HKSAR v. Lam Hung Wah

HCMA 399/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 399 OF 2010

(ON APPEAL FROM STCC 6917/2009)

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Before: Hon Wright J

Date of Hearing and Judgment: 28 September 2010

Date of handing down Reasons for Judgment: 30 September 2010

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REASONS FOR JUDGMENT

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1.The appellant was convicted by Ms E Loh, after a trial in which she was unrepresented, of being the employer of a person not lawfully employable. She was sentenced to undergo imprisonment for 3 months. She appealed the conviction. On 28 September 2010 I dismissed the appeal and indicated that I would deliver my reasons for doing so in due course. These are they.

2.There was no dispute that the person named in the sheet as having been employed by the appellant was in fact carrying out duties in a restaurant at the time that staff of the Immigration Department were maintaining observation. There was no dispute that that person was not lawfully employable in Hong Kong, the appellant's testimony being to the effect that she knew that she was merely a visitor from the mainland. The appellant's case was that the woman was a clansman who gratuitously was lending a helping hand.

3.Four grounds of appeal were advanced on behalf of the appellant by Mr. Simon Yip of counsel, none of which addressed the issue of the sufficiency of the evidence evidence but, rather, comprised an attack on the magistrate.

4.The first ground, which asserted that the magistrate "... entered the arena", "... entered into the fray and interfered with the trial thus considered (sic) that the appellant did not have a fair trial." was singularly ill-considered and verged on the impertinent.

5.Those advising the appellant sought leave to introduce a full transcript of the proceedings in the magistracy into the appeal bundle. Any sensible and balanced reading of that transcript reveals that the magistrate's conduct was precisely the opposite from that which was asserted in the first ground. The very experienced magistrate was faced with an unrepresented accused and a case that was being prosecuted by a departmental prosecutor who was of less assistance to the magistrate than she was entitled to expect.

6.The magistrate was at pains to ensure that the appellant understood the charge, understood court procedures, understood what she was able and was not able to do and understood her rights. There were a disappointingly large number of instances where was necessary for the magistrate to clarify with the prosecutor just what it was that was either being asked of or put to a witness, just what the prosecution's case was: it is abundantly apparent that she did so so that the appellant was properly able to understand the case against her. At other times where the appellant was less than precise when attempting to ascertain information from a witness, once again, the magistrate ensured that the appellant's obvious intentions were properly conveyed. The magistrate was focused on ensuring that the appellant received a fair trial.

7.Not only is this ground utterly devoid of any merit, it is one that should never have seen the light of day.

8.The second ground asserts that the magistrate failed "... to allow the appellant any opportunities to explain matters... which eventually led the magistrate conclude that the appellant's evidence was incredible".

9.What happened was this. The prosecution introduced photographs of the worker. At the conclusion of cross-examination of the appellant, the magistrate asked her to confirm the identity of the person appearing in one of the photographs. The appellant did so, for this was not in dispute. The appellant said that it was common for persons in a market to be dressed in the manner of the worker. That was her evidence which she volunteered. In the course of her Statement of Findings the magistrate stated her disbelief that persons in markets, other than workers, dressed in that fashion and referred to the fact that the worker was, specifically, wearing Wellington boots as an example of the reasons why she rejected the appellant's evidence.

10.The ground of appeal is misconceived when it asserts that this fact "led the magistrate" to her conclusion. It was not the sole reason. It was but an example, and a commonsense one, of why she rejected the appellant’s evidence. The magistrate was fully entitled to take into account and, if appropriate, to reject the appellant's evidence on this aspect. Moreover, the submission that the magistrate should somehow have invited the appellant's attention to the Wellington boots during the course of the trial to give the appellant an opportunity to comment upon the fact that the worker was wearing them makes little sense given that the appellant already had volunteered such an explanation.

11.That this was an avenue which had not been pursued by the prosecution is irrelevant. It was the appellant's own evidence before the magistrate who was entitled to deal with it in the manner she did.

12.The third ground criticises the magistrate for "finding the appellant to be "evasive” without any basis." Again this is a mischaracterisation of what the magistrate said which was that she "... found the appellant's account to be unbelievable, and her demeanour was also evasive, which reinforced my conclusion that she was selective in her evidence, and not telling the truth.".

13.The magistrate had the opportunity of watching the appellant testified, an opportunity which I do not share. She was satisfied that the appellant’s demeanour was evasive. That fact reinforced her disbelief of the appellant's account. She was entitled to take the appellant's demeanour into account in the manner she did: she did not make the error of rejecting the appellant's evidence based simply upon her demeanour.

14.The fourth ground was the only ground which had any vestige of justification for its existence. Despite the point that was properly to be made, the ground extended into hyperbole, the submission stating that "the appellant had not been able to conduct cross examination on the second question thus the appellant did not have a fair trial" and suggesting that the appellant was "inhibited" in cross-examination of witnesses. It was further asserted that the magistrate had "ignored" the second question mentioned by the appellant. In support of this submission counsel relied upon the decision in another magistracy appeal which, contrary to counsel’s suggestion, was factually entirely distinguishable from the present matter.

15.At the trial, shortly before the morning break the prosecutor had tendered a certificate pursuant to the provisions of the Immigration Ordinance which certified that the worker was not lawfully employable in Hong Kong. The magistrate explained the certificate to the appellant. The appellant then said that she wanted to say that she had forgotten to ask, presumably either of the prosecution witnesses, whether they had any "employee record" regarding the worker. The magistrate asked the prosecutor whether the prosecution was in possession of any such record to which the prosecutor responded in the negative.

16.The appellant then indicated to the magistrate that there was one more issue. The magistrate asked her what that was to which the response was, in effect, to enquire whether the prosecution had any money transaction records concerning the salary of the worker. Before raising this issue with the prosecutor the magistrate took the morning adjournment. After the morning adjournment the magistrate asked the appellant whether there was anything she wanted to say which drew the reply "... just the two questions that I asked." Unfortunately, the magistrate plainly had overlooked that she had not followed up with the prosecutor the second issue raised by the appellant.

17.In the circumstances, that oversight cannot possibly have been to the prejudice of the appellant. If, indeed, the prosecution had been in possession of records of payment then the appellant's question would simply have provoked an application by the prosecution to recall a witness to prove that fact, self-evidently to the detriment of the appellant. The alternative, obviously, is that the prosecutor would have indicated that no such record had been seized. That would not have changed the appellant's position one iota. The magistrate based her decision on the evidence before her which did not include any evidence at all about records of such a nature. It was unfortunate that the magistrate overlooked the second question but it simply cannot have had any effect on the outcome of the trial. Consequently, this ground also failed.

18.It it appears necessary to say,  regrettably yet again, that a magistracy appeal is a re-hearing before the Court of First Instance. No attempt was made by counsel to address this aspect. A reading of the transcript more than adequately demonstrates that, with the appellant's evidence disbelieved for the cogent reasons provided by the magistrate, the prosecution case rendered conviction inevitable.

Ms Eva Chan, Public Prosecutor, Department of Justice, for the Respondent.

Mr Simon Yip instructed by Messrs Francis Kong & Co for the Appellant.