HKSAR v. Desi Ratna Sari

HCMA 577/2021

[2023] HKCFI 1108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 577 OF 2021

(ON APPEAL FROM STCC 1657/2021)

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BETWEEN

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J U D G M E N T

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Appeal against conviction

1.The appellant was convicted after trial of one count of “breach of condition of stay”, contrary to section 41 of the Immigration Ordinance, Cap 115.  She now appeals her conviction.

2.At about 11am on 29 November 2020, PW1, an Assistant Hawker Control Officer taking part in an operation targeting illegal hawking by foreign domestic helpers outside Victoria Park, Causeway Bay, saw the appellant take $100 banknote from a female and in return, give that female a bag of crabs.  The appellant was sat with a lit stove in front of her on which was a pot containing crabs.  PW1 notified her colleague PW2 and both approached the appellant.

3.PW2 did not see the hawking activity but arrested the appellant and seized exhibits from her.  He arrested her for causing an obstruction in a public place, hawking without a licence and being in possession of a stove and cooking utensils for cooking or heating food for the purpose of sale without a hawking licence.  He did ask the appellant if items seized from the scene did belong to her and she said yes.  Their conversations were in simple English.

4.Those items included cooked crabs, cooking utensils, a stool, a stove and plastic bags.  There were photographs of the items seized and a container of cooked crabs, Exhibit P5.  Those photographs were taken by an Immigration Assistant who was taking part in the same operation, PW3.

5.The appellant elected to give evidence in her trial and stated that on the material day, it was her day off and she was in Victoria Park with friends to eat and drink together.  There were six friends together that day including herself.  The appellant is a foreign domestic helper and been in Hong Kong for several years.  She had brought with her cooked crabs prepared at home, her employer’s home in advance to share.

6.Her group of friends would each bring some food and drink and would not charge each other but share what they brought to Victoria Park.  She came with a friend and saw another friend called Halimah who arrived there.  The appellant approached Halimah who owed her $100.  This friend handed her $100 which was repayment of a loan.  She then showed Halimah the cooked crabs that she had prepared earlier, she did not sell them to her or give them to her.

7.After showing Halimah the cooked crabs she took it back to the area where they had set up for sitting together.  She showed another friend the cooked crabs that she had prepared earlier.  She then sat on a small chair or stool but it did not belong to her.  She was then arrested by PW2.  It was her friends who allowed her to sit on it.  The appellant denied owning the stove, utensils, stool that were seized.  She only owned the crabs and the container she had brought to the park.

8.The appellant called a witness to testify as to her good character.  This was her employer of five years who said that the appellant had bought crabs several days before the date of offence and put the crabs in the fridge at home.  The appellant had told her that she brought the crabs for her Sunday gathering to share with friends on her day off.

9.The appellant has not filed any written grounds. She relies on the general ground that the conviction was against the weight of the evidence.  That is the evidence of all three prosecution witnesses was improperly admitted.

10.The mainstay of the appellant’s submissions at the end of her trial was that the observation evidence of PW1 was insufficient to prove beyond reasonable doubt she was selling cooked food.  There were discrepancies as to whether or not the stove or portable cooker was actually lit or not, there was a criticism that the female who gave the appellant $100 and received a bag of crabs was never intercepted and interrogated.  Another criticism included the fact there were no other plastic bags similar to the one containing crabs given to that female.  This was all enough to cast doubt on the prosecution’s case.

11.In light of those submissions, the entire case obviously turned solely on the credibility of the prosecution witnesses.  The magistrate clearly addressed those criticisms in full.  The magistrate, after careful assessment of all the evidence, came to the conclusion that the prosecution witnesses, in particular PW1 and PW2, were telling the truth and was satisfied that the prosecution had proved their case beyond reasonable doubt.  Their evidence was considered to be clear, consistent, coherent and not shaken under cross examination.

12.The magistrate rejected the appellant’s evidence by making particular references to aspects of it he found not credible.  The magistrate concluded that the appellant had sold cooked crabs for a $100 which led to the irresistible inference that the appellant was carrying out a business of selling cooked foods contrary to her conditions of stay in Hong Kong imposed by the Director of Immigration.

13.A magistracy appeal is by way of a rehearing of the evidence before the magistrate.  An assessment of the evidence is required and a conclusion as to whether the evidence proves the essential elements of the offence to the required burden and standard of proof must be reached.

14.I heard from the appellant during her appeal.  I had adjourned her appeal hearing once for her to apply for legal aid.  Legal aid was refused and she represented herself in her appeal.  The appellant had nothing to add to her notice of appeal against conviction.  She did state she relied on her legal representative’s submissions made during her trial.  She did state that the friend who repaid her the $100 loan was at the scene at the material time when she was arrested but she was not questioned or stopped by PW1 or PW2.

15.The magistrate was entitled to reject the appellant’s evidence.  The magistrate properly directed himself as to the appellant’s clear record as well as the requisite burdens and standards of proof; he made no mistake of law.  He obviously carefully considered all witness’s testimony and evidence as well as submissions.

16.The appellant was correctly convicted.  The appeal against conviction is without any merit and therefore, is dismissed.

Mr. HUI Man Nok, Matthew, Public Prosecutor, of Department of Justice, for the Respondent

The Appellant appeared in person