HKSAR v. Mahmood, Danish Arshad and Another

HCMA 138/2022

[2023] HKCFI 22

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 138 OF 2022

(ON APPEAL FROM STCC 678 OF 2021)

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J U D G M E N T

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Background

1.The 1^st appellant and 2^nd appellant were each charged with one count of “taking employment while being a person in respect of whom a removal order is in force”, contrary to section 38AA(1)(b) and (2) of the Immigration Ordinance (Cap 115) (Charge 1 against the 1^st appellant and Charge 2 against the 2^nd appellant). Both appellants were convicted after trial by Mr Pang Leung Ting Norton, Permanent Magistrate (“the Magistrate”). The Magistrate sentenced each of the appellants to 22 months’ imprisonment.

2.The 1^st appellant appeals against both his conviction and sentence. The 2^nd appellant appeals against his conviction only.

3.Both appellants were legally represented at the trial. They act in person in this appeal.

Facts not in dispute

4.The Magistrate noted at paragraph 2 of the Statement of Findings that:

“2. There was no dispute that the two defendants were holders of a recognizance form issued by the Immigration Department; and also that at all material times they were each subject to a removal order. There was never any dispute that they were not permitted to take up any employment at all material times.”

The prosecution case

5.The Magistrate summarized the prosecution case at paragraphs 3 to 8 of the Statement of Findings:

“3. The prosecution case was that, on 3 March 2021, the two defendants were working at an outdoor car parking lot in Tai Tong Road, Yuen Long. The immigration officers who testified alleged that the two defendants were shoving some asphalt and later paving the passageway in the said car parking lot with the asphalt. The officers said they found heaps of asphalt, a trolley and a shovel at the scene.

4. The prosecution called 4 witnesses. The first three were officers from the Immigration Department. All 3 of them had been to the scene. However, it was common ground that PW1’s (Ms HM Cheng) role was only confined to that of being the arresting officer of D1, and that she never conducted any observation on the two defendants.

5. The prosecution placed much reliance on the evidence of PW2 (Mr CK Mo) and PW3 (Mr HM Tam).

6. PW4 (Mr Sharanjit Singh) was the Punjabi interpreter who provided interpretation services to D2 while he was under interview at the Immigration Department, PW4 was called by the prosecution because D2 disputed the admissibility of his record of interview. For this reason a special issue arose and this court adopted an alternative procedure to dispose of the matter.

7. Therefore, PW4’s evidence was not in any way relevant to what happened at the scene, namely the car parking lot in Yuen Long.

8. PW3 was the officer who interviewed D2. It followed that PW3’s evidence was not only relevant to the general issue, but also the special issue.”

6.PW1, PW2 and PW3 were immigration officers on duty at the material times. It was the prosecution case that on day in question, i.e. on 3 March 2021, the two appellants were seen working at an outdoor car parking lot at Tai Tong Road, Yuen Long (“the Car Park”).

7.PW2 was the supervisor of PW3. The 3 immigration officers entered the Car Park together, and made a preliminary observation of the appellants at the outset. PW2, at a later time, moved to another spot in order to conceal himself, and there, he waited for a further signal from PW3.

8.PW3 gave evidence that he conducted a one-minute observation on the appellants as soon as he entered the Car Park. He saw the 2^nd appellant using a shovel to move some asphalt from a blue bucket placed on a trolley to the ground three times. Then the 2^nd appellant passed the shovel to the 1^st appellant who used it to level the asphalt on the ground five times. After the one-minute observation, PW3 walked further into the Car Park for a more thorough observation. There PW3 saw more asphalt and the 2^nd appellant refilling the blue bucket with asphalt. The 2^nd appellant then moved the trolley back to the original position. The appellants were still paving the ground with asphalt the moment before PW3 decided to report his findings to PW2.

9.PW1 intercepted and arrested the 1^st appellant. Heaps of asphalt, a trolley and a shovel were found at the Car Park.

