HCMA242/2016 HKSAR v. ALI SHAFQAT AND ANOTHER - LawHero
HCMA242/2016
高等法院（裁判法院上訴）Deputy High Court Judge Anthony Kwok28/6/2016
HCMA242/2016
A A
B HCMA 242/2016 B
IN THE HIGH COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
D D
MAGISTRACY APPEAL NO 242 OF 2016
(ON APPEAL FROM STCC 72/2016)
E E
____________
F F
BETWEEN
HKSAR Respondent
G G
and
H H
I
ALI SHAFQAT 1st Appellant I
JASWINDER SINGH 2nd Appellant
J J
____________
K Before: Deputy High Court Judge Anthony Kwok in Court K
Date of Hearing: 29 June, 2016
L L
Date of Judgment: 29 June 2016
M Date of Reasons for Judgment: 13 July 2016 M
N N
REASO N S F OR J U DGM E NT
O O
Background
P P
1. The 1st appellant (“A1”) was charged with one count of
Q Q
“Taking employment while being a person in respect of whom a removal
R order is in force” contrary to sections 38AA(1)(b) and 38AA(2) of the R
Immigration Ordinance, Cap 115.
S S
T T
U U
V V
-2- A
A
B 2. The 2nd appellant (“A2”) was charged with one count of B
“breach of condition of stay” contrary to section 41 of the Immigration
C C
Ordinance, Cap 115.
D D
3. Both appellants pleaded not guilty to the charge and each
E E
appellant was convicted after trial by Mr. Colin Wong, Magistrate at
F Shatin Magistracy on 4 May, 2016. A1 was sentenced to 22 months and F
2 weeks’ imprisonment and A2 was sentence to 3 months’ imprisonment.
G G
H 4. Both appellants were represented by the Duty Lawyer H
Service in the trial. In the appeal hearing on 29 June, 2016, they were
I I
both unrepresented and they only appealed against the convictions. After
J hearing both the appellants, I have already dismissed their appeals J
forthwith. I said I shall give my reasons in due course which I now do.
K K
L Prosecution Case L
M M
5. The cases for the prosecution and defence as well as the
N
Statement of Findings by the Magistrate are well summarized by the N
respondent which I shall adopt in my following judgment.
O O
P
6. The Admitted Facts (Exh. P1) produced in the trial reveals P
that:
Q Q
(a) In September 2009, A1 entered and then remained in Hong
R Kong unlawfully without the authority of the Director of R
Immigration. Since then, he had been arrested, released on
S S
recognizance and a Removal Order had been issued and was
T in force against him. He had been served with the order and T
U U
V V
-3- A
A
B he was aware that he was prohibited from taking up any B
employment while released on recognizance.
C C
(b) On 10 January 2015, A2 entered Hong Kong with his Indian
D D
Passport and he was allowed to stay here for 14 days as a
E visitor. On 26 January 2015, he surrendered to the E
Immigration Department and he had been released on
F F
recognizance. He was aware that he was prohibited from
G taking up any employment whilst released on recognizance. G
H H
7. The prosecution only called one witness in the trial
I PC 10490 (PW1). At the material time, PW1 was patrolling with a team I
of police officers at the offence location at Ta Kwu Ling, New Territories.
J J
He observed A2 pushing a trolley into a village house (House 34). Inside
K the house, A1 was standing in a pit that was about 1.5m in depth. A1 was K
using a shovel to transfer rubble from the pit to the trolley. After the
L L
trolley was filled, A2 pushed the trolley out of the house to a lawn where
M he put the rubble down. A2 then pushed the empty trolley back to the M
house. The observation lasted for 10 minutes and both appellants had
N N
done the above twice. There was no other person inside the house.
O O
Defence Case
P P
Q 8. Both appellants elected to testify but they did not call any Q
defence witness.
R R
S 9. The defence case was summarized by the respondent as S
follows: -
T T
U U
V V
-4- A
A
B 10. A1 and A2 were living together at that time and they just B
moved into their flat in Sheung Shui. Their friend Sonu told them there
C C
was a refrigerator in house 34 to collect for their use. On the date of
D offence, both appellants and Sonu went to house 34 to look for the fridge. D
E E
11. After they arrived at House 34, they saw the fridge. Sonu
F then left for arranging a vehicle for the fridge. Sonu told the appellants F
to clean the fridge first. A1 then cleaned the fridge, while A2 went
G G
outside to find a path to take the fridge out.
