HKSAR v. Putri Arena Sari (also known as Rukayati)

HCMA 112/2021

[2021] HKCFI 2545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 112 OF 2021

(ON APPEAL FROM STCC 3031 OF 2020)

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BETWEEN

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing:  27 August 2021

Date of Judgment:  27 August 2021

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J U D G M E N T

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1.On 26 January 2021, the Appellant (and D2 in the trial), an Indonesian national, was found guilty after trial before Pang Leung-ting, Magistrate, of breach of condition of stay by taking up employment contrary to section 41 of the Immigration Ordinance, Cap 115 (“the IO”)  and by virtue of Regulation 2 of the Immigration Regulations (“the IR”). The Appellant was sentenced to three months’ imprisonment.

2.Section 41 of the IO states:

“Any person who contravenes a condition of stay in force in respect of him shall be guilty of an offence and shall be liable on conviction to a fine at level 5 and to imprisonment for 2 years.”

Regulation 2 of the IR states:

“(1)  Permission given to a person to land in Hong Kong as a visitor shall be subject to the following conditions of stay —

(a)  he shall not take any employment, whether paid or unpaid;…”

Prosecution Case

3.On 16 September 2020, the Labour, Police and Immigration Departments conducted a joint operation on an Indonesian snack shop named CAHAYA MAKMUR TRADING, which is located at Shop C1, G/F, Winning Heights, 283 Castle Peak Road, Tsuen Wan.  The Appellant was seen to be rearranging shelves and to be packing goods and sticking labels onto them.

4.The Appellant admitted under section 65C inter alia that she was an Indonesian passport holder in the name of PUTRI ARENA SARI and that she had arrived in Hong Kong on 25 January 2015 as a visitor knowing a condition of her entry was that she could not take up employment, whether paid or unpaid.  She further admitted being intercepted and arrested at the scene on 16 September 2020.

5.The prosecution relied upon the evidence of two inspectors from the Labour Department (“LD”).  PW2, Inspector Tung was responsible for keeping observations on the Appellant.  During those observations, the Appellant was seen to be tidying shelves for approximately 10 minutes before moving to another part of the shop to sit down on a stool.  At that point, she took out some white labels and purple coloured phone cards from a box in front of her and stuck the white labels upon the phone cards for a period of about 5 minutes.

The Defence Case in Trial

6.The Appellant elected not to give evidence.  DW1 Gunawan-Indra, the owner and proprietor of the shop was called by D1.  The Appellant, as D2, had the benefit of being able to cross-examine him.  He said he had not employed the Appellant and that she was a customer.  At no point did he suggest that either the Appellant or her co-defendant were helping out in the shop.  Indeed, he said that the business of the shop required no more than himself and his other employee.  He gave no evidence as to the stocking or rearranging of the goods upon the shelves.  In respect of the phone cards, he said that customers were allowed to peel off the label in order to see the card itself and the phone number upon it.  The customer could then place the label back on the card and try another card.  As for his absence at the time of the operation, he maintained he was away from the shop having a cigarette.

7.Defence counsel suggested to PW2 that the Appellant was merely looking for goods upon the shelves, this was denied.  He further suggested the appellant was merely looking for the phone number of the sim card by peeling off the sticker.  This too was denied.  There was no direct evidence before the Court therefore to support the defence case.

The Magistrate’s Findings

8.The Magistrate found the evidence of PW2 to be truthful as to the essential elements of the offence i.e. the actions of the Appellant.  It was from these facts that he drew the irresistible inference that she was working in the shop.

9.He rejected the defence case as put to PW2 and elaborated upon in closing.  The Appellant’s case in closing appeared to be premised on alternative footings.  It was put by defence counsel to PW2 that she was merely a customer looking for goods on a shelf and peeling off white labels on phone cards to see the phone number underneath.  This was denied by the witness.  There was therefore no evidence of this and the defence asked an inference be drawn that this was the case.  In the alternative, it was submitted that, if the Court rejected the primary case of the defendant, then she may have been helping.  The only evidence available to the Magistrate was that of DW1, which he rejected and whom, in any event did not support the alternative case of the Appellant which was that she was helping in the store rather than being a customer.

Grounds of Appeal

10.By reason of her Notice of Appeal dated 26 January 2021, the Appellant now appeals against her conviction.  She submits that:

(a)  The learned Magistrate erred in drawing the inference that she worked at the shop in question as an odd job worker because he failed to consider her submission that she was ‘merely helping another’.

(b)  The learned Magistrate failed to consider the difference between an Indonesian store and an ordinary store or supermarket in Hong Kong.