10.The 2^nd appellant admitted under caution in the presence of PW4 that he entered Hong Kong illegally in 2016. Around 3 days before the material day, an Indian man asked him if he could construct a road and asked him to go to the Car Park. The 2^nd appellant lost the contact of the Indian man. The 2^nd appellant admitted that he was working at the Car Park at the material time. He used a trolly to move the asphalt to the road and used a shovel to pave the road. His daily wage was HK$300. It was his first day of work and he did not receive any money.

The 2^nd appellant’s case on the special issue

11.The 2^nd appellant gave evidence on the special issue. In the annexure to the Statement of Findings, the Magistrate stated his reasons for his ruling on the special issue.

The defence case on the general issue

The 1^st appellant

12.The 1^st appellant elected to give evidence on the general issue but did not call any defence witness.

13.The case for the 1^st appellant at trial was that it was a case of mistaken identification, PW1 did not conduct any observation on the two appellants. PW1 gave evidence that the 1^st appellant was a man with a black complexion whereas PW3 said the 1^st appellant was a man with a brown complexion. It was contended that it was illogical that it was PW1 who first intercepted the 1^st appellant and subsequently, PW3, who was 3 metres away from PW1, informed PW1 that the 1^st appellant was paving the passageway earlier on. The defence also complained that the prosecution had failed to adduce any evidence in support of any employment relationship.

14.The 1^st appellant gave evidence to explain for his presence at the Car Park. A man who he addressed as Kung Kung used to give him some machines for recycling previously. A few days prior to the material say, Kung Kung told him that there was an air-conditioning machine (“Machine”) available for collection and recycling. Therefore, on the day in question, Kung Kung drove him to the Car Park.

15.On arrival at the Car Park, the 1^st appellant found that the Machine was still attached to a structural wall of a container. As there were some workers washing cars there, he could not start dismantling the Machine. He waited for 30 minutes before he started dismantling the Machine and he finished the work at around 1400 hours. After that, he did nothing and simply waited for Kung Kung to drive him home. Then two male officers came and arrested him.

The 2^nd appellant’s case

16.The 2^nd appellant gave evidence on both the special and the general issue.

17.The 2^nd appellant challenged both the accuracy and the voluntariness of his cautioned statement.

18.On the general issue, the 2^nd appellant elected to give evidence and called a friend of his Jessie (DW) as his defence witness.

19.The case for the 2^nd appellant at trial was that he lost his way on the day in question and he went to a wrong place, i.e. the Car Park when he should have gone to Pak Sha Tsuen Bus Stop to meet up with DW. The 2^nd appellant also contended that the prosecution had failed to adduce evidence in support of any employment relationship.

20.The 2^nd appellant gave evidence that he was present at the Car Park because he was going to meet DW. They had known each other for 2 to 3 years and the two met up regularly and frequently.

21.In the morning on the material day, the 2^nd appellant felt sad and he rang up DW. The latter suggested meeting up for lunch that afternoon and he asked the 2^nd appellant to go to Pak Sha Tsuen Bus Stop. The 2^nd appellant then proceeded to go to Pak Sha Tsuen Bus Stop on foot and thought that the Car Park was the bus stop. Shortly after entering the Car Park, he was arrested by the immigration officers.

22.The evidence of DW went along the same line as that of the 2^nd appellant. DW gave evidence that he and the 2^nd appellant would meet up 2 to 3 times weekly at a Hindi restaurant in Yuen Long. On the day in question, he fell asleep after talking to the 2^nd appellant over the phone and thus missed the appointment. DW woke up at 1600 hours that afternoon.

The Magistrate’s findings on the special issue

23.The Magistrate set out his findings in the Reasons for the Ruling on the Special Issue in details. On the special issue, the Magistrate accepted the evidence of PW3 and PW4. He found the evidence of the 2^nd appellant unreasonable and inherently improbable. The Magistrate ruled that the record of interview of the 2^nd appellant to be admissible evidence.

