HKSAR v. Sheikh Mohammod Subuj

HCMA 54/2021

[2021] HKCFI 2766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 54 OF 2021

(ON APPEAL FROM STCC 3032 OF 2020)

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BETWEEN

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing:  3 September 2021

Date of Judgment:  3 September 2021

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J U D G M E N T

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Introduction

1.The Appellant was convicted after trial before Mr Wong Heung-yung, Deputy Magistrate on 18 January 2021, of a single charge of Taking employment while being a person in respect of whom a removal order is in force, contrary to s38AA(1)(b)  and 38AA(2)  of the Immigration Ordinance, Cap 115.  He was sentenced to a term of imprisonment of 22½ months.  By his Notice of Appeal, dated 20 January 2021, the Appellant appeals his conviction only, on the grounds that it was against the weight of the evidence.

The Prosecution Case

2.On 16 September 2020, the Appellant, a Form 8 holder, was observed over 5 seconds, to be pulling down the cargo net on an aircraft pallet in the unloading and storage area of Room 903, Goodman Global Gateway at Tsuen Wan [P4] (“the Company”).  The area in question is clearly a logistics centre.  At the time, the defendant was stripped down to the waist, with a cutter in his pocket and wearing a waist bag and pair of gloves.  His other clothes were recovered from an adjacent room operated by the same company.

The Defence Case

3.The Appellant did not give evidence.  It was suggested that he was in the area waiting to collect rubbish.  He called DW1 for this purpose.  DW1 was the warehouse supervisor of Room 903, in which the Appellant had been found pulling down the cargo net.  He too had been arrested.  DW1 gave evidence that he did not know the Appellant, although he had seen him once or twice previously cleaning rubbish and plastic pallets in the public area outside of Rooms 901 and 903.  He had only known of the presence of the Appellant within Room 903, when the Appellant was arrested.

The Magistrate’s Findings

4.The Magistrate found PW1 to be reliable and credible.  He rejected the evidence of DW1 based on the fact that he had an interest in the acquittal of the Appellant and that his evidence had been seriously undermined in cross-examination.  He gave his reasons for so doing.

5.The Magistrate found the Appellant to be in employment for the following reasons:

(a)  The unloading area of Room 903 was not on floor level and was an obvious and usual place of employment.

(b)  The Appellant was stripped down to the waist and his clothes were in his rucksack which had been placed in an adjacent room, (between Room 901 and 903)[1], which was also operated by the same company.  This was not a public place and there were multiple shoes and clothing in that place.

(c)  The gloves he was wearing had their fingertips cut off and were not consistent with removing rubbish but rather than with fine work.

(d)  The Appellant was seen to be pulling down a cargo net on goods which were not rubbish.

Analysis

6.There was no direct evidence to explain what the Appellant was doing within the loading area that day.  DW1 was only able to go as far as to say that he had seen the Appellant previously outside of Room 901 and 903 and within a public area in which he and others were clearing rubbish.  In order to prove their case, the prosecution relied upon an irresistible inference that the circumstances of the observation and surrounding facts were such that the only reasonable explanation was that the Appellant was working for the logistics company.  The period of observation was extremely limited.  However, the circumstances of that observation were more than sufficient.  The cargo area within Room 903 was extremely tidy and without any visible rubbish.  It is required to be rubbish free to avoid foreign obstacle damage to air cargo.  Rubbish was said to accumulate in the public area which was not the responsibility of the business operating within Rooms 901 and 903.  I have found no evidence of the practice of the Company in respect of disposing of its own rubbish or that there would be any significant rubbish in terms of packaging.  Goods are usually packed and unpacked onto or from cargo pallets for onward transportation in bulk.  Very little packaging is disposed of within this part of the supply chain.  There was no evidence before the Court that anything other than that occurred.  Prima facie there would therefore be no reason for the Appellant to be within the loading and unloading or storage area for the removal of rubbish without permission.  There would have been no good reason for the Appellant to enter either room and there was no evidence as to why he would have been able to place his private possessions in the employee area of the Company between the two rooms.  Cargo nets have to be secured.  They are usually secured with specially constructed hooks and lashings if secured to a cargo pallet suitable for securing within an aircraft or long distance lorry. They may be secured with simple ties if being delivered locally.  In any event the act of securing or releasing a cargo net would need some dexterity as the Magistrate observed with his comment on the gloves.  There would be no good reason for the Appellant to be dealing with the cargo nets.

Conclusion

7.The Magistrate correctly applied the relevant legal principles.  He accepted the evidence of the prosecution witness and, whilst warning himself of the right of the defendant not to give evidence or call evidence on his own behalf, he rejected the evidence of DW1 who clearly had an interest in proceedings but was, in any event, significantly undermined in cross examination.

8.There was sufficient evidence taking all the circumstances into account, for the magistrate to come to the conclusion which he did.  I find no fault with his reasoning.

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

Ms Phenix Tse, SPP of the Department of Justice, for the respondent

The appellant appeared in person.