HKSAR v. Ara Kismot

HCMA 52/2020

[2020] HKCFI 1558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 52 OF 2020

(ON APPEAL FROM FLCC 1841 OF 2019)

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R E A S O N S   F O R   J U D G M E N T

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1.There were originally two defendants in this case, both female.  The appellant was the second defendant.  She was charged with one charge of Taking up employment while being a person in respect of whom a removal order was in force[1].  She pleaded not guilty and was convicted after trial[2]. She appealed against her conviction.

2.At the appeal hearing, after having heard submission from both parties, I dismissed the appeal.  I now provide the reasons for my decision.

PROSECUTION CASE

3.Evidence against the appellant came mainly from a police officer, whom the Magistrate called Constable Yeung[3]. He and some other officers were performing duty in plainclothes.  He said he saw the appellant and the other defendant working inside the kitchen of a restaurant.

4.It was admitted that a removal order had been issued against the appellant on 5 September 2017 and was still in force on the date of the incident.  It was also admitted that she had been released upon a Form 8 recognizance on 21 September 2017.  It was further admitted that being a person in respect of whom a removal order was in force, the appellant was not permitted to take employment here, whether paid or unpaid.

5.The evidence of Constable Yeung may be summarized as follows.[4]

6.Through a display window of the barbecued meat stall of the restaurant, he was able to see the restaurant kitchen as its door was open.  He said he saw the appellant and the other defendant (“the two women”) at the dish washing area of the kitchen.  The appellant was washing dishes and the other defendant was tidying and conveying dishes.  The observation lasted about five minutes.

7.He then went into the kitchen with another officer, Constable Lam[5], both in plain clothes.  There were cooks in the kitchen.  Seeing them, the two women both took off their aprons, gloves and boots.  Upon request, both produced their Form 8 recognizance documents.

8.Before entering the kitchen, only Constable Yeung was able to see what the two women were doing inside.

DEFENCE CASE

9.At the trial, the appellant elected to give evidence.  Her testimony may be summarized as follows.[6]

10.She knew, as an asylum seeker, she was not allowed to take employment in Hong Kong.  On the day of the incident, she received a phone call from a friend, Parven Jahanara (“PJ”), who asked her to come over as she needed her help.  She then went to Tai Po and met PJ who took her to the restaurant and told her to wait for her as she had to go to obtain some documents from the High Court. She needed the documents for the following day as otherwise the Immigration would detain her.  She asked her to wait because if the manager knew she was absent she would be in trouble.  PJ left at about 5 pm.  The police appeared at 8:23 pm.  During this time, she called PJ three times, each time PJ told her more time was required for her to get the court paper.

11.The other defendant, Laila, came to the kitchen between 6 and 6:30 pm.  They ate mangoes and played with their mobile phones.

12.During the five minutes before the arrival of the police, which was the time Constable Yeung said he was observing them, she was washing her hands after finished eating mangoes.  She did not wear any apron, gloves or boots.

13.There were cooks in the kitchen.  It was the first time she ever went to the restaurant.  She did not know its owner and employees.

FINDINGS OF THE MAGISTRATE

14.There was no dispute that the appellant was present in the restaurant.  The Magistrate did not believe what the appellant said about why she was there[7].  On the other hand, noting that the evidence of the prosecution witnesses was not perfect[8], he found all of the four prosecution witnesses honest and gave full weight to the evidence of Constable Yeung save for some minor areas.[9]

15.The Magistrate said he was sure that:

(1)     the appellant was washing dishes in the kitchen of the restaurant for some five minutes;

(2)     she was wearing a black apron, a pair of white cotton gloves outside another pair of black plastic gloves;

(3)     she took these things off once she realized the presence of policemen; and

(4)     she did so as a result of realization of guilt as those things were part of the gear she used in working as a cleaning worker.[10]

16.The Magistrate found that washing dishes was a crucial part in the operation of running a restaurant and kitchen was a place of employment.  He found what the appellant did could never be something done for her own benefit.  In his judgment, it was impossible that the management of the restaurant would allow a complete stranger to occupy the dish washing area and that the presence of the appellant must have been approved and required by the management of the restaurant.  He found what the appellant did must have been under the control of the management.[11]

17.The Magistrate found that the appellant was at the material time employed as a cleaning worker by the management of the restaurant to wash dishes and she did so knowing that a removal order had been issued against her and that she was not permitted to take employment.[12]

18.The Magistrate found the prosecution had proved beyond reasonable doubt every element of the offence and accordingly convicted the appellant.[13]

GROUNDS OF APPEAL

19.The appellant appeared in person.  She attached a document to her notice of appeal in which she set out some points.  In gist, she repeated the main points she said at the trial, stressing that she had never worked in the restaurant and that the conviction was unfair.