The Magistrate’s findings on the general issue

24.The Magistrate noted that both appellants were of men of clear record and directed himself in terms of their propensity to commit crime and their credibility.

25.The Magistrate considered the evidence of PW2 that he walked to another spot in order to conceal himself. The Magistrate found that the explanation given by PW2 that he had to conceal himself was not the true reason. The Magistrate believed that PW2 and PW3 walked to or stayed at different places merely because they were performing different duties. However, PW2 did not have a good memory of what actually happened as he did not keep a proper record of what he did or what happened at the scene, so he proffered the simple reason that he had to conceal himself. The Magistrate stated at paragraph 29 of the Statement of Findings that he did not attach weight to PW2’s evidence.

26.The Magistrate found that the evidence of PW3 logically explained the situation. PW3 had to leave PW2 for a while and to report by way of hand signals to PW2 subsequently.

27.The Magistrate took into account the fact that PW3 omitted to mention certain details in his witness statement, nevertheless, the Magistrate found the account given by PW3 reasonable. The Magistrate was satisfied that PW3 had made good observation of the two appellants. The Magistrate accepted that PW3 had correctly observed that the appellants were moving asphalt and paving the passageway at the Car Park at the material time.

28.The Magistrate noted that there was no evidence that there was at the site a third person being a non-Chinese by ethnicity and PW3 never said he lost sight of any of the two appellants, the Magistrate ruled out the possibility of mistaken identification.

29.For the same reasons, the Magistrate dismissed counsel for the 1^st appellant’s submissions that PW1 could not possibly tell whether the person she intercepted was one of the men watched by PW3.

30.The Magistrate found that, having regard to all the circumstances, he could give full weight to the evidence of PW3, who had made good observations on the appellants at all times.

31.The Magistrate summarized the evidence of the 1^st appellant at paragraphs 51 to 53 of the Statement of Findings and he analysed the evidence of his evidence at paragraphs 54 to 59. The Magistrate, for the reasons given, found the 1^st appellant’s evidence unreasonable and unworthy of belief. The Magistrate rejected the evidence of the 1^st appellant.

32.The Magistrate summarized the evidence of the 2^nd appellant and DW (Jessie) at paragraphs 61 to 65 of the Statement of Findings and he analysed the evidence of his evidence at paragraphs 67 to 72. The Magistrate, for the reasons given, found the evidence of the 2^nd appellant and DW unreasonable and rejected their evidence in its entirety.

33.Having rejected the defence evidence, the Magistrate reminded himself that the Prosecution still bore the burden of Proof.

34.For the submissions that there was no evidence to prove employment, the Magistrate stated that documentary evidence (i.e. an employment contract, a payroll record and a wage receipt) were not strictly necessary to prove the fact of employment.

35.On the evidence adduced by the Prosecution, the Magistrate was satisfied that the only reasonable inference to be drawn was that both appellants were working, and were in employment. There was never any requirement that the employer be identified, or that his or her identity be proven.

36.The Magistrate found all the elements of each of Charge 1 and Charge 2 proved beyond reasonable doubt and he convicted the appellants as charged.

Reasons for Sentence in respect of the 1^st appellant

37.The Magistrate noted the background of the 1^st appellant.

38.The 1^st appellant is 41 years of age, a Pakistani national and a non-refoulment claimant in Hong Kong. The wife of the 1^st appellant is also in Hong Kong. The 1^st appellant had a hitherto clear record.

39.The Magistrate, in the Reasons for Sentence, referred to the case HKSAR v Usman Butt and another [2010] HKLRD 452. In Usman Butt, the Court of Appeal laid down the guideline sentence of 15 months’ imprisonment upon a plea of guilty. Since the 1^st appellant was convicted after trial, the Magistrate adopted 22 months’ imprisonment as the starting point.

40.The Magistrate noted that the 22-month tariff is applicable to a man of clear record.

