HKSAR v. THAKUR KRISHAN SINGH

HCMA 555/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 555 OF 2015 (ON APPEAL FROM STCC 2253/2015) _______________ BETWEEN HKSAR Respondent and THAKUR KRISHAN SINGH Appellant ________________ Before: Deputy High Court Judge Wilson Chan in Court Dates of Hearing: 3 November 2015 and 5 January 2016 Date of Judgment: 5 January 2016 JUDGMENT Introduction Mr Sajid Naveed (“D1”) and the appellant were respectively the 1st and the 2nd defendant at the trial below in the Shatin Magistrates’ Court. D1 pleaded not guilty to one charge of “breach of condition of stay” (Charge 1). The appellant pleaded not guilty to one charge of “taking employment while being a person in respect of whom a removal order is in force” (Charge 2), contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115. Both D1 and the appellant were convicted after trial on 27 August 2015. The appellant was sentenced to 22 months and 2 weeks’ imprisonment. On 31 August 2015, the appellant filed notices of appeal against his conviction and sentence. Prosecution Case It was an admitted fact that a removal order was issued against the appellant in April 2015, and that the removal order remained in force on the day of the offence, namely, 14 July 2015. In gist, PC 9180 (“PW1”), who was the only prosecution witness called to testify, saw D1, the appellant and “Male A” alighted from a light goods vehicles. Under the instructions of “Male A”, the appellant unloaded 5 iron cages from the light goods vehicle onto the ground, and then D1 unloaded a scale from the light goods vehicle onto the ground. After unloading the cages and the scale, D1 and the appellant moved them to the pavement area. PW1 then saw 2 old ladies pushing 2 trolleys of cardboards onto the scale, and after weighing the cardboards, D1 gave money to them. The appellant was seen throwing the cardboards into one of the cages. After a minute or two, another lady did the same thing and D1 and the appellant were again seen respectively giving money to that lady and throwing the cardboards into one of the cages after weighing the cardboards received from her. PW1 and his colleagues then intercepted and arrested D1 and the appellant. Defence Case Both D1 and the appellant elected to give evidence and also called one defence witness, Mr Ghulam Naseer (“DW”). D1 claimed that he did not know the appellant. The appellant’s defence was simply that he just went there to meet a friend but was intercepted by the police. DW claimed that he was the owner of the recycling business in question and on the material date, after he parked the light goods vehicle, he unloaded his tools on his own and neither D1 nor the appellant had assisted him with his work. Findings of the magistrate The appellant had no previous criminal conviction in Hong Kong and the magistrate duly directed himself on his good character. The magistrate found that PW1 was honest and reliable and accepted his evidence to be the truth. On the other hand, D1 and DW did not impress the magistrate to be honest and reliable witnesses, and the magistrate rejected their evidence “without hesitation”. The magistrate also rejected the appellant’s evidence due to the following reasons and observations: - the appellant’s demeanour in the witness box; the appellant’s “friend” was someone whom he had only met once before but they chose to meet at a place where the appellant had never been to before; and the appellant could not even tell the exact time that he was supposed to meet his “friend”. The magistrate accepted that as the appellant was seen to have unloaded and moved the cages from the light goods vehicle and to have thrown the weighed cardboards into the cages, he was clearly working at the material time. The magistrate also found that the appellant was fully aware of the operation of the business as he had access to the tools on the light goods vehicles and knew how to deal with the cardboard after they had been weighed. The only irresistible inference to be drawn was that the appellant was employed to work there at the material time, and the appellant was accordingly found guilty of Charge 2. Discussion (re: Conviction) The major issue in the present case is the credibility and reliability of the witnesses. An appeal under section 113 of the Magistrates Ordinance, Cap 227, is conducted by way of rehearing on the evidence before the trial court. Where factual findings are concerned, it must be recognized that the magistrate had the advantage of receiving the evidence first-hand, while the judge on appeal can only rely on the Statement of Findings and transcript of the evidence, if any. The credibility and reliability of any particular witness is within the assessment of the magistrate. It is only where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or where the magistrate has misunderstood, misquoted, or failed to consider any significant aspect of the evidence, that the conviction will be rendered unsafe and/or unsatisfactory. In other words, the appellate court will only depart from a magistrate’s finding of fact or determination of a witness’s credibility if satisfied that it is plainly wrong [see: HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, paragraph 65]. In the present case, the magistrate has carefully analysed the evidence of the witnesses. He has given detailed reasons as to why the evidence of PW1 was preferred but not the appellant’s or DW’s. I agree with Mr Jones Tsui, counsel for the respondent, that the findings of the magistrate are sound and there is nothing illogical or inherently improbable in his findings. In the circumstances, the conviction of the appellant should be upheld. Discussion (re: Sentence) The appellant submitted generally that his sentence was too severe. In HKSAR v Usman Butt [2010] 5 HKLRD 452, it was held by the Court of Appeal that a sentence of 15 months’ imprisonment is required to be applied in a section 38AA offence under the Immigration Ordinance, both in respect of section 38AA(1)(a) and section 38AA(1)(b). The 15-month guideline already allowed for a plea of guilty. As the appellant was convicted after trial, he was not entitled to receive the one-third discount for a guilty plea. In the circumstances, the sentence of 22 months and 2 weeks’ imprisonment imposed by the magistrate on the appellant is clearly neither wrong in principle nor manifestly excessive. Conclusion For the reasons stated above, the appellant’s appeal against his conviction and sentence is dismissed. (Wilson Chan) Deputy High Court Judge Mr Jones Tsui, SPP of the Department of Justice, for the respondent The appellant appeared in person