HKSAR v. Aamir Mehboob

HCMA 717/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 717 OF 2014

(ON APPEAL FROM STCC 2966 OF 2014)

_______________

______________________________

REASONS FOR JUDGMENT

______________________________

1.The appellant was convicted after trial on a single 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 by Ms Jolie Chao, a Deputy Magistrate, sitting at Shatin Magistrates’ Court. He was sentenced to 21 months’ imprisonment but only appeals against the conviction.

The prosecution case

2.At about 1710 hours on 6 September 2014, a police officer (PW1) saw the appellant at a construction site at Kam Sheung Road, Pat Heung, Yuen Long.  He observed the appellant constructing a brick wall of a septic tank inside that site.  He observed the appellant for some time.  The appellant was wearing a long sleeved T‑shirt, jeans and shoes covered with white and grey sand.  He saw him using a trowel with his right hand whilst holding a red brick in his left hand.  He took cement from a bucket nearby and smoothed it onto the red brick using the trowel.  He then applied the brick to the wall to construct the septic tank.  He observed the appellant doing this continuously for eight minutes.  At about 1718 hours, he notified a colleague (PW2) to go to the construction site to make enquiries of the man.  He observed for a further two minutes until PW2 arrived at the scene.  He said he did not count the number of times the appellant performed the above mentioned actions but estimated it to be around 10 times involving 10 bricks.  He showed his position on a sketch plan.  He observed the appellant from a higher raised point behind him and outside the parapet wall. The view was close, clear and unobstructed.  He saw the appellant’s actions clearly.  He gave evidence that only the appellant was in the site.  At 1720 hours, PW2 arrived at the scene and saw the appellant working inside the septic tank.  He arrested him.

The defence case

3.The appellant exercised his right not to give evidence but called DW1, Mr Chaudry Fiaz. He had known the appellant for about three to four years and lived near him in Yuen Long.  He did not know his exact address.  He said on that day he worked at the septic tank assisting a deaf and dumb Chinese sifu.  Whilst he was sitting outside the boundary of the site, the appellant passed by.  They chatted, then DW1 left to buy drinks for them.  He went to a petrol station.  It took 20‑25 minutes.  He had seen the appellant go into the site. When he returned at about 6 pm, no one was there.  His evidence was that the appellant was not working at the site.

The grounds of appeal

4.As the appellant was unrepresented, the grounds of appeal were just the general grounds of no or insufficient evidence and that he was not guilty.  These were amplified by the appellant producing to me a written synopsis of his case.  In a nutshell, he claimed he had never worked at the site, that if PW1 had seen him working there, he should have photographed him in the act and he made a few more points of limited relevance.

The magistrate’s findings

5.The magistrate was well aware of the burden of proof and demonstrated this in her evaluation of the evidence.  She disbelieved and explained why she disbelieved the evidence of DW1.  Her assessment and analysis of DW1’s evidence and how she regarded it were logical and cannot be faulted.  On the other hand, she accepted and believed the evidence of PW1 and PW2.  From that evidence, she drew an irresistible inference that the appellant did indeed take employment at the site.  That inference based on the evidence is unchallengeable.  She therefore found the offence proved beyond all reasonable doubt and convicted the appellant.

My findings

6.The magistrate on the evidence before her was fully entitled to reach the verdict she did and therefore I dismiss the appeal.

Ms Lam Tak Wing, Winnie SPP, of the Department of Justice, for the respondent

The appellant appeared in person