HKSAR v. Gu Shaoqin

HCMA 411/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 411 OF 2010

(ON APPEAL FROM STCC 972 OF 2010)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 11 November 2010

Date of Judgment: 11 November 2010

Date of handing down Reasons for Judgment: 15 February 2011

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REASONS FOR JUDGMENT

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1.The Appellant was convicted after trial of one charge of breach of condition of stay under s. 41 of the Immigration Ordinance, Cap. 115. He appealed against his conviction. This court had allowed his appeal against conviction and set aside his sentence on the day of the hearing and here below are the reasons for so doing. Although the trial was in Chinese, at the request of counsel, the appeal was heard in English and I am delivering the reasons in English.

Evidence for the prosecution

2.It was admitted by the Appellant that he had arrived in Hong Kong on 9 February 2010 and given a visitor’s permit for 7 days, and the condition for stay was that he did not take up employment whether paid or unpaid. 

3.PW1, an Immigration Department officer, on 11 February, at about 6 p.m., together with his team, arrived at the vicinity of Luen Wo Metal Retail and Houseware Company.  This shop was opened at the time and was selling household sundry goods.  PW1 said he was observing the shop about 2 metres away.  At that time there were many people inside the shop.  He saw the Appellant carrying a carton box leaving the shop and placing it outside the shop.  He saw a woman customer asked the Appellant for a cleaning cloth, and he saw the Appellant enter the shop and took a green cloth and gave it to the woman customer and said $10.  He saw the woman customer give the Appellant the $10, and the Appellant then put it into the cash register inside the shop.  PW1 could not remember if there was anyone else standing at the cash register at the time. 

4.A minute or two later PW1 saw that the Appellant was still outside the shop when a male customer said loudly “collect money”.  Then he saw the male customer give the Appellant a $100, and the Appellant took the $100 and took it into the shop and put it into the cash register and saw the Appellant take out $5 and gave it to the male customer.

5.PW1 then approached the shop at about 6:27 p.m., and the Appellant asked PW1 what he wanted.  PW1 said he wanted a polishing cloth.  The Appellant asked PW1 how many he wanted, and PW1 asked how much it was and the Appellant said $2 per piece.  Then PW1 saw the Appellant go inside the shop to take a polishing cloth and put it into a white plastic bag and gave it to PW1, and PW1 then gave the Appellant $2.  The Appellant then kept the $2 in his hand, walked out of the shop and was handling the goods outside the shop.  The operation became overt at 6:30 p.m. and PW1 then told PW2, a fellow immigration officer that it was the Appellant who sold him the polishing cloth.  The Appellant was subsequently arrested.

6.Under cross-examination PW1 maintained that there was a cash register inside the shop and said the Appellant had taken the polishing cloth from behind the cash register. 

7.PW2 said that on the material day at 6:30 p.m. he went to the subject premises.  He then saw the Appellant outside the subject shop about 1 to 2 metres away and he stopped the Appellant and asked for his identity card.  

Evidence for the defence

8.The Appellant elected to give evidence.  He says he is 41 years old, married with two children.  He and his family lived in Mainland China and he has a pig farm with several hundreds pigs so he is well-to-do financially.  The Appellant says he came to Hong Kong on 9 February 2010.  He came to Hong Kong on business to purchase provisions for his farm.  He has an uncle and an aunt in Hong Kong.  He stayed with his aunt on the evening of 9 February and on 10 February, his cousin took him to his uncle’s residence.  The Appellant says that the shop Luen Wo belongs to his uncle. 

9.On the morning of 10 February after he was taken to his uncle’s home, his uncle then brought the Appellant to have morning tea at a place near his shop.  The Appellant denies that he was working at the shop when the customs officers came.  On 11 February at about 3 p.m., the Appellant says he went to Luen Wo, and he went into the shop to drink a class of water and to say hello to his uncle.  He then left the shop about 10 minutes later and walked around.  He says when he was stopped and asked for his identity document he was outside the shop.

