Case Document

100%Judiciary

HCMA 415/2020

[2021] HKCFI 2501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 415 OF 2020

(ON APPEAL FROM STCC 1430 OF 2020)

______________

BETWEEN
	HKSAR	Respondent
and
	KANG, SOHAN SINGH	Appellant

_______________

Before: Hon D’Almada Remedios J in Court

Date of Hearing: 23 June 2021

Date of Judgment: 23 June 2021

Date of Reasons for Judgment: 25 August 2021

__________________________

REASONS FOR JUDGMENT

__________________________

1.The appellant (“the appellant”), a Form 8 Holder appeals against his conviction after trial by Deputy Magistrate Yu Cheuk Man (“the magistrate”) of two charges, namely:

(i) 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 (“Charge 1”); and

(ii) making a false representation to an Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, contrary to s42(1)(a) of the Immigration Ordinance, Cap 115 (“Charge 2”).

2.The appellant was sentenced to 18 months’ imprisonment on Charge 1 and 12 months’ imprisonment on Charge 2 to be served concurrently.

3.On 23 June 2021, I dismissed the appellants appeal and now hand down my reasons.

The Prosecution case

4.It was an admitted fact that there was a removal order in force against the appellant at the material time and that the appellant was aware that he should not take up employment. It was further admitted that the appellant’s real name was that as stated in his passport and that he was not “Sran Sandeep”.

5.It was the prosecution case that the appellant had worked in a restaurant. He was observed by immigration officers PW1 and PW4 to take orders from customers, serve them food, tidy tables and enter the kitchen (Charge 1). When PW1 asked the appellant for his identity the appellant falsely represented that his name was Sran Sandeep. PW2 an immigration officer, found in the restaurant copies of an Indian passport and identity card in the name of Sran Sandeep and when those documents were shown to the appellant he confirmed that was his identity (Charge 2).

The Defence case

6.The appellant elected to give evidence. The defence case was that the owner of the restaurant called “Jimmy” was his South Asian friend. He was at the restaurant at the material time to chat with Jimmy and to eat as Jimmy offered him free food. He denied taking employment there. It was the appellant’s case that he could not understand nor speak English and therefore did not tell PW1 his name was Sran Sandeep nor did he confirm that he was Sran Sandeep after the copies of the identity card and passport were shown to him. The appellant only recognised the English word “identity”, so he produced his ParknShop card with his name “Kang Sohan Singh” to show his identity. He only had a copy of his Recognizance Form because he had lost the original and did not bring it with him on that day as it was raining.

7.The main issue before the magistrate at the trial was of credibility of the witnesses.

The magistrate’s findings

8.The magistrate found PW1 and PW4 to be honest and reliable witnesses. He rejected the appellant’s evidence.

9.The magistrate found that at around 1325 hours on 27 May 2020, Immigration Officers conducted an anti-illegal working operation at a restaurant called Curry & Kebab Hut Limited at Front Portion, G/F, 19 Sung Kit Street, Hung Hom, Kowloon, (“the restaurant”). The immigration officers PW1 and PW4 disguised themselves as customers inside the restaurant and conducted observations in there.

10.Whilst inside the restaurant PW1 saw the appellant taking orders, serving food, passing out menus and tidying tables. During PW1’s observation for half an hour he saw the appellant enter the kitchen twice. After he paid the bill he sat and observed the appellant tidy up the table. PW1 said the appellant gave him the food menu whilst PW1 and PW4 said the appellant took their order and served them their food.

11.Thereafter PW1’s other colleagues entered the restaurant. At that time PW1 revealed his identify to the appellant and proceeded to ask for the appellant’s identity. The appellant told PW1 that his name was Sran Sandeep and gave his identity card no as N2150563(3) however he said that he had left his identity document at home.

12.Meanwhile an immigration officer PW2 who had entered the restaurant seized from the owner of the restaurant, a copy of a Hong Kong identity card and a copy of an Indian passport bearing the name Sran Sandeep. When PW1 showed him these copies that PW2 had found, the appellant said “it is my identity.”

13.Later when the appellant was brought back to the Immigration Office for further investigation a ParknShop Food Card in the name of Kang Sohan Singh was found upon search of him.

Grounds of Appeal

14.Counsel for the appellant Mr HY Wong advanced 3 grounds, namely:

Ground 1

15.The learned magistrate erred in allowing himself to be convinced of the credibility of PW1 and PW4’s evidence first before he rejected the appellant’s evidence.

