The Queen v. Shum Koon Wah

CACC000226/1989

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Coram: Hon. Silke, V.-P., Power & Macdougall, JJ.A.

Date of Hearing: 14 March 1991

Date of Judgment: 14 March 1991

Date of Handing Down Reasons for Judgment: 30 April 1991

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant SHUN Koon-wan, who was the 2nd defendant at trial, was convicted in the District Court by His Honour Judge Downey on six charges of aiding and abetting a person to contravene a condition of stay contrary to s.89 of the Criminal Procedure Ordinance and s.41 of the Immigration Ordinance. The first three of those charges, charges 13, 14 and 15, alleged that he aided named persons: E.A. Mapatac (PW3), F.V. Ygpuara (PW4) and P.I. Degamo (PW5) to remain in Hong Kong after the expiry of their permission to stay. The second set of three charges: charges 16, 17 and 18 alleged that he aided and abetted each of those same persons to take up employment at the ASSA Furniture and Artifacts Supplies Ltd. (ASSN) in breach of a condition of his permission to stay which permitted him to remain in Hong Kong as a visitor.

3. The applicant also faced charges 19, 20 and 21 which alleged counselling and procuring certain named persons to make false representations to immigration officers. In charge 19 it was alleged that he, on 16th January 1988, counselled ten named persons to make false representations to immigration officers stating that they were visitors; in charge 20, that he and Tirzo I. Vintola ("Vintola"), on 10th January 1988, counselled and procured the same ten named persons to make similar false representation to immigration officers; in charge 21, that he, Vintola and SHUM Mee-yung, that they had on 13th February 1988 counselled and procured six named persons to make similar false representation to immigration officers.

4. It was conceded by the prosecution at the close of the prosecution evidence that the applicant had no case to answer on charge 21 of the counselling and procuring charges. The trial judge was left in doubt, on the evidence, as to guilt on charges 19 and 20. He found the applicant not guilty thereon. The Charge Sheet contained 12 other charges (charges 1 to 12) which involved Vintola and with which we are not concerned in this application.

5. Having found him guilty on the six charges of aiding and abetting the breach of a condition of stay he sentenced him to nine months' imprisonment, suspended for two years, and a fine of $3,000 on each charge. He ordered the sentences of imprisonment to be concurrent and the fines to be cumulative.

6. The applicant sought leave to appeal against those convictions out of time. At the conclusion of the hearing we thought this to be a proper case for such leave to be granted, treated the subsequent application as the hearing of the appeal but dismissed the appeal. We stated we would hand down our reasons later and this we now do.

7. It was the Crown case that the applicant was a director of ASSA and that he had in December 1987 travelled to the Philippines in order to speak with Vintola, the proprietor of Vintola Gems and Mineral Enterprises, from whom he purchased manufactured artifacts; that he requested Vintola to become his project consultant in Hong Kong and to help select ten workers who were to work in Hong Kong for ASSA and that he interviewed and selected ten workers.

8. On 10th January 1988, Vintola came to Hong Kong with ten workers all of whom represented themselves to be visitors to immigration officers at the airport. Having arrived, they were escorted to the factory of ASSA at 126B Kam Tin Main Road, Yuen Long, where they commenced to work as craftsmen. One of these workers E.A. Mapatac was the person involved in charge 13 and charge 16.On 13th February 1988, six more Filipino workers arrived in Hong Kong. They were also escorted to the ASSA factory at Kam Tin and started to work therein. There Ygpuara was the person involved in charge 14 and charge 17. Degamo was the person involved in charge 15 and charge 18. The offences came to light when a party of immigration officers, having received information, raided the ASSA factory and found 19 Filipino overstayers. The visas permitting all of these persons to stay in Hong Kong had expired.

