HKSAR v. Ferosh

Press Summary (English)

Press Summary (Chinese)

FACC No. 2 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2014 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 745 OF 2012)

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BETWEEN

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Before: Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ, Mr Justice Bokhary NPJ and Lord Collins of Mapesbury NPJ

Date of Judgment: 28 May 2014

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J U D G M E N T

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Mr Justice Fok PJ:

Introduction

1.The appellant appeals against his conviction of the offence of taking employment while being a person remaining 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).

2.Leave to appeal was not opposed by the respondent and was granted by the Appeal Committee on the papers on the ground of substantial and grave injustice.  As directed by the Appeal Committee when granting leave, the parties have filed a Joint Case pursuant to the procedure set out in Mok Kin Kau[1]and the Court has proceeded to deal with this appeal without an oral hearing.

3.In the Joint Case, both parties submit that the final appeal against conviction should be allowed.  The concession of the appeal by the respondent is, however, not decisive and it remains a matter for the Court to determine whether or not the appeal should be allowed and, if so, on what basis.[2]

The facts

4.The appellant was one of four men (D1 to D4 respectively) arrested on 14 August 2012 after they had been seen by police removing metal sheets from a tin shed in Tai Po.  The four were prosecuted but, due to some indisposition on his part, the case of one of the other men (D4) was severed and he was tried after the other three.

5.In the first trial (of D1, D2 and D3) before the Magistrate,[3] the applicant was D3.  On 12 October 2012, he and D1 were convicted of taking employment while being in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully,[4] and D2 was convicted for taking employment while subject to a removal order.[5] 

6.The prosecution evidence at trial was that PW1, a police witness, saw D1, D2, the appellant and a fourth man (i.e. D4) at the scene of an apparently derelict metal shed in She Shan Tsuen, Tai Po.  PW1 saw the fourth man and the appellant removing metal sheets from the shed.  D1 and D2 were seen taking the sheets to a stone hut.  The four were observed to adopt this procedure three times.  PW1 and another police witness saw the appellant hitting the metal sheets with a hammer and the fourth man used a crowbar to prise the metal sheets apart.  The four men were kept under observation for about 8 minutes.  When the police approached them the appellant, half naked, ran away from the scene and was intercepted about 100 metres away.

7.Each of the accused gave evidence.  It was their defence that they were all there to look for a place to rent and were not working.  The Magistrate rejected their defence and found that they were working and were employed.  She accepted that there was no direct evidence of employment, since working at a place per se is not employment, but drew an inference[6] that they were employed.[7]

8.In the second trial (of D4), on 8 November 2012, a different Magistrate[8] acquitted D4 of the offence for which D1, D2 and the appellant were, on the same prosecution evidence, convicted.

9.D3 appealed his conviction to McWalters J,[9] who dismissed the appeal on 1 March 2013.  McWalters J held that, given the observations of the police officers, the only reasonable inference that could be drawn from their evidence was that the appellant was engaged in employment.[10]

10.D1 and D2 appealed separately to Deputy High Court Judge Stuart-Moore,[11] who allowed their appeals and quashed their convictions on 4 July 2013.  At the conclusion of his judgment, he suggested that the appellant should take the course of applying for leave to appeal to this Court on the ground of substantial and grave injustice.

11.Thereafter, D3 was granted legal aid on 2 August 2013.  On 30 September 2013, on his application which was uncontested by the Department of Justice for the respondent, he was granted bail by Chan PJ.  On 6 November 2013, by consent, it was ordered that the leave application be dealt with on the papers.

12.After the receipt of the parties’ written submissions, the Appeal Committee called for further submissions on the correctness of the respondent’s concession of the application for leave to appeal and its intended concession, if leave were granted, of the appeal itself.  Having received further written submissions from the parties, the Appeal Committee was satisfied that the respondent’s intended concession of the leave application was appropriate and so, on 6 March 2014, made an order granting leave to appeal on the papers and directing the parties to file a joint printed case, indicating that the Court would thereafter proceed to determine the appeal without the need for an oral hearing and would hand down its judgment on the appeal in due course, as we now do by this judgment.

