HKSAR v. Muhammad, Shahbaz and Another

HCMA 242/2024

[2025] HKCFI 1209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 242 OF 2024

(ON APPEAL FROM STCC 177/2024)

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J U D G M E N T

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1.The 1^st Appellant was found guilty after trial of one count of “taking up employment while being a person in respect of whom a removal order is in force”, Charge 1. He was found guilty after trial of “using an identity card relating to another person”, Charge 2 and “making a false representation to an Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance”, Charge 3.

2.The 2^nd Appellant was found guilty after trial of one count of “employing a person who is a prohibited employee and not lawfully employable”, Charge 4 and “transferring an identity card to another person”, Charge 5. The person in both charges 4 and 5 pertain to the 1^st Appellant.

3.Both the 1^st and 2^nd appellants now appeal against their convictions only. They were represented during their trial and continue to be represented in their appeals albeit by different counsel.

The Prosecution Case

4.It was not disputed that the 1^st Appellant entered Hong Kong unlawfully and was eventually arrested on 1 April 2014. A removal order was issued against the 1^st Appellant and served on him on 8 November 2017. The removal order was still in force when the 1^st Appellant was arrested for the charges in this case. He does not dispute he was prohibited from taking up any employment, whether paid or unpaid, or establishing or joining in any business.

5.The 2^nd Appellant is a Hong Kong ID card holder, the registered owner of a vehicle TE 255 and the owner of a recycling business. The appellants claimed during the trial they were siblings; blood brothers.

6.The prosecution’s case is that Immigration Officers on patrol saw the 1^st Appellant on 13 December 2023 at 2:32pm push 2 trolleys of cardboard and recycling material onto the tail lift of a lorry. He then operated the tail lift mechanism and electronically lifted the tail from ground level to the level of the body of the vehicle and moved those 2 trolleys inside the vehicle. The customs officer, PW1 observed the 1^st Appellant for about 10 minutes before he approached him.

7.When he approached the 1^st Appellant he revealed his identity and showed him his warrant card. He requested the Appellant to produce an identity document, he said in English “Hong Kong Immigration. Identity check please”. The 1^st Appellant without anything further being said, took out a Hong Kong Identity Card from a bag and handed it to this witness.

8.PW1 noticed that the photograph on the identity card did not match the appearance of the 1^st Appellant. He asked the 1^st Appellant whether the ID card belonged to him and the Appellant nodded in the affirmative. PW1 then quizzed him, he asked what his name and birthday was. The 1^st Appellant only replied “Fiaz” which is the 2^nd Appellant’s name.

9.PW1 asked for further or other proof of identity and the 1^st Appellant then pointed to the driver seat of the vehicle, approached it and produced a Form 8 Recognizance Form. PW1 compared the photograph on this form to the 1^st Appellant and they were very similar, if not the same man. The 1^st Appellant was arrested and cautioned by PW1. He then complained of chest pain and it was arranged for an ambulance to come; the 1^st Appellant was sent to hospital.

10.The 2^nd Appellant was located and called to come to the scene. When he arrived, he identified himself to be the owner of that vehicle, the same vehicle onto which the 1^st Appellant had loaded 2 trolleys. PW2, another customs officer dealt with the 2^nd Appellant.

11.He asked the 2^nd Appellant to produce his Hong Kong identity card. The 1^st Appellant claimed he did not have it with him. PW2 then asked him to write his name, birthdate and identity card number on a piece of paper. He then compared those details with the identity card seized when produced by the 1^st Appellant. He showed it to the 2^nd Appellant who confirmed this was his identity card.

12.PW2 then asked the 2^nd Appellant a series of questions. He asked him why he was not in possession of his own identity card and the 2^nd Appellant remain silent. He showed the 2^nd Appellant a photograph of the 1^st Appellant asking who is this man and he remained silent. PW2 suspected his silence meant he was the employer of the 1^st applicant, the man they had witnessed loading the vehicle so he then arrested and cautioned the 2^nd Appellant. He said nothing under caution. PW2 used English to communicate with the 2^nd Appellant. They had no problem communicating with each other in English.

13.The 2^nd Appellant then claimed he too felt unwell so an ambulance was called. He boarded it and after awhile alighted and said he did not feel unwell any longer. He was not taken to hospital.