H H
12. Later, four to five plain clothes police officers came into
I I
house 34 and checked A1’s papers. The police asked if he was working
J and he said no. The police then told him to remove his shirt to take J
pictures.
K K
L 13. When A2 was looking for a path outside the house, the L
police took him back to the house. After 15 minutes, a police vehicle
M M
arrived and they brought a camera. A2 was then asked to take photos.
N N
14. Both appellants maintained that they were not working all
O O
along.
P P
Reasons for Verdict
Q Q
15. The Magistrate stated he had no reason to doubt PW1’s R
R
credibility and he did not have any reason to disbelieve him. PW1 was
S S
found to be an honest and reliable witness. The Magistrate had
T
considered the defence submissions that PW1 could have taken photos T
during his observation but he accepted PW1’s explanation that a camera
U U
was not standard equipment while doing observation.
V V
-5- A
A
B 16. The Magistrate considered the testimony of A1 and he B
disbelieved his evidence. The following reasons were given:
C C
(a) the appellants did not carry any tools (such as a trolley or a
D D
cart) to transport the fridge, which was heavy to carry a long
E way back to Sheung Shui. It therefore appears that they did E
not come for the fridge;
F F
(b) A1 said Sonu had gone to look for transportation but then he
G disappeared. The fridge cannot be put on a taxi. It was G
questionable where Sonu went to look for transportation and
H H
he could have just used a mobile phone;
I I
(c) it was said that Sonu disappeared after he left looking for
J transportation. The police intercepted the defendants at J
10:15am and arrested them at 10:45am. However, Sonu
K K
never showed up; and
L L
(d) there was no other person at House 34. There were tools,
M
planks, building materials and an open pit there. If A1 and M
A2 were only visitors, it is questionable why there was no
N N
other person looking after the tools, materials and the open
O pit. O
P P
17. The Magistrate considered the testimony of A2 and he also
Q disbelieved his evidence. The following had been considered: Q
(a) A2 has a clear record; R
R
(b) A2’s version is the same as A1 which was considered not
S S
credible; and
T T
U U
V V
-6- A
A
B (c) A2 further said Sonu was the one who paid for B
transportation. The fridge was for A1 and A2’s home. It
C C
was unreasonable for Sonu to pay for their transportation.
D D
18. The Magistrate found beyond reasonable doubt the
E E
following facts:-
F F
19. At the material time, A1 was standing in the pit shuffling
G G
rubble to the trolley. After A1 filled the trolley, A2 pushed the trolley
H from House 34 to a lawn nearby and placed the rubble there. A2 then H
pushed the trolley back to the house. During the 10-minute observation I
I
by PW1, A2 had pushed and emptied the trolley twice. No other person
J J
was in the house except the two appellants. Therefore, they were
completing the task of digging a pit and emptying the rubble together, for K
K
at least 10 minutes. They would not have done that for fun or pleasure.
L L
It was beyond reasonable doubt that they were working at that time.
M
There is also no evidence to suggest why the appellants would work at M
the house, except under employment. The only irresistible inference is
N N
that the defendants were doing odd-jobs under employment at the
O material location. The prosecution had proved beyond reasonable doubt O
all elements of the two offences.
P P
Q
Grounds of Appeal Q
R 20. In their statements of application for appeal against R
convictions, both appellants declared that they had not pleaded guilty and
S S
insisted to raise their applications for appeal against their convictions but
T without stating any substantive grounds. T
U U
V V
-7- A
A
B Application for Bail and Adjournment B
C C
21. Instead, they each applied for an adjournment before me so
D that they could engage a private lawyer as their application for legal aid D
had met with no success. For this purpose, they both requested to be
E E
bailed out so that they can contact their family members for legal
F expenses. F
G G
22. I refused their applications without any hesitation. I note
H also that their earlier application for bail have already been refused by H
Saw J on 17 May 2016.
I I
J
23. A magistracy appeal is conducted by way of a rehearing. J
The appellate court should recognize the advantage the trial Magistrate
K K
had of receiving the evidence first hand, and should only depart from the
L Magistrate’s finding of fact or determination of a witness credibility if L
satisfied that it is plainly wrong: HKSAR v Ip Chin Kei & others [2012] 4
M M
HKLRD 383.
N N
24. As rightly pointed out by the respondent in the submission,
O O
the issue in dispute in this case is whether PW1’s version is believed,
P given his version is contradictory to the version given by both appellants. P
Whether PW1 is believed is a finding of fact and determination of a
Q Q
witness’ credibility. It is entirely within the prerogative of the Magistrate.