9. The trial judge in his Reasons for Verdict rightly identified the issue before him when he said:

"Indeed, it is not disputed that D2 and D3 went to the Philippines, in December 1987 and February 1988 respectively, to discuss the prospect of using, in Hong Kong, the labour of Filipino workers, who had specialist skills in dealing with stone craft and inlaid gems, used in tables and lamp stands. It would seem that these exotic products were required for performing some contract to furnish a palace in the Persian Gulf. Certain parts of these items were supplied to the company by Mr. Vintola, having been manufactured in his factory in the Philippines. Certain work had to be done at the Company's factory in Hong Kong before the products could be ready for delivery to its customer. What precisely needed to be done at or about the beginning of   December 1987  is disputed. I am not really concerned with the causes of the problem then facing the Company, but I am concerned with one aspect of the attempts to solve that problem.  In particular, I am concerned to decide whether D2 and/or D3 contravened the provisions of Sections 41 and 42 (1) (a) of the Immigration Ordinance (Cap. 115) by arranging for the Filipino workers to come to Hong Kong and work at the Company's factory.

D2 is charged with aiding and abetting three Filipinos to breach their conditions of stay by remaining in Hong Kong after the date of their limited stays and by taking up employment with the Company without the permission of the Director of Immigration."

10. That the trial judge was aware that he was dealing with evidence of persons who were either accomplices or whose evidence required to be examined with particular care is made clear in the following passage:

"In due course, Mr.Vintola gave evidence for the Crown. Three Filipino workers, who had previously pleaded guilty to breaches of their conditions of stay in the Western Magistracy, also gave evidence for the Crown. Two former employees of the Company - MOK Po-cheung (PW7) and Margaret LAW Kit-yi (PW8) - gave evidence for the Crown, after they had been granted immunities from prosecution by an acting Senior Assistant Crown Prosecutor. Substantially the whole of  the Crown's case depends upon the evidence of persons who were accomplices, or likely to be biased because of loyalties or inducements; or to be inclined to understate their roles and exaggerate or falsify the acts of D2 or D3. Furthermore, some of the evidence was disclosed to be Court through the agency of interpreters, whose skill and reliability could not be established in the usual manner. 411 these features were evident from the start of the1trial. At all times I have been aware of the dangers of relying on evidence coming from such obviously suspect or tainted sources. I have kept in mind the desirability of corroborative evidence and the dangers of relying on the uncorroborated evidence of accomplices or witnesses who may be tempted to give false or unreliable evidence."

11. The trial judge went on to say:

"The crucial facts which the Crown must establish beyond reasonable doubt are that D2 knew that the Filipino workers remained in Hong Kong after the periods permitted by the Immigration Department had expired; that they had entered Hong Kong as visitors or that they were not permitted to take up employment in Hong Kong; and that D2 did acts which assisted the Filipino workers to contravene their conditions of stay."

Having dealt with the charges with which we are not concerned the judge went on and, as much has been made of this lengthy passage, we set it out in full:

"Finally, I turn to the remaining charges against D2 of aiding and abetting breaches of condition of stay by PW3, PW4 and PW5. It seems to me that, in respect of the 13th, 14th and 15th charges, the real question is whether the Crown has proved that D2 knew that these workers were not permitted to stay in Hong Kong after the 24th January 1988 and the 20th February 1988. In respect of the other three charges, the real question is whether the workers were employed by Mr. Vintola or by the Company, for, if they were not employed by the latter, these charges must result in acquittals. Whether the Crown must also prove knowledge that the workers were only permitted to remain  'as visitors' is, perhaps debatable. But, for the purpose of this case, and as the point has not been argued before me, I will proceed on the basis that the status of the workers at the relevant time must also be proved by the Crown to have been known by D2; and that the Crown too (sic) must prove beyond reasonable doubt that D2 knew that they had not obtained permission to work for the company, and that they had remained in Hong Kong after their limited permission had expired.