The Appellant’s Case

14.Both appellants elected to give evidence. The 2^nd Appellant was permitted to give evidence first. He claimed the 1^st Appellant was his natural or blood brother, he produced some documentary evidence. He said the 1^st Appellant had only come to Hong Kong 3 to 4 years ago and he spoke no English whatsoever. He himself ran a recycling company and had a small shop close to where this vehicle was parked on a long term basis. The 1^st Appellant would sometimes stay and sleep in a room in his shop. The 2^nd Appellant’s evidence is that he did not ask the 1^st Appellant to work for him in his business in any way or form. This 1^st Appellant however would sometimes accompany him.

15.He did not know what the 1^st Appellant was doing when arrested because he was not present. What he said happened when he arrived at the scene totally contradicted the evidence of PW2. His version of events suggested he answered all questions put to him by PW2 and did tell PW2 that the 1^st applicant was his brother. He was asked for his ID card and he said it was in his bag that he left in the vehicle. He was taken to the vehicle but his bag was missing. He thought his brother must have taken it for safe keeping as it had cash in it.

16.The 2^nd Appellant’s evidence was that normally the vehicle is not locked as it is not driven. It is used mainly as a storage unit. He found it locked but had the spare key for it. He opened it and discovered his bag was missing. He assumed his brother had his bag and had locked the vehicle.

17.He was shown a photograph of his brother taken after his arrest and did identify him. He said the bag the 1^st Appellant was carrying belonged to him. The prosecution’s case is that the 1^st Appellant took out an identity card from this bag and presented it as his own.

18.The 1^st Appellant gave evidence after the 2^nd Appellant. Just before his arrest he was outside the 2^nd Appellant’s shop having come out to go for a walk. The 2^nd Appellant was not present. He went to the truck and checked inside it. He saw the 2^nd Appellant bag so he took it in case anyone else stole it. He himself did not know how to drive.

19.When he was stood near the 2^nd Appellant’s truck, he saw some people in uniform gesturing to him to move some trolleys off the pavement. He did not understand what they were saying to him but understood their hand gestures. He understood that they would give him a ticket if they were not moved. He then put the trolleys inside the vehicle.

20.After that he returned to his previous position standing outside near the truck. He was waiting for the 2^nd Appellant. Minutes later 3 people came and stood around him. He did not understand what they were saying. They kept pointing to the vehicle. He thought they were asking who owned the vehicle so he produced his brother, the 2^nd Appellant’s Hong Kong identity card to illustrate that the vehicle and business belongs to the 2^nd Appellant. They then took away the ID card he presented and brought him over to a government vehicle. He did not feel well.

21.They spoke to him but he did not fully understand but he thought they were asking for his identification so he presented his Form 8 paper to them. It was in his bag, not the 2^nd Appellant’s bag. He was then taken to hospital and did not see the 2^nd Appellant at the scene that day.

22.Although he spends time in his brother’s shop, he has never worked with him or done any work for him. He has heart issues and is often sick. He spends a lot of time resting upstairs in the shop. It was suggested that he could speak English, had to speak English when he went to hospital on numerous occasions relating to his heart issue over the 10 plus years he has been here and understood PW1 when he spoke to him and asked for his Hong Kong identification card. He disagreed.

23.The 1^st Appellant disagreed in cross-examination that immigration officers saw him working and loading trolleys for the 2^nd Appellant’s business when he knew he was not allowed to work in Hong Kong. He disagreed. It was suggested to him which he denied that that was why he produced the 2^nd Appellant’s identity card hoping to pass himself off as a Hong Kong resident. He disagreed that is why he answered FIAZ when asked his name, pretending to be the 2^nd Appellant. It was suggested he was carrying his brother’s identity card to pass himself off as a Hong Kong resident. He disagreed.

24.In short, the Defence case was the 1^st Appellant was not working at the time he was observed by Immigration Officers. He did not speak English well enough and there was a misunderstanding on his part. He did not produce the 2^nd Appellant’s identity card purporting it to be his own but because he thought he had been asked who owned the vehicle. Since the 2^nd Appellant owned the vehicle he produced the 2^nd Appellant’s identity card. He did not knowingly make a false statement to an Immigration Officer. He had the 2^nd Appellant’s identity card because the 2^nd Appellant had left his bag in the vehicle and he was holding it for safekeeping after he discovered it.

25.The 2^nd Appellant confirmed he had left it in the vehicle and went to get it when asked for his identity card but found the bag was not there any longer. He did not employ his brother illegally nor transfer his identity card to him to use.

