HCMA 848/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO 848 OF 2012
(ON APPEAL FROM STCC 1557 OF 2012)
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BETWEEN |
| | HKSAR | Respondent |
and |
| | JESURAJAH ROBINSON | 1st Appellant |
| | KANDANA ARACHCHIGE DAYAL DILRUK KUMARA | 2nd Appellant |
_____________________
| Before: Hon Barnes J in Court |
| Date of Hearing: 25 March 2015 |
| Date of Judgment: 8 May 2015 |
_____________________
J U D G M E N T
_____________________
1. There are two appellants in this appeal: Jesurajah Robinson (A1) and Kandana Arachchige Dayal Dilruk Kumara (A2).
2. A1 was charged with an offence of “Taking employment while being a person who remains 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 (“IO”), Cap 115.
3. A2 was charged with an offence of “Breach of condition of stay”, contrary to section 41 of the IO and by virtue of Regulation 2 of the Immigration Regulations (“IR”).
4. Both appellants pleaded not guilty and each was convicted of their respective charge after trial by Deputy Magistrate Kelly Shui (as she then was) at the Shatin Magistrates’ Courts. A1 was sentenced to 18 months’ imprisonment while A2 was sentenced to 3 months’ imprisonment.
5. Both appellants lodged an appeal against both conviction and sentence.
6. Mr Mark Sutherland (who was also the trial counsel) was assigned by the Legal Aid Department to represent both appellants on their appeal against conviction. No legal aid was granted to the appellants to pursue their appeal against sentence.
7. On the day of the hearing before me, Mr Sutherland informed me that neither appellant will pursue the appeal against sentence. After having confirmation from each appellant, I dismissed their appeal against sentence and proceeded to hear the appeal against conviction.
Prosecution case
8. It was an admitted fact that A1 landed in Hong Kong unlawfully and he was released on recognizance on 3 July 2008. On 14 July 2010, he was issued with what is commonly known as a “Form 8 recognizance”. A2 entered Hong Kong on 19 August 2005 on the strength of his Sri Lankan passport and was permitted to remain as a visitor for 30 days. A2 was released on 7 August 2008 when he was issued with a Form 8 recognizance.
9. These two charges arose out of an operation against illegal workers mounted by officers of the Immigration Department on 22 March 2012 at Shop 47 (the shop) on the LG floor of Kwai Sing Centre at Castle Peak Road.
10. The prosecution case against A1 and A2 was that the two of them, together with another foreigner (a Mr F) went to the guard post at about 9:30 am on the day in question to register for work. They had with them a trolley loaded with tools. Both appellants produced their Form 8 recognizance for registration. The security guard (PW6) was not sure whether such documents of identification could be used for registration to work and he called his superior Miss Chan to make enquires. He was instructed by Miss Chan to allow those people to proceed. The three went to the shop after registration. Black plastic sheets were put up so that one could not see what was going on inside the shop. PW6 forwarded copies of the appellants’ Form 8 recognizance to Miss Chan, who then contacted the Immigration Department.
11. As a result of Miss Chan’s tip-off, officers of the Immigration Department mounted an operation to lay in ambush outside the shop at about 2:45 pm. Sound of renovation could be heard emitting from the shop intermittently.
12. The operation turned overt at about 3 pm. Upon one officer (PW2) knocking on the door, A1 answered the door. A2 was seen holding a caulking gun and doing some glue work at the corner of the shop. Various renovation tools were seen inside the shop. Some officers described both appellants being covered with dust (though the presence of dust was not apparent when one views the instant Polaroid photographs taken of them at the scene).
13. Upon enquiries, both appellants produced their Form 8 recognizance as proof of identity. A1 remained silent upon questioning. PW2 asked A2 in English what he was doing there. A2 replied in English that he was using the caulking gun to do glue work at the wall. PW2 then asked A2 how much he was paid for the work and A2 replied that he would be paid but he did not know how much. PW2 then cautioned A2 for being in breach of the condition of stay by working illegally. Under caution, A2 repeated what he had said earlier, adding that it was the first day he worked there.
14. The security guard (PW6) was brought into the shop and he positively identified both appellants being the two who had presented their Form 8 recognizance for registration earlier that day.
15. PW2 made a post record of what had taken place at the shop when he returned to the Immigration Department. He then waited for a Sinhalese interpreter to come to translate the contents of the post record to A2. PW2 testified that a Sinhalese interpreter (PW3) came later and translated the contents to A2. A2 confirmed the contents were correct and signed a declaration to that effect written out by PW3.
