HKSAR v. Mohammad Ibrahim and Others

HCMA 215/2021

[2022] HKCFI 157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 215 OF 2021

(ON APPEAL FROM STCC 4012 OF 2020)

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BETWEEN

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JUDGMENT

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1.On 15 April 2021, the 1^st and 2^nd Appellants were found guilty after trial before Deputy Magistrate Wong Heung-yung of taking employment while being a person in respect of whom a removal order is in force contrary to ss38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115 (“the IO”). They were each sentenced to terms of imprisonment of 22 months and 2 weeks.

2.On the same date, the 3^rd Appellant was found guilty under Charge 4 after trial of breach of condition of stay contrary to s41 of the IO, having previously pleaded guilty to Charge 3, which was in similar terms. He was sentenced to 20 days on Charge 3 to be served concurrently with a term of imprisonment of 3 months on Charge 4.

3.By reason of their Notices of Appeal dated 15 April 2021[1], the 1^st to 3^rd Appellants now appeal against their convictions.

Prosecution Case

4.This was an operation against illegal workers carried out by the police on 2 December 2020. The location of the offending was BUTT FAST FOOD CENTRE HALAL FOOD, a café/kiosk style shop on the ground floor of Chung King Mansions. The period of observation of all three Appellants (D1-3) was 3 to 4 seconds from 1.5 meters away, during which time PW1 saw D1 standing at the stainless steel food cabinet to the frontage of the shop, using a spoon to move cooked food from the sides of a food tray to the centre of the tray. The 2^nd Appellant (D2) was observed standing at the searing cooker and using a spatula to cook food. D3 was standing at a stainless steel work table kneading dough[2]. It appears the shop was very small (just 1.5 metres wide) and after PW1 had made the observations and revealed his identity, all three defendants were handed over to different officers to handle.

Defence Case

5.As is their right, the defendants chose not to give evidence or to call evidence. Their identity was not in dispute nor was their presence or their comparative positions within the shop. The issue before the court was firstly, as to what they had been doing whilst in the shop and, secondly, whether those actions and any other evidence were sufficient to allow the court to infer employment.

6.There appears to have been some argument as to what occurred after the event and during processing. This was irrelevant to the issue at hand unless it could properly be said that it went directly to the credibility of PW1 who was, after all, the only relevant witness. The learned Magistrate was cognisant of that[3]. The real criticism by the defence in trial, as understood by the learned Magistrate, was that the period of observation was too short and that they could variously have been helping themselves from a buffet (D1); seeking to wash their hands (D2); or taking cooking lessons (D3). All of these suggestions were rejected by the prosecution witness. There was no independent evidence to support these hypotheses.

Admitted Facts

7.The Admitted Facts [P1] cover the status of the Appellants either being subject to a removal order or being under conditions of stay. The photographs of the scene were adduced at P8(1-11). All three Appellants are of previous good character.

8.The photographs show a well-established, albeit small, kitchen professionally equipped and with food in various stages of preparation and presumably available for purchase. There appears to be crockery and utensils for eating as well as fast food containers. The available area within the café/kiosk for anyone to cook or serve is very limited.

Grounds of Appeal against Conviction

9.In their Perfected Grounds of Appeal dated 2 June 2021, all three Appellants complain that inferences were improperly drawn. The 1st Appellant complains:

“Ground 1 – The learned Magistrate erred in deciding that the only reasonable inference to be drawn was that the 1st Appellant had taken employment.”

10.The 2nd Appellant similarly complains:

“Ground 1 – The learned Magistrate’s inference that the 2^nd Appellant took employment as an odd job worker was not properly drawn.”

11.The 3^rd Appellant complains:

“Ground 1 – The learned Magistrate erred by wrongfully finding PW1 to be a reliable witness; and

Ground 2 – The learned Magistrate erred by wrongfully relying on PW1’s short period of observation; and

Ground 3 – The learned Magistrate erred by wrongly drawing the irresistible inference that the 3rd Appellant was taking up employment at the material time.

Ground 4 – There was a lurking doubt as to whether the 3rd Appellant was kneading flour and/or whether he was taking up employment at the material time.”