The Magistrate’s Findings

26.The magistrate considered all the witnesses evidence. He rejected both the appellants’ version of events and found the prosecution witnesses to be honest, reliable and credible. He gave his reasons for not believing either appellant. He gave his reasons for not believing the 1^st Appellant misunderstood the questions put to him by the Customs and Excise Officer who intercepted him. He gave his reasons why he did not find their evidence reasonable or believable. He gave full reasons in his statement of findings for being sure the prosecution had proved the elements of each offence against both appellants to the requisite standard of proof.

Legal Principles

27.It is clearly established that a magistracy appeal is conducted by way of a rehearing on the evidence before the trial court. Where findings of fact are based on the oral testimony of witnesses, the appellate court would be subject to limitations and must therefore exercise caution. After all, the magistrate enjoyed the advantage of having seen and heard witnesses giving evidence. The appellate court is not in that same position.

28.Nevertheless, 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.

29.For the purposes of this appeal, although I do not have the advantage the magistrate enjoyed of hearing and seeing the witnesses give evidence, I do have the transcripts of their evidence.

30.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, this would justify the decision to allow the appeal.

31.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 all charges have been proved to the requisite standard, beyond reasonable doubt.

Grounds of Appeal

32.The appellants rely on 5 grounds of appeal, namely:

(1)  the 1^st Appellant’s evidence was unfairly rejected;

(2)  the 2^nd Appellant’s evidence was unfairly rejected;

(3)  the magistrate erred in finding the 1^st Appellant produced the 2^nd Appellant’s identity card as proof of his identity;

(4)  the magistrate erred in drawing an irresistible inference that the 2^nd Appellant gave the 1^st Appellant his identity card; and

(5)  lastly, the magistrate failed to take into account and give sufficient weight to their relationship as brothers when finding an irresistible inference of employment.

Considerations

33.Mr Connelly submitted there was merit in these 5 grounds of appeal. There was a similarly comprehensive reply from the respondent.

34.I have had the opportunity of reading the vital evidence and that is the transcripts of the oral evidence of each prosecution witness and both appellants. I have taken into account the magistrates findings. I will, as required, consider this appeal a rehearing on the evidence before the trial court.

35.There were two very separate versions of events and despite the able submission of Mr Connelly, a reading of the transcripts demonstrate to me as it did to the magistrate that the evidence of both appellants had been tailored to try and explain not only the admitted facts but also the actions of the appellants at the scene.

36.The prosecution witnesses observed the 1^st Appellant loading the vehicle by himself. The 1^st Appellant denied he was working for the 2^nd Appellant when he did this but moved them as requested by some men in uniform. The prosecution witness asked the 1^st Appellant for his ID card because they saw him working. The 1^st Appellant admits he presented the 2^nd Appellant’s ID card but not to pass himself off as a Hong Kong identity card holder but because he misunderstood English request. PW1 naturally asked him to give his personal details as he suspected the ID card was not his and the 1^st Appellant was unable to give details such as the date of birth on the card. The 1^st Appellant could only counter this damning evidence by saying he did not understand any English.

37.The prosecution witnesses asked the 2^nd Appellant for his identity card when he arrived at the scene but he said he did not have it on him. The 2^nd Appellant suggests he went to get it from the vehicle but it was not there; tendering an explanation or story that explains why the 1^st Appellant had his Hong Kong identity card when he was not at the scene.

38.The prosecution witnesses asked the 2^nd Appellant more questions and showed him a photograph of the 1^st Appellant but he maintained his right to silence. The 2^nd Appellant absolutely had a right to silence and his decision not to answer any questions cannot be held against him. However, in his evidence the 2^nd Appellant denied he was asked those questions and exercised his right to silence, denied he did not explain where his identity card was at the time and denied he did not acknowledge the 1^st Appellant’s photograph.

39.I repeat what I have said above, a reading of the transcript leads me to the finding that both appellants tailor-made their defences to directly contradict or explain away the credible evidence of the prosecution witnesses. The only way to deny these offences was to plead miscommunication which led to the commission of a serious offence, presenting another’s identity card as one’s own. The only way to deny these offences was for the 2^nd Appellant to claim he left his bag and cash unattended in a vehicle he normally used for storage which explains why the 1^st Appellant had the 2^nd Appellant’s identity card.

40.If he had left his identity card in his bag in the vehicle parked at the scene, the 2^nd Appellant would have gone to retrieve it when asked by PW2 for his identity card. It was a story fabricated later after arrest for the purposes of the trial. PW2 denied the 2^nd Appellant said this or even approached the vehicle to retrieve it. I do not believe PW2 concocted his evidence.

