HKSAR v. Gulnaz Akhtar and Another

HCMA 229/2019

[2020] HKCFI 952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 229 OF 2019

(ON APPEAL FROM STCC 3976/2018)

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J U D G M E N T

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1.The first appellant was charged with one count of aiding and abetting a person to take unlawful employment in Hong Kong (Charge 1). The second appellant was charged with one count of aiding and abetting the remaining in Hong Kong without the authority of Director of Immigration after having landed in Hong Kong unlawfully (Charge 2) and a further count of aiding and abetting a person to take unlawful employment in Hong Kong (Charge 3).

2.The first appellant was convicted of Charge 1 after trial and sentenced to 18 months and 2 weeks’ imprisonment.  She now appeals against her conviction and sentence.

3.The second appellant was acquitted of Charge 2 and was convicted of Charge 3.  After trial and was sentenced to 22 months and 2 weeks’ imprisonment.  He also appeals against his conviction and sentence.

CASE FOR THE PROSECUTION

4.The prosecution relied on the evidence of PW1, Baljit Singh, who is an Indian male recognizance holder.  He had earlier pleaded guilty to taking up unlawful employment at a Japanese restaurant.  He implicated the first appellant as the person who arranged jobs for him and also implicated the second appellant as the person who arranged accommodation for him to remain in Hong Kong and who had introduced the first appellant to him.  The main issue in the case was the credibility of PW1, the defence refuted the allegations of PW1 and called as a defence witness, a director of the restaurant, in which PW1 had worked and she gave evidence that she did not know the first appellant and that PW1 had come to the restaurant by himself, no one had introduced him.

MAGISTRATE’S FINDINGS

5.As the learned magistrate said, it was undisputed that PW1 was seen by immigration officers in the Japanese restaurant cleaning up tables and serving dishes and drinks.  PW1 was subsequently found to be a recognizance form holder.

6.According to the evidence of PW1, he had met the second appellant in India and that it was the second appellant who brought him to Hong Kong after being paid 400,000 rupees, so he came to Hong Kong in November 2015 on an air ticket bought by the second appellant.  PW1 was instructed, so he asserted, that upon arrival in Hong Kong, he was to take a ferry to China.  In China, PW1 allegedly met a person called Sheera, who he thought was a relative of the second appellant, then after a few days, Sheera then took PW1 to enter Hong Kong through a fence, then Sheera brought PW1, after entering Hong Kong, to a Sikh temple, then later to the second appellant’s flat.  PW1 asserted that he stayed in the second appellant’s flat for four to five months, then in July 2016, PW1 alleged that the second appellant introduced the first appellant to him and thus it was the first appellant who introduced PW1 to his job in the Japanese restaurant.  PW1 said it was the first appellant who spoke to the owner of the restaurant, then explained to PW1 what he needed to do and after that the restaurant would pay the salary of PW1 sometimes through the first appellant and PW1 alleged that a part of his income was given to the second appellant and that the first appellant knew of his immigration status in Hong Kong.  All these assertions by PW1 was denied by both appellants and in his defence, the first appellant called the director of the restaurant, Ms Cheung.  Ms Cheung stated that PW1 had come to her restaurant by himself and no one had introduced him and Ms Cheung said that after interviewing PW1, she hired him and at that time, she did not know the first appellant.

7.In his assessment of the evidence, the learned magistrate was aware that PW1 had been convicted of conspiracy to make false instrument with intent and another charge of taking employment while being a person remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, he was subsequently sentenced to 31 months and 2 weeks’ for the first offence and 15 months’ imprisonment for the second.  The learned magistrate dismissed the suggestions of the defence that PW1 had made up his evidence against the first and second appellants because he wanted a reduction in sentence and said that the allegations that PW1 made, against the appellants, were contained in his statement when he was first arrested, thus refuting the defence’s allegation.  The learned magistrate also considered the defence’s contention about the inconsistencies in PW1’s evidence and he put that down to the passage of time and that PW1 was not an educated person and these inconsistencies were minor in nature.  And so, at the end of the day, the learned magistrate found that PW1’s evidence was reasonable and logical and accepted him as an honest and reliable witness.