R R
25. Reading the Statement of Findings as a whole, the
S S
Magistrate was well aware of the standard and burden of proof in a
T criminal trial. He directed himself properly in law regarding A2’s clear T
record and gave careful assessments of the evidence of both appellants.
U U
He provided cogent reasons for rejecting the evidence of A1 and A2.
V V
-8- A
A
B 26. The Magistrate’s assessment of the credibility of A1 and A2 B
and his finding against them cannot be faulted.
C C
D 27. The Magistrate was fully justified in reaching his conclusion D
that A1and A2 had been proved to have committed the offences beyond
E E
all reasonable doubt.
F F
28. I should also add that the Magistrate’s comment on the role
G G
played by Sonu was entirely correct. Firstly, PW1 and the police party
H never noticed the presence of this person at the scene. During the entire H
observation which was about 45 minutes, Sonu never returned to the
I I
house despite A1 insisted that he earlier went out to arrange the
J transportation of the fridge. If A1 was telling the truth, there is simply no J
reason why Sonu would just disappear without a trace. The Magistrate
K K
was also correct to point out that there is no need for Sonu to leave the
L two appellants and he could have just arranged the transport by using his L
mobile phone but he did not. All in all, the claims by both appellants that
M M
they were called by Sonu to go to the house to collect a fridge is thus
N very dubious. It is also highly doubtful that the character Sonu really N
existed at all. There is a hallmark of invention of this character by the
O O
two appellants in their defence. That was also why when the appellants
P P
requested for an adjournment before me in order to call Sonu as his
defence witness, I have flatly turned down the request. After all, this Q
Q
should be done in the trial and they both had already testified in the trial
R R
about this man but they were already disbelieved, and in my view
S
properly, by the Magistrate. S
T T
29. It is all beyond reasonable doubt, based on the observation
evidence by PW1 at the offence location, that both appellants were found U
U
V V
-9- A
A
B working at the pit at the material time. The convictions of A1 and A2 B
were therefore neither unsafe nor unsatisfactory.
C C
D Conclusion D
E E
30. The appeal against conviction of A1 and A2 is dismissed
F
accordingly. F
G G
H H
I I
(Anthony Kwok)
Deputy High Court Judge
J J
K Ms Lo Shui Ying Sabra, Acting Senior Public Prosecutor of the K
Department of Justice, for the respondent
L L
The 1st appellant appeared in person
M The 2nd appellant appeared in person M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B HCMA 242/2016 B
IN THE HIGH COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
D D
MAGISTRACY APPEAL NO 242 OF 2016
(ON APPEAL FROM STCC 72/2016)
E E
____________
F F
BETWEEN
HKSAR Respondent
G G
and
H H
I
ALI SHAFQAT 1st Appellant I
JASWINDER SINGH 2nd Appellant
J J
____________
K Before: Deputy High Court Judge Anthony Kwok in Court K
Date of Hearing: 29 June, 2016
L L
Date of Judgment: 29 June 2016
M Date of Reasons for Judgment: 13 July 2016 M
N N
REASO N S F OR J U DGM E NT
O O
Background
P P
1. The 1st appellant (“A1”) was charged with one count of
Q Q
“Taking employment while being a person in respect of whom a removal
R order is in force” contrary to sections 38AA(1)(b) and 38AA(2) of the R
Immigration Ordinance, Cap 115.
S S
T T
U U
V V
-2- A
A
B 2. The 2nd appellant (“A2”) was charged with one count of B
“breach of condition of stay” contrary to section 41 of the Immigration
C C
Ordinance, Cap 115.
D D
3. Both appellants pleaded not guilty to the charge and each
E E
appellant was convicted after trial by Mr. Colin Wong, Magistrate at
F Shatin Magistracy on 4 May, 2016. A1 was sentenced to 22 months and F
2 weeks’ imprisonment and A2 was sentence to 3 months’ imprisonment.
G G
H 4. Both appellants were represented by the Duty Lawyer H
Service in the trial. In the appeal hearing on 29 June, 2016, they were
I I
both unrepresented and they only appealed against the convictions. After
J hearing both the appellants, I have already dismissed their appeals J
forthwith. I said I shall give my reasons in due course which I now do.
K K
L Prosecution Case L
M M
5. The cases for the prosecution and defence as well as the
N
Statement of Findings by the Magistrate are well summarized by the N
respondent which I shall adopt in my following judgment.