41.Grounds 1 to 3 of appeal can be dealt with together. Essentially the appellants suggest the magistrate was wrong to reject their evidence. The magistrate was wrong to believe the prosecution witnesses. The magistrate did not believe the 2^nd Appellant left his bag unattended in an unlocked vehicle that he did not drive for his business which was conveniently picked up and looked after by the 1^st Appellant before he was approached and asked for his Hong Kong identity card. It is an admitted fact that he produced the 2^nd Appellant’s identity card which the appellants say was in this misplaced bag. The 1^st Appellant was suggesting that it was all a misunderstanding, moreover, he did not say his own name was Fiaz.

42.The 1^st Appellant explained his misunderstanding was due to his inability to understand the English, I quote “ID check please”. The 1^st Appellant suggests the magistrate erred in failing to consider the possibility of miscommunication. The magistrate did consider this possibility and rejected it. He did not believe the 1^st Appellant could not even communicate with the doctors in English when he was sent to hospital after feeling unwell after his arrest but relied on ambulance men who treated him to tell the doctors what was wrong with him.

43.It was suggested there was an inherent improbability the 1^st Appellant would produce an identity card that contained a photograph that did not match his own appearance. If a person is illegally working and caught red-handed committing this offence then an attempt to get away with it is not beyond the realms of probability.

44.I too like the magistrate believe he produced it to use it and pass it off as his own. I do not, like the magistrate believe he thought “ID check please” meant who does this vehicle belong to. I am satisfied he was caught working illegally and tried to pass himself off as the 2^nd Appellant. There is no merit in either Grounds 1, 2 or 3.

45.There is no merit in Grounds 4 or 5 either. It was an admitted fact that the 1^st Appellant produced the 2^nd Appellant’s identity card and the evidence was he produced it from a bag which he accessed without any obstruction. The magistrate was entitled to draw the irresistible inference that the 1^st Appellant was in possession of the 2^nd Appellant’s identity card for the sole purpose of producing it as his own if necessary whilst he was working for the 2^nd Appellant.

46.The 2^nd Appellant was not present at the scene and had no reason for having left his bag unattended containing keys, cash and his identity card in a vehicle unlocked and normally used for storage parked outside his business. The magistrate rejected his evidence as implausible and was entitled to draw an irresistible inference that the 2^nd Appellant had handed custody of his Hong Kong identity card to the 1^st Appellant.

47.Much was made of the evidence from the 2^nd Appellant during trial that they were siblings. It was suggested the magistrate failed to properly consider their relationship before drawing an irresistible inference of employment. He specifically considered this evidence.

48.Even if they were brothers, that does not preclude the 1^st Appellant for working illegally for the 2^nd Appellant according to the law and interpretation of employment. The magistrate considered all of the evidence together to draw the irresistible inference an employment relationship existed. That evidence included documentary evidence from the 2^nd Appellant that they were siblings.

Conclusion

49.After a review of the appeal bundle and transcripts, I find myself coming to the same conclusion as the magistrate and that is the prosecution was able to prove beyond reasonable doubt the elements of each offence against both appellants.

50.I also find myself rejecting the evidence of the appellants and concluding the evidence from the prosecution witnesses is more than sufficient to be able to draw an irresistible inference that the 1^st Appellant was working illegally and that the 2^nd Appellant had transferred his identity card to the 1^st Appellant because of this. I am sure he did this because he had employed the 1^st Appellant as a person who is not lawfully employable.

51.This led to the 1^st Appellant using the 2^nd appellant’s identity card, an identity card relating to another person when caught red-handed. He reiterated his intention to pass it off as his when he answered a follow up question that his name was Fiaz to match the card. This meant he did commit the offence of making a false representation to an Immigration Assistant.

52.The elements of all 5 charges I am sure were proved beyond reasonable doubt by the prosecution. The magistrate’s findings and reasons given are more than sufficient and correct.

53.In the circumstances, the magistrate was justified in convicting both appellants and I find no basis for disturbing those 5 convictions.

54.There is no merit in this appeal therefore; the appeal against all convictions is dismissed.

Miss Liu King Fan, Laura, Senior Public Prosecutor, of Department of Justice, for the Respondent

Mr Connelly, Robert James, instructed by Choy Yung & Co., for the 1^st and 2^nd Appellants