HKSAR v. Ahmed Nabeel

HCMA 151/2019

[2019] HKCFI 1981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 151 OF 2019

(ON APPEAL FROM STCC NO 4779 OF 2018)

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Before: Hon Campbell-Moffat J in Court

Date of Hearing: 19 July 2019

Date of Judgment: 19 July 2019

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J U D G M E N T

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1.This is an appeal against conviction alone. The appellant was convicted after trial on one count 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, Cap 115. He was then sentenced to a term of imprisonment of 22 months and 14 days.

The prosecution case

2.The prosecution case was that around 1512 hours on 27 November 2018, the police conducted an operation within a carpark located in the vicinity of G/F, Wing Cheong Industrial Building, 58-70 Kwai Cheong Street, Kwai Chung.  The appellant was observed at the rear of a parked light goods vehicle, registration number MR 236. The tail-lift board of the LGV was open and the appellant was seen to move a manual forklift pallet trolley from the tail-lift board into the rear compartment of the LGV.  He was then observed to unload the goods from the trolley into the rear of the LGV and to secure the pallet trolley with a rope within the LGV cargo compartment.  The appellant was arrested and cautioned by PC 24104 (PW1).  Under caution, the appellant said he did not work there and that he was there to meet a friend.  No friend was found.  The appellant was a From 8 holder subject to a removal order.

3.The appellant admitted that he was a Form 8 holder and that he had been arrested on 20 August 2009, having entered Hong Kong unlawfully.

4.He admitted that he was aware that he was prohibited from taking up employment, whether paid or unpaid, in Hong Kong.

5.He further admitted that he was the subject of a removal order, dated 15 July 2011, which was in force at the time of his arrest.

The defence case

6.The defendant elected not to give or call evidence.  In answer to caution and by way of cross-examination, it was the defence case that the defendant had been in the carpark in order to visit a friend.

The magistrate’s findings

7.The learned magistrate found PW1 to be a truthful and reliable witness.  It follows that she accepted that PW1 had observed the appellant moving the pallet trolley with goods contained upon it, from the open tail-lift of the LGV into the cargo compartment of the LGV and that he unloaded those goods into the rear compartment of the LGV and then secured the trolley.  It also follows, that she rejected the answer given under caution and the defence case in cross-examination, that the appellant was innocently present within the carpark in order to meet a friend.

8.In respect of the issue of employment, she reminded herself of the principles under The Queen v Ip Po Fai HCMA 1201/1995 and of HKSAR v Ferosh FACC 2/2014, that “working at a place, per se, is not employment”.

9.From the proven facts, she found that the prosecution had proved beyond reasonable doubt that the only reasonable inference was that the appellant was working in the course of employment as an odd job worker on the following basis:

i)  The carpark of the industrial building site was an obvious place of employment and the appellant was seen inside a container goods vehicle unloading goods into the rear compartment; and

ii)  a person does not usually work for others for free, in particular the type of work carried out in this case, which was unloading goods inside the LGV; and

iii)  there was no evidence of the existence of the appellant’s friend at the scene whether that was the driver or someone else and there was no explanation given on arrest as to why he had been unloading the goods, for example, for his friend; and

iv)  the driver, who was sitting in the cab, would not have allowed a stranger to unload the goods if he was not working there and he was doing so in the course of employment; and

v)  there was no innocent explanation for the defendant’s presence in the carpark or in the LGV unloading goods including the possibility that he was doing something for his own benefit; and

vi)  there was no requirement for him to be wearing specialist clothing whilst carrying out this job.

Grounds of appeal

10.The appellant was not legally represented at appeal.  He advanced no formal grounds of appeal.  In court, his complaint was based upon an attack of the credibility of PW1 and that the learned magistrate had erred in finding him to be reliable and truthful.  He took no issue with the finding of employment, save to say that there should have been evidence of who employed him and that it should have been accepted that he would have been required to wear appropriate clothing.  He did, however, accept that if PW1’s observations were correct, the activities PW1 saw would amount to someone acting in the course of his employment.

The law

11.Under section 38AA(1)(a) and (2), the prosecution must prove beyond reasonable doubt that:

(1)  the defendant landed in Hong Kong unlawfully; and

(2)  at the material time:

(a)  he remained without the authority of the Director of Immigration, and

(b)  he undertook employment.

12.The magistrate first made findings upon credibility so as to establish what evidence satisfied her beyond reasonable doubt.  This is the issue advanced by the appellant today.  However, the real issue before the magistrate, and the supplementary issue before the court today, was the issue of taking employment.  In HKSAR v Lau Chi Wai HCMA 302/2003, DHCJ Maggie Poon (as she then was) helpfully stated:

“…‘employment’ subsists on the basis of an ‘employer and employee relationship’, that is to say, when one of the parties works for the other party, he regards the other party as his employer, and the other party (i.e. the party who is regarded as the employer) acknowledges their mutual duties or obligations and further, fiduciary duties exist between the two of them. In addition, the employer must have the power to arrange work for the employee and to deploy or instruct the employee to work.”