12.As to the 3^rd Appellant’s first ground above, this Court is reluctant to interfere with the findings of the court below as to credibility unless plainly wrong[4], especially as the criticism of PW1 goes to matters irrelevant to his observations of the acts of the Appellants. As to Ground 2, the learned Magistrate dealt with this issue in accordance with authority. Ground 3 mirrors the complaints of the 1^st and 2^nd Appellants. Ground 4 does not take the matter further and represents the consequences of Grounds 1 to 3. The live and only issue before this court should therefore be whether an inference of employment could be drawn from the proven facts. However, as in many appeals, other matters were raised in submissions which will be dealt with where appropriate.

Statement of Findings

13.Given the criticism of the officer by the defence that his period of observation lasted just 3 to 4 seconds, the learned Magistrate referred to HKSAR v Baljinder Singh HCMA 307/2018 early in his analysis and noted that it mattered not so much how long the observation was but what it was said that a defendant was doing during that observation. I concur; whilst the quality of observation is crucial to weight, the longer the period of observation the better, as it would be more likely to address any argument on ambiguity. In this instance, the reality was that the officer was very close and in essence took in the whole tableau at once. This was a café/kiosk in which food was prepared, cooked and served to customers. There was no one else present within the food preparation area of the café and all three defendants appeared to be dealing directly with food in some way or other.

14.As to the evidence against each defendant, the learned Magistrate noted this in very simple terms. D1 was using a spoon to stir food in the food cabinet, which was the means of presenting food for sale. D2 was searing something resembling meat and D3 was kneading dough. In respect of D2, he noted that it was suggested by the defence that there was no meat nor a spatula on the subsequent photographs and therefore it could not be proved he was searing something i.e. cooking[5]. In answer to that submission, the learned Magistrate took into account the fact the work surface was hot, that the photographs evidenced meat nearby and that spatulas could be seen. It would have been sufficient to refer to the evidence of PW1 who, under cross examination, said that he could see D2 sideways or diagonally on and that D2 was both holding a spatula and also moving his right hand in a manner to suggest he was moving meat on the cooker. There appeared to be no analysis of the specific evidence against D3, which may be because he was not only seen to be kneading flour dough at a different counter but also pulling bits off whilst kneading to make the ultimate edible product. The learned Magistrate was entitled to find as he did, given that he found PW1 to be an honest and reliable witness.

15.Given those findings of fact, the learned magistrate went on to consider whether evidence of the three defendants working within the café/kiosk amounted to employment. He correctly noted that working in a place per se was not employment, although in the absence of other evidence, he could draw that inference[6]. That would have been premised upon there being sufficient proven primary facts from which an irresistible inference could properly be drawn. He carried out this exercise by considering first the various hypotheses put forward by the defence under cross examination. He rejected them as being fanciful[7]. It is correct that he used the phrase “those suggestions were not true or might not be true” which is unfortunate. That is not the test. However, it is clear from his reasoning that the hypotheses put forward had been rejected outright as highly improbable on the facts. He then went back to the facts as found by him to be proven and from those facts drew the only reasonable inference that each of the defendants was taking up employment[8].

Magistracy Appeals

16.This is an appeal as of right under s113(1) of the Magistrates Ordinance, Cap 227, which is by way of rehearing on the papers[9] but subject to the caveat that this Court recognises that it does not have the advantage of having heard the evidence first hand and whilst it will not fail to quash a conviction if it considers it unsafe, it is unlikely to go behind the magistrate’s view of the credibility of witnesses unless that view is plainly wrong. It is not a retrial where the magistrate’s Statement of Findings would be irrelevant[10]. An appeal by way of rehearing is conducted upon the transcript of the proceedings below. This necessarily places limitations upon the appellate court’s ability to make findings of fact and determinations in respect of the credibility of witnesses. In partial answer to that limitation, the appeal court on a rehearing has recourse to the Statement of Findings of the magistrate. However, the appellate court is to find for itself whether the evidence before it proves beyond reasonable doubt the essential elements of the offence as charged.

17.Section 113 allows the depositions before the magistrate to be admissible as evidence before the High Court of the evidence given before the magistrate[11]. Although it does empower the appeal court to receive fresh evidence[12], no such application was made in this matter. This court is empowered to make whatever order it thinks fit[13]. It is important to note that the rehearing is not a rehearing de novo but a rehearing on the evidence before the magistrate as supplemented[14]. Given there is no supplemental evidence, this Court is limited to that which was adduced before the learned Magistrate on a plain reading of what was asked and answered or the subject of submissions. New and unsupported submissions from the bar table as to what could or should have been asked to form the basis of any defence hypothesis cannot be considered.

