent.

Respondent’s submissions

7.Mr Eric Yung, Public Prosecutor, appeared on behalf of the Respondent and adopted the written submissions previously filed by Ms Christal Chan, Senior Public Prosecutor (as she then was).

8.The Respondent’s concluding submission was that the Magistrate had fully considered all the evidence and had applied the appropriate legal principles and relevant authorities; that he was correct to find the Appellant guilty as charged.

Issues at trial

9.There were two issues at trial. They were:

(1)  Did the Appellant unload the goods in 16 carton boxes from the MGV at the Scene as described by PW1 at the material time?

(2)  If yes, whether or not from such actions and the circumstances of this case it can be inferred that the Appellant was taking up employment at the material time?

The Magistrate’s Finding of Facts

10.The Magistrate’s finding of facts was set out in para 53 of his Statement of Findings which is reproduced below:

“53. Given my above analysis on the evidence before me, and taking into account the undisputed evidence, I found the following facts as proved facts:

(1)  When PW1 arrived at the Scene, he saw the MGV which tailboard was opened and lowered onto the ground. There were two males, the Appellant and the Chinese Male standing near the rear of the MGV;

(2)  PW1 saw the Appellant pushing the Forklift Truck which was then laden with 16 carton boxes from the tailboard of the MGV, to a place about 2 to 3 metres away where the Appellant then unloaded the carton boxes;

(3)  The 16 carton boxes were placed on the Forklift Truck with a wooden pallet holding them;

(4)  Having unloaded the carton boxes, the Appellant removed the Forklift Truck and pushed the same back to the position of the tailboard of the MGV;

(5)  The Chinese Male looked nervous, made some gesture/movement with his right hand, as if instructing the Appellant to step aside and grabbed the Forklift Truck from the Appellant;

(6)  The Appellant walked aside and moved forward with quick steps;

(7)  PW1 then intercepted the Appellant;

(8)  The MGV and the Forklift Truck belonged to the Company of PW2 and the MGV was on an order for goods delivery on the material day;

(9)  The 16 carton boxes conveyed by the Appellant were of sound packing and were of same style as the other carton boxes that remained inside the compartment of the MGV as shown in photo P3(4) & (5). They were the subject matter of the goods delivery.”

11.After setting out the facts as he found them in para 53 of the Statement of Findings, the Magistrate carried out an exercise to determine if the Appellant was in employment on the alleged offence date. This he did in paras 54 and 55 of the Statement of Findings which are reproduced below:

“54. I had reminded myself that, in the present case, there was no direct evidence to prove that the Appellant was in employment. In the circumstances, I needed to consider whether I could draw the only reasonable inference from the proved facts and circumstantial evidence that the Appellant was in employment on the material day.

55. Based on my findings and the circumstantial evidence, I found that the only reasonable inference to be drawn was that the Appellant was employed on the material day as an odd job worker and the reasons are as follows: -

(1)  The MGV was a place of employment. There are authorities accepting that it was not unusual for lorries or trucks to be used as places of employment: HKSAR v Karim Md Razaul HCMA 192/2017; HKSAR v Khan Muhammad Arshad HCMA 123/2017 and HKSAR v Leung Han HCMA 331/2011.

(2)  I therefore found that the Appellant was present at a place of employment at the material time.

(3)  As to why the Appellant was present at the Scene, there was no direct evidence. Although PW1’s observation lasted 10 to 20 seconds, He saw clearly a series of actions of the Appellant, namely, conveying the carton boxes with the Forklift Truck from the tai[l]board of the MGV, unloading the carton boxes some distance away from the MGV and pushing the Forklift Truck to the tailboard of the MGV; stepping aside and moving away after the Chinese Male made some gestures towards him. Also considering the Chinese Male could simply grab the Forklift Truck from the Appellant, all these circumstances showed the Appellant was undertaking the directions and/or instructions of the Chinese Male at the Scene at the material time.

(4)  I had considered whether there was any evidence suggesting that the Appellant was working as a self - employed worker. Since the Appellant only used the Forklift Truck which I had found to belong to the Company of PW2 with his bare hands and did not bring along or use his own tools there was no sufficient basis to infer that he worked as a self - employed worker. In fact, it was never the Defence case that the Appellant was rendering service as a self - employed worker.

(5)  The MGV was deployed for work for business, and the carton boxes were of sound packing. The Appellant must have the approval of the owner/person in charge of the carton boxes, the Forklift truck and/or the MGV before he could handle and convey the carton boxes. In my view, no reasonable person, who was unconnected with the MGV, would have done or [been] allowed to do such work.

(6)  There was no direct evidence of mutual responsibilities or obligations and fiduciary duties between the two persons as stated in the case of Lau Chi Wai, with this background, the inference that the Appellant was taking employment at the Scene was compelling. This was the only reasonable inference to be drawn in the whole circumstances.”

12.At para 55(6) of the Statement of Findings, the Magistrate has not provided the citation for the case of Lau Chi Wai. It is without doubt that he must be referring to the case of HKSAR v Lau Chi Wai (柳志惠) HCMA 302/2003.

Consideration

13.First of all, I have to say that the Appellant’s submissions disclosed no proper ground of appeal.

14.I had gone through the helpful summary and meticulous analysis of the evidence within the Statement of Findings. I agreed with the Magistrate’s analysis including the way in which he inferred from the evidence the fact that the Appellant was in employment as an odd job worker on the relevant day.

15.I was satisfied that the Magistrate did not err in accepting the evidence of the prosecution witnesses and wholly rejecting the evidence of the Appellant.

16.I accepted the Respondent’s concluding submission as stated above.

17.I was further satisfied that the conviction was neither unsafe nor unsatisfactory.

Conclusion

18.That is why the appeal was dismissed and I confirmed the conviction.

Mr Eric Yung, PP, of the Department of Justice, for the Respondent.

The Appellant appeared in person.