Special issue
16. A2 challenged the admissibility of the alleged oral admission and the post record. The magistrate adopted the alternative procedure to determine the issue.
17. Apart from PW2, the Sinhalese interpreter PW3 was also called to give evidence. PW3 confirmed that she was not scheduled to do the translation and she was in a hurry to go back to her home in Tuen Mun. After PW2 promised her that it would only take 5 minutes to do the translation, she reluctantly agreed. (It should be noted that the evidence suggests that the procedure would have taken more than 5 minutes to conclude.) PW3 agreed with the defence suggestion, under cross-examination, that A2 had indicated the contents of the post record were not correct though she did not have any recollection of what PW2’s response to such an assertion was.
18. A2 gave evidence for the special issue and basically he denied that he had made any verbal admission to PW2. He claimed that he only knew very little English and he had only told PW2 that he was waiting for a friend in the shop.
19. The defence also submitted that PW2 was in breach of the Rules and Directions for the Questioning of Suspects and the Taking of Statements (the Rules) as he failed to administer a caution as soon as he had reasonable grounds for suspecting that A2 had committed an offence. PW2 also failed to ascertain whether A2 understands English, but questioned him without an interpreter.
20. The magistrate ruled the verbal admission to PW2 was made voluntarily by A2 and was admissible in evidence.
Defence case
21. Neither appellant testified on the general issue. A2 relied on his answers in the unchallenged Record of Interview (Exhibit D4) obtained after the post record: i.e. he had gone to the shop to meet his friend; he did not work in the shop and he was not holding a caulking gun.
The magistrate’s findings
22. The magistrate accepted the evidence of the prosecution witnesses. She found that Mr F would have told both appellants there was no need for them to register if they were not going there to work. She found that A1 and A2 must have realized that they would not be requested to register if they were ordinary visitors going to the mall to shop or to wait for a friend. Further, as soon as the three entered the shop, the place was covered up in preparation for renovation works. The magistrate was satisfied that renovation sound emitted from the shop. The two appellants were the only persons inside the shop when the Immigration officers gained entry to the shop and that the shop was clearly under renovation, with tools and material inside.
23. The magistrate was satisfied that dust was found on both appellants though the instant photographs did not capture the same. The magistrate, however, has made it clear that this fact alone did not point to guilt.
24. The magistrate found that in all the circumstances of this case, the only irresistible inference to be drawn was that both appellants had been engaged in employment and she found both of them guilty.
Grounds of appeal
25. The grounds of appeal filed by Mr Sutherland for both appellants can be briefly stated.
Grounds common to both appellants
26. The magistrate erred in failing to give adequate reasons and also failed to properly evaluate the evidence.
27. The magistrate erred in coming to her conclusion that the evidence adduced allowed her to draw the only irresistible conclusion that the appellants were engaged in employment at the shop at the material time.
Grounds in relation to A2 only
28. The magistrate erred in ruling in the oral admission allegedly made by A2.
29. The magistrate also erred in ruling that the charge brought under section 41 of IO was a valid one.
Legal challenge
30. I will deal with the challenge on the validity of the charge under section 41 of IO first.
Mr Sutherland’s submission
31. Mr Sutherland’s submission can be summarized as follows.
32. A2 entered Hong Kong as a lawful visitor. He was given a period of 30 days to stay. It was also a condition that A2 could not take up employment. When A2 continued to stay in Hong Kong after the 30 days period without approval, he became an overstayer. The condition relating to employment is linked to the time limit of stay (i.e. 30 days). To prosecute A2 for breach of the condition of stay, A2 had to take up employment within the 30-day period. The condition relating to employment expired upon the expiry of the limit of stay.
33. Mr Sutherland relied on a line of English authorities beginning with Singh (Gurdev) v The Queen [1974] 1 All ER 26 to support his contention that once the condition regarding the time limit to stay has expired, so too has the condition in relation to employment that was attached to it. No prosecution could be brought against A2 after the expiration of the 30-day period.
34. Recognizing that in Singh (Gurdev) the Queen’s Bench Division of the Court of Appeal held that an offence of “knowingly remains in the United Kingdom beyond the time limited by the leave to enter” was not a continuing offence, whereas the Court of Final Appeal in HKSAR v Li Li Mua (2001) 4 HKCFAR 123 held that the offence of “overstaying” in Hong Kong is a continuing offence, Mr Sutherland nevertheless submitted that since it is still undecided whether an offence of a breach of the condition regarding employment is a continuing offence (citing Li Li Mua), A2 should be given the benefit of the doubt.
