HKSAR v. Sazzad Hossain

HCMA 863/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 863 OF 2011

(ON APPEAL FROM STCC 4892/2011)

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Before: Deputy High Court Judge A. Wong in Court

Date of Hearing: 8 March 2012

Date of Judgment: 2 April 2012

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JUDGMENT

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1.The Appellant was convicted after trial of one charge of Taking employment while being a person in respect of whom a removal order is in force, contrary to sections 38AA(1)(b) of the Immigration Ordinance, Cap. 115.  The Deputy Magistrate (hereinafter called the Magistrate) sentenced him to 21 months’ imprisonment. 

2.The Appellant appeals against both the conviction and sentence.

THE PROSECUTION CASE

3.PC 7208 was the only prosecution witness in the case.  The Magistrate summarized his evidence as follows.

6. The prosecution only called one witness, PC 7208.  He testified that he was on duty on 20 October 2011.  In uniform, he patrolled to Yuen Long.  At 10:57 am, he reached Fung Chi Tsuen.  At 11:10 am, he reached No. 16C.  At about 5 metres distance away, he saw the Defendant. 

7. Although PW1 forgot about the colour of the Defendant’s clothing, he saw some cement stains on the body and on the left arm of the Defendant.  PW1 also saw the Defendant using his left hand holding a wooden board with some cement on it, whilst his right hand was holding a cement shovel.  The Defendant used the shovel to plaster cement onto a wall.

8. During the observation, the Defendant had proceeded to his vicinity to take some cement from the floor and put the cement on the wooden board.  The Defendant also mixed the cement with some water and continued with the plastering work.

9. After observing the Defendant doing such work for 10 minutes, PW1 made inquiries with the Defendant. PW1 asked the Defendant in Cantonese, whether he could speak Cantonese and demanded the Defendant for proof of identity.  The Defendant answered that he was able to speak Cantonese and produced his Form 8 (Prosecution Exhibit 2).

10. Under the inquiry, the Defendant said in Cantonese that he was doing the renovation work and he had been working there for seven days at a daily wage of $200 in local currency.

11. PW1 then declared arrest and cautioned the Defendant in Cantonese for the offence of Breach of Condition of Stay. Under caution, the Defendant said in Cantonese, “I have been working on renovation here.  I knew that I was wrong.”  PW1 further confirmed that during the whole process of investigation neither did he nor anyone else exercise any threat, inducement and/or oppression on the Defendant.

THE DEFENCE CASE

4.The Appellant elected to testify.  The Magistrate summarized his evidence as follows :

13. The Defendant came to Hong Kong in 2006.

14. The Defendant testified that on 20 October 2011, after he woke up at his home in Lam Tei, he went out to meet a friend.  Since the roof of the house that the Defendant was living in was leaking, the Defendant wanted to rent another house.  His friend took him from Lam Tei to Fung Chi Tsuen, Yuen Long to look for a new lease.

15. When the Defendant and his friend arrived at Fung Chi Tsuen, his friend told the Defendant “wait here” and “I will come back” because his friend needed medical treatment and attention.  The friend also told the Defendant that he will come back in 10 to 15 minutes’ time.

16. The Defendant also testified that when the police came to him, he was not working and he was just standing.  When the police made inquiries with him, he did not understand the Chinese that the police said.  The Defendant never made any verbal admissions to the police. 

17. The Defendant only replied to the police in English, “No work!” when the police asked him in English, “Working?”.

18. The Defendant further said that when he was intercepted by the police, he was wearing the same clothes that he was wearing at trial.  There were no stains on his clothes at all material times.  When he was brought back to the police station, the police did not treat him fairly by telling him, “Sign some documents and if you do so, you can go home.”  PW1 held his hand to make him sign the documents at the police station.

FINDINGS OF THE MAGISTRATE

5.The Magistrate made the following findings :

25.   I found that PW1 was telling the truth.  The Defendant was mixing some cement and plastering the same on a wall with some tools.  Such work involved skills and labour.  No reasonable person, who was unconnected to the premises, would have done such work. 

26.   I found the oral statements made by the Defendant to PW1 before he was cautioned to be voluntarily. 

27.   I found what the Defendant confessed under caution to be voluntary and accurate.  I put full weight thereon.

28.   Based on the 10 minutes’ observation of PW1 on the Defendant’s renovation acts and the confession made by the Defendant, I was sure that the Defendant was in employment.  He could not be a mere helping hand.

29.   In all circumstances coupled with the Admitted Facts (Prosecution Exhibit 1), I was satisfied that the prosecution had proven its case beyond reasonable doubt and I found the Defendant guilty and convicted him as charged.

GROUNDS OF APPEAL

6.Whilst the Appellant was legally represented at trial, he appeared in person for the appeal.

7.At different stages he produced a total of 3 letters in support of his appeal.  He also made verbal submission during the hearings.

8.Counsel representing the Respondent, Mr Andrew Cheng, PP, has helpfully consolidated the grounds of appeal as contained in the letters and the verbal submission of the Appellant.  I am satisfied that they sufficiently and aptly represent what the Appellant had said.  The grounds are :

1.  Failure of the Police to seize the wooden board, shovel as exhibits, and failure to obtain fingerprint and / or DNA evidence from these items.

2.  No photographs were taken of the cement stains on the body of the Appellant.

3.  The evidence of the police officer that cement stains were seen on the Appellant’s body was not credible given his position and the fact that the Appellant was wearing clothes;

4.  The Appellant did not run or escape with his bicycle upon seeing the officer, thus showing his innocence.

5.  The evidence of the officer that he had forgotten about the colour of the Appellant’s clothing was unbelievable.

6.  The Magistrate failed to give sufficient consideration as to whether the Appellant could speak Cantonese, and it was strange in the first place that the officer spoke to him in Cantonese.