11.The thrust of Mr Connelly’s submission before this Court goes to his alternative argument in closing to the Magistrate.  His primary submission before the learned Magistrate and throughout the trial, was that D2 was a customer of the shop.  That is the basis upon which the trial was run and the basis of his cross-examination of PW1 and PW2.  At p97M however, in closing he submitted that even if the Magistrate was against him on this point and found that the Appellant had been organising goods on the shelves and had been sticking labels on sim cards, that evidence was insufficient to found the basis for the drawing of an irresistible inference that what she had done was carried out under the terms of employment. The phrase he used at that stage was “there is not an irresistible inference that D2 was doing this under terms of employment, that is, that there was sufficient control exercised over her rather than, for example, merely helping; whether she was merely helping the owner of the shop, merely helping the cashier or merely helping her friend D1.”  Mr Connelly accepts that he did not put each of these alternative scenarios to PW2.

12.Before this Court that submission had been narrowed down to “helping D1”.  He submits, quite simply that it is not inherently improbable that D2 was helping her friend D1.  In answer to that, Ms Ng has rightly responded that to avail himself of such an argument, Mr Connelly must point to some evidence upon which he can rely to make that argument good.  Before this Court, Mr Connelly points to the fact that D1 and D2 were seen seated and placing labels upon sim cards at decidedly different rates of productivity. He relies upon the friendly atmosphere and the inherent improbability of an owner of such a small shop employing 3 members of staff.  The difficulty the Appellant faces is pointing to the evidential basis of that argument.  There was no direct evidence before the Magistrate of the relationship between D1 and D2.  Mr Connelly relied upon the acceptance by PW1 that D1 and D2 had been seen chatting in a friendly manner but that is insufficient to draw and inference they were friends as opposed to colleagues.  He also relies upon the fact that only D1 had been seen to speak to the cashier but we do not know the circumstances or content of that conversation.  The remainder of his argument, here and in the Court below, is just that, argument.  Mr Connelly submitted this was a community shop; people would hang out; they would sit; D2 had a great deal of free time and would want to associate with her fellow Indonesian citizens and such shops provide them with the space to do so.  He referred to the limited weekly accommodation allowance of D2 and the restricted means of entertaining; he suggested this was why people in the shoes of D2 socialised in such shops.  None of that was in evidence before the magistrate and cannot be taken into account in this rehearing.

13.Lastly, Mr Connelly submits that the prosecution have not excluded the possibility of D2 being helpful.  There lies the rub.  They were never given the opportunity to do so.  Mr Connelly never suggested to any witness that Appellant was a friend of D1 who was working in the shop and that the Appellant was simply helping D1 and that her actions were consistent with that.  He never put to DW1 that such was the case.  It was incumbent upon him to do so.  In that event, the prosecution would have known the case it had to meet and may very well have done so, had they foreseen this line of defence but as this was never put, no one was on notice to deal with it and the prosecution witnesses were never given the opportunity to answer it.

The Law

14.The issue before the Magistrate was whether the Appellant could be said to be employed by DW1 regardless of whether that employment was paid or unpaid.  This topic has been the subject matter of numerous cases. The leading case, albeit that it turned on a narrow set of facts, is HKSAR v Ferosh FACC 2/2014.  In that case, the Court of Final Appeal accepted the simple premise that evidence of a person working at a place of employment alone would not necessarily support an irresistible inference of employment[1].  In Ip Po Fai, as in Ferosh, the finding of the Court relied heavily upon the peculiar facts of the case.  In Ip Po Fai, there was a familial relationship between one of the defendants and the owner of the restaurant.  They were cousins.  His elderly aunt was also present in the restaurant that day with him.  The second defendant was a close friend of the appellant and they provided a reason for their presence.  He was learning the dishes in order to use them in his own restaurant on the mainland, which was not inherently improbable.  In Ferosh, there was no evidence at all that the location in which the 4 defendants were found was a place of employment.  There was no one who could be identified as an employer or evidence of payment.  There was no evidence of other equipment on site to suggest that it was a place of work i.e. construction.  At best they were observed to be carrying out manual labour on an uninhabited building.  Their explanation for that manual labour was not inherently improbable either.