8.As for the defence witness, Ms Cheung, the learned magistrate criticized her for being “cautious” in giving evidence and the learned magistrate also considered that Ms Cheung was evasive when answering questions.  The learned magistrate also pointed out that since PW1 did not speak English and Chinese, he wondered why Ms Cheung would hire him as a waiter.

9.So in conclusion, the learned magistrate convicted the first appellant of Charge 1 based on the evidence of PW1 but acquitted the second appellant of Charge 2 because the charge was between January and May 2016; however, it was part of the admitted facts that PW1 was in Hong Kong from 30 November 2015, therefore, the second appellant was only providing accommodation for PW1 while he was on recognizance, so the charge was not as proved.  The learned magistrate on Charge 3 found that it was the second appellant who introduced the first appellant to PW1 and it was an “irresistible inference that the second appellant knew the first appellant would introduce jobs to PW1” and having found that the second appellant knew PW1’s immigration status in Hong Kong, he therefore was convicted of Charge 3.

GROUNDS OF APPEAL AGAINST CONVICTION

The first appellant

10.Ground One: the learned magistrate erred in finding that the inconsistencies in PW1’s evidence were minor in nature and could be explained by a lack of education and passage of time when they went to fundamental facts relating to the offence.

11.Ground Two: the learned magistrate erred in failing to properly consider that PW1 gave evidence under various non‑prejudicial statements and therefore that care should have been taken before finding him to be credible and reliable.

12.Ground Three: the learned magistrate erred in finding that DW1 was evasive on the basis that she stated that she did not want to make a mistake, especially bearing in mind that she previously gave a record of interview relating to the offence and was not cross‑examined on it, meaning we can assume she must have been consistent.

13.Ground Four: evidence adduced in a subsequent trial, namely DCCC 18/2019, HKSAR v Gulnaz Akhtar also known as Rani and Ranni on 7 August 2019 casts grave doubt on the safety of the appellant’s conviction.  Finally, the last ground was that having considered the inconsistencies in evidence of PW1 taking individually or cumulatively, the conviction of the appellant is unsafe and/or unsatisfactory and should be set aside.

Second appellant

14.The second appellant’s grounds of appeal basically is similar to that of the first appellant in that the learned magistrate had erred in finding PW1 to be an honest and reliable witness.

APPEAL AGAINST CONVICTION OF BOTH THE FIRST AND SECOND APPELLANTS

15.Ms Herbert, on behalf of the first appellant, started her argument with the first and fourth grounds of appeal.  Ms Herbert pointed out that when PW1 was first asked in examination‑in‑chief about his salary, he claimed to have been paid “around HK$32, HK$35 per hour”.  In cross‑examination, he was unsure and said he was told that he be paid HK$20 to HK$30 per hour and maybe HK$25 to HK$35 per hour and then it was pointed out by Ms Herbert that in his statement in October 2017, he claimed his salary was HK$25 per hour.  It is also of relevant, according to Ms Herbert, that as for his working hours, PW1 in his October 2017’s statement claimed he worked 50‑60 hours a month; however, in examination‑in‑chief, he claimed to have been working 16‑20 hours a week which would mean 64‑80 hours a month, it is also pointed that PW1 was unsure as to where he first met the first appellant, in‑chief he claimed it was outside the restaurant whereas in his October 2017 interview, he said he met her inside the restaurant and finally PW1 was not sure as to whether the first appellant worked at the restaurant because in‑chief he said that she did not but in cross‑examination, he then alleged that she worked there one to two times.

16.Ms Herbert submitted that these inconsistencies are not minor in nature but goes to the very heart of the case, crucially Ms Herbert pointed out that the inconsistencies in fact support the defence’s case that Ms Cheung, the defence witness, had actually hired PW1 directly in November 2016 and not in July, as alleged by PW1 and that is why when PW1 was arrested in December 2016, his salary had not been paid yet, so it would explain why he was not sure as to how much he was going to be paid. Furthermore, in the case of STCC 3976/2018, when PW1 gave evidence in April or May 2019, he claimed that he was paid his salary by the restaurant directly and sometimes paid by the first appellant; however, in DCCC 18/2019, just a few months later in August 2019, PW1 claimed that he could not remember when he started working at the restaurant or his rate of pay and when asked who paid him, he then said he was “paid in a hotel there were three people, one boy, one old lady and one old person” which as we can see, this is in direct contradiction to his evidence in STCC 3976/2018 and therefore also with his evidence in the present case.

