HKSAR v. Zafar Adnan

HCMA 462/2019

[2020] HKCFI 678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 462 OF 2019

(ON APPEAL FROM STCC 1176 OF 2019)

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J U D G M E N T

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Background

1.The Appellant appeared before Mr Cheng Yu Kit, Deputy Magistrate (“the Magistrate”) facing one charge 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, Cap 115.  The Defendant pleaded not guilty to the charge and the Magistrate convicted him after trial.

2.The Appellant now appeals against his conviction.

3.The Appellant was represented by Ms Priyam V Khatwani at trial.  Ms Khatwani also represents the Appellant in this appeal.

The Admitted Facts (P1)

4.The following facts were admitted by the Prosecution and the Defence at trial:

(1)     The Appellant entered Hong Kong unlawfully in December 2015. Having landed in Hong Kong unlawfully, he remained in Hong Kong without the authority if the Director of Immigration.  He was arrested by the Police on 1 January 2016 and was then handed over to Immigration Department. On 22 January 2016, the Appellant was issued with an Immigration Recognizance Form no A0333068.  On 29 October 2018, a removal order was issued against the Appellant and the same was served on him on 21 November 2018.  The removal order remains in force against the Appellant on 20 March 2019.  At all material times, the Appellant was aware that he was prohibited from taking any employment, whether paid or unpaid, while he was released on such recognizance.

(2)     At around 2026 hours on 20 March 2019, PC 19435 intercepted the Appellant for proof of identity check at the vicinity of no 37 Heung Sze Wui Street, Tai Po (“the scene”).  The Appellant produced his Immigration Recognizance Form.

(3)     At around 2030 hours on 20 March 2019, PC 19435 arrested the Appellant for ‘breach of condition of stay’ at the scene.

(4)     On 20 March 2019, WPC 19095 took 7 photos of the scene.  These photos reflected the condition of the scene on 20 March 2019.

(5)     On 20 March 2019, PC 19435 drew a sketch map of the scene.

(6)     The Appellant had no criminal record in Hong Kong.

The Prosecution Case

5.I adopt the summary of the Prosecution case made by Mr Nicholas Wong, Senior Public Prosecutor, in paragraphs 3 to 6 of the Submissions of the Respondent dated 10 December 2019:

“3. PW1 was a police officer. He was the sole prosecution witness. At around 20:26 on 20 March 2019, he was in the vicinity of No 37 Heung Sze Wui Street, Tai Po carrying out an operation against illegal immigrants.

4. At the material times, there was a truck parked there. The Appellant was seen using both of his hands to carry some foam boxes and white baskets from the inside of the said truck to a pallet truck placed on the tailboard of the said truck. PW1 confirmed that the Appellant was the only person on the tailboard and he moved more than 5 foam boxes. Subsequently, the tailboard of the said truck was lowered to the ground level. PW1 claimed that the said observation lasted for 1 minute. The lighting at the scene was sufficient. During the observation, PW1’s sight of the Appellant was clear and he was able to have a side view of the Appellant.

5. When the Appellant was about to push the pallet truck to the pavement nearby, PW1 approached the Appellant for identity proof. The enquiries made with the Appellant by PW1 at the scene lasted for about 4-5 minutes.

6.  It was common ground that the Appellant produced his Immigration Recognizance Form to PW1 and the Appellant was arrested by PW1 for breach of condition of stay at about 20:30 on the same day.”

The Defence Case

6.I adopt also the summary of the Defence case made by Mr Wong in paragraphs 7 to 8 of the Submissions of the Respondent dated 10 December 2019:

“7. The Appellant gave evidence and claimed that at the material time he was chatting with a friend at the scene. He was intercepted by PW1 on the pavement and was asked why he was working. The Appellant replied to PW1 that he was not working.

8.  The trial magistrate summarized the position of the Appellant at trial.  The Appellant argued that there was no direct evidence to prove employment and PW1 had mistakenly identified the Appellant as the person who was working on the tailboard of the truck.  It has never been the defence case that the Appellant was helping others or the pallet truck and the things thereon belonged to him.”