41.The Magistrate considered that the starting point of 22 months’ imprisonment was appropriate for the 1^st Appellant. The Magistrate found that there was no other mitigating circumstance, he accordingly sentenced the 1^st Applicant to 22 months’ imprisonment

Grounds of appeal against conviction

The 1^st appellant

42.The 1^st appellant has filed no ground of appeal against conviction or written submissions since the lodging of the Form 101.

43.The 1^st appellant told me in court that he was wrongly convicted by the Magistrate who wrongly relied on the evidence of the immigration officers.

44.The 1^st appellant complained that his trial lawyer did not listen to his instructions.

45.The 1^st appellant said he was at the Car Park to collect scarp machine, he was not working under any employment.

46.The 1^st appellant said the immigration officers told lies in court and the quality of the identification evidence against him was poor.

47.The 1^st appellant complained that the photographs and sketch plan produced in court did not reflect the truth of what happened.

The 2^nd appellant

48.The 2^nd appellant grounds of appeal can be summarized as follows:

(1)  the interpreter provided to him at trial translated wrongly;

(2)  there is insufficient evidence to support the conviction beyond reasonable doubt; and

(3)  the Magistrate failed to consider the evidence of the Prosecution and the Defence.

The 1^st appellant’s grounds of appeal against sentence

49.The 1^st appellant has filed no written submissions since the lodging of his appeal.

50.The 1^st appellant submitted that as he was wrongly convicted, the 22 months’ imprisonment imposed on him should also be set aside. The 1^st appellant did not have any other complaint about the sentence apart from his complaint about the correctness of the conviction.

The Respondent’s submissions

Appeal against conviction

51.The Respondent submits that magistracy appeal is conducted by way of a re-hearing of the evidence before the trial court. The Magistrate had the advantage of hearing evidence first-hand and the appellate court would only depart from a magistrate’s finding of fact or determination the credibility of a witness if it is plainly wrong.

52.The Respondent submits that there is sufficient evidence to support the convictions. The Magistrate carefully assessed and evaluated the evidence adduced by all parties. He gave reasons why he accepted the evidence of PW1 and PW3, placed no weight to the evidence of PW2 and rejected the evidence of the appellants and DW.

53.The Respondent submits given the Magistrate’s findings that PW3 was an honest and reliable witness and that the Magistrate would attach full weight to his evidence, it follows that the Magistrate accepted that PW3 had observed both appellants moving asphalt and paving the passageway at the Car Park. Upon ruling the cautioned statement of the 2^nd appellant admissible, the Magistrate accepted the admissions under caution made by the 2^nd appellant in full. As the Magistrate had rejected the evidence of both appellants and DW, it follows that the Magistrate rejected their innocent explanations.

54.The Respondent submits that, for the important question whether the Prosecution was able to prove beyond reasonable doubt that the appellants were under employment, the Magistrate was correct that employment contracts and payrolls are not strictly necessary in proving employment under section 38AA(1) of Cap 115. The Magistrate was entitled to rely on the proven facts and admissible evidence to draw an irresistible inference that the appellants were “taking employment”.

55.The Rrespondent cites the authority The Queen v Ip Po Fai HCMA 1201/1995 and submits it was held in Ip Po Fai that it was not necessary to show that there was payment of wages or remuneration in order to establish there was an employment, and that the mere working at a place per se is not employment. In the absence of direct evidence, the court may draw the only reasonable inference form the proven facts and circumstantial evidence that the appellants were taking employment.

56.The Respondent cites the authority The Queen v Masih, Shamoon & Others HCMA 357/2017 and submits that it was held in that case that employment under section 38AA(1) of Cap 115 is where a person does work for or renders services to another, whether paid or unpaid. There is a mutual obligation to provide and accept work.

57.The Respondent submits that the Magistrate had considered the background of both appellants, the offence location, the conduct of the appellants, the photo album and there was no evidence that either of the appellant was related to the owner of the Car Park. The Respondent submits the Magistrate was right to draw the irresistible inference that the appellants were in employment at the material time.