20.At the hearing, she again stressed she had never worked there and said she did not understand why she was convicted.  She pointed out Laila, the other defendant in this case, had been working in this restaurant for some time together with PJ.  She also pointed out some areas of the evidence and made submission that these areas indicated either the prosecution witnesses were lying or in any case their testimony was not truthful and reliable.  She also pointed out that there was sufficient space at where she was standing and her presence would not have affected movement of other people in the kitchen.  She also identified in the photograph the refrigerator in the kitchen and said that people took food out from the refrigerator from time to time.  She highlighted that as the two officers were in plain clothes and things happened so fast that they could not have reacted as alleged and there would not have been opportunities for them to take off gloves, apron and boots as alleged.

DISCUSSION

21.This is a simple case.  Prosecution called witnesses to tell what they saw and did. The appellant testified and gave an innocent explanation for her presence.  The duty of the Magistrate was first to assess the credibility of the witnesses and then decide whether the prosecution evidence is true and reliable.  Eventually if he accepted the prosecution evidence he had to decide whether the evidence was sufficient to make him sure that all elements of the offence were proved. During the course, if he found the innocent account of the appellant was true or might be true he must acquit her.

22.The Magistrate demonstrated that he had carried out the credibility assessment meticulously.

23.The Magistrate noted the following matters:

(1)     Constable Yeung explained that he could observe through the barbecue meat display window as food was hung at the upper rack and since there was only one roasted goose hanging in front of him he only needed to bend his body forward in order to look inside.  He said he focused on the two women as he noticed something special about them[14]; and

(2)     Despite Constable Yeung agreed that there had been time when his vision was not clear during the five minutes of observation he disagreed that the distance of 15 metres was too far for him to see the two women clearly[15].  He said the moment when his observation was briefly blocked were when a cook took something from the refrigerator[16].

24.It was obvious that the Magistrate accepted the explanation of the witness.  He had also considered the challenge by the defence against Constables Yeung and Lam which included the followings and reminded himself that “law enforcement officers might have the motive to tell lies for the purpose of finishing their tasks”[17]:

(1)     Whether Constable Yeung had projecting the other woman’s conduct to the appellant?  The Magistrate rejected this contention with sound reasons[18];

(2)     Constable Yeung once stated that his observation of the appellant was blocked by a cook when he was taking things out from the refrigerator for “several 10 seconds” and later said it was “10 seconds”, the Magistrate found this was merely a slip of tongue[19];

(3)     The evidence of the two Constables as to how many staff were in the kitchen was inconsistent, the Magistrate found the inconsistency was “more apparent than real”[20];

(4)     The evidence of these witnesses as to what gloves the appellant was wearing, the Magistrate preferred the evidence of PW2 as his observation was more reliable whereas PW1 was distracted as he paid attention to the appellant’s handbag when he looked for her “Form 8”[21].

25.As regards the testimony of the appellant, the Magistrate took into account, and appropriately, matters including the followings:

(1)     she spelt the name of Pervin (PJ) wrongly and circumstances showed it was unreasonable for her to do so[22];

(2)     she said she was requested to stay in the kitchen so that the manager would not realise the absence of PJ, to achieve this she had to be seen to be doing some work but what she did were eating mangoes and playing with mobile phone[23];

(3)     it was unreasonable for her as a stranger to be allowed to be stayed in a busy area of the restaurant where cooks were present, let alone eating mangoes and playing mobile phone there[24]; and

(4)     some parts of her evidence were inconsistent with the case her counsel put to prosecution witnesses, like the location where she was staying and where the apron, boots and handbag were found, therefore likely to be recent fabrication[25].

26.In my judgment, the assessment of the Magistrate in respect of credibility of the prosecution witnesses and the appellant was reasonable, sound and adequate.

27.In R v Kwong Wing On and Another[26], Stock J (as Stock NPJ then was) said:

“… I would say this : that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial and collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”[27]

28.Assuming what the appellant highlighted during the appeal hearing was evidence and had been canvassed at the trial, the Magistrate was aware of the evidence and was in the best position to judge and assess it.  The appellant failed to advance sufficient reasons to persuade me that the assessment of credibility of witnesses by the Magistrate was flaw and therefore should be intervened.

29.I did not enjoy the advantage of having received the evidence at first hand[28].  I did not find the Magistrate had failed to perform his duty properly.  As said, there was no reason to intervene his assessment on credibility of witnesses.  There was no error in his treatment of the evidence.  No material error of the Magistrate had been identified.  The evidence of Constable Yeung which the Magistrate found credible was sufficient and sound basis for the Magistrate to draw the inference he did.  I was satisfied that the conviction was safe and satisfactory.  It was supported by an abundance of evidence.

30.I therefore dismissed the appeal.

Miss Ho May Yu, Lily, SPP of Department of Justice, for the respondent

The appellant appeared in person