35. Mr Sutherland referred me to section 46(2) of IO and submitted that any prosecution has to be brought against A2 within three years from the time when the matter or complaint arose, which he submitted to mean “within three years of the period of 30 days” after A2’s arrival in Hong Kong on 19 August 2005. The time for prosecution has long since expired, Mr Sutherland submitted.
36. Furthermore, Mr Sutherland submitted that as A2 was granted a Form 8 recognizance after he had lodged his “torture claim”, A2’s status changed from that of an overstayer to that of someone whose presence was tolerated or suffered by the Hong Kong government (relying on the dicta of Ma CJHC (as he then was) in Iqbal Shalid v Secretary for Justice [2010] 4 HKLRD 12). He submitted that the concepts of “permission to land or remain” under section 11 of IO and “being released on recognizance” under section 36 of IO cannot co-exist and are mutually exclusive.
37. Since no condition could be imposed onto the Form 8 recognizance (relying on the judgments of V v Director of Immigration [2006] 3 HKC 362 and Iqbal Shahid and Others v Secretary for Justice [2009] 5 HKC 393), A2 could not be in breach of a condition by taking up employment.
38. Mr Sutherland also submitted that, unlike in the case of those who have landed unlawfully in Hong Kong, the government has overlooked or omitted the need to amend the law – by having an equivalent legislation in the form of the newly added section 38AA – to cover the situation of overstayers who were released on the Form 8 recognizance, thus creating a lacuna in the law.
Respondent’s response
39. Mr Andrew Li, SPP of the Department of Justice representing the respondent referred to section 11 (2) of IO and submitted that by using the conjunctive “and” the legislative intent is that the limit of stay and other conditions of stays are independent of each other, the validity of one condition therefore does not depend on the validity of another.
40. Mr Li submitted that there is no specification under Regulation 2 of IR that any condition of stay imposed shall expire upon expiry of the limit of stay.
41. Furthermore, under section 11(5A) of IO, an immigration officer or a chief immigration assistant may at any time by notice in writing to cancel or vary any condition of stay, or vary any limit of stay, in force in respect of such person. A limit of stay therefore operates independently from other conditions of stay.
42. Mr Li further submitted that the status of A2 as an overstayer has not changed upon him being granted a Form 8 recognizance. Mr Li accepts that no condition could be imposed onto the Form 8 recognizance, but A2 was reminded at the time of the pre-existing condition not to take up any employment unlawfully.
43. Mr Li submitted that the reliance on a line of English authorities starting from Singh (Gurdev) does not assist the court as they concern very different legislative provisions. Mr Li stressed that the United Kingdom offence of “knowingly remaining beyond the time limit” under the 1971 Immigration Act (“UK IA 1971”) was not a continuing offence, whereas the Hong Kong offence of “overstaying” is. He also pointed out there is no provision similar to that of section 3(3)(a) of UK IA 1971.
44. To say that A2 could only be prosecuted if he had committed the offence by taking up employment within 30 days is plainly wrong and inconsistent with the principles and authorities, Mr Li submitted, adding that if such a submission were valid, visitors would be encouraged to overstay because once they become overstayers, they could be employed in Hong Kong without legal sanction. As a matter of principle, an offender should not be allowed to benefit from his own wrong.
My consideration of the submissions
45. Section 11(2) of IO provides:
“(2) Where permission is given to a person to land or remain in Hong Kong, an immigration officer or immigration assistant may impose-
(a) a limit of stay; and
(b) such other conditions of stay as an immigration officer or immigration assistant thinks fit, being conditions of stay authorized by the Director, either generally or in a particular case.”
46. A “limit of stay”, as defined under section 2 of IO, is “a condition of stay limiting the period during which a person may remain in Hong Kong”.
47. Section 11(2), (3) and (5A)(2) of IO provides:
“(2) Where permission is given to a person to land or remain in Hong Kong, an immigration officer or immigration assistant may impose- (Amended 79 of 1982 s. 6)
(a) a limit of stay; and
(b) such other conditions of stay as an immigration officer or immigration assistant thinks fit, being conditions of stay authorized by the Director, either generally or in a particular case.”
(3) Subject to subsection (9) [i.e. exemption from the Director or Immigration], the permission given to a person to land or remain in Hong Kong shall be deemed to be subject to the prescribed conditions of stay in addition to any conditions of stay imposed under subsection (2).
