HKSAR v. Khan, Usman

HCMA 347/2023

[2024] HKCFI 868

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 347 OF 2023

(ON APPEAL FROM TMCC 2384/2022)

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BETWEEN

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J U D G M E N T

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1.The appellant was convicted of one count of taking employment whilst 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 and one count of using an identity card relating to another person, contrary to section 7A (1A)  of the Registration of Persons Ordinance, Cap 177. He now appeals against his convictions only.

The Prosecution Case

2.On 13 December 2022, police officers were on anti-illegal employment patrol in the Yuen Long area.  They saw men inside warehouse premises and entered to carry out checks.  A group of police officers went in and saw 10 Chinese persons as well as 2 foreigners.  They asked all to produce identification for verification.  One of the foreigners, the appellant said his identification document was upstairs and led PW1 up some stairs into a storage room cum container.  In that storage room, the appellant took out from his trouser pocket his Form 8 document.  PW1 then saw him turn around and with his right hand throw a small card like object into the left corner of the room.

3.PW1 had to search the corner through a lot of miscellaneous items but eventually found a Hong Kong identity card, Exhibit P6, on the ground in that corner.  He picked it up and asked the appellant if this belonged to him and the appellant did not reply.

4.A female member of staff, PW3 entered the storeroom and questioned the police officers presence there.  The police officer pointed at the appellant and asked PW3 if he was an employee in the premises.  She said he was and he had supplied an identity card.  She then produced a copy of three documents, Exhibit P3 (1)  – (3), she said the appellant had produced when employed for their records.

5.PW3’s evidence was the appellant had been employed as a warehouse worker since September 2022.  On a day in September, he came to the office at the material premises alone and applied for the job.  He produced an identity card, Exhibit P6, as well as two other cards, a construction workers registration card and a construction industry safety training certificate card, all in the same name as the Hong Kong identity card. She took a copy of all three cards for their records.  He worked part-time, 5 days a week, earning $1000 a day.

6.The genuine identity cardholder, PW2, was called to give evidence and claimed he had lost it, did not know the appellant nor did the other cards copied on Exhibit P3 belong to him.

7.PW4 was another police officer who was asked why the police did not try and retrieved CCTV footage of the premises, as there were cameras.  He said the police took no action to retrieve any CCTV footage as there was more than sufficient evidence from a member of staff of the company.

The Defence Case

8.The appellant elected to give evidence and called a friend who worked at the warehouse legally.  The appellant admitted he was a Form 8 holder who had arrived in Hong Kong in 2009.  He knew he had no right to work in Hong Kong.  It was an admitted fact that there was a deportation order in force against the appellant.  His evidence was he did not work in that warehouse, did not apply for a job there nor ever produce a Hong Kong identity card to show PW3.

9.On the material day, he had gone with his friend DW2 to work on the back of his motorbike because he wanted to look for a flat with cheaper rent in the Yuen Long area.  Not long after the appellant and DW2 parted ways, the appellant realised that he had lost his wallet.  He retraced his steps back to DW2’s workplace and shouted his name.  His friend came out and agreed to lend him some money but since his friend was not busy, he went in, sat down and had a chat.  His mobile phone was also out of batteries so he was taken upstairs to a container storeroom where he could charge his phone for a while.

10.Whilst he sat and chatted to DW2, the police came in and asked for identification.  He did produce his Form 8.  He was asked if he was working there and he said no.  He knew the police were searching around the premises and they showed him an identity card, Exhibit P6, but he said it did not belong to him nor did the photograph on the identity card resemble him.  He said he could not read or write English so would have been unable to fill out an application form for a job there.

11.DW2 gave evidence of having worked full-time at the offence location for a few years.  He produced his bank statement, salary record and MPF contribution to prove he was an employee there earning $24,000 a month.  He had known the appellant for a couple of years.  He said there were many CCTV cameras around the warehouse and his company required all employees to wear safety shoes.  He said on the material day, the appellant was wearing trainers.

12.He confirmed he had driven the appellant to work because the appellant wanted to look for somewhere cheaper to live in Yuen Long. He confirmed the appellant came back a couple of hours after he had dropped him off shouting his name outside the warehouse.  The appellant told him he had lost his wallet and needed some money.  As he was not very busy, the appellant came inside the premises and sat chatting with him.  The police arrived not long after that.  It was his evidence that the appellant was not working illegally.  He confirmed PW3 was a staff member working in the office.

