HKSAR v. Ahmad Bilal

HCMA 76/2019

[2022] HKCFI 1245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 76 OF 2019

(ON APPEAL FROM STCC NO 3934 OF 2018)

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BETWEEN

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REASONS FOR JUDGMENT

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Background

1.The Appellant was convicted of one count of “Taking employment while being a person in respect of whom a removal order is in force”, contrary to 38AA(1)(b)  and 38AA(2)  of the Immigration Ordinance, Cap 115, after a trial before Magistrate Ms Winnie Lau (“the Magistrate”).  The Appellant was sentenced to a term of imprisonment for 22 months and 2 weeks. 

2.The Appellant originally appealed against conviction and sentence but at the hearing he abandoned the appeal against sentence. 

3.At the end of the appeal hearing I allowed the appeal and the conviction and sentence were quashed. 

Prosecution’s case

4.At about 0930 hours on 26 September 2018, woman police constable WPC16440 (“PW1”)  saw the Appellant to have lifted a bag of cement from a trolley onto his shoulder and deliver it to a building situated at 12 to 14 Choi Hung Road (“the Building”). The bag of cement was originally placed on a trolley.  There were altogether two trolleys loaded with bags of cement.  After three minutes, the Appellant returned to the ground floor of the Building without the bag of cement.  He then delivered 2 more bags of cement into the Building in the same way, one bag each time.

5.The Appellant was at the material times a Form 8 holder.

6.PW1 conducted a sweep inside the Building and could not find any cement.  She knocked on the door of the first floor but there was no answer.  When she reached the block called ‘Tong Five Building’ during the sweep she saw dust and bricks outside the iron gate of that block.  She knocked on the door but no one answered.  Outside the buildings, she found ten bags of cement in total on the trolleys.

7.The Appellant did not give evidence.  He called his friend (“DW1”)  who was at the scene as his witness.  It was DW1’s evidence that he and another co-worker were instructed by a Chinese person to carry the cement.  The Appellant did not go near the cement or work together with them.

Grounds of Appeal

8.The main ground of appeal is that the Magistrate erred in finding that the only irresistible inference was one of employment.

Discussion

9.The Magistrate found PW1 a credible witness and disbelieved DW1’s evidence.  In concluding that the Appellant was delivering the cement in the course of an employment, the Magistrate had the following to say:

“35. Working at a place per se is not employment, although, in the absence of other evidence, one may draw the necessary inference: R v Ip Po-fai, HCMA 1201/1995.

36. In HKSAR v Ferosh, FACC 2 of 2014, the appellants in that case were observed carrying out some form of metal work in a derelict metal shed. I found that the facts of the present case were clearly different from those of Ferosh. The bags of cement were for building and/or construction purposes and undoubtedly of value and belonged to someone. As revealed in the photographs, the nature of and/or the units inside the Building were the type in which building and/or construction work could take place. I was of the view that it was an obvious place to which workers would for the purpose and in the course of their employment deliver building/construction material.

37. I bore in mind that the defendant did not need to prove anything. As admitted by the defence [P1], a removal order was issued against the defendant. He was released on recognizance and was aware that he was not to take up any employment, whether paid or unpaid, in Hong Kong. I found that no reasonable person who was unconnected to the bags of cement and/or not employed to convey the bags of cement would have done such work and for such duration.

38. On the facts proved by the prosecution and found by me, there was no evidence before me to show or suggest that there existed any special relationship which might have given rise to the defendant’s presence at the scene and dealing with the bags of cement. There was also no evidence before me to show or suggest that the defendant might have been a mere helping hand. I also did not find that there was any evidence to support any innocent explanation for the defendant’s presence and actions there, including the possibility of his doing something in respect of the bags of cement for his own benefit.

39.  Given the nature and duration of the work, the defendant being familiar with the task and that the defendant was intercepted before completion of delivering all the bags of cement, I did not find the absence of other evidence, such as evidence of payment, degree of any control being exercised over the defendant by any employer, evidence as to why he was not wearing gloves and working shoes for the work, would cast doubt on the prosecution case.  I found that the only reasonable and irresistible inference was that he was doing the said acts in the course of employment and for the purpose of employment.  He was at the material time working as an odd job worker.”

10.With respect, I disagree with the Magistrate. 

11.According to the evidence and as depicted by the photographs, the Building is an ordinary old Hong Kong style building (“唐樓”).  It is not the Prosecution’s case that the Building is an industrial or commercial building.  It is also not the Prosecution’s case that the Building is a construction site and there is no evidence to prove that the cement was to be used in any particular unit within the Building.

12.In my judgment, there is nothing in the present case to suggest that the Building is an “obvious place of employment” as described in HKSAR v Ferosh[1].

13.The Magistrate took the view that “the units inside the Building were the type in which building and/or construction work could take place” and concluded that “it was an obvious place to which workers would for the purpose and in the course of their employment deliver building/construction material”. With respect to the Magistrate, this must be wrong.  With this logic, all multistorey buildings in Hong Kong will be seen as such a place and every person delivering construction material to a building will be deemed to be under an employment.

14.In my judgment, as submitted by Ms Nari, counsel for the Appellant, the facts of the present case are similar to Ferosh and the evidence is even weaker than in HKSAR v Chow Kin Cheung[2] where the court allowed the appeal on conviction for lack of evidence to prove an employment.

15.For the above reasons, the appeal is allowed.

Disposition

16.The conviction is quashed and the sentence is set aside.

Mr KUAN Bak On, Franco, Senior Public Prosecutor, of Department of Justice, for the Respondent.

Ms Nari, Pinky instructed by Chaudhry Solicitors, for the Appellant.