The Magistrate’s Reasons

7.In paragraph 10 of the Statement of Findings, the Magistrate said:

“10. The main issues to be decided by me were as follows:

(1)     Did the Defendant do the alleged acts as described by PW1, ie moving goods from the inside of a truck to the pallet truck on the tailboard, on 20 March 2019?

(2)     If so, whether or not from such actions and the circumstances if this case can be inferred that the Defendant was taking employment at the material times.”

8.The Magistrate found PW1’s evidence to be clear and unshaken in cross examination. 

9.PW1’s identification evidence against the Appellant was fully accepted by the Magistrate.  The Magistrate said at paragraphs 14 and 15:

“14.   Regarding the issue of mistaken identity, I have the following observations:

(1) There was only one male working on the tailboard at the material time.

(2) PW1’s sight of that male was clear and unobstructed.

(3) PW1 immediately intercepted that male when the tailboard was lowered to ground level.

(4) PW1 had inspected the identification document of that male.

(5) PW1 confirmed that P2 was the identification document he inspected.

(6) From the time he intercepted the Defendant to the time he handed the Defendant to the duty officer at the police station, PW1 had been staying with the Defendant. In that few hours, PW1 had ample opportunity to have a clear view of the frontal face of the Defendant.

15.   For the above reasons, I am satisfied that the Defendant was the foreign male PW1 observed moving boxes and baskets on the tailboard at the material time.”

10.The Magistrate found the evidence of the Appellant unreasonable and illogical.  He rejected the Appellant’s account as to why he was present at the scene.

11.On the second issue, having considered the relevant authorities, the Magistrate found that:

(1)     The truck was used as a place of employment at the material time.

(2)     The Appellant’s appearance at the scene must be related to the truck and the foam boxes on the pallet truck.

(3)     There was no reason to find that the Appellant did the work (ie moving the pallet truck with goods loaded thereon from the tailboard of the truck to the ground level) for free or out of any obligation or special relationship.

(4)     The inference that the Appellant took employment as odd job worker at the scene was compelling.  It was the only reasonable inference to be drawn in the whole circumstances.

12.The Magistrate therefore convicted the Appellant as charged.

Grounds of Appeal

13.Ms Khatwani advances 2 grounds of appeal. 

14.The first ground is a factual one.  Ms Khatwani complains there exist 3 lucking doubts in the identification of the Appellant, giving rise to the concern that the conviction is unsafe or unsatisfactory.

15.Ms Khatwani submits the first lurking doubt is found in the identity of the person whom PW1 observed.  PW1 described the foreign male whom he observed to be moving foam boxes and white baskets, to have among other features, to be of dark skin.

16.Ms Khatwani, who also represented the Appellant at trial, submitted in her closing submissions that PW1’s description of the foreign male’s skin colour does not match the skin colour of the Appellant, and that PW1 had made a mistake.  Ms Khatwani submits that this essential feature of the skin colour of the foreign male gives rise to a material discrepancy and is missing from the Magistrate’s Statement of Findings.  The Magistrate did not address this particular point when considering the issue of mistaken identity, and therein lies the first lurking doubt.

17.Ms Khatwani submits that the second lurking doubt is found in the lack of sufficient details of PW1’s observation of the foreign male.  PW1 gave evidence that he observed the foreign male: 1) For one minute; 2) On the tailboard of a truck; 3) The tailboard was elevated; 4) The foreign male’s back was facing towards PW1.  Ms Khatwani submits that the above facts are insufficient to accurately identify the foreign male.

18.Ms Khatwani submits that the third lurking doubt is found in the inconsistent evidence of PW1 as to whether or not PW1 saw the full frontal face of the foreign male.

19.The second ground is a legal one.  Ms Khatwani submits that the charge sheet is not in line with Rule 6(2) of the Indictment Rules Cap 221C, Laws of Hong Kong (“Rule 6”).  Ms Khatwani also complains that the term ‘odd job’ on the charge sheet is not synonymous with ‘employment’.

The Respondent’s Submissions

20.On the issue of identification, Mr Wong submits that the Magistrate found that the Appellant was the person working on the tailboard of the truck on the basis of the evidence that he accepted, ie (i) the evidence of PW1 that there was only one person on the tailboard of the truck at the material time; (ii) PW1’s sight of the Appellant was unobstructed; (iii) PW1 did not lose sight of the Appellant during the whole course; and (iv) PW1 immediately intercepted the Appellant once the tailboard was lowered to the ground level (“Basis”).