Reasons for Convictions

13.The magistrate rejected the appellant’s evidence and that of his witness.  He found the witness as a friend of the appellant had a reason to help him; he had a purpose to serve.  The magistrate rejected the explanation by the appellant for being in Yuen Long, in a remote area looking for accommodation.  He rejected the attempt by both the appellant and the defence witness to explain away why the appellant was found inside the workplace.

14.Although he rejected the defence case, he was nevertheless satisfied beyond reasonable doubt of the appellant’s guilt on the facts proved. He found all prosecution witnesses credible.

15.He believed the appellant had tried to dispose of the identity card by throwing it away.  Otherwise, why would the arresting officer have searched around on the ground only to find an identity card that on the employment records had been the same as that produced by the appellant according to the evidence of PW3.

16.The magistrate accepted that the ID card holder had lost the ID card at some stage, sometime before the appellant produced it to apply for a job.  The evidence he was an employee came very spontaneously from PW3 walking in when PW1 and the appellant were in the storeroom and questioning PW1’s presence.  Her immediate response to PW1’s question was that the appellant was working there.  She then produced a copy of documents which the appellant had produced when he applied for the job.  She was able to retrieve it immediately.  The identity card she copied was the identity card PW1 found after he saw the appellant throw something away.

17.The magistrate found the offences proved to the appropriate standard on the facts and witnesses he found credible.

Grounds of Appeal

18.The appellant was acting in person having been refused legal aid for his appeal.  There were no perfected grounds of appeal nor any submissions filed by the appellant but he relies on the general grounds such as the conviction was against the weight of evidence upon the hearing of the proceedings and the defence evidence was improperly rejected whilst the prosecution evidence was improperly admitted.

19.During the course of the appeal, the appellant submitted he relied on the submissions forwarded by his duty lawyer during his trial in the magistracy.

20.His submissions were a repeat of his defence, which was that he had never been to that warehouse or those work premises before the date of his arrest, never applied for a job there, was illiterate and could not have filled in any application form.  He was only there to meet his friend to get some money to travel home having lost his wallet.  He questioned why there was no CCTV footage produced at trial of him in the premises if he was working there.

Legal Principles

21.A magistracy appeal is conducted by way of a “rehearing” on the evidence heard before the magistrate.  The legal principles concerning the approach to magistracy appeals include the principle that the appellate court will only depart from the lower courts finding of fact and assessment of the credibility of a witness where the finding of fact is plainly wrong.  Moreover, the test in deciding whether the magistrate has erred in a manner that the appeal should be allowed is whether it is just for the conviction to be quashed. 

22.The credibility of witnesses in this case is central to the issue.  The trial magistrate enjoyed the advantage unlike the appellate court, of having seen and heard the witnesses giving evidence. Therefore, the reliability and credibility of witnesses is within the ambit of the trial magistrate’s assessment.

23.Unless the magistrate is shown to have misquoted, or omitted, or failed to consider and analyse any significant aspect of the evidence, the conviction must stand.  Unless findings are shown to be unreasonable, illogical, or inherently improbable the conviction must stand.

24.Notwithstanding the absence of any error by the magistrate, the appellate court must still perform the statutory requirement of conducting a “rehearing”.  The court should examine closely whether on the evidence adduced the charge was proved beyond reasonable doubt, failing which the appeal should be allowed.

Considerations

25.The issue in this appeal was whether, as the respondent sets out in submissions, the magistrate was correct in rejecting the evidence from the defence.  The appellant criticises the magistrate’s acceptance of the prosecution evidence.  This case entirely revolved round the credibility of the witnesses for both the prosecution and the defence.

26.As I have said, the magistrate had the advantage of having heard and seen all the witnesses give evidence. The magistrate is the trier of fact and appointed to resolve issues of credibility and unless he has misdirected himself or is plainly wrong then, it is not for an appellate court to usurp his function.

27.Only in exceptional circumstances should the appellate court interfere with a finding relating to the credibility of a witness.  A reading of the magistrate’s Statement of Findings shows a careful analysis of all material points, cogent sufficient reasoning for rejecting the evidence of the defence as well as a meticulous examination of the issues concerning credibility of all witnesses. I would have reached the same decision.

28.In conclusion, I find no flaws in the magistrates reasoning or his findings.  His analysis is sound and with proper evidential basis.  I find the convictions for both counts safe and satisfactory. Accordingly, I dismiss the appeal against conviction.

Mr Peter Leung, Public Prosecutor of Department of Justice, for the Respondent

The Appellant appeared in person