HKSAR v. Tahir Kashif and Another

HCMA403/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 403 OF 2013

(ON APPEAL FROM STCC 287 OF 2013)

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J U D G M E N T

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1.The appellants were South Asian illegal immigrants. Each of them was convicted of one count of ‘Taking employment without the authority of the Director of Immigration’.[1] They appealed against conviction. The 1^st appellant was represented by counsel, Mr HY Wong. The 2^nd appellant was unrepresented.

2.There were 4 other South Asians arrested at the same time.  Each of them had already pleaded guilty to similar charges.

3.The prosecution alleged that on 16 January 2013, a team of police officers found the two appellants working in a recycle depot at Shan Shan Tsuen, Wan Toi.  Shortly before the arrest, PW1 (PC 7577) saw the 1^st appellant operating a forklift moving white bags around. PW2 (PC 2455) saw the 2^nd appellant putting plastic pipes into bags.

4.The 1^st appellant explained that he went there to deliver his mobile phone to one of the arrested persons (D3 in the same case).  D3 would use that mobile phone to call his daughter who was admitted to hospital in Pakistan.  He lost his right arm in an industrial accident in 2009.  He did not know how to operate a forklift.  The 1^st appellant retrieved the call record from his mobile phone which indicated that he was on the phone from 1014 to 1018 on that day.  He maintained that he was talking on the phone when the police approached.  He argued that he could not operate the forklift while talking on the mobile phone as he had only one arm.

5.The 2^nd appellant elected not to give evidence.  He called two defence witnesses.  One of the defence witnesses was not there at the material time.  This witness said he once had tea with the 2^nd appellant at the depot.  The other defence witness admitted working there.  He was called by one of the defendants to have tea.  He could not see the others at the depot as his view was blocked by the recycle items.

6.The trial magistrate, Ms Merinda Chow, pointed out that PW1 was a police officer who had been observing the activities at the depot for nearly 10 minutes.  She accepted that PW1 could recognize the 1^st appellant by his clothing.  Before leaving the observation post, PW1 saw the arresting officer approaching the forklift.  PW1 later confirmed that the 1^st appellant wore the same clothing as the person on the forklift.  The magistrate concluded that the identification was accurate.

7.The 1^st appellant stopped talking on the phone shortly before 1019 am while the observation by PW1 was until 1020 am.  The magistrate pointed out that the 1^st appellant had already finished his call when the arresting officer approached.  There was no evidence how the 1^st appellant talked on the phone.  PW1 did not see that.  The magistrate thought that the 1^st appellant might not need to hold onto the phone to talk.

8.The magistrate rejected the argument of the 1^st appellant that he went to the depot to deliver his mobile phone to D3.  The latter could have borrowed any mobile phone to make an international call back to Pakistan.  She further found that the 1^st appellant must have adjusted to use his left arm for daily activities since the industrial accident in 2009.  From all this evidence, she drew the irresistible inference that the 1^st appellant operated the forklift.

9.As for the 2^nd appellant, the magistrate rejected the evidence of the defence witnesses.  She accepted the evidence of PW2 who saw the 2^nd appellant working.

10.The magistrate convicted both appellants.

Grounds of appeal of the 1^st appellant

11.Mr Wong pointed out that the 1^st appellant lost his right arm in 2009.  It was difficult for him to operate the forklift involving the control of two levers and a steering wheel with a weak left arm.  In addition, the mobile phone record showed that the 1^st appellant was on the phone most of the time during the observation by PW1.  It is impossible to hold the phone and operate the forklift at the same time.  The magistrate overlooked the inherent improbabilities in this case.  She was wrong to concentrate only on the identification evidence.

12.The phone record of the 1^st appellant showed that he was on the phone from 1007 am on 16 January 2013 for 1’44”.  He was also on the phone again at 1009 am.  The duration was unknown.  The 1^st appellant had not mentioned this call in his evidence.  The third call was from 1014 am for 4’38”.[2]  According to PW1, he arrived the depot at 1010 am.  By that time, the 1^st appellant had finished the first call and likely the second call also.  The magistrate was correct just to concentrate on the third call.

13.PW1 described a man, of the same clothing as the 1^st appellant, operating the forklift moving white bags around.  He could only see the left side of that man.  PW1 stressed that he was not observing the forklift all the time as he also observed other defendants on the left side of the depot.  PW1 said it was possible that he was not looking at the forklift at some moment.  He only saw the forklift moving at the time he looked at it. [3]

14.In my judgment, there was plenty of time during the observation that the 1^st appellant was not on the phone.[4]  The mobile phone record did not cast doubt on the observation and credibility of PW1.  I agree with the submission of Mr Cheng, counsel for the respondent.[5]  In fact, it was never PW1’s evidence that he saw the 1^st appellant on the phone while operating the forklift.

15.There was no evidence how a man with one arm, like the condition of the 1^st appellant, could operate the forklift. There was only evidence that a man with the same clothing as the 1^st appellant was on the forklift.  The forklift moved around lifting white bags.  PW1 saw the arresting officer approaching the forklift and intercepted the person on the forklift[6].  PW1 later identified the 1^st appellant as that person.[7]

16.From the evidence above, coupled with the fact that the 1^st appellant’s explanation was rejected, the only reasonable inference was that the 1^st appellant operated the forklift.  There was no need to speculate how he did that.  Likewise, it is not necessary to dwell on how the 1^st appellant used his mobile phone.

17.I agree with the conclusion of the magistrate that it was the 1^st appellant who operated the forklift at the material time.  This ground of appeal fails.

18.Mr Wong further criticized the magistrate for saying that it was not a must that the 1^st appellant needed to hold onto the phone to talk.[8]  She also erred in her comment that the 1^st appellant must have adjusted to use his left arm to handle his daily life.[9]  Mr Wong pointed out that those comments were of no evidential basis.  Those issues were not put to the 1^st appellant during cross-examination and breached the rule in Browne v Dunn.[10]

19.As set out in the analysis in paragraphs 11-16 above, the mobile phone record and the mode of operation of the forklift are not important once identity is established.  I do not think the comments of the magistrate could have rendered the verdict unsafe.  In fact, I agree it is common sense that there could have been other ways of talking on a mobile phone without holding it.  It is also logical that a person must have trained his only arm to adapt to daily activities.

20.As to the rule in Browne v Dunn, Mr Justice Ribeiro PJ had commented as follows,[11]

“The magistrate is said to have violated the rule in Browne v Dunn or to have breached the rules of natural justice by convicting on the basis of certain inconsistencies and weaknesses in the applicant’s evidence when some of those points had not been put to him. We do not think there is anything in this ground. The magistrate was not bound to accept any particular item of evidence because there had not been cross-examination on it. He made his findings on the basis of the evidence as a whole deciding to accept the prosecution version and rejecting the contrary evidence adduced for the defence…”

21.The magistrate was entitled to reject the explanation of the 1^st appellant albeit that those issues were not subject matter of any cross-examination.  This ground also fails.

Grounds of appeal of the 2^nd appellant

22.The 2^nd appellant submitted that the identification was wrong.  There was no direct evidence to prove that he was working there.

23.The magistrate accepted the evidence of PW2 who saw the 2^nd appellant working at the depot.  She also carefully considered the defence evidence and rightly rejected them.

24.There is no substance in the grounds of appeal of the 2^nd appellant.  I reject his argument.

Conclusion

25.For the reasons above, I dismissed the appeal of both appellants.

Mr Raymond Cheng, of the Department of Justice, for the respondent

Mr HY Wong, instructed by Wong & Co, for the 1^st appellant

The 2^nd appellant is unrepresented