58.The Respondent cites the authority HKSAR v Zafa Adnan [2020] 2 HKLRD 1178 and submits that it was held in Zafa Adnan that once it is proven the defendant has taken employment in the sense of acting pursuant to an employee and employer relationship, it is not necessary to prove the identity or identifying particulars of the employer. The Magistrate was correct to state that it is not necessary to prove the identity of the employer in the present case.

59.For the complaint made by the 2^nd appellant that the Punjabi interpreter interpreted wrongly at trial, the Respondent submits that the 2^nd appellant did not specify which part of the evidence was translated wrongly and no trial transcript had been applied for to advance his allegation. The Respondent submits that there is no material deviation from the written closing submissions filed by the counsel for the 2^nd appellant at trial found in the Statement of Findings and the Reasons for the ruling on the Special Issue. The Respondent submits that the 2^nd appellant was legally represented at trial. Had there been any wrong interpretation, he should have informed his legal representation of it so that the matter should have been raised before the Magistrate. The Respondent submits that the allegation of wrong interpretation is unsupported by details and independent materials.

60.The Respondent submits that the convictions are neither unsafe not satisfactory.

The 1^st appellant’s appeal against sentence

61.The Respondent submits that the Magistrate, in sentencing the appellants, was right to refer to the case Usman Butt where the guideline sentence of 15 months’ imprisonment was laid down upon a plea of guilty. The Magistrate was correct to take 22 months’ imprisonment as the starting point after a fully contested trial. As there was no valid ground of mitigation, the sentence of 22 months’ imprisonment is neither manifestly excessive

62.The Respondent submits in conclusion that the Magistrate did not err in his judgment and the sentence passed on the 1^st appellant is neither manifestly excessive not wrong in principle. The 1^st and the 2^nd appellants’ appeals should be dismissed.

Consideration

The 1^st appellant’s appeal against conviction

63.The 1^st appellant complains that his trial counsel did not listen to his instructions. The 1^st appellant gave evidence at the trial. If the trial counsel for the 1^st appellant had conducted the trial in a way different from the instructions given by the 1^st appellant, it would have been apparent and fully revealed in the evidence of the 1^st appellant. In the Prosecution’s closing submissions and the Statement of Findings, not one observation was made against the Defence that the case as put to the Prosecution witnesses by counsel for the 1^st appellant or the way the defence was conducted was different from the evidence given by the 1^st appellant. Had there been any deviations, it would have been apparent to the Prosecution and the Magistrate and one would expect observations would have been made in Prosecution’s closing submissions and/or the Statement of Findings.

64.It is clear to this court that, the trial counsel for the 1^st appellant, in his closing submissions (pages 63-70 of the Appeal Bundle) had addressed the Magistrate in details covering all the factual and legal issues.

65.There is no merit in the 1^st appellant’s unsubstantiated complaint against his trial counsel.

66.On the issue of identification. The Magistrate said at paragraph 18 of the Statement of Findings:

“18. As mentioned earlier, the prosecution case rested heavily on the evidence of PW2 and PW3; whereas PW1 did not make any significant observation at the scene. Such being the case, I only find it necessary to focus my discussion on the evidence of PW2 and PW3.”

67.The Magistrate then considered in great length at paragraphs 19 to 28 the observation evidence of PW2 and the criticisms levelled against PW2 by counsel for the 1^st appellant.

68.The Magistrate said at paragraph 29:

“29. I do not find it necessary to go further into the evidence of PW2. Suffice it to say I did not attach weight to PW2’s evidence.”

69.The Magistrate then considered in great length at paragraphs 30 to 43 the observation evidence of PW3 and the criticisms levelled against PW3 by the Defence. Including the criticism made by the 2^nd appellant at the appeal hearing that:

“41. Counsel for D1 also submitted that the arresting officer of D1, namely PW1, said in her evidence that D1 was a man with a black complexion, whereas PW3 said D1 was a man with brown complexion. Counsel posed the possibility of a mistaken identification, saying that D1 might not have been the person under observation by PW3.”