O O
P
6. The Admitted Facts (Exh. P1) produced in the trial reveals P
that:
Q Q
(a) In September 2009, A1 entered and then remained in Hong
R Kong unlawfully without the authority of the Director of R
Immigration. Since then, he had been arrested, released on
S S
recognizance and a Removal Order had been issued and was
T in force against him. He had been served with the order and T
U U
V V
-3- A
A
B he was aware that he was prohibited from taking up any B
employment while released on recognizance.
C C
(b) On 10 January 2015, A2 entered Hong Kong with his Indian
D D
Passport and he was allowed to stay here for 14 days as a
E visitor. On 26 January 2015, he surrendered to the E
Immigration Department and he had been released on
F F
recognizance. He was aware that he was prohibited from
G taking up any employment whilst released on recognizance. G
H H
7. The prosecution only called one witness in the trial
I PC 10490 (PW1). At the material time, PW1 was patrolling with a team I
of police officers at the offence location at Ta Kwu Ling, New Territories.
J J
He observed A2 pushing a trolley into a village house (House 34). Inside
K the house, A1 was standing in a pit that was about 1.5m in depth. A1 was K
using a shovel to transfer rubble from the pit to the trolley. After the
L L
trolley was filled, A2 pushed the trolley out of the house to a lawn where
M he put the rubble down. A2 then pushed the empty trolley back to the M
house. The observation lasted for 10 minutes and both appellants had
N N
done the above twice. There was no other person inside the house.
O O
Defence Case
P P
Q 8. Both appellants elected to testify but they did not call any Q
defence witness.
R R
S 9. The defence case was summarized by the respondent as S
follows: -
T T
U U
V V
-4- A
A
B 10. A1 and A2 were living together at that time and they just B
moved into their flat in Sheung Shui. Their friend Sonu told them there
C C
was a refrigerator in house 34 to collect for their use. On the date of
D offence, both appellants and Sonu went to house 34 to look for the fridge. D
E E
11. After they arrived at House 34, they saw the fridge. Sonu
F then left for arranging a vehicle for the fridge. Sonu told the appellants F
to clean the fridge first. A1 then cleaned the fridge, while A2 went
G G
outside to find a path to take the fridge out.
H H
12. Later, four to five plain clothes police officers came into
I I
house 34 and checked A1’s papers. The police asked if he was working
J and he said no. The police then told him to remove his shirt to take J
pictures.
K K
L 13. When A2 was looking for a path outside the house, the L
police took him back to the house. After 15 minutes, a police vehicle
M M
arrived and they brought a camera. A2 was then asked to take photos.
N N
14. Both appellants maintained that they were not working all
O O
along.
P P
Reasons for Verdict
Q Q
15. The Magistrate stated he had no reason to doubt PW1’s R
R
credibility and he did not have any reason to disbelieve him. PW1 was
S S
found to be an honest and reliable witness. The Magistrate had
T
considered the defence submissions that PW1 could have taken photos T
during his observation but he accepted PW1’s explanation that a camera
U U
was not standard equipment while doing observation.
V V
-5- A
A
B 16. The Magistrate considered the testimony of A1 and he B
disbelieved his evidence. The following reasons were given:
C C
(a) the appellants did not carry any tools (such as a trolley or a
D D
cart) to transport the fridge, which was heavy to carry a long
E way back to Sheung Shui. It therefore appears that they did E
not come for the fridge;
F F
(b) A1 said Sonu had gone to look for transportation but then he
G disappeared. The fridge cannot be put on a taxi. It was G
questionable where Sonu went to look for transportation and
H H
he could have just used a mobile phone;
I I
(c) it was said that Sonu disappeared after he left looking for
J transportation. The police intercepted the defendants at J
10:15am and arrested them at 10:45am. However, Sonu
K K
never showed up; and
L L
(d) there was no other person at House 34. There were tools,
M
planks, building materials and an open pit there. If A1 and M
A2 were only visitors, it is questionable why there was no
N N
other person looking after the tools, materials and the open
O pit. O
P P
17. The Magistrate considered the testimony of A2 and he also
Q disbelieved his evidence. The following had been considered: Q
(a) A2 has a clear record; R
R
(b) A2’s version is the same as A1 which was considered not
S S
credible; and
T T
U U
V V
-6- A
A
B (c) A2 further said Sonu was the one who paid for B
transportation. The fridge was for A1 and A2’s home. It
C C
was unreasonable for Sonu to pay for their transportation.
