HKSAR v. Mia, Sujon Razu Nazmul Hasan

HCMA 467/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 467 OF 2014

(ON APPEAL FROM STCC 1642 OF 2014)

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J U D G M E N T

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1.These two Appellants were tried together in the Magistrates’ Court. The issue at the trial was, in respect of each of them, whether it was proved beyond reasonable doubt that he had, on the occasion in question, taken up employment. The 1^st Appellant was charged with having taken up employment while remaining without authority after having landed unlawfully. The 2^nd Appellant was charged having taken up employment with while a removal order in respect of him was in force.

2.The issue was one of fact depending on the credibility of witnesses.  Each Appellant has filed 3 Grounds of Appeal.  Apart from the oral submissions made by both Appellants, the 2^nd Appellant has also handed up further written submissions which I have read.  The 1^st and 3^rd Grounds merely assert innocence.  The 2^nd Ground is in the form of a statement by each Appellant that he is fully prepared to request any CCTV evidence to prove or disprove that he was working as charged.  No such evidence was produced at the trial.  Counsel for the Respondent informed me that no CCTV footage was seized.  I cannot speculate as to evidence that was not produced at trial and does not appear available as further evidence on appeal.

3.In resolving an issue of fact which depends on the credibility of witnesses, a Magistrate has the advantage of hearing and seeing all the witnesses which is an advantage a trial court has and which an appellate court does not have.  The Magistrate has made proper use of that advantage and I am unable to detect any error on the Magistrate’s part which would justify my disturbing either of these convictions.

4.Accordingly, each appeal is dismissed.

Both 1^st and 2^nd appellants appeared in person

Mr Prakash L Daryanani, of the Department of Justice, for the respondent