70.The Magistrate dealt with the above complaint at paragraphs 42 and 43:

“42. There was no evidence that there was at the site a third person being a non-Chinese by ethnicity. Most important of all, PW3 never said he had lost sight of any of the two defendants. I could rule out the possibility of a mistaken identification.

43. Counsel took a similar point when it was said that PW1 could not possibly tell whether the person she intercepted was one of the men under watch by PW3. Likewise, I dismissed counsel’s submission in this regard.”

71.The Magistrate said at paragraph 44:

“44. Having regard to all the circumstances, I was satisfied that I could give weight to the evidence of PW3, who had at all times made good observation on the two defendants.”

72.In my judgment, the Magistrate gave cogent reasons why he accepted the evidence of PW3. As the Magistrate rightly observed, PW1 did not make any significant observation at the scene. In my judgment, the Magistrate was right to find that the evidence of PW1 did not affect the credibility and reliability of PW3’s account.

73.For the complaint that the Magistrate erred to accept the evidence of the immigration officers, it is clear from the Statement of Findings that the Magistrate had considered the evidence of PW1, PW2 and PW3 carefully. After a careful consideration of the evidence, the Magistrate decided not to attach any weight to the evidence of PW2. The Magistrate found PW3 an honest and reliable witness and he attached full weight to his evidence. As the respondent rightly submitted, magistracy appeal is conducted by way of a re-hearing of the evidence before the trial magistrate. The Magistrate had the advantage of hearing evidence first hand and I should only depart from the Magistrate’s finding of fact or determination of a witness credibility if satisfied that the finding or determination is plainly wrong. In the instant case, having considered the findings made by the Magistrate on the immigration officers called to give evidence and the reasons given in the Statement of Findings, I can see no reason to interfere with the Magistrate’s findings on the credibility and reliability of PW1, PW2 and PW3.

74.The 1^st appellant complains also that there was no CCTV recording of the Car Park capturing what happened at the time and there were other immigration officers at the scene apart from the 3 officers called to give evidence. In my judgment, the Magistrate tried the case on the evidence adduced before him. The sole issue before the Magistrate was whether the evidence adduced was sufficient to prove the case against the appellants beyond reasonable doubt. The Magistrate had no duty to enquire why no CCTV evidence was adduced or why certain immigration officers were not called.

75.The 1^st appellant complains that the photographs (Exhibit P3) and the sketch plan (P4) do not show the truth. The photographs and the sketch plan were produced by agreement of all parties pursuant to section 65C of the Criminal Procedure Ordinance.

76.For the photographs (Exhibit P3), it is an admitted fact that:

“3. On 3^rd March 2021, Immigration officer Lam Ka-ki took nine photographs of the location at Lot no. 1779 in D.D. 120 Tai Tong Road, Yuen Long, NT (‘the Location’) and the circumstances thereat. They are now produced as exhibit P3 (1)-(9).”

77.For the sketch plan (Exhibit P4), it is an admitted fact that

“4. On the 3^rd March 2021, Immigration officer Lam Ka Ki drew a sketch of the Location. Save and except the alleged position of the observing immigration officer, the sketch as to the layout and environment of the Location is admitted. A redacted English copy of the sketch is now produced as exhibit P4.”

78.There is no merit in the complaint about the Magistrate’s decision to admit the photographs (P3) and the sketch (P4) as evidence. For alleged position of the observing officer shown in P4, it was made clear by the parties that it was not admitted. For the position of PW3 while he conducted the observation of the two appellants, the Magistrate accepted the evidence of PW3. The Magistrate was plainly aware of the limited extent of agreement about the sketch plan as the parties had made clear at paragraph 4.

79.Counsel for the 1^st appellant complained at trial that the Prosecution had failed to adduce “any evidence in support of any employment relationship such as the identity of the employer(s), employment contract(s) and/or salary payment record(s). The Magistrate rejected the submission, he said at paragraphs 78 and 79 of the Statement of Findings:

“78. In a case of this kind, those documents are not strictly necessary. Imagine this, would an employer enter into a written contract and keep a payroll record, knowing that the employee is illegitimate? I do not think the employer or employee would be so foolish as to leave behind some written records.