It has been contended that securing the necessary permission to stay and work in Hong Kong was the sole responsibility of Mr. Vintola, and that, at all material times, the workers were his employees. On this aspect of the case, the only direct evidence is that of Mr. Vintola and some of the documentary exhibits. The evidence of the workers is of little value. The fact that they regarded Mr. Vintola as their 'boss' is neutral, since Mr. Vintola's services were required to supervise them in skilled work which he had pioneered as well as to act as their representative and interpreter. The fact that the wages, food, and accommodation for the workers were provided by the Company suggests that they were employees of the Company; but these could be merely convenient administrative measures for enabling Mr. Vintola to retain his workforce. But, if Mr. Vintola was to be responsible for these important matters, it is surprising that D2 did not expressly say so when 'confirming' his role in Exhibit P5. That document described his role as 'operation consultant'. It makes no provision for the workers. I am satisfied that each worker was promised and paid, inter alia, US$200 per month for working in Hong Kong. That has not been challenged. The benefits to be paid to Mr. Vintola, according to paragraphs 2 and 4 of Exhibit P5, are, in my view, more indicative of his being an employee of the Company, rather than an independent contractor responsible for hiring a gang of sixteen or more workers to work for him.  Exhibit P5 is an important document in other respects. It gives the lie to suggestions that Mr. Vintola really agreed to bring his workers, to Hong Kong solely to remedy defects in his own products and to retain D2 as a valued buyer. Although completion of the Doha project was clearly a priority, a much longer relationship leading to a partnership or some form of international joint venture was clearly contemplated. As I have already indicated, I am not concerned with the causes of the problems over the Doha project But, in so far as Mr. Vintola's apparent refusal to accept that he was in default in this respect is considered to undermine his general credibility as a witness Exhibit P5 goes some way to restoring that evanescent aspect of much oral testimony !

The suggestion that Mr. Vintola was to be solely responsible for ensuring that 'his' workers were legally allowed to stay and work in Hong Kong is difficult to reconcile with the undisputed actions of various employees of the Company. There is nothing significant in meeting the workers at Kai Tak and escorting them to the factory. These are customary courtesies adopted by a host. But, sending the production manager (Mr. Mok) on the 16th January 1988 to the Immigration Office in Yuen Long to accompany the workers and pay the fees for extensions of their permission to stay, and a further visit between that date and the 24th January 1988 at the headquarters of the Immigration Department, when either Mr. Mok or Margaret Lam was present (according to facts formally admitted by the Crown before final addresses), seem to me wholly inconsistent with the suggestion that the Company had nothing to do with these matters, and consequently D2 lacked the knowledge of essential matters to enable him to be found guilty of any of the remaining charges.

The industrial scene in Hong Kong is such that it is never simple to determine whether a particular relationship is one of employment or a contract for services. Even when it is clearly that of employment, it is not always easy to identify the employer. In some situations the legal problems have limited practical consequences. For instance, a worker who is injured at his place of work may be able to recover compensation, under the Employees' Compensation Ordinance (Cap. 285) or at Common Law, from his employer, his employer's employer or the occupier of the place where he works. In Hong Kong, some of these potential liabilities must, by law, be covered by insurance. A prudent and law-abiding businessman would normally insure against these and other risks, if only to protect his own interest in his capital venture. Failure to insure against certain risks is a criminal offence. If it was really agreed between D1 and D2, that D1 should bring his employees, or persons whom he had previously employed in the Philippines; to Hong Kong, and continue to be their employer while in Hong Kong, working in a factory with Chinese employees of the Company, one would surely expect D2, as the person more familiar with local conditions, to advise D1 of these risks and urge him to cover himself by acceptable insurance, if only to avoid the criminal sanctions imposed by local legislation. These and other ''practical matters were not even mentioned in Exhibit P5 or any of the oral evidence placed before me. D2 has elected not to give evidence, as he is perfectly entitled to do. His election is not indicative of guilt. It merely means that I do not have the advantage of any explanations of certain significant events or conduct, which D2 might reasonably be expected to be able to provide.