…
(5A) An immigration officer or a chief immigration assistant may at any time by notice in writing to any person other than a person who enjoys the right of abode in Hong Kong, or has the right to land in Hong Kong by virtue of section 2AAA-
(a) cancel any condition of stay in force in respect of such person;
(b) vary any condition of stay (other than a limit of stay) in force in respect of such person if the condition as varied could properly be imposed by an immigration officer or a chief immigration assistant (other than the Director) under subsection (2)(b);
(c) vary any limit of stay in force in respect of such person by enlarging the period during which such person may remain in Hong Kong.”
48. Under Regulation 2 of the IR, other conditions of stay may be imposed. Regulation 2(1) provides that:
“(1) Permission given to a person to land in Hong Kong as a visitor shall be subject to the following conditions of stay-
(a) he shall not take any employment, whether paid or unpaid;
(b) he shall not establish or join in any business; and
(c) he shall not become a student at a school, university or other educational institution.”
49. Having considered the wordings of the legislation, I agree with the submission of Mr Li and reject the rather ingenious submission of Mr Sutherland.
50. Clearly a limit of stay is itself a condition of stay. There is no specification that a condition to stay (be it relating to employment or other conditions) shall expire upon the expiration of the limit of stay.
51. I find that the condition in relation to employment is not dependent on,and is not attached to,the condition of limit of stay as contended by Mr Sutherland.
52. I do not agree with Mr Sutherland’s submission that A2 could not be prosecuted for a breach of the condition of stay by taking up employment unless he had done so within the original 30 days he was granted permission to stay. To rule as submitted by Mr Sutherland would lead to the ridiculous result that a visitor who has taken up employment during the limit of stay would have committed an offence and liable to prosecution, whereas an overstayer who has taken up employment would escape from legal sanction.
53. In my view, A2’s status of an overstayer has not changed upon him being given a Form 8 recognizance pending his torture claim. A2 remains an overstayer whose presence was suffered or tolerated while his torture claim is pending.
54. As A2 was released on the Form 8 recognizance pending the outcome of his torture claim, he obviously could not be prosecuted for the offence of overstaying during this period of waiting. However, should his application be unsuccessful, he is liable to be prosecuted for the offence of overstaying. Indeed, Mr Sutherland has informed me that A2 was charged with the offence of overstaying but that charge was not proceeded with, pending the outcome of his torture claim.
55. The heavy reliance by Mr Sutherland on the English authorities does not assist A2’s case either. The legislative provisions in United Kingdom were very different from the Hong Kong ones. The relevant provision (section 24(1) of the UK IA 1971) as quoted in Singh (Gurdev) provides (at page 29 line b):
“A person who is not patrial shall be guilty of an offence punishable [as provided in the section] in any of the following cases … (b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either - (i) remains beyond the time limited by the leave; or (ii) fails to observe a condition of the leave …”.
56. It is common ground that there is a difference in the “continuing offence” aspect between the relevant provision in the UK IA 1971 and the IO in Hong Kong.
57. Further, as pointed out by Mr Li, there is no equivalent of a section 3(3)(a) UK IA 1971 legislation here in Hong Kong, the wording of which are as follows:
“In the case of a limited leave to enter or remain in the United Kingdom –
(a) a person’s leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply;
(b) …” [Emphasis applied]
58. I am not persuaded that a condition regarding employment is “attached” to the condition of a limit of stay as in the case of Singh (Gurdev).
59. As a result of my findings above, whether the offence of breach of condition of stay by taking up employment is a continuing offence is not relevant in the present case. If it is not a continuing offence, the prosecution must be brought “within 3 years from the time when the matter of such complaint or information respectively arose”. The prosecution was brought within 3 years from the date of the alleged offence (i.e. 22 March 2012).
60. This ground of appeal fails.
A2’s verbal admission
61. I will now turn to the issue in relation to A2’s verbal admission.
Mr Sutherland’s submission
62. A2 challenged the admissibility of such a verbal admission and a voir dire in the form of alternative procedure was held.
63. Mr Sutherland’s main complaint was that, in breach of the Rules, no caution was administered to A2 by PW2 when the latter found A2 in suspicious circumstances (i.e. after a tip-off; sound of renovation being heard, A2 was seen holding a caulking gun upon entry, etc). Instead, PW2 asked A2, in English, a leading question “what are you doing here?” which resulted in the alleged admission. No attempt was made by PW2 to ascertain whether A2’s English was proficient, or whether A2 required the assistance of an interpreter.
