HKSAR v. Amanpreet, Singh Brar

HCMA 395/2021

[2022] HKCFI 1176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 395 OF 2021

(ON APPEAL FROM WKCC 4624 OF 2020)

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Before: Hon D’Almada Remedios J in Chambers

Date of Hearing: 21 April 2022

Date of Judgment:  21 April 2022

Date of Reasons for Judgment:  22 April 2022

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REASONS FOR JUDGMENT

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1.The appellant (“the appellant”), a Form 8 Holder appeals against his conviction and sentence after trial by Deputy Magistrate Shirley Hung (“the magistrate”) of the charge of “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 (“the Charge”).

2.The appellant was sentenced to 23 months’ imprisonment on the Charge.

3.I dismissed the appellant’s appeal and now hand down my reasons for doing so.

The Prosecution case

4.It was the prosecution case that at No.208 Sha Tsui Road, on 16 December 2020 at around 4 pm a team of police officers had observed the appellant and his co-accused moving metal crates filled with tablecloths at the rear of a lorry.  It was their case the appellant was working as a transportation worker.

5.The appellant was intercepted by a police officer (PW2).  Enquiries revealed he was a Form 8 holder.  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 any employment paid or unpaid.

6.The appellant admitted under caution in a record of interview in the presence of a Punjabi interpreter that it was his first day of work to deliver tablecloths to the laundry.  He did not know his employer but was introduced to the job by a fellow countryman whose name he did not know and had no information on.  After he completed his job he would be paid $300.  However, as he was arrested he was unable to complete the job and therefore did not receive any money.

The Defence case

7.The appellant was legally represented at trial.  He elected to give evidence both on the special issue and the general issue.  The defence case was that the appellant’s presence at the scene was that he was going to meet a friend at the nearby football pitch in the evening.  He was not moving the crates and was therefore not working.

The magistrate’s findings

8.The primary issue at the trial before magistrate was the credibility of the witnesses.

9.The magistrate rejected the appellant’s evidence.  She found incredulous that he was going to meet a friend yet no meeting time had been fixed.

10.The prosecution witnesses were all police officers.  She found PW1 and PW3 to PW5 to be honest and reliable witnesses.  She rejected PW2’s evidence.

11.She found and accepted that PW3 had correctly observed the appellant and the co-accused were preparing to transport the metal crate filled with tablecloths at the back of the lorry.   Having found the record of interview to have been made voluntarily the magistrate placed full weight on its contents.

12.Based on the observation of PW3 and the admissions made by the appellant, the magistrate found that the appellant took employment, namely transportation work, at No.298 Sha Tsui Road, Hong Kong and was to be paid $300. He did so knowing he was not permitted to take up such employment due to his status in Hong Kong.

Grounds of Appeal against conviction

13.The appellant acting in person advanced one ground of appeal.  He reiterated his defence at trial, stating that he was not working and was only standing at the place he was arrested.

DISCUSSION

14.The magistrate gave detailed reasons in rejecting the appellant’s evidence and accepting the prosecution evidence.  Even though she rejected the appellant’s evidence she bore in mind the prosecution bore the burden of proof. The magistrate gave a full and careful assessment of the evidence.  I can find no error in the magistrate’s approach or finding or assessment of evidence.  Her fact finding process cannot be said to be wrong.

Conclusion

15.There are no merits in the appellant’s grounds of appeal before me.  The magistrate was entitled to make her finding on credibility and reliability.  The conviction was neither unsafe nor unsatisfactory.  The appeal against conviction is dismissed.

Appeal against Sentence

16.The only ground relied on by the appellant in his oral submissions was that he should not have been sentenced because he should not have been convicted.  However, in the Form 102, he relied on the general ground that the sentence imposed on him was too severe.

17.The appellant is single and at the time of sentence was 34 years old.  Prior to coming to Hong Kong he was formerly a farmer in India.  His elderly parents remain in India.

18.The Appellant has one previous similar conviction for which he was sentenced to 22 months and 2 weeks’ imprisonment on 28 December 2016.

19.The magistrate considered the relevant case authorities of HKSAR v Usman Butt & Another HCMA70 of 2010 in which the Court of Appeal held that a term of 15 months’ imprisonment is an appropriate term upon guilty plea.  She also considered HKSAR v Sanneh Madi [2018] HKCU 306 in which the Court of First Instance held that an imprisonment term of 22 months and 2 weeks is appropriate upon conviction after trial in a case of taking up employment while subject to removal order upon a first offender.

20.The magistrate took a starting point of 22 months and 2 weeks’ imprisonment and increased it by 2 weeks to taken into account the aggravating factor of the appellant’s previous similar conviction.

21.In HKSAR v CHAU Hon kwong [2011] 1 HKLRD 630 (CACC 86/2010) the court of appeal held that even one similar conviction would suffice as an aggravating feature.  The magistrate was entitled to have regard to the appellant’s similar conviction.  The appellant’s moderately enhanced sentence reflected the general policy of the courts to impose heavier sentences on the failure of previous sentences to deter offenders.  The previous similar conviction warranted an upward adjustment to the starting point.

22.There are no grounds or merits in the appellant’s appeal against sentence.  The sentence imposed upon the appellant is neither wrong in principle or manifestly excessive.

23.The appeal against sentence is dismissed.

Ms Irene Poon, SPP of the Department of Justice, for the respondent

The appellant appeared in person