There is one issue which forms a sort of bridge between D2's alleged knowledge of the status of the workers after they had arrived in Hong Kong and the identity of their employer. Mr. Vintola testified that he and the ten workers who arrived on the 10th January 1988 were told to stay in the factory after the 24th January 1988, because these workers had been unable to obtain a second extension of stay. Presumably, the second extension was the one sought between the 16th and 24th January 1988, and is the subject matter of the facts admitted by the Crown just before Mr. Bell's final submission. A similar injunction was addressed to those workers who arrived on the 13th February 1988, viz., that they should stay in the factory until a change in the status of their visas had been arranged. D2 was present on both occasions. As a matter of fact, the presence of these sixteen workers and a few others in the factory of the Company was not discovered by Immigration Officers until the 18th November 1988. It is fair to say that no mention of these injunctions was made by Mr. Mok or any of the workers, apart from Mr. Degamo, who told me that Mr. Vintola told these workers to be careful when going out. That ''was after D3 showed apparent indifference to their concern about work permits. Mr. Bell submitted, inter alia, that these orders were never given by or on behalf of D2. In part, he relied upon the apparent incongruity between the virtual servitude of the workers at the factory and their presence at a dinner in Wanchai. In my view, there is nothing odd about their presence at a dinner since it took place about one or two days after the arrival of the first group of workers. I have considered everything that has been said about the reliability of Mr. Vintola and the other workers, but I am satisfied that they have told me the truth. I do not think that Mr. Vintola has minimized his role in this affair. The range of his pleas of guilty indicates a willingness to accept a very large measure of responsibility. The evidence regarding the workers being told to stay in the factory suggests that D2 exercised the sort of control which an employer has over his employees.   In the present case, it also indicates that, at least from the 24th January 1988, D2 knew that the workers did not have permission to remain in Hong Kong or to work at the factory. I think he knew before that date because I am satisfied that D2 accompanied D1 to the British Embassy before they came to Hong Kong at the end of December 1987. I am sure that visit took place although Mr. Vintola was mistaken about the date of the visit. Accordingly, I am satisfied that the Crown has proved all the ingredients of the offences alleged in the 13th to 18th charges, and I find D2 guilty on each of those charges.

In reaching that conclusion, I have not overlooked the letter dated the 19th January 1988 (Exhibit D5), which was composed by D2 but signed by Margaret LAM. The purpose of preparing this letter is not clear, but I am satisfied that it was never given to any Immigration Officer. It is some evidence of D2's knowledge of the true status of the workers, as is the fact that two visits within a week were made to two offices of the Immigration Department. Margaret LAM's evidence about this letter is very strange. But, in the absence of any explanation from the author, it does not cause me to entertain any doubt that he then knew that work permits had not been obtained for the ten Filipino workers."

It is urged in the Grounds of Appeal:

"That each of the convictions is unsafe or unsatisfactory in all the circumstances of the case and; WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, IN PARTICULAR HAVING REGARD TO WHAT FOLLOWS, EITHER CUMULATIVELY OR 'SERIATIM'."

12. The first specific Ground argued by Mr. Sanguinetti, who appears with Mr. Liu for the applicant, alleges that:

"1.         The Learned District Court Judge in his finding that the 3 Philippino workers to wit Messrs. Mapatac, Ygpurra and Degamo (hereinaftr referred to as 'the 3 workers') were employees of 'the company' relied on the evidence of the 1st Defendant (Mr. Vintola) whose general credibility was 'underminded' by his evidence and hence unreliable."

This ground rests upon the following observation from the Reasons of the trial judge: "But insofar as Mr. Vintola's apparent refusal to accept that he was in default in this respect (the Doha project) is considered to undermine his general credibility as a witness, Exhibit P5 goes some way to restoring that evanescent aspect of much oral testimony". Mr. Sanguinetti contends that having found that Mr. Vintola's credibility was undermined the judge was required thereafter to treat his evidence as unreliable, and to place no weight thereon.

13. We are satisfied that the trial judge made no such finding. Indeed a reading of the whole judgment makes it quite clear that he was satisfied that Vintola was a witness of truth - and he said so in terms. What he was here doing was indicating that any suggestion that the evidence of Mr. Vintola must be considered to be undermined by his refusal to accept that he was in default in respect of the Doha project was met by an examination of the contents of Exhibit P5. There is nothing in this ground.