64. Further, the evidence shows that the Sinhalese interpreter (PW3) was in a hurry to go back to her home in Tuen Mun. She was pressed for time and might have felt pressured, which in turn might have affected the quality of her translation.
65. More importantly, Mr Sutherland stressed that PW3 had agreed under cross-examination that A2 had indicated to her that “a lot of what’s written is wrong” though she was not sure if PW2 had said to A2 that he could take the matter up with the magistrate. Mr Sutherland complained that the magistrate did not deal with the evidence of PW3 at all in her Statement of Findings in relation to the admissibility of the verbal admission.
The Respondent’s stance
66. Mr Li, very properly, conceded that the magistrate did not deal with the evidence of the interpreter PW3. He proceeded with his submissions on the appeal on the basis that no verbal admission was ever given by A2.
My consideration of the submissions
67. Mr Li should be commended for properly making the concession.
68. It is unclear why the magistrate did not deal with the evidence of PW3. PW3’s evidence suggests that she was in such a hurry that she might not have given the full attention and care required for the translation job. Her agreement with the defence case, on the face of it, supports A2’s contention that what was written in the post record was not correct, which in turn might have thrown doubt onto the accuracy of the alleged verbal admission.
69. If the magistrate had properly evaluated the evidence, in particular the evidence of PW3, and had then come to the conclusion that A2 did give the verbal admission but was trying to retract from it during the post recording, thereby saying to PW3 that the contents of the post record were incorrect, she would of course have been perfectly entitled to do so. However, as the matter stands, there is no way of knowing what the magistrate thought of the evidence of PW3, particularly when her evidence appears to throw doubts on the evidence of PW2 regarding the post recording of the alleged verbal admission.
70. In the particular circumstances of the present case, when there was a tip-off and the officers from the Immigration Department heard sound of renovation emitting from the shop intermittently, and that A2 was seen holding a caulking gun and doing some glue work, PW2 should have cautioned A2 first before asking A2 what he was doing there.
71. It is trite law that a breach of the Rules does not mean that the admission must be excluded (see HKSAR v Chan Ka Chun, CACC 42/1999, unreported). Much would depend on the circumstances and the extent of the breach.
72. Bearing in mind that according to PW2, A2 repeated under caution what he had already told PW2 before he was cautioned, adding that it was the first day of his work, it may be difficult to say that he would have refrained from making the verbal admission had he been cautioned first.
73. I do not agree with Mr Sutherland’s submission that PW2 should have made enquires as to A2’s English proficiency and to arrange for an interpreter before questioning A2. In the circumstances of this case, by asking a simple question in English, PW2 would have been able to discern whether A2 understands English from A2’s answer, if any.
74. In any event, these points are now academic as the respondent had already conceded that no reliance should be placed on A2’s verbal admission.
Common grounds of appeal
75. I will now consider the common grounds of appeal by both appellants.
76. Mr Sutherland referred me, in great detail, to the evidence of various witnesses, in particular the evidence of the Immigration Assistant PW2 and the security guard PW6. I do not think it necessary to reproduce the rather voluminous transcript here.
77. In a nutshell, Mr Sutherland submitted:
(a) At no time did either A1 or A2 clearly expressed to PW6 that they were going to the shop to work. All that they had done was to follow Mr F. PW6 thought Mr F was the man in charge and had assumed that A1 and A2 were also there to work. While there was a trolley loaded with tools and that both appellants produced the Form 8 recognizance for registration, all these facts were not enough for the magistrate to draw the irresistible inference that they had gone to the shop to work. They could have gone there to wait for someone.
(b) Relying on the case of HKSAR v Osman Goni and MD Monir Hosen [2014] 1 HKC 184, even if work was carried out in the shop, it does not mean that either appellant was engaged in employment.
(c) There was no evidence that either A1 or A2 stayed all the time in the shop from around 9:30 am until the raid by the officers of Immigration Department around 3 pm. They could have left and then had returned.
(d) A1 only opened the door and he was not seen working.
(e) A2 was indeed seen holding a caulking gun, but that does not mean that he was working there in the shop.
(f) The instant Polaroid photographs do not support the officers’ assertion that both appellants were covered with dust.
(g) In the case of A2, he did explain that he was waiting for a friend when he was later interviewed (as recorded in Exhibit D4).