Analysis of the Evidence

18.The evidence against the 1^st Appellant rests upon the observations of PW1 during a 3 to 4 second period when PW1 was also observing the 2^nd and 3^rd Appellants immediately behind the 1^st Appellant to his left and right. This is an extremely short period of time. All three Appellants claim it is too short to be relied upon and that such a short period of observation places them at a disadvantage as it does not allow for any interaction with customers (or, more importantly, any lack of interaction with customers) or perhaps the true owner of the shop to return (if there was one). This is all very well as a submission but it formed no part of the case for the defendants below. It is speculative. The answer to the Appellant’s primary complaint as to timing is that found in Baljinder Singh supra. As was observed in HKSAR v Balwinder Singh and Another HCMA 96/2021, where there is an opportunity for a longer period of observation, if appropriate to the circumstances at hand, then the case for the prosecution would necessarily be strengthened. However, that judgment was not intended to suggest that a limited period of observation would necessarily result in an unsuccessful prosecution. As Mr Chau, on behalf of the respondent submitted, the court must look at the evidence it has before it and afford it the weight it feels appropriate. That may be a greater or lesser weight but some weight will attach. As for any disadvantage to a defendant from the limited observation, I suggest that setting an arbitrary minimum time limit would not necessarily assist. These prosecutions are fact specific. Indeed, it may work to the disadvantage of the defendants. There may be situations in which a fleeting glimpse from a short distance in good light of an act would be considered of some weight, whereas a longer observation from a distance in a crowd would carry little weight.

19.D1 was observed in the foreground and closest to PW1 who was just 1.5 metres away. He was at the food counter which separated the kitchen from customers. The counter had a glass front and trays of food were displayed within it. The food was accessed from the kitchen side of the counter. There was food on a large oval platter on top of the counter as well as a fast food box. There were re-usable plates and metal cutlery at the counter, which were clearly not for customers to take away but instead suggests that some customers would eat at or near the kiosk. D1 was seen to be moving food away from the sides of a metal tray which was situated inside the food cabinet, not scooping it up and lifting it out. The entrance area into the kitchen was small and not open so as to suggest a serving area open to customers to use for themselves from the inside. Nothing about the photographs suggests a buffet style shop.

20.The evidence against the 2^nd Appellant amounts to him standing at a searing cooker with a spatula in hand and appearing to be searing something like steaks on top of the cooker. It actually matters not what he was cooking but rather whether he was cooking something. Sadly, the case put on behalf of the 2^nd Appellant appeared to be that he may have entered to wash his hands. It was never suggested by the defence that the 2^nd Appellant was cooking for himself as was suggested in respect of the 3^rd Appellant. Indeed, the observation by PW1 that the 2^nd Appellant was cooking something was denied. PW1 stated under cross examination that the 2^nd Appellant’s back and right side were diagonally on to PW1 at the time of observation. He had observed vapour coming off the cooker immediately in front of the 2^nd Appellant as if something was being cooked upon it and the 2^nd Appellant’s body movement gave the impression that he was cooking. PW1 saw a spatula in his right hand. Something like meat was lying to his right. He said under cross examination “a normal person with common sense would know he was searing some food”.

21.The evidence against the 3^rd Appellant amounts to PW1 observing him from behind D1 and to the side, at a separate preparation table kneading dough. This can be seen in the photographs. It was a table used purely for this purpose as one would expect in a properly run commercial kitchen. Indeed, all of the photographs suggested a humble but clean and professionally operated kitchen. PW1 was specific as to the size of the dough that was kneaded and he demonstrated the kneading action as well as how the 3^rd Appellant pulled off smaller pieces of dough from the larger piece which he was seen to be kneading. Nothing is gained from the fact that PW1 did not know what type of food was being prepared. His evidence was clear and unequivocal that the 3^rd Appellant was kneading some form of dough. Unfortunately, under cross examination, it was suggested that the 3^rd Appellant may have been present because he was having cooking lessons. Mr Leung has submitted this was not the case intended to be conveyed but the transcript[15] reads:

Q: “Are you familiar that a lot of restaurants in and around Chung King Mansions actually offer cooking classes? Cooking times for people who can pay a certain amount of money and just come and cook for themselves, do you know or not? ”

A: “I am not”.

This question was not followed up in any way. It is not surprising therefore that the learned Magistrate stated[16]:

“Although not repeated in closing, the defence mentioned the possibility of buffet meals and cooking lessons when cross examining the prosecution witnesses. I find these suggestions fanciful….”