14. Ground 2 rests upon the same passage in the Reasons arguing that:

"2.         The Learned District Court Judge having held that the 1st Defendant's evidence was unreliable proceeded to look in effect for corroboration of his evidence, and found it in Exh. P.5 which he held to have restored the reliability of the evidence.''

15. We are satisfied that the trial judge at no time held that Vintola's testimony was unreliable and that he did not carry out the exercise suggested in this ground.

16. Ground 3 is based on the passage in the Reasons referred to in Grounds 1 and 2:

"3.         Such restoration, which in effect was corroboration, was based mainly upon the fact that Exh. P.5 was silent on labour matters which would possibly affect 'the 3 workers' and as such afforded no restoration or corroboration."

17. It is not, given the finding set out above, necessary for us to deal further therewith.

18. Ground 4 reads:

"4.         On the assumption that 'the 3 workers' were employees of 'The Company', the Learned District Court Judge erred in law and in fact in equating the involvement of 'The Company' in relation to the employment of the 3 workers' with the Applicant, as there was no or no sufficient evidence as to what duties in the company the Applicant had to perform."

This ground is based on the following passage in the Reasons:

"But, sending the production manager (Mr. Mok) on the 16th January 1988 to the Immigration Office in Yuen Long to accompany the workers and pay the fees for extensions of their permission to stay, and a further visit between that date and the 24th January 1988 at the headquarters of the Immigration Department, when either Mr. Mok or Margaret Lam was present (according to facts formally admitted by the Crown before final addressed), seem to me wholly inconsistent with the suggestion that the Company had nothing to do with these matters, and consequently D2 lacked the knowledge of essential matters to enable him to be found guilty of any of the remaining charges."

19. Mr. Sanguinetti suggests that the judge was here assuming that the Company had been proved to have employed the workers and was ''equating the involvement of the Company in relation to the employment of the 3 workers with the Applicant." He submitted, if we understand him correctly, that knowledge of the company was being wrongly attributed to the applicant as his duties in the company were never proved. This argument is, in our view, unsustainable as it rests upon a misapprehension of what the trial judge was saying. When the passage set out above is put in the context of the whole paragraph in which it appears (see p.8 of this judgment) it is clear that the judge was referring to defence suggestions "that Mr. Vintola was to be solely responsible for ensuring that his workers were legally allowed to stay and work in Hong Kong", that the company had nothing to do with any applications for extensions of stay and that the applicant, although an officer in the company, could not be held to have knowledge of such matters. The position was, in our view, the reverse of that contended for by Mr. Sanguinetti.

20. It was the defence which, in effect, contended that the Company's lack of knowledge could be used to establish a lack of knowledge on the part of the applicant. What the judge was, in fact, saying was that given the actions of Mr. Mok and Miss Margaret LAM  the suggestion that the company had nothing to do with the application for the workers to be allowed to remain in Hong Kong was not sustainable and provided no base for the contention that the applicant lacked knowledge of these matters. He was not attributing the knowledge of the company to the applicant, but was indicating that lack of knowledge on the part of the applicant could not be urged upon the basis that the company was not involved. This he was satisfied must be so as the evidence was "wholly  inconsistent" with the suggestion that the company was not so involved.

21. The judge was in our judgment indicating the existence of evidence which refuted the line of reasoning being urged upon him by the defence.

22. Ground 5 reads:

"5.         The imputing knowledge to the Applicant to the effect that the 3 workers' had breached their conditions of stay, the Learned District Court Judge relied on:

23. The first of the matters on which it is suggested that the judge  wrongly relied is the evidence of Vintola. This argument would be sustatinable only if grounds 1, 2 and 3 had been answered in favour of the applicant. They have not been so answered and there is, therefore, nothing in this first matter.

