HKSAR v. Singh Jaya Mahohar

HCMA516/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 516 OF 2010

(ON APPEAL FROM STCC 1443 OF 2010)

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Before : Hon Tong J in Court

Date of Hearing : 18 January 2011

Date of Judgment : 18 January 2011

Date of Delivery of Judgment : 28 January 2011

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J U D G M E N T

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Background

1.The appellant was charged with one count of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115.  She pleaded not guilty to the charge and was convicted after trial.  She now appeals against the conviction.

The prosecution case

2.The prosecution called two witnesses to testify.  PW1 was a Labour Inspector and PW2 an Immigration Officer.

3.On the day in question, PW1 and his colleagues went to Tuen Mun Curry House, a restaurant in Tuen Mun, posing as customers to carry out observations.  PW1 saw three females inside the restaurant, one of them the appellant.  PW1 said that at the time the appellant was standing near the bar counter, and there were three or four tables of customers.  Then PW1 approached PW1, gave them the menu and took their orders.  After their meal, the appellant was the one who presented PW1 with the bill and took the money.

4.PW2 gave evidence about how she had gone to the restaurant at some stage and later arrested the appellant. 

5.The admitted facts recorded that the appellant was employed by Kandel Gaurishwar until 4 December 2010 and that the Immigration Department had granted her permission to stay on the condition that she was only allowed to work for Mr Gaurishwar (DW2) at a flat located at Kai Hei Land Building.  And that the appellant was aware of the conditions imposed on her stay in Hong Kong.

The defence case

6.The appellant had elected to give evidence.

7.She said that she came to work in Hong Kong as a domestic helper.  On the day in question, she was asked by the son of her employer to get food from the restaurant.  (In fact, her employer was a partner of the restaurant.)  When she arrived at the restaurant, she was told by her employer to wait for the food.  Shortly afterwards, customers started coming in.  As she had been waiting for the food, the appellant said that “her heart did not allow her to just wait there and see the customers being unattended even though she knew that it was not her work”.

8.Under cross‑examination, the appellant agreed that she was aware of her condition of stay and that there were staff both at the dining area and the kitchen.  She first agreed that she had served the customers immediately and later she explained that she had actually waited for a while before she attended them.  She also agreed that she had poured water and she claimed that she only intended to help.  Further, she claimed that the other staff of the restaurant were either attending other customers or doing other work.  Besides, the appellant reiterated that she was simply motivated by the desire to helping others at the restaurant.

9.Her employer (DW2) also gave evidence.  He said that he knew the appellant had come to order food for his son and at the time he was working in the kitchen.  He told the appellant to wait, but he did not know what the appellant was doing in the dining area.  He said that he had never asked the appellant to work in the restaurant.

10.In cross‑examination, DW2 explained that he was busy working inside the kitchen at the material time and he did not know there were a lot of customers at the dining area.

The magistrate’s analysis and findings

11.The magistrate rejected the evidence given by the appellant, saying that it was illogical, unreasonable and unbelievable.  He pointed out that the appellant appeared to be familiar with the setting, she knew where to get the menu, she took orders, she knew the charge of the food, and that she was not stopped by anyone.  Obviously the magistrate considered this to be an important feature.  He stated that if she was not working there, she would be stopped by someone, especially when she approached the cashier to get the bill.  The magistrate also did not believe the evidence of DW1, the employer.

12.The magistrate said he found both PW1 and PW2 to be honest and reliable.  In particular, he accepted the evidence of PW1 and whose account would prove that the appellant had provided what amounted to waitering service in the restaurant.

13.The deputy magistrate said that, having considered all the evidence, he would draw the inference that : the appellant had worked independently and performed chores at the restaurant and that she was under a duty and was employed to perform odd jobs in the restaurant, thus breaching her condition of stay (see para. 65 of the Statement of Findings). She was therefore convicted of the charge.

Grounds of appeal

14.Ms Josephine Tjia, acting for the appellant, put forward the following grounds of appeal :

(a) the conviction was against the weight of evidence;

(b) certain evidence was improperly rejected; and

(c) there was no or insufficient evidence whereon to found the conviction.

15.Both Ms Tjia and Ms Chan for the respondent had submitted a detailed written submissions on the grounds.