79. At the end of the day, it is inference that matters. I was satisfied that, on the prosecution’s evidence adduced, the only irresistible inference to be drawn was that the two defendants were working, and further that they were in employment. There was never any requirement that the employer be identified, or that his or her identity be proven.”

80.In my judgment, the Magistrate’s understanding of the law is correct and he correctly applied the principles laid down in Ip Po Fai, Masih Shamoon and Zafa Adnan.

Re-hearing of the 1^st appellant’s appeal against conviction

81.All the grounds of appeal of the 1^st appellant fail.

82.I hold a re-hearing on the evidence adduced. In my judgment, the evidence against the 1^st appellant was sufficient to prove the charge against him beyond reasonable doubt.

83.For the reasons given, I dismiss the 1^st appellant’s appeal against conviction.

The 2^nd appellant’s appeal against conviction

84.The 2^nd appellant complains that the Punjabi interpreter him at trial translated the evidence wrongly. As the respondent rightly pointed out, the 2^nd appellant did not specify which part of the evidence did the Punjabi interpreter had translated wrongly. The 2^nd appellant agreed that there was a Punjabi interpreter arranged by the Duty Lawyer Service to assist him at trial. Had the Punjabi interpreter of the court was wrong in his translation, no doubt the 2^nd appellant could inform his counsel of the matter through the Punjabi interpreter arranged by Duty Lawyer Service. When asked why his counsel had made no such complaint at trial, the 2^nd appellant said the ground of appeal was in fact prepared by his friend and he could offer no explanation on this matter.

85.This ground of appeal has no merit.

86.The 2^nd appellant complains that there is insufficient evidence to support the conviction beyond reasonable doubt.

87.At trial, the 2^nd appellant challenged the admissibility of his record of interview. The Magistrate had considered the evidence of the witnesses called by the Prosecution and the Defence on the special issue, i.e. PW2, PW3, PW4 and the 2^nd appellant.

88.The Magistrate noted the Grounds of Objection lodged by the Defence (pages 116-117 of the Appeal Bundle) and the evidence of the 2^nd appellant on the special issue.

89.The Magistrate explained why he accepted the evidence of PW2 that the 2^nd appellant understood English and PW2 had ascertained that the 2^nd appellant understood English before he issued the first Notice to Persons in Custody to the 2^nd appellant when a Punjabi interpreter was not there.

90.The Magistrate found that even if, for some reasons, the 2^nd appellant did not understand the first notice, he had the benefit of the service of PW4 when the second notice was issued. In my judgment, the Magistrate’s finding that the fact that there was no Punjabi interpreter at the time the first notice was issued would not have any impact on the interview that followed.

91.In my judgment, the Magistrate gave careful consideration to the allegations made against PW4, the Punjabi interpreter, i.e. that he induced the 2^nd appellant into cooperating with the Immigration Department in return for bail and that he had told the 2^nd appellant that the likely sentence would be 6 months’ imprisonment if he pleaded guilty to the offence. It was also alleged that PW4 assisted PW3 to induce the 2^nd appellant to confess to the alleged offence by saying, among other things, that the original story told by the 2^nd appellant was not good.

92.The Magistrate noted that PW4 could not remember the details about the interview but he categorically denied every allegation levelled against him. The Magistrate found that PW4, as an interpreter, did not have any motive to obtain a confession from the 2^nd appellant.

93.The Magistrate observed that PW3’s evidence was never shaken under cross-examination.

94.The Magistrate gave detailed reasons why he rejected the evidence given by the 2^nd appellant on special issue. The Magistrate noted that the evidence given by the 2^nd appellant was different from the grounds of objection. The Magistrate also found that the evidence of the 2^nd appellant as to his understanding of the nature of the document he was signing was self-contradictory.