24. The second matter is a suggestion that the judge was wrong to place any reliance upon the evidence of the three witnesses who were workers as their evidence was, in the words of the judge in his Reasons (p.4 of this judgment) "disclosed to the court through the agency of interpreters whose skill and reliability could not be established in the usual manner". We accept that, at first sight, it is not easy to understand what was meant by these words. However, having ascertained from the record that the interpreters were sworn in the usual manner, we are satisfied that what the judge meant was that, as the interpreters were using Tagalog and Disayan dialects, the usual check on their skill and reliability which exists when a witness is giving evidence in Cantonese by reason of the fact that there will be normally be persons in court who understand both Cantonese and English, did not exist. Given, however, that the interpreters were properly sworn and that no complaint was made in the course of the trial as to their interpretation it cannot now be suggested that the translation of the evidence was unreliable.

25. The third matter is. the suggestion that the trial judge came to rely upon the evidence of Margaret Lam (PW8) despite the fact that he had found, at p.9 of his Reasons, that she was "untrustworthy as a witness in this case." The suggested reliance upon her evidence comes in the penultimate paragraph of the Reasons where the judge indicates that Exhibit D5 occasioned him no doubt as to the guilt of the applicant. Exhibit D5 is a letter dated 19th January 1988 which was, it appears, composed by the applicant, signed by Margaret Lam and addressed to the Immigration Department. However, the trial judge was satisfied that it was never given to any immigration officer. The letter is headed "Application for Extension of Stay in Hong Kong" and it states that it is presented at the request of Vintola "for our undertaking to state that a further extension of stay in Hong Kong for Mr. Vintola and his work team is desperately necessary for the benefit of our company in fulfilling the obligation to deliver qualified stone inlay furniture to our clients on time". It went on that Vintola and his workers had come to Hong Kong on 10th January 1988 "trying to finish their repair works on those defected items within a short period of time"; that they have been unable to finish the work and that "in order to fulfil their commitment to us in supplying qualified stone inlay furniture and ensure us to meet our client's deadline on delivery, they have to apply for further extension of stay to expedite and finish their repairing work in Hong Kong".

26. This letter was tendered through Margaret Lam, a former employee of ASSA who gave evidence under an immunity, as a defence exhibit. The defence clearly sought to place some reliance upon it as an indication that ASSA and the applicant had no direct responsibility for the workers. The trial judge stated that "Margaret Lam's evidence about this letter is very strange.But, in the absence of any explanation from the author, it does not cause me to entertain any doubt that he then knew that work permits had not been obtained for the ten Filipino workers." It is difficult to know what reliance Mr. Sanguinetti suggests the judge was here placing upon the evidence of Margaret Lam. The judge's attitude to Margaret Lam was consistent throughout. He had found her to be an untrustworthy withess and, as regards the letter, he found her evidence to be "very strange". In our view there being no evidence as to the letter from its author (the applicant), the  judge was quite right to find that it established no more than that the applicant knew that the Filipino workers referred to therein had not obtained work permits.

27. The fourth matter is the suggestion that reliance was wrongly placed upon the evidence that Mr. Mok and Miss Margaret Lam "were at one time or another present when the three workers visited the Immigration Department and PW8 (Miss Lam) was sent there and paid the fees when no evidence is available as to who sent him or asked him to pay the said fees." The judge, we are satisfied, never relied upon the evidence of presence of Mr. Mok and Miss Lam at the Immigration Department to prove knowledge on the part of the applicant that the workers. had breached their conditions of stay. As we have indicated, when dealing with Ground 4, the trial judge referred to the activities of Mr. Mok and Miss Lam only when dealing with a defence suggestion that the company had nothing to do with the. applications by the workers.

28. Ground 6 reads:

"6.         The Learned District Court Judge did not pay sufficient regard or give sufficient consideration to the "Doha Project" in relation to the presence of. the 1st Defendant and 'the 3 workers' in Hong Kong or in the interpretation of Exh.P.5."

