HKSAR v. Gurpreet Singh

HCMA 177/2023

[2024] HKCFI 1742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 177 OF 2023

(ON APPEAL FROM STCC 3362/2022)

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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. He now appeals against his conviction only.

The Prosecution’s Case

2.On 21 December 2022, a team of police officers and immigration officers were conducting a joint operation in the vicinity of the loading bay outside Ngau Chi Wan Market.  It was about 6pm.  PW1 was a plain clothed police officer who observed a light goods vehicle in the loading bay area.  The vehicle was stationary with the back door open.  The back of the vehicle was loaded with boxes.  The driver was sat inside the vehicle.  PW1 and PW2, another police officer in plain clothes observed the appellant at the back of the vehicle unloading boxes from the boot and placing them on a trolley.

3.After observing him for approximately 2 minutes and watching him unload 8 boxes from the boot onto the trolley, both officers approached the appellant and asked him for his proof of identity.  The appellant produced a Form 8 Recognizance Form.  PW1 arrested the appellant for working illegally and remained with him whilst PW2 went to talk to the driver.

4.The driver of the vehicle gave an invoice to PW2 who then checked the contents of the boxes unloaded by the appellant against the details in the invoice, Exhibit P6.  PW3 was another police officer who subsequently entered a shop in the market who confirmed that the goods recorded on that invoice related to an order the shop was expecting.  The shop sold South Asian foodstuff.

The Defence Case

5.The appellant elected to give evidence and said he was in that area looking for a friend who he had arranged to meet.  That friend was going to give him some old clothes.  He was lost and saw the driver of the van.  He stopped and asked that driver directions.  As he walked away, police officers stopped him.  He had no idea why he had been intercepted but was told to sit and wait.  Not long after he was told to stand at the back of the van and a photograph was taken off him.

6.The appellant denied having moved any boxes from the van to a trolley.  He denies working as a transportation worker unloading the van and about to deliver the boxes to a shop.

Admitted Facts – Exhibit P1

7.The parties agreed that on 12 November 2020, the appellant was issued with a Recognizance Form allowing him to remain in Hong Kong, Exhibit P2.  The appellant was aware that he was prohibited from taking up any employment, whether paid or unpaid in Hong Kong while on cognizance in the territory.

8.The parties also agreed that on 8 October 2013, a removal order dated 3 October 2013 against the appellant was served on him and was still in force when arrested on 21 December 2022, Exhibit P3.  Four photographs of the scene, Exhibit P4 (1- 4)  as well as a sketch was produced, Exhibits P5 and 5A.

The Legal Principles

9.It is clearly established that a magistracy appeal is conducted by way of a rehearing on the evidence before the trial court.

10.This can be supplemented by such further evidence as the appellate court may admit within its statutory power.

11.Where findings of fact are based on oral testimony of witnesses, the appellate court would be subject to limitations and must exercise caution.  The magistrate enjoyed the advantage of having seen and heard witnesses giving evidence, which the appellate court does not enjoy.

12.However, the appellate court must work with those limitations when undertaking its duty to rehear the trial to reach its own conclusion on disputed issues of fact or law.  In this case, the evidence of the prosecution witnesses was materially challenged therefore, credibility was an issue.

13.If the appellate court is not satisfied on the evidence of the appellant’s guilt beyond reasonable doubt then the appeal must be allowed.  If the appellate court comes to a different view on that evidence, that justifies a decision to allow the appeal.

14.What this means is that the appellate court is required to consider and weigh all the available evidence, relevant evidence and reach its own conclusion as to whether the elements of a charge are proved to the requisite standard, beyond reasonable doubt.

Grounds of Appeal

15.The appellant’s homemade grounds came in the form of a letter to support his appeal against conviction.  I intend to summarise his grounds.  The appellant points out that the invoice given by the driver to the police officer, Exhibit P6, was not found on the appellant nor with the boxes on the trolley.  The invoice did not correspond to the boxes on the trolley nor to the evidence from the prosecution witnesses.

16.PW3 only showed the invoice to the storeowner of the provision store according to the address on the invoice; he did not show him the trolley of goods.  The storeowner could have denied those goods were to be delivered to him.

17.PW1 and PW2 only observed the appellant putting boxes on the trolley but should have waited for the appellant to push the trolley to the store expecting the boxes.  Moreover, if he was working, his clothes would have been work clothes and dirty.  He was wearing new clothes that day, therefore, he would not have been working.

18.The appellant complains the driver was not called as a witness, which was prejudicial to him.

The Magistrate’s Findings

19.The magistrate accepted the evidence given by all three prosecution witnesses.  He found them credible and reliable.  He found no material discrepancies; none so serious that it affected their credibility.

20.The magistrate rejected the evidence given by the appellant as being unbelievable and far-fetched.  He rejected the evidence that the appellant was walking through the loading bay and had only stopped to speak briefly to the driver of that van before walking on.

21.The submission that the lack of evidence from an employer weakens the case was dismissed.  The lack of evidence of an agreement between two parties does not mean there are insufficient facts for the prosecution to prove employment beyond reasonable doubt.