D D
18. The Magistrate found beyond reasonable doubt the
E E
following facts:-
F F
19. At the material time, A1 was standing in the pit shuffling
G G
rubble to the trolley. After A1 filled the trolley, A2 pushed the trolley
H from House 34 to a lawn nearby and placed the rubble there. A2 then H
pushed the trolley back to the house. During the 10-minute observation I
I
by PW1, A2 had pushed and emptied the trolley twice. No other person
J J
was in the house except the two appellants. Therefore, they were
completing the task of digging a pit and emptying the rubble together, for K
K
at least 10 minutes. They would not have done that for fun or pleasure.
L L
It was beyond reasonable doubt that they were working at that time.
M
There is also no evidence to suggest why the appellants would work at M
the house, except under employment. The only irresistible inference is
N N
that the defendants were doing odd-jobs under employment at the
O material location. The prosecution had proved beyond reasonable doubt O
all elements of the two offences.
P P
Q
Grounds of Appeal Q
R 20. In their statements of application for appeal against R
convictions, both appellants declared that they had not pleaded guilty and
S S
insisted to raise their applications for appeal against their convictions but
T without stating any substantive grounds. T
U U
V V
-7- A
A
B Application for Bail and Adjournment B
C C
21. Instead, they each applied for an adjournment before me so
D that they could engage a private lawyer as their application for legal aid D
had met with no success. For this purpose, they both requested to be
E E
bailed out so that they can contact their family members for legal
F expenses. F
G G
22. I refused their applications without any hesitation. I note
H also that their earlier application for bail have already been refused by H
Saw J on 17 May 2016.
I I
J
23. A magistracy appeal is conducted by way of a rehearing. J
The appellate court should recognize the advantage the trial Magistrate
K K
had of receiving the evidence first hand, and should only depart from the
L Magistrate’s finding of fact or determination of a witness credibility if L
satisfied that it is plainly wrong: HKSAR v Ip Chin Kei & others [2012] 4
M M
HKLRD 383.
N N
24. As rightly pointed out by the respondent in the submission,
O O
the issue in dispute in this case is whether PW1’s version is believed,
P given his version is contradictory to the version given by both appellants. P
Whether PW1 is believed is a finding of fact and determination of a
Q Q
witness’ credibility. It is entirely within the prerogative of the Magistrate.
R R
25. Reading the Statement of Findings as a whole, the
S S
Magistrate was well aware of the standard and burden of proof in a
T criminal trial. He directed himself properly in law regarding A2’s clear T
record and gave careful assessments of the evidence of both appellants.
U U
He provided cogent reasons for rejecting the evidence of A1 and A2.
V V
-8- A
A
B 26. The Magistrate’s assessment of the credibility of A1 and A2 B
and his finding against them cannot be faulted.
C C
D 27. The Magistrate was fully justified in reaching his conclusion D
that A1and A2 had been proved to have committed the offences beyond
E E
all reasonable doubt.
F F
28. I should also add that the Magistrate’s comment on the role
G G
played by Sonu was entirely correct. Firstly, PW1 and the police party
H never noticed the presence of this person at the scene. During the entire H
observation which was about 45 minutes, Sonu never returned to the
I I
house despite A1 insisted that he earlier went out to arrange the
J transportation of the fridge. If A1 was telling the truth, there is simply no J
reason why Sonu would just disappear without a trace. The Magistrate
K K
was also correct to point out that there is no need for Sonu to leave the
L two appellants and he could have just arranged the transport by using his L
mobile phone but he did not. All in all, the claims by both appellants that
M M
they were called by Sonu to go to the house to collect a fridge is thus
N very dubious. It is also highly doubtful that the character Sonu really N
existed at all. There is a hallmark of invention of this character by the
O O
two appellants in their defence. That was also why when the appellants
P P
requested for an adjournment before me in order to call Sonu as his
defence witness, I have flatly turned down the request. After all, this Q
Q
should be done in the trial and they both had already testified in the trial
R R
about this man but they were already disbelieved, and in my view
S
properly, by the Magistrate. S
T T
29. It is all beyond reasonable doubt, based on the observation
evidence by PW1 at the offence location, that both appellants were found U
U
V V
-9- A
A
B working at the pit at the material time. The convictions of A1 and A2 B
were therefore neither unsafe nor unsatisfactory.
C C
D Conclusion D
E E
30. The appeal against conviction of A1 and A2 is dismissed
F
accordingly. F
G G
H H
I I
(Anthony Kwok)
Deputy High Court Judge
J J
K Ms Lo Shui Ying Sabra, Acting Senior Public Prosecutor of the K
Department of Justice, for the respondent
L L
The 1st appellant appeared in person
M The 2nd appellant appeared in person M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V