Ex.P5, a memorandum dated 24th December 1987, recorded the result of a meeting between the applicant and Vintola at Cebu in the Philippines. It states itself  to have been "Reported by Alan Shum" and is headed "Subject: Confirming Role of T. Vintola in Hong Kong". Vintola was to be in Hong Kong as an "operation consultant" and was to be paid US$1,000 per month plus housing and meals. With regard to the "Doha project" it stipulates that Vintola would be given an incentive bonus on "condition that all work execute (sic) in Hong Kong are below priced cost, deducting all extra costs involved, e.g. worker's cost in Hong Kong, etc. Then the difference between the cost of the work and the quoted price would be treated as an incentive bonus, i.e. "Purchase Price (Vintola quotation) - Material + Labour Cost - Worker Arrangement in Hong Kong = Incentive Bonus". This appears to indicate that Vintola would receive a bonus in the amount of the difference between his original quoted price and the total cost of material, labour and outlays on the arrangements for the workers in Hong Kong. Such an arrangement would not seem to envisage that he would be responsible for either the labour costs or the cost of the arrangements for the workers in Hong Kong. It certainly does not support any suggestion that the workers were to be employees of Vintola. The document ended with the provision that Vintola would go to Hong Kong to investigate the working environment and to make arrangements and preparations of working machinery before the workers arrive in Hong Kong.

29. There can be no doubt that the judge was aware that the workers were finishing work related to the "Dona project" while they were in Hong Kong.

30. The issue, however, was not what work they were doing but by whom were they employed at that time. It was the evidence of Vintola, which the judge accepted, that his company had not been at fault with regard to any of the shipments of artefacts to Hong Kong in relation to the "Doha project" He admitted that complaints had been made as to those artefacts, but said that there had been three parties involved in their manufacture and denied that his workers had come to Hong Kong because of any complaint about the work for which he was responsible. It is true that Exhibit P5 suggests that a priority in the coming of Vintola to Hong Kong was "to finish Dona project outstanding work before end of February 1989". Vintola in his evidence swore that he had come - and this is in accordance with the wording of Exhibit p5 - as an "operation consultant" and that the work was to be done by Filipino workers who were to be employed by ASSA. We can find no failure by the trial judge to give adequate consideration to the "Doha project" or to the interpretation of Exhibit P5. If anything P5 gives cogent support to the evidence of Vintola that he came to Hong Kong as an employee of ASSA.

31. Grounds 7 reads:

"7.         The Learned District Court Judge in imputing knowledge to the applicant from Exh.D5 did not consider (if such knowledge is to be imputed) that the said Exhibit was at the very least a mixed statement, showing that 'the 3 workers' were in effect the employees of the 1st Defendant."

We do not agree. It gives all the appearance of indicating that Vintola would not be responsible for either labour costs or the costs of the arrangements for workers in Hong Kong. We are satisfied that there is no substance in this ground.

32. Ground 8 reads:

"8.         The Learned District Court Judge erred in law in shifting the burden of proof to the Applicant to disprove 'knowledge' when: -

33. It is the contenton in this ground that the judge shifted the burden of proof to the applicant to disprove knowledge by relying upon the evidence of Miss Law, whom he had characterized as untrustworthy, and by holding that the applicant had not adduced evidence explaining the omissions in exhibit P5 (see p.9 of this judgment).

34. For the reasons already stated we are satisfied that the trial judge did not place reliance upon the evidence of Miss Lam.

35. It is true that he indicated that, if Vintola was to have been the employer of the workers in Hong Kong, he would have expected that Exhibit P5 "or the oral evidence" would have made mention of some of the practical considerations governing the employment of workers in Hong Kong. We are unable to see how any complaint can properly be made against this common sense observation. The judge was in no way shifting the burden of proof.

36. For the above reasons, the application for leave to appeal was dismissed.

Representation:

Mr. John Abbott (Senior Crown Counsel) for the Respondent

Mr. A.J.J. Sanguinetti and Mr. Michael Liu (instructed by Messrs. Arthur Au & Co.) for the Applicant.