21.For the complaint that contrary to the evidence of PW1 under cross-examination that the Appellant who was seen moving boxes and baskets was of curly and short hair with dark skin and did not look like a local, the Appellant in fact did not have dark skin.  Mr Wong submits that when the defence counsel put to PW2 that he had mistakenly identified the Appellant as the Appellant did not have dark skin, PW1 disagreed and said different people had different definition of “skin colour intensity.” Mr Wong submits the Magistrate fully accepted the evidence of PW1 and during the closing submissions, counsel for the Appellant also agreed that different people would have different perspective of what is dark and what is light as to skin colour.

22.Mr Wong submits that by virtue of the said Basis, the darkness or otherwise of the Appellant skin colour was of no significance in relation to the identification issue.

23.Mr Wong submits that the Magistrate placed no reliance at all on PW1’s view of the Appellant’s frontal face or side during PW1’s observation, the Magistrate’s ruling of PW1’s identification against the Appellant rested upon the following facts: (i) the Appellant was seen to be the only person who moved the boxes on the tailboard of the truck; (ii) PW1 did not lose sight of the Appellant during the whole course of the observation; (iii) the Appellant was intercepted by PW1 right after which allowed PW1 to have a clear view of the Appellant’s frontal face. Mr Wong submits that the Magistrate’s findings on the issue of identification did not depend at all on PW1’s view of the Appellant’s frontal view or side.

24.For Ms Khatwani’s complaint that PW1 was unable to describe the clothing of the Appellant in minute details, Mr Wong further submits that as PW1 was focusing on the act of the Appellant at the material time, it was not surprising that he was not able to describe the clothing of the Appellant in minute details, such failure would not affect the credibility and reliability of PW1’s evidence.

25.Mr Wong submits that the Magistrate’s ruling on the identification was proper.

26.On the second ground, Mr Wong submits that although the inherent meaning of employment must involve 2 parties, s 38AA clearly states that what the prosecution has to prove is the existence of an employment relationship, it does not require the prosecution to prove the identity of the employer of the employment in question.  Mr Wong submits that the identity of the employer is not an element of the offence and it is not necessary to have the identity of the employer established to prove the offence under ss 38AA(1)(a) and (2) of Cap 115, and it is not necessary to identify which particular employer has been involved in the employment under complaint in the particulars of the charge.

27.Mr Wong submits the charge which read:

“ZAFAR, ADNAN, you are charged that on 20^th of March, 2019 in Hong Kong while being a person in respect of whom a removal order is in force, took employment, whether paid or unpaid, ie as an odd job worker at Tai Po.”

is not a nullity, it is neither defective nor incomplete.  There was no omission of any essential ingredient in the particulars of the charge.

28.For the Appellant’s submissions that the nature of an “employment” is that it is continuous, whereas an “odd job” by its nature is akin to either a one off or isolated piece of work or the work by an independent contractor and an individual cannot take an employment and be an odd job worker at the same time, Mr Wong submits that this ground has no merit.

A Consideration of the Submissions

The Magistrate’s findings on PW1’s Identification of the Defendant

29.I agree with the Respondent’s submissions that the Magistrate made the finding that the Appellant was the person seen by PW1 working on the tailboard of the truck not on the basis of PW1’s view of the Appellant’s face but on the basis that:

(1)     the Appellant was seen to be the only person who moved the boxes on the tailboard of the truck; 

(2)     PW1 did not lose sight of the Appellant during the whole course of the observation; and

(3)     Right after the Appellant was intercepted by PW1, PW1 inspected the identification document of the Appellant, ie P2.

30.As to the Magistrate’s finding that the Appellant was intercepted by PW1 right after which allowed PW1 to have a clear view of the Appellant’s frontal face, it is only common sense that after the Appellant was intercepted by PW1, PW1 must have a clear view of the Appellant’s full frontal face during the time PW1 was together with the Appellant.  It is clear from the Statement of Findings that the Magistrate’s findings on identification was not made on the basis of PW1’s view of the Appellant’s frontal face or side during PW1’s observation, when the Magistrate mentioned PW1’s view of the Appellant’s face, he was referring to PW1’s view of the Appellant from the time he intercepted the Appellant to the time he handed the Appellant to the duty officer at the police station.  The Magistrate said at paragraph 14:

“14. Regarding the issue of mistaken identity. I have the following observations: -

(1) There was only one male working on the tailboard at the material time.

