HKSAR v. Cheung Hiu Wai

HCMA854/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.854 OF 2004

(On Appeal From STCC 875 Of 2004)

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 3 November 2004

Date of Judgment : 3 November 2004

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J U D G M E N T

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1.The appellant was convicted on 2 July 2004 after trial by Mr Jenkins at the Shatin Magistracy of three counts of employing a person not lawfully employable, contrary to section 17I(1) of the Immigration Ordinance, one count of assault occasioning actual bodily harm and one count of criminal intimidation.  He was sentenced to 15 months’ imprisonment in respect of the immigration offences and 12 months in respect of the assault occasioning actual harm and six months for the criminal intimidation offence.  Six months and three months of the assault occasioning actual bodily harm and the criminal intimidation respectively were imposed consecutively to the immigration offences, giving a total of 24 months’ imprisonment.  The appellant now appeals the convictions.

2.The facts before the Magistrate were these.  From the prosecution the evidence was that the appellant had decoration work to do in his home in Tsuen Wan, that he employed a person not lawfully employable, namely, a person from the Mainland named Zhu Tai Lang, to assist in this decoration work in July 2002.  Zhu had come to Hong Kong on a two-way Chinese permit and said he was paid by the appellant after he completed the work in July 2002. 

3.After a period, Zhu testified he returned to Hong Kong again on a two-way permit and worked for the appellant for periods of time on three separate construction sites.  It was his evidence that the appellant hired him and owed him pay for this work.  When there was no temporary work on site he returned to the Mainland.  When he did so, he was not paid his wages on the completion of the work but he testified he was given money from time to time by the appellant for his living expenses, and this amounted to about $4,000.

4.He testified that in May 2003, he returned to Hong Kong and claimed backpay from the appellant.  He said that he went to the office of the appellant in Ma On Shan and refused to leave when he was not paid.  He testified that the appellant went to his car to leave for a construction site and that he also boarded the vehicle.  He refused to alight when asked to do so and was assaulted by the appellant on the back and another man, unknown, struck him on the head with an iron bar.  He testified that the appellant threatened him with more violence should he report any matter to the police. 

5.It was his evidence that he used more than one two-way permit during the period 2002 to 2004, and only his current travel permit was seized.  His evidence said each visit was in respect of a two-way permit.  It is a matter of law that a person entering Hong Kong on such a permit is not lawfully employable in Hong Kong.  Certificates were also produced from the Immigration Department supplying prima facie evidence that he was not lawfully employable in Hong Kong.  At the end of the day, those certificates were of little value as the Magistrate believed the evidence of Zhu as to the occasions that he worked for the appellant and upon which the Magistrate convicted.  On one of the occasions, testified to by Zhu, the Magistrate was not sure of the dates and acquitted the appellant on that charge.

6.The appellant gave evidence and testified that he had never employed Zhu.  He said Zhu was not known to him, that he did not enter his car and travel with the appellant, that no assault took place and that there was no criminal intimidation.  He further called one Yuen Si Keung to give evidence, and Yuen testified that he had employed Zhu in respect of building contract works.  

7.The Magistrate held that the case turned upon the credibility of Zhu.  If he believed Zhu and found no doubts in the evidence of the appellant and Yuen, then he was entitled to convict. 

8.The first ground of appeal is that the trial judge did not have proof of whether Zhu was in Hong Kong during the periods when the appellant was convicted of employing him.  The point made by the appellant this morning is that there must be records in the hands of the prosecuting authorities to indicate upon what dates Zhu entered and left Hong Kong and that these could then be linked to the dates upon which it was alleged Zhu worked for the appellant.  The prosecution chose not to lead such evidence if indeed it had such evidence.

9.The Magistrate was faced with determining whether on the evidence of Zhu alone he was satisfied, so he was sure, that Zhu was employed by the appellant for the periods which he claimed.  The Magistrate carefully considered the evidence of Zhu and was satisfied as to his truthfulness.  He said this :

“      … PW1 was apt to be somewhat vague and inconsistent about dates.  But I have no doubt that PW1 was doing his best to give an hones and truthful account of his experiences.  I am not, incidentally, surprised by PW1’s vagueness over dates.  He was describing events over a period of time from May 2002 to May 2004.  Inevitably, he cannot be expected to be precise about a number of different dates in that period.

