HKSAR v. Veerappan Nandakumar

HCMA 286/2023

[2023] HKCFI 3169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 286 OF 2023

(ON APPEAL FROM STCC 1314 OF 2023)

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JUDGMENT

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1.The Appellant was charged with an offence of taking employment while being a person in respect of whom a removal order is in force, contrary to s.38AA(1)(b) and s.38AA(2) of the Immigration Ordinance. At the trial, he was represented by counsel and he was convicted after trial.

2.The Appellant now appeals against his conviction.

Prosecution Case

3.It is admitted that the Appellant was arrested on September 2008 after having landed in Hong Kong unlawfully. A removal order was issued against him in 2019, and at the time of his arrest for this offence, he was still subjected to that removal order.

4.The Appellant has no previous conviction record in Hong Kong.

5.At the trial, the Prosecution called two witnesses. PW1 was the police officer on duty in plain clothes on the day of the offence. He said he saw the Appellant pushing a trolley with two foam boxes on it. When the Appellant arrived at the rear side of a lorry, a female instructed the Appellant to put a box on the ground. The other man picked up the box and put it in the lorry. The Appellant then pushed the trolley back. PW1 said that his observation was unimpeded and the lighting condition was sufficient. The Appellant was intercepted by PW1 who revealed his identity.

6.PW2 is another police officer who was called merely for cross-examination. He confirmed there was a non-Chinese man who was arrested for illegal working at the scene.

Defence Case

7.After the close of the Prosecution case, the Appellant elected to give evidence. The Appellant claimed he was a disabled person and could not walk properly. He had taken a mini-bus and bus from Kam Tin to Lau Fau Shan when he was arrested in order to meet his friend. He showed the scars on his leg to the learned Magistrate. He claimed that he was stopped by three police officers when he was approaching the shop near the car park.

8.The Appellant denied he was pushing any trolley and he did not know why he was arrested. At the trial, he was cross-examined about the costs of transport from his home to Lau Fau Shan, and the details of his journey.

Magistrate’s Findings

9.In assessing the evidence, the learned Magistrate observed at paragraph 16 of his Statement of Findings, that the Appellant was very evasive when answering questions. The learned Magistrate found that his explanation about travelling all the way from Kam Tin to Lau Fau Shan was illogical as the Appellant was living on limited income, and to travel all that way to meet his friend regularly appeared to be an expense that he could ill afford.

10.The learned Magistrate also observed that the Appellant alleged he was handcuffed and intercepted near the shop, but that was never put to the Prosecution witnesses. The learned Magistrate after observing the Prosecution witnesses giving evidence, found that the evidence to be straightforward and fair. He concluded that based on their evidence, the Appellant was indeed helping to transport the seafood in the boxes to the waiting lorry.

11.The learned Magistrate was alive to the question of whether he could draw an irresistible inference that the Appellant was taking employment at the time. There is no allegation by the Defence that the Appellant was helping to move the boxes out of friendship. So, the learned Magistrate at the end of the day found that in view of all the evidence which had been presented to him, the only irresistible inference to draw was that the Appellant was indeed taking up employment.

The Appeal

12.The Appellant appeared in person to argue his appeal. It is clear from his homemade grounds of appeal that he was again asserting what he had told the learned Magistrate that had happened at the time of the offence. He also questioned why there was no picture taken of him pushing the trolley and why no fingerprint were taken from the trolley.

13.It is clear that the observation had to be done covertly, so if pictures were taken of the Appellant while he was pushing the trolley, then he would have realized that the police was present at the scene.

14.As to why fingerprint was not taken, this is not a serious case. Hong Kong has over 7 million people in population, our forensic analysis laboratory is constantly working to catch up with the workload. So it is not surprising that in view of the facts in this case, that the decision was made not to take fingerprints.

15.The Appellant also questioned as to what evidence is there to show who is the employer was, and that he was arrested in a public place, and not in a working place. The same questions were raised by the lawyer representing the Appellant at the trial, and the learned Magistrate dealt with it at paragraph 24 of his Statement of Findings. It is not necessary for me to repeat what was said there.

16.The learned Magistrate had ample opportunities to observe the witnesses giving evidence including the Appellant. The facts he found proved were neither illogical nor manifestly inadequate. The irresistible inferences he drew were based on sufficient evidence.

Conclusion

17.I do not find that the learned Magistrate was in error either on the facts or in law that would cause me to interfere with his findings.

18.So the appeal is dismissed.

Ms Lisa Go, SPP and Ms Ingrid Tung, PP of the Department of Justice, for the Respondent

The Appellant acting in person