15.With respect to the learned judges, I doubt they intended in dealing with the matter before them, to be providing a definitive test for the issue at hand i.e. employment.  Both Courts dealt with the issue as one of inference of employment.  The test for the drawing of an inference is simple.  What are the proven facts upon which the prosecution seek to rely? What inference does the prosecution seek to draw from those facts?  Is that inference the only and irresistible inference which can be drawn?  Is there another inference which can be drawn in favour of the defendant?  What are the proven facts upon which the defendant seeks to rely?  What is the inherent probability or improbability of the inference sought to be drawn by the defence?  If the inference sough to be drawn by the defence is inherently improbable (fanciful/without any merit)  then the inference relied upon by the prosecution may (not necessarily should)  be drawn.  If the inference sough to be drawn by the defence is inherently probable, then it follows the inference sought to be drawn by the prosecution may not be drawn, quite simply because it cannot be the only and irresistible inference to be drawn.

16.In a case such as this, and there are many of them[2], if Counsel focused upon the issue of proving the inference sought to be drawn based upon identifiable evidence, they may find the matter far easier to approach.  They can concentrate upon the proven facts.  The facts which may support an inference of employment are not written in tablets of stone.  There are many more yet to be identified by the Courts and we are not constrained by those which have come before.  It is a matter of common sense.  Such facts from which an inference of employment may be drawn could include[3] consideration of the particular location, the type of employment sought to be proved; whether that type of employment falls within the category of employment one would expect to be used given the location and the general circumstances of the case, a comparison of the work observed with the normal working procedures undertaken within that location and that workplace; what type of work clothing, tools or safety equipment is seen to be used or expected to be used; to whom do they belong; what is the defendant’s working relationship with other employees and/or employer, is there any special relationship with any one of them such as a familial relationship; what are the usual working hours in the establishment compared to the time of day of the observation, were there any actions not consistent with being a visitor client or guest of the premises such as using staff facilities or staff areas, etc.  Not all of the above are necessary before the prosecution can ask the court to infer employment.  This is not an exhaustive or exclusive list.  What is necessary in each case will turn upon its facts.

17.This Court however reiterates the warning of Zervos J (as he then was)  in HKSAR v Masih Shamoon & Others HCMA 357/2017 at §12, where he said:

“Care needs to be taken when guided by this case[4] when determining the question of employment in the criminal context, for in such a situation a court is required to make findings of fact that are proved beyond reasonable doubt from which to draw the only reasonable inference that the defendant was in employment. It is not a matter of overall impression.[5]”

Conclusion

18.This Court in rehearing, takes the same view as the Magistrate does at paragraphs 49 and 59 of the Statement of Findings.  The defence case, as suggested but not accepted by the prosecution witnesses, offends common sense.  The prosecution was required to prove beyond reasonable doubt that the Appellant was working in the shop.  She was observed over a period of 15 minutes at relatively close range and was seen to carry out more than one store related task.  She was never seen to attempt to purchase anything.  Other customers came and went over this period of time and took very little time to make purchases.  There is no evidence she interacted with them in a manner suggesting that she was there simply to socialise.

19.There were more than sufficient proven facts from which the Magistrate could draw the only reasonable inference, which was that the Appellant was working in the shop.  On her primary case, there was no evidence before the Court that the Appellant had picked up single cards, peeled off a label, stuck it back and moved on to another card.  The evidence of PW2 was that she had picked up a stack of phone cards onto which she had stuck a label, not taken it off.  There was no evidence that the Appellant was merely looking for goods when she was arranging the shelves, nor, if an ordinary customer, that she had a basket or other goods which she had gone to the counter to purchase.  She never talked to the cashier.  The other inference now advanced, that she was there to help D1, was not supported by the evidence of DW1.  Any evidence of proximity and conversation between them is equally consistent with a working relationship.  There was nothing improper in the Magistrate taking the whole of the observations of the witnesses into account when drawing the inference which he did.  These were all proven facts which had been accepted by him as true.  The suggestion by defence counsel as to another inference which could be drawn was inherently improbable and for the most part had no evidential basis from which an inference could in any event be drawn. The submissions veered toward speculation rather than the drawing of inferences from proven facts.  Lastly, the suggestion that the Magistrate was required to make a comparison between this self-service shop and other shops was rightly rejected.  It had no basis in evidence and it was irrelevant to the facts at hand and to the issue to be determined.  It was the shop in question and the actions of the Appellant over a period of 15 minutes, which were relevant.

20.The Magistrate took all proper issues into account and correctly applied the relevant legal principles.  I concur with his findings.

21.This appeal is dismissed.  The sentence of the Magistrate stands.  There will be no order as to costs.

Ms Claudia Ng, SPP of the Department of Justice, for the respondent

Mr Robert Connelly, instructed by Choy Yung & Co, for the appellant