HKSAR v. Faheem Chaudhry Muhammad

HCMA 157/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 157 OF 2013

(ON APPEAL FROM STCC NO. 5159 OF 2012)

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JUDGMENT

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1.The appellant was convicted by a Magistrate sitting at Shatin Magistrates’ Court on 1 February 2013 for a charge of ‘taking employment while being a person in respect of whom a removal order is in force’ contrary to section 38AA (1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115 Laws of Hong Kong. The particulars of the charge being that the appellant on 30 October 2012 in Hong Kong while being a person in respect of whom a removal order is in force, took employment, whether paid or unpaid, as an odd job worker in Tai Po. The applicant was convicted after trial and sentenced to 19 months’ imprisonment.

2.On 6 February 2013, the appellant filed a Notice of Appeal against conviction on the general ground that the conviction was against the weight of evidence, certain evidence was improperly admitted or rejected, or there was no or insufficient evidence upon which to found the said conviction.

3.On 8 April 2013, counsel for the appellant filed amended Perfected Grounds of Appeal against conviction.  They were:-

(i) the learned magistrate erred to find that the oral admission of the appellant was made voluntarily and/or gave insufficient regard to the facts that the appellant is a South Asian who could not speak Cantonese and there was no interpreter at the scene and/or that the learned magistrate had made a material error at the stage of his special issue, namely that an actual finding that the appellant had made the alleged admission at that stage;

(ii) the learned magistrate erred to find prosecution witness were honest and reliable and reject the evidence of the appellant;

(iii) the learned magistrate erred to find there was an employment by the appellant and/or failed to give sufficient regard to the fact that there was no screw-driver found or seized by the prosecution; and

(iv) in all the circumstances of the case and the appellant, the conviction was unsafe and unsatisfactory.

4.The matter came before this Court on 25 April 2013 when I reserved my judgment to be handed down at a later date.  I now do so.

5.The facts of the case as presented to the learned magistrate were straightforward.  The prosecution case was that PW1, a police officer saw the appellant inside a shop which was under renovation.  He observed him for a period of two minutes during which time he saw the appellant using a screw-driver to tighten a nut.  The appellant turned round and noticed PW1 looking at him and immediately put the screw-driver down.  Enquiries were subsequently made of the appellant who said to PW1 that he was recommended by a friend to come to the shop to work.  Under caution he said that he was paid $350 per day.  A post record of that verbal by the appellant at the scene was admitted into evidence by the learned magistrate after voir dire proceedings adopting the special procedure.  It was admitted as exhibit D2a.

6.Additionally a set of Admitted Facts was produced pursuant to section 65C Criminal Procedure Ordinance, Cap 221 which confirmed inter alia that the appellant had entered Hong Kong illegally on 20 December 2006 and had remained here ever since.  A removal order was issued and served on the appellant on 3 January 2008 and was still in force as at 30 October 2012.  Also, on 20 February 2008, the appellant was entered into recognizance, and he was last issued with an Immigration Recognizance Form on 12 October 2011.

7.The appellant’s case was that he went to the park opposite the shop to meet his friend whose girl-friend would introduce a girl-friend to him.  He was late and missed the appointment.  When he walked past the shop he was holding a can of beer.  He noticed some piles of wood outside and intended to take some home to fix his bed.  A female officer came over to him and he was taken inside the shop.  In the special issue the appellant denied having spoken in Chinese to the effect that he was paid $350 per day to work there.

8.The first ground of appeal is in two parts, firstly, complaint is made that the learned magistrate erred to find that the oral admission was made voluntarily giving insufficient regard to the fact that the appellant is a South Asian who could not speak Cantonese and there was no interpreter at the scene, and secondly that the learned magistrate had made a material error at the stage of the special issue, namely that an actual finding that the appellant had made the alleged admission at that stage. (emphasis mine)

9.Dealing with this latter point first of all, the learned magistrate in my judgment made no such finding during the special issue.  At paragraph 39 of the Statement of Findings, the learned magistrate said this, “Assuming (emphasis mine) that he had said that it was his friend who recommended him to work there and he was paid $350, and having heard evidence and submissions before me, I found the prosecution had proved beyond reasonable doubt that the admission was made voluntarily …”.  The learned magistrate was only concerned with the question of voluntariness and was alive to the issues before her as to the ability of the appellant to speak and understand Cantonese, which clearly touched on the question of voluntariness.  This deals with the first part of this ground of appeal.

10.Complaint is also made by counsel for the appellant in paragraph 8 of his skeleton arguments which were adopted by him during the course of the hearing, that there is no actual finding of an oral admission by the appellant at the scene.  This is erroneous.  At paragraph 39 of her Statement of Findings, the learned magistrate said this, “having assessed all the evidence before me, I was satisfied the prosecution witness were honest and reliable.  I accepted their evidence and I attached weight to the admissions made by the defendant”.  Ground 1 fails.

11.Grounds 2 and 3 can be taken together and dealt with briefly.  In short there is no merit to either of these grounds.  There was ample evidence of observation on the part of PW1 whose evidence the learned magistrate accepted. She was entitled to accept it and just as entitled to reject the evidence of the appellant.

12.The appeal against conviction is dismissed.

Mr James Tze, instructed by the Director of Legal Aid, for the appellant

Ms Denise Chan SPP, of the Department of Justice, for the respondent