In order to rely upon the hypothesis that the 3rd Appellant was present cooking his own food, it was incumbent upon the defence to put their case clearly. There appeared to be two questions in one. Firstly, was PW1 aware people could take cooking lessons? Secondly, was PW1 aware people would be allocated cooking times to cook for themselves? The learned magistrate clearly understood this to be suggesting he was present for a cooking lesson. The defence cannot complain about this misunderstanding if the case was not clearly and unambiguously put.

22.What is relevant to the consideration of the court is the nature of the locus in quo as an establishment where one would expect to find employees. It is also relevant that no one else was observed within this shop, which was in the business of preparing, cooking and selling Pakistani food[17] at the material time, whereas the three Appellants could be said to be doing just that. I have no difficulty finding as a fact, as did the learned Magistrate, that each of the defendants was carrying out the acts identified by PW1.

Whether this Court can draw the inference of Employment?

23.Given that the three Appellants were carrying out distinct roles, which could be said to be part and parcel of the operation of this business and thereby be said to be acting as a team, and given that there was no one else present during the time that the officers were carrying out this operation including arrest, it is open to this court to infer from the proven primary facts that they were working together within the kitchen. Is this the only reasonable inference which can be drawn? If so, is there any other reasonable inference which can be drawn in favour of the Appellants looking at their cases individually?

24.The 1^st Appellant, through Mr Chaudhry suggested that he was attending a buffet style eatery in which he was a customer who had not yet picked up either a plate or utensils. By reason of his defence, no connection with either the 2^nd or 3^rd Appellant is suggested. For the reasons already suggested above and noting that there was no one present to whom the 1^st Appellant could pay for the buffet meal he was supposedly helping himself to, I take the view that it was highly improbable that the 1^st Appellant was inside the kitchen as a customer. I can think of no other reasonable inference than employment, which could be drawn for the 1^st Appellant to be within the kitchen area and handling food.

25.The 2^nd Appellant, through Mr Chaudhry, suggested that he was in the kitchen area to wash his hands and that he was not cooking. There was no evidence that the 2^nd Appellant had been in the middle of or about to purchase a meal from the kiosk. There would be no reason why an ordinary customer, if he was one, would enter a commercial kitchen to wash his hands when there are public toilets available and, in any event, the evidence of PW1 was accepted i.e. that he was standing and cooking something. This hypothesis was, as the learned Magistrate remarked, ‘fanciful’ and is rejected. Had the defence case for the 3^rd Appellant been put, the learned Magistrate may have needed to consider a less fanciful alternative, however that was never put. It was clear that the 2^nd Appellant maintained he was not cooking for either others or himself.

26.The 3^rd Appellant, through Mr Chaudhry, suggested that he was taking cooking lessons or paying someone to be allowed to cook. He was, however, seen to be kneading dough and taking off bits of dough, not taking those small pieces and cooking them for himself. There was no other food found which was said to belong to the 3^rd Appellant as part of a personal meal. As put to the witness in cross examination, this suggestion was also highly improbable.

27.In the alternative, and in answer to Mr Leung’s submission before this court, is it possible that all three Appellants were simply cooking their own meal given the nature of the close knit Pakistani community, the fact they would have had no cooking facilities in their rooms, nor the financial means to pay for meals out? Is this another reasonable inference I should consider even though not raised properly before the learned Magistrate? There is no doubt that it is open to a finder of fact to apply their own common sense to facts from which they are asked to draw an inference. Counsel must remember however that there must be facts to support the inference sought to be drawn. Those facts will necessarily come from the prosecution’s evidence where there is no positive defence case. Three people were in this kitchen supposedly cooking. There is no evidential connection between them yet they are carrying out different and interdependent tasks. The 1^st and 2^nd Appellant have not suggested they were cooking. What then were they doing whilst the 3^rd Appellant was cooking his own meal? What was that meal? At what stage of cooking his meal was he? The simple answer to this alternative suggestion by Mr Leung is this. Whilst it is trite law that a defendant has an absolute right to silence and that he can sit back and require the prosecution to prove his case, it is incumbent upon him, if he has a positive case, to put it to the prosecution witnesses. It should be put clearly and succinctly such that the finder of fact understands what is in issue and the witness can answer it. Where the evidence required to make that hypothesis good is peculiarly within the knowledge of the defendant, it ill behoves him to complain that neither the witness nor the finder of fact guessed what his case was. If he wishes to rely upon it, it is incumbent upon him to raise it. That may entail only putting the case in cross examination, but it may also entail either giving evidence or calling evidence. That is a matter entirely for him. This court has no first-hand knowledge of the cultural practices of South East Asians living in Chung King Mansions. Indeed, this court has no idea where the Appellants live or with whom, nor whether they have cooking facilities. Without more, this Court will not go so far as to speculate about something out-with its own knowledge and the evidence before it.

