HKSAR v. Haider Almas

HCMA 225/2021

[2022] HKCFI 220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 225 OF 2021

(ON APPEAL FROM STCC 3885 OF 2020)

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BETWEEN

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Before: Hon Campbell-Moffat J in Court

Date of Hearing: 14 January 2022

Date of Judgment: 14 January 2022

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JUDGMENT

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1.The appellant was acquitted after trial of a breach of condition of stay contrary to s41 of the Immigration Ordinance, Cap 115. At that time, the learned magistrate refused an application for costs. The appellant, by his notice of appeal against an order of a judge dated 13 April 2021, seeks to appeal the costs order dated 8 April 2021 on the grounds that he was not acquitted on a technicality nor did he bring suspicion upon himself.

Prosecution Case

2.The prosecution alleged that the appellant was seen to be working on an open tailgate of a truck next to a wet market in Tsuen Wan when observed to be moving polystyrene boxes from the lorry onto a pallet trolley. He was believed to be unloading vegetables.

Defence Case

3.PW1 was not a credible witness. His evidence was challenged as to distance and visibility as well as whether he had been the person who first observed the alleged acts of the appellant. It was never suggested that he had not seen the appellant at all but rather that his observation and any inference to be drawn from it, was open to doubt.

The Findings of the Magistrate

4.The learned Magistrate found that the defence case raised a doubt, not as to the alleged presence and acts of the defendant, but as to the credibility of PW1. That is not to say that he found that PW1 was not telling the truth. He identified issues raised by the defence which went to the quality of the observation and the general circumstances of the operation. He found that it was possible that PW1 made an observation of the appellant but that it was not the key observation[1]. He was also of the view that PW1 had not informed the court of all that he saw and knew but those criticisms went to what was happening within the police vehicle rather than what the appellant was seen to be doing. The Magistrate also had some reservation as to what PW1 could see from the relevant position of the vehicle and allowed for the possibility of his view being obstructed. Notwithstanding those reservations, the appellant’s presence at the tailgate ‘or, at the very least’ near the truck, at that time of day rendered his presence highly suspicious.

Order as to Costs

5.For the purposes of the application for costs, the learned Magistrate noted that there was no evidence before the court to explain the presence of the appellant at the truck. He took the view, in all the circumstances of the case, that the appellant had brought suspicion upon himself and that he was acquitted on a technicality. Whilst I disagree with the application of the ‘technicality’ rule[2] on the facts of this case, I concur with the learned Magistrate that the acts of the appellant could be found to have occurred despite his reservations about the evidence of PW1. The evidence before him raised a doubt as to whether PW1’s evidence was the best evidence available and that doubt was given to the benefit of the appellant.

Conclusion

6.This Court has not been provided with the transcript of the trial. I asked Mr Connelly if he wished for me to do so and no application was made to obtain that transcript. There is no reason therefore for this Court to seek to go behind the findings of the learned Magistrate on the facts. They included the appellant being at the tailgate of the truck or ‘at the very least’ near the truck. That being the case, the Magistrate must have rejected the defence hypothesis that his presence was as a result of being a passer-by presumably in the action of transiting the area. There was no evidence to this effect.

7.The person best placed to decide whether an appellant brought suspicion upon himself is the finder of fact. Nothing has been advanced before me which undermines his findings as to the presence and actions of the appellant from which he made his ruling on costs.

8.The appellant is a Form 8 holder. As such it is unlawful for him to seek employment in Hong Kong. He was properly prosecuted under s41 of the Immigration Ordinance, Cap 115 by virtue of Regulation 2 of the Immigration Regulations for a breach of condition of stay. He was seen to be on the tailgate of the lorry in question. He was seen to be moving polystyrene boxes of vegetables in the vicinity of a wet market. This in itself was sufficient to bring suspicion upon him for working in breach of condition of stay. There was no finding by the learned magistrate that he was not on the tailgate or not nearby carrying out acts as alleged. The failure of the prosecution to prove their case beyond a reasonable doubt does not undermine that suspicion. This prosecution was properly brought. The refusal to award costs was properly made.

9.This appeal against a refusal to award costs is dismissed.

10.As the appellant is a Form 8 holder, there will be no order as to costs for this appeal.

Ms Jojo Lam, PP of the Department of Justice, for the respondent.

Mr Robert Connelly, instructed by Chaudhry Solicitors, for the appellant