95.The Magistrate also found the 2^nd appellant evasive when he said he could not recognise whether some signatures on some pages of the record of interview were his.

96.In my judgment, the Magistrate had carefully considered the evidence on the special issue and his decision to admit the record of interview cannot be faulted.

97.The 2^nd appellant admitted in the record of interview (P10) that on the day in question：

(A11)

“I was working there as a labour to earn some money. I was moving the asphalt by using a cart.”

(A12)

“Today was my first day of working. I started the work at about 9:00 am and I supposed to work until 6:00 pm. My duty was to pave the road with asphalt. I used the cart to move the asphalt to road and used shovel to pave the road. My labour was HK$300 per day but I did not receive any money yet.”

(A16)

“I met one Indian male somewhere in Yuen Long. He asked me if I need a work to earn some money. Because my mother and wife got sick. So, I took this work to earn some money. I lost the contact if that Indian male.”

98.On the general issue, the Magistrate had properly dealt with the issues of witnesses’ credibility and reliability. For the reasons given, the Magistrate decided that he would attach no weight to the evidence of PW2. He accepted the evidence of PW3 in full and decided to attach full weight to the admissions in the 2^nd appellant’s record of interview. The Magistrate accepted the evidence of PW3 that he had observed the two appellants moving asphalt and paving the passageway. The Respondent is right to submit that the evidence of PW3 is line with the cautioned admissions of the 2^nd appellant that he was constructing a road at the Car Park.

99.I agree with the Respondent’s submissions that once it is proven that the 2^nd appellant had taken employment in the sense of acting pursuant to an employee and employer relationship, it is not necessary to prove the identity or identifying particulars of the employer.

100.In my judgment, the Magistrate had considered carefully the evidence of the Prosecution and the Defence, his reasoning and findings on the credibility and reliability of the witnesses cannot be faulted.

101.On the evidence accepted by the Magistrate, it cannot be reasonably argued that the evidence was insufficient to prove the case against the 2^nd appellant beyond reasonable doubt. The evidence adduced by the Prosecution clearly supported the Magistrate’s findings that the 2^nd appellant was under employment at the material time.

102.All the grounds of appeal against conviction of the 2^nd appellant fail.

Re-hearing of the 2^nd appellant’s appeal against conviction

103.All the grounds of appeal of the 2^nd appellant fail.

104.I hold a re-hearing on the evidence adduced. In my judgment, the evidence against the 2^nd appellant was sufficient to prove the charge against him beyond reasonable doubt.

105.For the reasons given, I dismiss the 2^nd appellant’s appeal against conviction.

The 1^st appellant’s appeal against sentence

106.The sole ground of the appellant’s appeal against sentence is that as he was wrongly convicted, his sentence should be set aside.

107.For the reasons given, the 1^st appellant’s appeal against conviction is dismissed.

108.It remains for me to consider whether the 22 months’ imprisonment passed on the 1^st appellant is manifestly excessive or wrong in principle.

109.In my judgment, the Magistrate correctly considered the decision of the Court of Appeal in Usman Butt where the guideline sentence of 15 months’ imprisonment upon a plea of guilty was laid down. The respondent is right to submit that a starting point of 22 ½ months should be adopted for a defendant convicted after trial. The 1^st appellant was convicted after trial, taken into consideration the mitigation advanced on his behalf, including the fact that he had a hitherto clear record, the sentence of 22 months’ imprisonment is neither manifestly excessive or wrong in principle.

Re-hearing of the 1^st appellant’s appeal against sentence

110.There is no merit in the 1^st appellant’s ground of appeal against sentence.

111.I hold a re-hearing on the sentence passed on the 1^st appellant. The sentence of 22 months’ imprisonment is in accord with the sentencing authorities, it is neither manifestly excessive or wrong in principle.

112.For the reasons given, I dismiss the 1^st appellant’s appeal against sentence.

Ms Linda Chan, PP of the Department of Justice, for the respondent

The 1^st appellant and 2^nd appellant both appeared in person