Appellant’s submissions

16.Ms Tjia had invited the court to consider the photographs taken by the Immigration Officer at the time when the appellant was arrested (P5).  She pointed out that P5(h) and (i) showed that the appellant was wearing a handbag across her shoulder.  She explained that in the trial of the employer in a different court (STCC3980/2010), the magistrate having seen these similar photographs, reached the conclusion that someone carrying a handbag in such a manner would be inconsistent with her working at the place. The magistrate therefore acquitted the employer for the charge of employing a person not legally employable.  Ms Tjia argued that in our case the magistrate had not given sufficient consideration to this particular factor.

17.Ms Tjia contended that the magistrate also failed to consider the fact that the observation made by PW1 was a one-off event, and it lasted for about half an hour only.  She argued that it was not sufficient to rebut the explanation given by the appellant.  She also submitted that there was no evidence that she was doing work under any direction or instruction.

18.About the defence case, Ms Tjia stated that the evidence did not support the magistrate’s conclusion that the versions given by the defendant and DW2 as to the reason for the waiting of the food were different.  Ms Tjia had cited the relevant parts of the evidence and submitted that there was actually no material inconsistency between the accounts given by the appellant and DW2 regarding why the appellant was in the restaurant.

19.Ms Tjia argued that the magistrate’s rejection of the appellant’s explanation was not based on a proper assessment and the evidence.

The respondent’s submissions

20.The respondent, on the other hand, supported the magistrate’s decision.  It was said that this case really turned on the credibility of the witnesses.  In this regards, the magistrate, who have had the opportunity to receive the evidence first hand, was in a much better position to determine the veracity of the witnesses.  The appellate court should be very slow to interfere with the factual findings.  The respondent stated that the magistrate had carefully analyzed the evidence of all the witnesses, and there was nothing which could cast doubt on credibility of PW1 and PW2.  The magistrate was clearly in a better position to make such evaluation.

21.The respondent also pointed out that the evidence of PW1 clearly showed that the appellant was doing odd jobs at the restaurant which was also owned by DW2.  PW1’s observation in the restaurant would be more than sufficient to allow the court to draw the irresistible inference against the appellant that she was employed and under a duty to perform odd jobs there.

Discussion

22.It was stated in the case of R v Ip Po Fai[1] that working in a place per se is not employment, although in the absence of other evidence, one may draw the necessary inference.  This statement of principle has been accepted and applied in trials involving offences of a similar nature, (see HKSAR v Mariano Noemi Valdez, HCMA835/2004 and香港特別行政區訴梁漢強，HCMA441/2004.)  Ultimately, it would be a question of fact, depending on the evidence in the individual cases, for the court to decide whether a person was working as an employee or otherwise.

23.There seemed to be no dispute in our case that if the appellant’s account was true or possibly true, then her behaviour in the restaurant would not have constituted the offence, as she would not be under any duty to work.  In this regard, it is important to look at all the relevant aspect of the evidence.

24.The appellant said she had been to the restaurant many times to obtain food for the employer’s son.  I don’t see sufficient basis to reject her evidence on this point.  And if the appellant would go in the restaurant for this purpose, that she had done so before, and it was the same this time, then on the whole, it would be difficult to say there was no possibility in what she had said.

25.Of course, the appellate court would not usually disturb the factual findings of the magistrate as he had seen and heard the witnesses.  But in the present case, I would have to agree with Ms Tjia that the reason for rejecting the evidence of the appellant and DW2 was questionable.  I also cannot see there in existence any material discrepancies between the evidence of the appellant and DW2.  I would further add that the appellant being able to engage in the activities without being stopped could not be interpreted as evidence against her.  If she was just an ordinary customer, naturally she should be stopped, but she being the helper of the boss, the situation would be very different.  I doubt if the staff would be eager to stop her when the appellant was trying to give a hand while waiting for the order.

26.Furthermore, I also tend to agree with the trial magistrate’s observation in the case against the employer (STCC3980/2010).  Considering that the appellant was still wearing a shoulder bag, it would be rather inconsistent with her working there on employment.

27.It is true that what the appellant had done might well be suspicious, and could cause suspicion.  While a longer period of observation or observation on separate occasions might throw different light on the appellant’s true position in the restaurant, based on the available evidence before the court, I have to conclude that the conviction was unsafe.

Result

28.In the premises, I shall allow the appeal, quash the conviction and set aside the sentence.

Ms Chan Suk Wai, Winsome, SPP of Department of Justice, for HKSAR

Ms Tjia Luk Ying, Josephine, instructed by Messrs Haldanes, assigned by Legal Aid Department, for the Appellant