Ground 2

16.In assessing the appellant’s evidence, the magistrate erred in using the prosecution’s version in analysing the defence case; and

Ground 3

17.In rejecting the appellant’s evidence, the magistrate relied on speculation and conjecture rather than on the evidence.

DISCUSSION

18.The grounds of appeal can be summarized into two main complaints. The first was that the magistrate’s approach was wrong to have convinced himself of the prosecution witnesses evidence before he concluded that the appellant’s evidence should be rejected and secondly that the magistrate wrongly rejected the appellant’s evidence on speculation and conjecture rather than evidence.

19.Having considered the appellants detailed submissions, I found there to be no merit in any of the grounds and I dismissed the appeal. I now hand down my reasons.

20.This was a case of pure factual dispute and turned solely on assessment of credibility of the appellant and the prosecution witnesses who had given evidence.

21.The prosecution and defence case involved directly opposing versions, in which the magistrate was left with the direct choice between the evidence of the prosecution witnesses and that of the appellant.

22.In R v Cheung Yuen Hing [1988] 1 HKLR 160, 163, Hunter JA cited the following remark by Mills-Owens J in R v Lam Tin‑chung:-

“Obviously a tribunal must evaluate the evidence before it, and in the case of oral testimony must weigh it in the context of other salient circumstances. But simple justice demands also that it should be made apparent that such evaluation has in fact been made: the public interest, not only the interest of the parties, requires no less. Certainly there may be cases where the tribunal is left with the direct choice between the evidence of A and that of B. With no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything, than to say which of the witnesses it believes.”

23.In HKSAR v Poon Shuk Kuen (HCMA 581/1999, unrep., judgment of 26 April 2000), the magistrate accepted the prosecution witness’s evidence and reject the accused’s without giving detailed evidence. On appeal, Burrell J cited the above remark from Lam Tin‑chung and added that:-

“When a case concerns directly opposing versions of a simple incident, the acceptance of one version given by a credible witness carries with it the rejection of the opposing version. It must follow that the court did not believe that version of events.”

24.The magistrate was entitled to reject the appellant’s evidence upon the finding that the prosecution witnesses’ version of events were credible. A magistrate has the advantage of seeing and hearing all witnesses and as a result, is in the most ideal position to assess the credibility of all witnesses. An appellant court will only depart from a magistrate’s finding on credibility if it is plainly wrong, HKSAR v Ip Chin Kei & Others [2012] 4 HKLRD 383.

25.I can find no error in the magistrate’s approach or finding or assessment of the evidence. He gave reasons for accepting and rejecting the prosecution and the appellant’s evidence. The magistrate had the advantage of seeing the witnesses and was fully justified in reaching his conclusion as to their credibility.

26.Mr Wong submitted that the magistrate relied on speculation when considering if the appellant understood English when he said the following :[1]-

“The Defendant admitted that he came to Hong Kong in 2014, it has almost six years. He had been living in Hong Kong for quite a long time, he used the Park N Shop Card with contained the money paid to him by the International Social Services as an allowance, to purchased food in the supermarket. It is hard to believe that if it was true that the Defendant did not understand some simple English, the Defendant could manage to live in Hong Kong for some many years...”

27.Mr Wong contended why should the appellant need to learn some simple English for him to manage to live in Hong Kong. Whilst Mr Wong’s submissions may have some merit that the magistrate relied on speculation and conjecture rather than on the evidence, any references to speculation are negated when reading the statement of findings in its entirety.

28.The magistrate found that although PW1 did not ask whether the appellant could speak or read English PW1 stated that he believed that the appellant understood him when he spoke English to the appellant as PW1 had no difficulty in communicating with the appellant. When PW1 asked questions in English of the appellant, the appellant responded. Examples were when PW1 spoke to the appellant in English when he ordered the food, and when he asked for the appellant’s identity. PW1 expressed that the appellant responded without difficulty and told PW1 his name and identity card number[2]. He also told PW1 that his identity documents were not here, at home[3].

29.As the magistrate accepted the evidence of PW1, he rejected the appellant’s evidence that he did not understand English.

Conclusion

30.I find no merits in the grounds argued before me. There is no justification for going behind the magistrate’s finding on credibility and reliability. The convictions in charge 1 and 2 were neither unsafe nor unsatisfactory.