(2) PW1’s sight of the male was clear and unobstructed.

(3) PW1 immediately intercepted that male when the tailboard was lowered to ground level.

(4) PW1 had inspected the identification document of that male.

(5) PW1 confirmed that P2 was the identification document he inspected.

(6) From the time he intercepted the Defendant to the time he handed the Defendant to the duty officer at the police station, PW1 had been staying with the Defendant.  In that few hours, PW1 had ample opportunity to have a clear view of the frontal face of the Defendant.”

31.It is clear from the Magistrate’s observations that (1) to (3) formed the basis of the Magistrate’s finding that it was the Appellant who was seen by PW1 moving boxes and baskets on the tailboard of the truck.  The matters referred to in (4) to (6) were relevant to the issue whether the Appellant in court was the person intercepted by PW1 at the time, which was not an issue in dispute at trial.

32.In my judgment, given the Magistrate’s findings that (i) There was only one male working on the tailboard at the material time; (ii) PW1’s sight of the male was clear and unobstructed; (iii) PW1 immediately intercepted that male when the tailboard was lowered to ground level; and (iv) It was the Appellant who PW1 intercepted at the scene, the Magistrate’s findings on the issue of identification cannot be faulted.

33.I agree with the Respondent’s submissions that at no time did the Magistrate rely on PW1’s evidence of the skin colour of the Appellant.  I also agree with the Respondent’s submissions that the Magistrate placed no reliance at on PW1’s view of the Appellant’s frontal face or side during PW1’s observation.  Given the facts as found by the Magistrate that PW1’s observation of the male was clear and unobstructed, there was only one person working on the tailboard of the truck, PW1 intercepted the male as soon as the tailboard was lowered to the ground level and that it was the Appellant who PW1 intercepted, it does not matter at all whether PW1’s description of the skin colour of the male was accurate; it does not matter if PW1 was able to see the frontal or side of the face of the male during his observation.

34.I also agree with the Respondent’s submissions that on the facts of the present case, PW1 had no reason to pay attention to the clothing of the Appellant.  If there was only one person working on the tailboard and PW1 had not lost sight of him during the whole course of his observation, PW1 had no reason to pay attention to the clothing of the person.

35.In my judgment, the Magistrate’s approach and his findings on the issue of identification cannot be faulted. Ground 1 fails.

The Failure to Plead the Identity of the Employer in the Particulars of the Charge

36.Ground 2 complains that the charge sheet is not in line with Rule 6(2) of the Indictment Rules Cap 221C. For a full consideration of Ground 2, it is necessary to set out s 38AA(1)(b) of the Immigration Ordinance, Cap 115, the relevant provisions of Rule 3, 4 and 6 of the Indictment Rules, Cap 221C and s 10(3) and s 33 of the Magistrates Ordinance, Cap 227.

37.S 38AA(1)(b) of Cap 115 provides that-

“(1) A person –

… …

(b)     in respect of whom a removal order or a deportation order is in force, must not take any employment, whether paid or unpaid, or establish or join in any business.”

38.The relevant provisions of the Indictment Rules provide that:

“3. Statement of offence in indictment

(1) Subject to Rule 4, every indictment shall contain and shall be sufficient if it contains a statement of the specific offence with which the accused is charged describing the offence shortly together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

… …

(3) Notwithstanding paragraph (1), a judge may order further particulars of an offence stated in an indictment…to be delivered in any case to which he deems it expedient to do so.

4. Indictment for specific statutory offence

Where the specific offence with which an accused is charged… is one created by or under an Ordinance…, then, without prejudice to the generality of rule 3:

(a) The statement of offence shall contain a reference to the provisions in the Ordinance creating the offence;

(b) The particulars shall disclose the essential elements of the offence: Provided that an essential element is need not be disclosed if the accused person is not prejudiced or embarrassed by the failure to disclose it.