17.There was no question that evidence which emerges in a subsequent trial to that of the present trial, is relevant when the court is considering the credibility of the main witness, and therefore whether the conviction was safe (see HKSAR v Rai Rushal, CACC 118/2013).

18.As to Ground Two, Ms Herbert made an attractive argument that PW1, being essentially an accomplice witness, the learned magistrate should have been the especially cautious about his evidence, particularly as there was not only no corroboration whatsoever for his evidence. More importantly in light of the various inconsistencies in the evidence of PW1, the learned magistrate should have been cautious in his assessment of PW1’s evidence although corroboration is not required.

19.In respect of Ground Three that the criticism of the learned magistrate, of the evidence of Ms Cheung, that she was evasive, has already been mentioned.  A further point made by Ms Herbert on this topic was that when Ms Cheung was giving evidence, she was never cross‑examined as to any inconsistencies in her evidence, crucially about the fact that PW1 had come for the interview by himself and was not introduced by the first appellant, therefore Ms Herbert submitted, it is a fact that the learned magistrate could not explain away by merely saying that she was evasive.

20.Mr Hunter who represents the second appellant basically adopted the submissions of Ms Herbert but added that PW1’s evidence about how he left China for Hong Kong is not worthy of belief because what he said in court in this case and in the District Court was that he was taken to the border by Sheera who crossed from China into Hong Kong legally through the Immigration channel, but then Sheera seemed to have crossed back into China to lead PW1 to another crossing presumably an illegal one. (see Appeal Bundle, pages 85 to 88).

DISCUSSION

21.Ms Ho, on behalf of the respondent, argued that the learned trial judge had given proper considerations to PW1’s role and the reliability of his evidence from his reasons given in the Statement of Findings. So Ms Ho’s submission is basically that the learned magistrate was fully aware of the inconsistencies that the defence had brought out and had sufficiently dealt with all of them and therefore this appeal should be dismissed.

22.It is trite law that questions of fact are generally for the trial judge to assess and make his findings on and that the court on appeal is handicapped because we do not have the opportunity of observing the witness giving evidence and therefore the trial judge is the best person to make findings of fact.

23.However, in a situation as is in the present case where the only evidence for the prosecution relied on the credibility, reliability of the evidence of one witness, then it is incumbent upon this court sitting on appeal to look at the sufficiency of the learned magistrate’s assessment.  Having read the transcript of PW1’s evidence together with PW1’s evidence in DCCC 18/2019, suggests to me that he was not only inconsistent but that he was saying whatever came to his head and, as Ms Herbert pointed out, if he was indeed working at the restaurant for some time, it would not have been difficult for him to remember at least what he was being paid and how, the reason he could not give an accurate account of that, was because he had only recently joined the restaurant about a month before this arrest.  And taking those inconsistencies together with the evidence of the defence witness, I am left with a doubt as to the reliability of the evidence of PW1.

24.If the learned magistrate had opportunity, as I had, to read the transcript of what PW1 said in the District Court trial, would no doubt have caused him to have doubts about the reliability of the evidence of PW1, particularly when he asserted in that later trial that he was paid in a hotel and an old lady, a boy and another were present at that time. I was, therefore, obvious that PW1 was either being flippant in his answer or that as Ms Cheung said, he had not yet been paid because he was arrested shortly after he began his job, so in the event I am satisfied that PW1’s reliability is questionable.

25.In the circumstances, the conviction is unsafe and unsatisfactory and therefore both the convictions of the first and second appellants are quashed and sentences, accordingly, set aside.

Miss Cherry Ho SPP (Ag), of the Department of Justice, for the respondent

Ms Elizabeth Herbert instructed by Wai & Co., Solicitors, for the 1^st appellant

Mr Rowan Hunter instructed by Chaudhry Solicitors, for the 2^nd appellant