10.DW2 is the daughter of the proprietor of Luen Wo, who is also a cousin of the Appellant.  She was a student at the Open University and she says she was on holiday from 9 February to 11 February.  On 11 February at about 1 o’clock, she and her brother went to the shop to help her father.  At about 3 to 4 p.m. that day she saw the Appellant arrive at the shop.  She saw the Appelland loiter outside the shop and came into the shop to drink water and chat.  She says the Appellant only stayed inside the shop for 5 to 10 minutes, because it was very busy in the shop as it was near the New Year.  When she saw the Appellant again, it was when the Immigration Department officers came.  

11.DW2 said that she was the one who served PW1, who had asked for a polishing cloth.  DW2 also said that there was no cash register inside the shop.  There is only a cash drawer.  She also said that the trolleys available in the shop were selling for $105 or 98$ and none were for $95.  This is in contradiction to the evidence of PW1 that he saw a person buy a trolley from the Appellant and saw that the customer paid the Appellant $100 and the Appellant gave him change of $5.  DW2 also said that she was at the cash drawer from 6 p.m. to about 6:30 p.m.  She had never seen the Appellant take money from a customer.

Magistrate’s findings

12.The learned Magistrate reminded himself that the Appellant had clear record and also considered the relevant cases as to the legal principles involved in this offence.  At the end of the day the learned Magistrate accepted the prosecution witnesses as truthful and accurate witnesses and rejected the evidence of the defence witnesses.  The Appellant was then found guilty of the offence.

Appeal

13.Mr Liu on behalf of the Appellant complained that the learned Magistrate was wrong to have ruled that the Respondent had established a case of employment, and the learned Magistrate had failed to properly consider R v Ip Po Fai, HCMA 1201/1995 and HCMA 302/2003. 

14.In Ip Po Fai, HCMA 1201/1995, the facts were that two two-way permit holders were found serving customers inside a cake shop and in the kitchen of the shop.  One of the two, surnamed Kwok, was a cousin of the Appellant and the other Lai was a friend of Kwok.  At page 3 of the judgment, Mr Justice Patrick Chan (as he then was) said:

“ However, it does appear to me that in the present case, the Crown’s case is nothing more than that these two persons were found physically doing work in the shop. But there is evidence of their relationship with the appellant: one of them was a cousin of the appellant and the other a close friend. There is also the evidence that they were staying with the appellant’s mother and as a matter of fact, the mother appeared also to be working inside the shop. Then the question is: is there any difference between the mother and these two persons? I must say that the Crown had a difficult task in proving employment in a case of this sort. The Crown need to prove more than mere working in the shop to establish employment. With respect to the learned Magistrate, I do not think that in the circumstances of this case, the evidence is such that the only reasonable inference or the compelling inference was that these two persons were employed at the time when the officers entered into the shop or at any time at all. In the present case, I think the evidence falls short of proving employment beyond reasonable doubt.”

15.It is clear that in this case there is cogent evidence from the Appellant and his witness that the owner of Luen Wo Metal is the Appellant’s uncle, and that the Appellant was only visiting at that time. Thus this case falls within the ambit of what Mr Justice Chan had pointed out in the paragraph above. 

16.I therefore agree with Mr Liu that the evidence is not conclusive that the Appellant was employed at that time. 

17.I also agree with Mr Liu that the learned Magistrate appeared not to have considered sufficiently the relationship evidence in this case.  So on this ground alone the prosecution has failed to prove that the Appellant was employed at the time by his uncle. 

18.This ground is sufficient for me to allow the appeal and I do not need to consider the other grounds of appeal.  Therefore, the appeal succeeded and I have set aside the conviction and sentence.

Mr Chan Lap Yan, Winston, SPP of Department of Justice, for the Respondent

Mr Liu Yuen Ming, instructed by Messrs Hampton, Winter & Glynn, for the Appellant