HKSAR v. Mariano, Noemi Valdez

HCMA835/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.835 OF 2004

(ON APPEAL FROM KCCC 2352 OF 2004)

---------------------------

BETWEEN

-------------------------

Before : Deputy High Court Judge Poon in Court

Date of Hearing : 2 March 2005

Date of Judgment : 2 March 2005

-----------------------

J U D G M E N T

-----------------------

1.This is an appeal against conviction of one charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap.115, Laws of Hong Kong and by virtue of Regulation 2 of the Immigration Regulation.

2.The appellant had a written contract with the employer as a domestic helper at the time of the alleged offence.  She was granted permission to remain in Hong Kong with a special condition that she should work and reside in the employer’s residence.  It is the prosecution case at the trial that the appellant performed “odd job duties” at a shop belonging to her employer during the currency of that condition of stay.

3.The prosecution case is simple and straightforward.  A labour inspector gave evidence to the effect that the appellant was alone inside the shop selling ladies’ garments.  During the period of observation which was some seven minutes, two ladies, one after another, approached display racks placed outside the shop.  The inspector’s evidence was that the appellant served them by showing the displayed items to them.  The two ladies did not make any purchases and left.

4.When the labour inspector approached the appellant and revealed his identity, the appellant explained that she was there to “help out to look at”.

5.The appellant, her employer and a lady who claimed to be employed just five days prior to the incident to work as a shop assistant there gave evidence.  I am not going into details of the evidence, suffice it to say that after assessment of the evidence the magistrate, in my view, quite properly rejected the defence evidence.  The magistrate has seen and heard the witnesses and was entitled to form the view as he did.  He found that the incident happened in the way as stated by the labour inspector.  I am not going to disturb his findings of fact.

6.According to Regulation 2(4) of the Immigration Regulation :

“Permission given to a person to land in Hong Kong for employment shall be subject to the condition of stay that he shall only take such employment or establish or join in such business as may be approved by the Director.”

7.The magistrate interpreted the regulation as meaning that :

“The Restrictions does not only apply to outside employment, but also to all other activities, no matter in the form of employment or otherwise (except activities involving normal social life and personal necessities, as a matter of common sense.”

He then concluded that as the appellant was seen serving customers in a business establishment, these were not activities involving normal social life or personal necessities.  He therefore found that the appellant was performing odd job duties beyond the scope of employment.

8.Mr Hemmings for the appellant today submitted that the magistrate misinterpreted the meaning of Regulation 2(4) by giving it an unwarranted extension and such an interpretation brings the meaning of that Regulation to absurdity and extremities.  It is further submitted that on the facts of the present case, the time of observation was extremely limited and the magistrate erred in coming to the conclusion as he did that the appellant was performing odd job duties as such.  The respondent, however, supports the magistrate’s interpretation and says that whilst accepting the labour inspector’s evidence the magistrate is entitled to draw the necessary inference and then the offence is made out. 

9.I do not find it necessary to go into whether the magistrate was correct in his interpretation of Regulation 2(4).  The real issue in this case is whether on the evidence of the prosecution witness the only reasonable inference is that the appellant was performing odd job duties, thus contravened the condition of stay granted by the Immigration Department.  To me, the word “duties” imports a degree of consensus in which one party gives instructions and the recipient has a reciprocal obligation to perform.

10.The magistrate had rejected the defence evidence.  The position is no different from a case where the defence elected to call no evidence.  The evidence taken at its highest might well establish that the appellant was performing odd jobs, but on those evidence it would be far-fetched if not fanciful to find it the only reasonable inference that she was under a duty to perform such.  Whilst a tribunal is not required to imagine possible defences of which there is no evidence, on the facts as presented by the prosecution, I am of the view that although the circumstances did give rise to some suspicion, other equally possible yet innocent inference could be drawn from the appellant’s acts as well as answer.  Had the observation time been longer, or had there been more frequent visits by the labour inspector, the conclusion could well be different. 

11.Furthermore, this is also not a case where the prosecution invited the magistrate to rely on lies on the part of the defence to support the prosecution case.  Neither was the magistrate invited to more readily draw an adverse inference against the appellant for want of credible explanation from her.

12.This appeal must be allowed, with the order that conviction is quashed.

13.Lastly, I must say that this case is unique on its facts and the allowing of this appeal is not to be taken as to have any ramification on other cases of breach of condition of stay.

Order for costs

14.The appellant applies for her costs, both here and below.  I have no doubt that she is entitled to costs on appeal.  I make the order accordingly, such costs to be taxed if not agreed.  I make no order for her costs in the magistracy as this is a classic case where the appellant has brought suspicion upon herself.

Miss Sally Yam, GC of the Department of Justice, for HKSAR

Mr John Hemmings, instructed by Messrs Massie & Clement, for the Appellant