6. Description of persons in an indictment

(1) The description or designation of the accused person, or of any other person referred to therein, shall be such as is reasonably sufficient to identify him, without necessarily stating his correct name or his abode, style, degree or occupation.

(2) If, owing to the name of a person not being known or for any other reason, it is impracticable to give such a description or designation, such description or designation shall be given in the indictment as is reasonably practicable in the circumstances, or such person may be described as “a person unknown.”

39.S 10(3) of Cap 227 provides that:-

“Every… complaint or information shall comply with the Indictment Rules in so far as those rules are applicable mutatis mutandis to any such complaint or information.”

40.S 33 of Cap 227 provides that:-

“…shall apply to proceedings before magistrates-

the provisions of the Indictment Rules which relate to the description of an offence in an indictment…”

41.In is clear from the wordings of s 38AA(1)(b) of Cap 115 that for the offence of “Taking employment while being a person in respect of whom a removal order is in force” under that section, the existence of an employment relationship is an element of the offence that the prosecution has to prove.  It must be true that an employment relationship must involve 2 parties, as Zervos J (as Zervos JA then was) held in HKSAR v Masih Shamoon & Others HCMA 357/2017, an employment in the context of ss 38AA(1)(a) and (2) of Cap 115 must involve an employer-employee relationship where a person works for or renders services to another and there is a mutual obligation or understanding to provide and accept work.  It should be noted however, whilst the existence of an employment relationship is an element of the offence for “Taking employment while being a person in respect of whom a removal order is in force”, s 38AA does not require proof of the identity of the employer of the employment under complaint.  As long as the prosecution can prove the existence of an employment, it is not necessary to identify which particular employer has been involved in that relationship.

42.The particulars of the charge read:

“ZAFAR, ADNAN, you are charged that on 20^th of March 2019 in Hong Kong while being a person in respect of whom a removal order is in force, took employment, whether paid or unpaid, ie. as an add job worker at Tai Po.”

43.I agree with the Respondent that the above particulars covered and identified the matter, the act and the transaction in respect of which the charge was brought.  The particulars of the charge contained information as to the date of the offence, the location where the offence took place, that the Appellant was subject to a removal order which was in force, that he was prohibited from taking any form of employment and he took employment as an odd job worker in breach of the removal order.  In my judgment, these particulars contained sufficient information as may be necessary for giving reasonable information as to the nature of the charge and sufficiently identified the act with which the Appellant was charged with reasonable precision.  The way the particulars were drafted would not prevent the Appellant from having a fair trial.  In my judgment, the particulars of the charge met the requirement of rule 3.

44.In my judgment, the fact that the particulars of the charge did not mention the name of the related employer or identify him as a person unknown did not render the charge defective.  I agree also with the Respondent’s submissions that it is wrong for the Appellant to compare this case with the situation of a theft case, and Mr Wong is right in his submissions that “It is trite that “Property belonging to another” is an essential ingredient of the offence of theft.  That is the reason why the phase “property belonging to a person unknown” or “property of an unknown person” would be stated in the particulars of the charge.”  In my judgment, the particulars of the charge covered all the essential elements of the offence. The charge is not a nullity; it is neither defective nor incomplete.

45.For the complaint that the term ‘odd job’ on the charge sheet is not synonymous with ‘employment’, Ms Khatwani accepts that there is no legal definition for the term “odd job worker”.  The term “odd job” is only a common parlance, whilst it can bear the meaning of a one-off or isolated piece or work or the work by an independent contractor, it also carries the meaning of a series of unrelated or unspecialized jobs, often of low-paying or menial nature.  A person can certainly be employed to do odd jobs, if one is so employed, the employed person can certainly be described as an odd jobs worker.  This ground is so devoid of merit that it should not have been raised at all.

46.The second ground fails.

47.The grounds of appeal raised by the Appellant fail for the stated reasons.  On a rehearing, I am satisfied that the conviction was neither safe nor unsatisfactory.  The Appellant was properly convicted and I uphold the conviction.

48.The appeal against conviction is dismissed.

Mr Nicholas Wong, SPP of the Department of Justice, for the Respondent

Ms Priyam V Khatwani, and Mr Lai Ping-tak instructed by Bar Free Legal Service Scheme, for the Appellant