13.It follows from this, that in an ideal world the court would expect the prosecution to evidence the existence of the purported employee (the defendant), as well as the identity of the purported employer.  They would also be able to point to acts which prove the nature of the relationship although not necessarily the physical undertaking of work. That may be evidence of payment, or of control over the employee or of a duty owed by the employee to the employer, such as coming to work at a certain time and leaving at a certain time, remaining in a certain place, carrying out particular duties, wearing particular clothes or using particular tools, etc. This is the appellant’s case.  But criminal courts are not often an ideal world and the test is whether the finder of fact and law can be satisfied beyond reasonable doubt of the evidence adduced.  If the finder of fact is not sure of the relevant facts or their application to the law, then the defendant is entitled to be acquitted.

14.In The Queen v Ip Po Fai [1996] HKEC 1056, which was relied upon by the learned magistrate, Patrick Chan J (as he then was), stated that “working at a place per se is not employment, although in the absence of other evidence, one may draw the necessary inference”.

15.What, therefore, is sufficient evidence to show employment?  Under the Employment Ordinance, Cap 57, or the Immigration Regulations under Cap 115A, it is not necessary to show payment or remuneration although, obviously, evidence of payment would clearly be helpful towards establishing an employer/employee relationship although not necessarily determinative.  What is clear is that there must be something more than an observation of someone merely carrying out work in order for the prosecution, in the absence of direct evidence, to ask the magistrate to draw the only reasonable or irresistible inference that the defendant was employed.

Discussion

16.Was the magistrate entitled to draw the inference, which she did, having rejected the evidence of the defendant and accepted the evidence of PW1?

17.The prosecution were in some difficulty but it was not insurmountable in all the circumstances of this case.  This was, clearly, a place of work which, ordinarily, would not usually have casual civilians within it.  It was an industrial area adjacent to the docks.  There was no evidence from any purported employer who may have had an employer/employee relationship with the appellant, but the appellant’s presence inside the LGV unloading goods, at the same time as the driver was in the cab of the LGV, and presumably intending to leave imminently, suggests a work scenario to a timetable.  But for whom was he working?  A Form 8 holder would be unlikely to be working for free as he accepted that he was not allowed to take up either paid or unpaid employment and the sanction, as we have seen, is severe.  It would also be unlikely that he was self-employed.  Firstly, because he may not take up any form of work under his recognisance and, secondly, because he would not have the resources to finance any trade in goods if he were in receipt of only a few hundred dollars a month for transport costs, as all other assistance to him is paid in an indirect form.

18.Were there sufficient proven facts of the nature and circumstances of his acts from which the learned magistrate could draw the only and irresistible inference that he was in employment?  I believe there was for the reasons given by the learned magistrate, including the admitted facts.

The test

19.This is an appeal by way of rehearing on the papers.  The principles relating to a magistracy appeal have been reiterated in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383 by McWalters J (as he then was).  An appellate court will not depart from a magistrate’s findings as to the credibility of a witness unless it is satisfied that the finding is “plainly wrong”.  I quote Zervos J (as he then was) in HKSAR v Fok James Alistair [2015] 4 HKC 247, at paragraph 10, where he explains the “plainly wrong” test:

“10. In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, whether the finding was one that no reasonable magistrate could have reached.”

20.It follows from the very fact of appeal that the appellant believes his version of events correct and the prosecution’s version of events incorrect or untruthful.  Credibility is his main issue.  Mr Chau, on behalf of the prosecution, has taken the court to the findings of the magistrate and has rightly submitted that she has carefully assessed the evidence, including the issues raised by the appellant.  She was clearly alive to all issues submitted today.  She found the defence case unconvincing and she rejected it.  She found PW1 reliable and credible and there was no defence evidence to undermine that finding.

21.I can find no reason or justification to go behind her findings on the credibility of the witness.  She had the advantage of hearing and seeing the witness giving evidence and studying her demeanour. Her conclusion is justified and I agree with it.

22.As for the issue of whether there was employment, in finding the appellant was employed she took into account relevant authorities when considering what defines employment.  She also identified the pertinent factors and applied the facts.  I am satisfied on the evidence that the only irresistible inference that can be drawn in this case is that the appellant was taking employment and that it was proved beyond reasonable doubt.

23.In the circumstances, the findings of the magistrate were neither unsafe nor unsatisfactory and this appeal against conviction is dismissed.

Mr Anthony Chau ADPP(Ag), of the Department of Justice, for the respondent

The appellant appeared in person