I am in no doubt that PW1 did work for the defendant, both at the defendant’s home and at various construction sites where the defendant was engaged.  It may be that at Lai Kok, for example, PW1 was under the direct instructions of Yuen in that Yuen was supervising PW1.

But I am satisfied that at the times when Pw1 says that he was working in Hong Kong, he was doing so as an employee of the defendant.  I simply do not believe the evidence of the defendant or Yuen that PW1 was employed by Yuen. ….”

10.The Magistrate therefore dealt with the evidence that was before him.  It is not for me to speculate as to what may have been contained in the records of the Immigration Department.  I must determine whether the Magistrate has properly evaluated the evidence of Zhu and come to a proper decision as to his truthfulness.  I cannot say that he has approached his task other than properly, both as to the facts and the law.  This ground of appeal must fail.

11.The second ground of appeal was that the appellant wished me to view a video tape of his vehicle entering and leaving Yiu On Estate carpark which he said would demonstrate that he went in and out alone.  Mr Shiu, for the respondent, very properly brought the video record, and by agreement between the parties it was admitted in evidence, and I viewed it.  The basis upon which I permitted it to enter into evidence was that it had not previously been seen by the appellant who was of the view that it would be of assistance to his case.  In the interests of justice and pursuant to section 83V(1) of the Criminal Procedure Ordinance, I admitted it into evidence.

12.I viewed the tape and a still photograph taken from one film of the tape.  As the vehicle enters Yiu On Estate, the appellant can be seen in the driver seat and it can be seen that no person is sitting upright in the front passenger seat, although it is impossible to tell whether someone is in that seat but not sitting upright.  The rear seat, and indeed the rear compartment of the van, cannot be seen.  As the vehicle exits Yiu On Estate a little later, the appellant can be seen driving but no view is possible of either the front passenger seat or the rest of the vehicle.

13.The tape does not help me.  The Magistrate believed Zhu in respect of his evidence as to the assault and to the intimidation.  The tape does not cast a doubt upon that evidence in as much as it does not assist me in determining who other than the appellant may have been in the vehicle at the time. 

14.The third ground of appeal is that had Zhu been working at various building sites then some documentary of his existence on those sites should have been available and persons with whom he worked ought to have been able to come forward and give evidence concerning his existence on the site.  No such evidence was given either by the prosecution or by the defence. 

15.Again, as with the first ground of appeal, the Magistrate had to make his decision upon the evidence before him.  It was not for him to speculate what other evidence might exist.  There was no indication in the evidence before him of the existence of any evidence which he could have ordered brought forward.

16.The last ground of appeal was one added by the appellant at the hearing of the appeal that there was evidence given by a Mr Yuen Si Keung that it was he who employed Zhu and that he had been given by Zhu an identity card and an industrial safety card when he employed him and they were produced in court and that the Magistrate ignored this evidence.

17.I have dealt with this matter in the quotation which I have cited from the Magistrate’s Statement of Findings.  The Magistrate was fully aware of that evidence and disbelieved it.  He made a finding of fact that Zhu was actually employed by the appellant although he may have been under the direction at work of Yuen. 

18.There is nothing in any of these grounds of appeal.

19.The appellant raised a further matter with me at the conclusion of his address.  He said that after evidence had been given in the trial but before the Magistrate gave his reasons on 2 July 2004, he was telephoned by Zhu who asked him for money in the sum of $30,000 and said he knew the home address of the appellant.  He said if he was not given the money that he and the appellant would meet again and would then see who had the better chance to go to prison.  The appellant said that he told Zhu he did not owe him money and noted from the caller ID on his telephone that the phone call had come from the Mainland. 

20.There are certain difficulties with this allegation in as much as the Magistrate notes that the witness was in prison for three months, having been in breach of a condition of his stay in Hong Kong and it is unlikely Zhu could have been in the Mainland on 1 July 2004 when the phone call was said to have taken place.  

21.The second matter of concern is that the alleged telephone call took place prior to verdict when the appellant was still represented by the Duty Lawyer.  He said that he did not bring the telephone call to the attention of his lawyer because his lawyer had said that he would not be convicted.  I find this explanation unconvincing and unbelievable and do not accept it. 

22.I do not believe the appellant in respect of this matter and it therefore plays no part in my decision.

23.The appeal by the appellant against his convictions is dismissed.

Mr Gavin Shiu, SADPP of Department of Justice, for HKSAR

Appellant in person, present