HKSAR v. Ferosh

HCMA 745/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 745 OF 2012

(ON APPEAL FROM STCC NO. 3971 OF 2012)

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JUDGMENT

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Introduction

1.On 12 October 2012 the appellant was convicted by Ms Merinda Chow, a magistrate sitting at Shatin Magistrates’ Court of the offence of taking employment while being a person who remained in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance, Cap 115.  He was sentenced to 21 months imprisonment and now seeks to appeal his conviction and sentence.

The Trial

The prosecution case

2.At his trial the prosecution case was that at around 5.10 pm on 14 August 2012 Police Officers kept the appellant and three other persons under observation at a metal shack in She Shan Tsuen, Tai Po.  They said that they saw the appellant and another man dismantling the metal shack with a hammer and crow bar and two other men conveying the dismantled metal sheets of the shack to an area in front of a nearby stone hut.  The appellant was observed hitting the metal sheets with a hammer and the other male using the crow bar to prize the metal sheets apart.  The other two men were observed on three occasions to have carried metal sheets that the appellant had removed from the metal shack to the front of a nearby stone hut.  The appellant was kept under observation by the Police Officers for about eight minutes.  The police then approached the men with a view to arresting them.  The appellant, who wore no garment on his upper body, fled the scene and was intercepted by the police about a hundred metres away.

3.Photographs of the hammer and crow bar that were used by the appellant and the other male were tendered in evidence as was a sketch of the scene.

The defence case

4.The appellant gave evidence and explained that he was in the area with the view to finding a place to live.  He said that he had arrived at this location and was waiting to see if he could speak to someone to rent a room and it was in these circumstances that he came to be arrested.  He denied that he was working at this location.

5.It was the defence case that there was no evidence of employment, no employer was identified and that the appellant was not wearing any clothing or protective items that would be needed for working with sharp edged metal sheets.  Reliance was placed by his counsel upon the legal principle that mere “working per se is not employment”.  It was submitted that the evidence was insufficient for the magistrate to draw the inference that the appellant was engaged in employment.

The Statement of Findings

6.The magistrate examined the evidence with some care.  After conducting an analysis of the evidence she concluded that the testimony of the appellant was not credible.

7.Having rejected the evidence of the appellant and decided that the evidence of the Police Officers was reliable and believable, she found the primary facts sufficient to draw the inference that the appellant was engaged in employment.

The Appeal

8.The appellant, before me today, repeated the same story that was the foundation of his evidence at his trial.  He again asserted that he was not there for the purposes of employment but that he needed to rent a room that would be cheaper than the one he currently occupied and was within the amount of his allowance.

Discussion

9.Magistrate’s appeals are by way of rehearing but an appropriate starting point to determine whether the conviction is safe is to examine the Statement of Findings and determine whether there is any error by the magistrate apparent from her reasons.  Having done that in respect of this magistrate’s Statement of Findings I can find no error apparent on the face of the record. Nevertheless, I have gone on to examine the evidence that was before the magistrate.  To that end I have considered the photographs that were placed before her which reveal the metal shack and the metal sheets that were being carried by the other men present at the scene.  There are also photographs of the hammer and crow bar that were used to dismantle the shack and a sketch of the scene.

10.Like the magistrate, I have no hesitation in rejecting the evidence of the appellant.  The evidence of the Police Officers, on the other hand, is perfectly believable and I can see no reason not to act upon it.  Given the observations of the Police Officers the only reasonable inference that can be drawn from their evidence is that the appellant was engaged in employment.

11.I find no merit in any of the complaints of the appellant and I dismiss his appeal against conviction.

12.In respect of his appeal against sentence, he has not advanced before me any basis for impugning the sentence that was imposed upon him.  The magistrate imposed a sentence that was entirely in line with authority, being the Court of Appeal decision in HKSAR v Usman Butt & Ors [2010] 5 HKLRD 452.  The sentence imposed by the magistrate in respect of this offence was the only appropriate sentence that could be imposed after trial.

13.The appeal against sentence is, therefore, also dismissed.

Mr Andrew Li SPP, of Department of Justice, for the respondent

The 3^rd appellant appeared in person

Please refer to FACC2/2014 for the relevant appeal(s) to the Court of Final Appeal.