The grounds of appeal

13.In the application for leave to appeal, the appellant contends that substantial and grave injustice has been done in that he remains convicted even though:

(1) Three co-accused have either been acquitted or had their appeals against conviction allowed when the evidence against all accused was substantially the same;

(2) The ultimate acquittal of the three co-accused and the conviction of the appellant amounted to inconsistent verdicts for which there was no rational explanation;

(3) The appellant’s conviction was contrary to the constitutional and common law principle of equality that all persons in a similar position should be treated similarly; and

(4) On the evidence, a tribunal of fact could not find beyond reasonable doubt that the appellant was employed, because the appellant might have been working for his own benefit at the material time.

14.Those contentions are repeated on the appellant’s behalf in the Joint Case[12] but, as will be seen, that is not the basis of the parties’ joint submission that the appeal should be allowed.[13]

Inference appellant employed not properly drawn

15.The parties have indicated in the Joint Case that the respondent is prepared to concede the final appeal solely on the ground of insufficiency of evidence against the appellant to prove employment.  They submit, relying on The Queen v Ip Po Fai,[14] that evidence of a person actually working at a place of employment would not necessarily support an irresistible inference of employment.  They also submit, relying on Poon Chau Nam v Yim Siu Cheung[15] and HKSAR v Chow Kin Cheung,[16] that the mere fact a person is working for another does not necessarily mean there is a relationship of employment between the two.

16.The Magistrate who convicted D1, D2 and the appellant was satisfied an inference of employment could be drawn on the evidence before her.  In dismissing the appellant’s Magistracy appeal, McWalters J was likewise satisfied this was the only reasonable inference that could be drawn.

17.On the other hand, the Magistrate who acquitted D4 did not think the sole and irresistible inference on the evidence was that he was employed.  He considered the absence of evidence of the ownership of the metal shed could support an innocent explanation for D4’s presence and actions there, namely that the defendant was there on his own account to look for something.  Furthermore, in his judgment on D1 and D2’s Magistracy appeals, Deputy High Court Judge Stuart-Moore observed that, whilst the prosecution case might possibly, and may even probably, have been well-founded, in neither situation would the standard of proof in a criminal trial have been achieved.  He allowed the appeals since he was not sure what the facts established but, in any event, they fell short of proving employment:

“… as the inference that D1 and D2 may have been doing something to benefit only themselves counterbalanced any inference that they were employed by someone to do the work of dismantling a disused and abandoned shed.”[17]

18.In the present case, the prosecution evidence merely established that the appellant and his co-accused were observed to be carrying out some form of manual work at the derelict metal shed.  However, given the condition of the shed, this was not an obvious place of employment, like a restaurant, shop or construction site, and there was no evidence as to whom either the shed or the sheets of metal the appellant was assisting to dismantle belonged.  Moreover, there was no evidence that the four men were doing that work for an employer rather than for themselves, nor of the degree of any control being exercised over them by any employer.  There was no evidence of any payment for the work or the basis of any such remuneration.  There was no evidence of who had provided the hammer and crowbar, if they were not brought by the appellant and his co-accused themselves.  There was no evidence of any safety or other work-related equipment at the site.

19.In the circumstances, we accept the parties’ joint submission that the inference of employment was not the sole and irresistible inference to be drawn from the evidence.  That being so, proof of the offence beyond reasonable doubt was not established and the appellant’s conviction constitutes a substantial and grave injustice.  For that reason, the appellant’s appeal must be allowed and his conviction quashed.

Unnecessary to consider other submissions in Joint Case

20.As noted above, the Joint Case contained submissions on behalf of the appellant based on the inconsistency of the verdicts and raising an argument based on the constitutional and common law principle of equality.  In advancing those arguments, the appellant may have been encouraged by the remarks in the judgment of Deputy High Court Judge Stuart-Moore regarding the undesirability of separate proceedings for jointly charged defendants and the risk of inconsistent verdicts from split trials or appeals.

21.It is not necessary to deal with those other submissions in order to decide this appeal.  However, nothing in this judgment should be taken to endorse the view that, if the evidence before a court is such that the tribunal of fact, properly directed as to the law, could conclude that the offence is proved to the requisite standard of proof, the mere fact that another tribunal of fact has acquitted a co-accused on the same evidence would necessarily lead to the conclusion that the convicted defendant’s conviction involved substantial and grave injustice.

Disposition

22.The appellant’s appeal is accordingly allowed and his conviction quashed.

23.At the parties’ joint invitation, we make no order as to costs.

Joint Written Submissions by:

Mr William Tam DDPP, of the Department of Justice, for the Respondent

Mr Phillip Ross, instructed by David Ravenscroft & Co., assigned by the Director of Legal Aid, for the Appellant