7.  The Appellant was induced to sign a paper at the police station.

9.At one stage, the Appellant seemed to be making complaints against the Counsel representing him at the trial.  Eventually, he confirmed that he would not pursue any allegation against the Counsel.

DISCUSSION

Grounds 1 and 2

10.These two grounds can be dealt with at the same time.

11.The Appellant was legally represented at the trial.  The facts that the items had not been seized and there was no photograph were known to the defence.  It was up to the defence as to how to conduct the case.

12.The Magistrate was under a duty to assess the case by consideration of the evidence available to him, and nothing more. There is no reason to suspect that the Magistrate was not aware of the non-existence of the items mentioned by the Appellant as exhibits.

13.This ground has no merit.

Ground 3

14.I agree to the view of Mr Cheng that since the Appellant was moving in action, it was not impossible for the officer to have seen cement stain on his body even thought he was wearing clothes.

15.The Magistrate has clearly given due consideration about the implication of this matter.

16.It is not a sufficient ground for me to disturb the finding of the Magistrate.

Ground 4

17.This was a simple case.  I have no doubt that the Magistrate must have this fact in mind when he was considering the case. The Magistrate was entitled to reach the decision which he had made even though the Appellant had not tried to flee.

Ground 5

18.Colour of the clothes which the Appellant was wearing has little significance in the case.   I am not surprise that the Magistrate did not find it affect his assessment on the credibility of the witness.

Ground 6

19.The findings of the Magistrate in relation to the Appellant’s admission were :

26.    I found the oral statements made by the Defendant to PW1 before he was cautioned to be voluntarily. 

27.    I found what the Defendant confessed under caution to be voluntary and accurate.  I put full weight thereon.

20.Cantonese obviously is not the mother tongue of the Appellant.  There is no evidence of any post-record of this verbal admission written in the language familiar to the Appellant and confirmed by him.

21.In a situation like this, the Magistrate is expected to provide reasons why he found the confession allegedly made in Cantonese accurate and he could attach it full weight.

22.In the Statement of Findings, the Magistrate said the followings in relation to his assessment of the credibility of the officer :

23.    After considering PW1’s evidence, I accepted that he is an honest and reliable witness.  His evidence was logical and reasonable.  He was unshaken under cross-examination. 

24.    I have considered all submissions made by the defence in attacking PW1’s credibility and reliability regarding PW1’s description of the cement stains allegedly on the Defendant.  However, I found that such point was immaterial, because PW1 did not say how much or how severe the cement stains were and there was some lapse of time between the date of the offence, that was 20 October 2011, and the date of the trial, that was 25 November 2011.

23.I do not enjoy the advantage of having received the evidence at first hand.  I see no reason to disturb the finding of the Magistrate on credibility.

24.The Appellant had testified during the trial.The issue whether he had made a statement as described by PW1 was clearly raised.  The Magistrate found PW1 an honest and credible witness and his evidence reliable.  He rejected the evidence of the Appellant.  The statement which PW1 alleged the defendant had made was neither lengthy nor complicated.  In my judgment, the Magistrate was entitled to find that PW1 was not only honest, this part of his evidence was also accurate and reliable.  In the light of the whole circumstances, he was also entitled to find that the confession made by the Appellant is true.

25.As I have said, the Magistrate is expected to have given an explanation for his finding.  Magistracy appeal takes the form of a re-trial.  Having considered the whole of the evidence, I do not find it unjust not to disturb the finding of the Magistrate that he could give full weight to the confession.

Ground 7

26.I agree to the observation of Mr Cheng that this ground is not relevant to the conviction since the prosecution had not relied on any signed notebook or cautioned statement.

CONCLUSION ON APPEAL AGAINST CONVICTION

27.The Appellant failed to provide sufficient grounds for me to disturb the findings of the Magistrate.  The appeal against conviction is dismissed.

APPEAL AGAINST SENTENCE

28.The Magistrate followed the case of HKSAR v Usman Butt & Another HCMA70 of 2010 in which the Court of Appeal held that an imprisonment term of 15 months is appropriate in a case of conviction upon guilty plea of this nature of offence.    

29.Since the Appellant was convicted after trial, he adopted a starting point of 22 ½ months.

30.He imposed the ultimate sentence of 21 months and gave the following reasons :

(a)   The Appellant showed no remorse.

(b)    He was not a first time offender.  He had been convicted of common assault and theft.

(c)     The Appellant’s family was in Bangladesh. 

(d)    The Appellant has been detained for 40 days prior to his release on recognizance.

31.Apart from giving the Appellant 1.5 months to reflect for his custody before release, the Magistrate did not consider any further discount justified, nor was there any exceptional factors which justified a suspended sentence.

CONSIDERATION

32.In all the circumstances of the case, I do not see there are in existence any grounds which justify a departure from the sentencing consideration as set out in HKSAR v Usman Butt & Another. 

33.The Magistrate had fairly made the deduction of 1 ½ months to take into account the time which the Appellant had spent in detention and which would not be taken into account when the Correctional Services Department is to determine the length of custody pursuant to the present sentence.

34.The Appellant failed to demonstrate that the sentence imposed is either wrong in principle or manifestly excessive.  In all the circumstances, I see no sufficient grounds to interfere with the sentence.

CONCLUSION

35.The appeals against conviction and sentence are both dismissed.

Mr Andrew Cheng, PP of Department of Justice, for the Respondent

The Appellant in person