28.If the court is satisfied that an inference of working is properly drawn, can this court draw the inference that they were employed? That will depend upon a variety of factors mentioned in a number of authorities[18].

29.Mr Young relies upon HKSAR v Ferosh (2018) 21 HKCFAR 159 and Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156.

30.Neither Ferosh nor Poon supra were necessarily intended to be applicable in all circumstances. Even in lawful situations, not all of the indicia will necessarily be made out. Indeed, if they were to be strictly applied, the majority of situations sought to be caught by the legislature would necessarily not be caught because of their ad hoc and illicit nature. What Ferosh and Poon show is that the Court must stand back and look at what is being alleged and take a common sense approach to what evidence should be available in all the circumstances to support an allegation of unlawful employment. To carry out that task, the Court should consider first the business in question. This was not a formal restaurant nor was it a logistics company or construction site. It was a café/kiosk in Chung King Mansions. It was a humble establishment offering ethnic food to local residents, presumably at a modest cost. In such circumstances, it is most unlikely that there will be contracts of employment, books of account or wage slips. With three people already inside this small 100 sq ft shop, there is unlikely to be a supervisor or someone to whom each employee reports unless it was one of the three. There is certainly unlikely to be evidence of health and safety standards or even specialist clothing etc. This was a small kitchen cooking Pakistani food in Chung King Mansions. It looked well-equipped and professionally operated within its type. The defendants were Pakistani and Indian. One defendant even had the same name as the establishment although at no stage has anyone suggested he has a personal connection to it. The kitchen was in operation and in the process of preparing, cooking and selling food. No one else was present purporting to do so. The food had to be prepared and cooked by someone, whilst someone else had to sell it. D3 was at a preparation table, D2 was standing over a cooker, spatula in hand and D1 was at the food counter making the trays of food presentable for customers to purchase. As the learned Magistrate stated:

“The scene was a usual, obvious place of business and employment. There was no evidence of a special relationship other than employment. I find that no reasonable person who was not connected with the shop would have done such acts. Each of them could not be a customer. Each of them could not be a mere helping hand. Each of them was not doing his acts merely for his own benefit. Each of them must be working for the shop, making and managing food in the shop, preparing for the lunch hours”.

31.I concur with those observations. I also concur that the alternative inferences which were relied upon by the defence were inherently improbable. In those circumstances, and considering the whole of the evidence, the overwhelming and irresistible inference is that they were jointly operating this kitchen. Does that amount to employment? There is no requirement under the Employment Ordinance to show payment or remuneration and so books of account or wage slips do not necessarily assist in situations such as these. The inference to be drawn, if one can be drawn, must come from the circumstances peculiar to the operation in question. From those circumstances as this Court found them to be, the Court is entitled to infer that they were working, and that it followed in all the circumstances that they were employed either as between themselves or by a third party and that they would receive some benefit from so doing, whether that be in the form of financial remuneration or in some other form.

Conclusion

32.The real question upon appeal for all three appellants is in respect of the drawing of inferences as to employment. The only reasonable inference to be drawn from the proven facts was that each defendant was employed within the café and that the other inferences sought to be drawn in trial were inherently improbable or, as the learned Magistrate noted, “fanciful”. As to the alternative Grounds of the 3^rd Appellant, Grounds 1, 2 and 4 are not reasonably arguable.

33.The 1^st, 2^nd and 3^rd Appellants’ appeals against conviction are accordingly dismissed.

34.There will be no order as to costs.

Mr Fergus Chau, SPP of the Department of Justice, for the respondent

Mr Rowan Hunter, instructed by Chaudhry Solicitors, for the 1^st appellant

Mr Simon Young, instructed by Chaudhry Solicitors, for the 2^nd appellant

Mr Andrew Leung, instructed by Chaudhry Solicitors, for the 3^rd appellant