22.The magistrate found as fact the appellant was unloading boxes from the boot of the vehicle parked in the loading bay of a market onto a trolley placed on the ground.  Those boxes the appellant unloaded corresponded to an invoice in possession of the driver sat in the van.  These boxes of goods were expected by a shop in the market.

23.The magistrate identified the crux of the case as whether the prosecution’s evidence was sufficient to draw an irresistible inference that the appellant was taking up employment by his actions of unloading boxes of food substances from a van in a market.

24.The magistrate referred himself to HKSAR v Ferosh (2018)  21 HKCFAR 159.  The evidence of a person actually working at a place of employment would not necessarily support an irresistible inference of employment.  In addition, the mere fact that a person is working for another does not necessarily mean per se there is a relationship of employment between the two.

25.The magistrate relied on the following facts as proven to draw that one and only inference.  This is the evidence from two officers watching the appellant for about 2 minutes.  It includes fact the appellant was unloading numerous boxes from a vehicle loaded with boxes of goods.  It includes the fact the appellant was loading the numerous boxes onto a trolley which must mean the boxes were to be wheeled away somewhere specific.

26.It includes the fact the vehicle was in an unloading bay of a market and the driver of the vehicle had an invoice that corresponded to the boxes unloaded expected by a shop selling food substances in that market.

27.The magistrate took the view that the appellant would not have been unloading boxes unless he was authorised to do so nor would he be performing the manual or laborious duty of unloading the boxes to be moved elsewhere unless it was for remuneration or payment.

28.These were the proven facts the magistrate relied on to draw the only irresistible inference of employment.

Considerations

29.The appellant represented himself in his appeal and reiterated what he wrote in his letters setting out his grounds of appeal.  He questions why PW1 saw him unload 8 boxes and stopped him before he unloaded any more.  He pointed out the invoice did not say the provision shop was waiting for or expecting 9 boxes.

30.He insisted the boxes on the trolley did not correspond with the invoice and when asked why he knew that, he said his friend went to the shop after his arrest to find out what those items were and how they were packed.  None of this evidence was produced during his trial.  He suggested he would have been unable to unload most of the boxes the store was expecting onto one trolley.

31.He repeated his evidence given during the trial. He reiterated that when the police approached him he was talking on the phone to his wife and had just spoken to the driver sat in the van to ask him directions.  He reiterated the police had framed him and were telling lies.

32.I thank Mr Daryanani for the respondent for his comprehensive reply and submissions.  He pointed out that the invoice was addressed to the provisions store in that same market that the appellant was in when seen unloading a light goods vehicle.  The invoice listed 9 items and the appellant had unloaded 8 items when the police approached him.  He saw no inconsistencies or material discrepancies in this ground of appeal.

33.He is right to say that PW3’s evidence that someone in the store looked at the invoice and told him those with the goods ordered by the store that they were expecting to be delivered was hearsay evidence.  However, not having that confirmation the boxes were to be delivered to a specific store inside the market is not fatal to the elements of this offence.  The prosecution did not have to prove the ultimate destination of those goods unloaded by the appellant from a goods vehicle.

34.Whether or not the observation by two police officers was long enough for the magistrate to make a finding and draw the only reasonable inference he was working is a matter of fact addressed by and determined by the magistrate.

35.What the appellant was wearing did not appear relevant during the trial.  It does not appear to be obvious why clothes he was wearing proved he was not working as a transportation worker unloading goods onto a trolley.  Nor is there any particular evidence to show the boxes were dirty and therefore his clothes would have been dirty if he had been working.  These were not issues addressed during the trial.

36.The respondent pointed out that the driver was known to the defence and they could have called him as a witness.  It appears from the file that he was arrested and remained silent under caution.  He did not provide a statement under caution.  He maintained his right of silence, so he would have likely been of little assistance to either party.  In any event, proof of an employer or a supervisor is rare in cases like this; it would require someone to incriminate himself or herself.

37.I have considered the submissions by both parties and find no merit in any ground or complaint put forward by the appellant.

38.Being a rehearing, for the purposes of this appeal, I have reconsidered afresh the evidence highlighted in the statement of findings and closing submissions from the defence at trial.

39.I have considered there must be something more than an observation of somebody merely carrying out work in order for the prosecution to ask a court to draw the only reasonable or compelling inference that the appellant in question was an employee or employed, HKSAR v Hari Arshdeep Singh, HCMA 124/2019.  Here, I am satisfied as was the magistrate, there is more.

40.Generally, a person will not for no reason assist others to perform employment duties and not earn money for their labours. In the absence of other evidence, any reasonable or compelling inference of employment in this case is easy to draw.

Conclusion

41.In this case and agreeing with the magistrate, the evidence from the prosecution witnesses is more than sufficient circumstantial evidence to be able to draw the only reasonable inference that the appellant was working illegally.

42.I am satisfied the offence has been proven by the prosecution beyond reasonable doubt.  The magistrate’s findings and reasons given are more than valid; they are correct.  In the circumstances, the magistrate was justified in convicting the appellant and I find no basis for disturbing that conviction.  There is no merit in this appeal.

43.Therefore, the appeal against his conviction is dismissed.

Mr Prakash Lachmandas Daryanani, Senior Public Prosecutor of Department of Justice, for the Respondent

The Appellant appeared in person