78. Mr Sutherland submitted the magistrate failed to properly evaluate the evidence and failed to give adequate reasons in coming to her conclusion that both appellants were engaged in employment at the material time.
My consideration of the submissions
79. I have carefully read the transcript of the proceedings (including parts not referred to by Mr Sutherland).
80. Before I deal with the merits of Mr Sutherland’s submissions, I think it necessary to reiterate what Stock J (as he then was) had said in R v Kwong Wing On, HCMA 574/1996, unreported:
“Pausing at this juncture, I would say this: that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”
81. Despite the attack on the evidence of the witnesses (in particular PW2 and PW6), and the criticism on the way the magistrate dealt with the evidence, I am of the view that on the evidence before her, the magistrate was entitled to make the factual findings as she did (save the alleged verbal admission by A2).
82. I do not agree with Mr Sutherland’s submissions that she failed to properly evaluate the evidence, or that she failed to give adequate reasons (again with exception to the verbal admission by A2).
83. A1 did not give evidence which was his right, but it also mean that there was no evidence before the magistrate (or this court) that he was inside the shop for an innocent purpose.
84. A2 also did not give evidence (on the general issue) and the magistrate was entitled to reject the assertion he made in the Record of Interview (Exhibit D4) which was not repeated under oath.
85. Working at a place may or may not amount to an employment. It depends on all the circumstances of the case. In the absence of other evidence, one may draw the necessary inference that the working amounts to an employment (see The Queen v Ip Po Fai HCMA 1201/1995, unreported).
86. The case Osman Goni and MD Monir Hosen cited by Mr Sutherland is in fact part of a series of cases involving four appellants. The appeal of one of them went all the way to the Court of Final Appeal (HKSAR v Ferosh [2014] 5 HKC 104). The facts involving those four appellants can be distinguished from the facts of the present case.
87. The facts as stated in Ferosh were that four men were seen carrying out some manual work at a derelict metal shed. Given the condition of the shed, it was not an obvious place of employment. There was no evidence as to whom the shed or the material being dismantled belonged. There was no evidence that the four men were doing the work for an employer rather than for themselves. In short, the inference of employment was not the only irresistible inference to be drawn from the evidence.
88. Contrary to those facts, in the present case, the shop was located in a shopping mall. It was vacant pending renovation. Both appellants arrived with Mr F and there was a trolley loaded with tools. Both appellants produced their Form 8 recognizance for registration, after Mr F had made his own registration. Both appellants went inside the shop with Mr F. The windows were covered up. The shop was not someone’s home or a restaurant in which a person could visit and not be present for the purpose of employment.
89. Though there was no evidence that either A1 or A2 stayed inside the shop from 9:30 am to 3 pm, it is a fact that they were inside the shop at 3 pm after they made a registration earlier that morning. They were the only two persons inside the shop when the Immigration officers made entry. Before the operation became overt, sound of renovation emitted from the shop. A2 was seen still holding a caulking gun – a working tool. They were covered with dust which indicated they had been inside the shop for a period of time when renovation work was being carried out.
90. There was no evidence from A1 to explain his presence in the shop. A2’s assertion (that he had gone there to wait for a friend) was not made under oath and not tested. There was also no evidence to suggest any special relationship between the appellants and the proprietor of the shop.
91. When dealing with the drawing of inference on circumstantial evidence, I respectfully repeat what Pollock CB has said in R v Exall (1866) 4 F & F 922:
“It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.
Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.”
92. In my view, the combination of all the circumstances as found by the magistrate was that both appellants were working in the shop at the material time, and that the only irresistible inference to be drawn, in the absence of other evidence, is that they had taken up employment thereat.
Complaint regarding “dock identification”
93. Though not in the perfected grounds of appeal, Mr Sutherland made a complaint about the so-called dock identification by an Senior Immigration Assistant (PW7), alleging that the magistrate had entered into the arena and assisted the prosecution in laying the groundwork for such a dock identification.
94. In gist, what had happened was that PW7, who was also present at the shop at the material time, gave evidence about witnessing the security guard (PW6) identifying both appellants as the persons who had earlier that day approached him for registration by producing their Form 8 recognizance. Mr Sutherland objected to PW7 identifying the appellants in court.
95. Bearing in mind there was never any dispute that both appellants did produce their Form 8 recognizance to PW6 for the purpose of registration; that they were both inside the shop when the Immigration officers turned their operation overt and gained entry to the shop; and that PW6 did enter the shop and identified both appellants, whether PW7 could still recognise the appellants (when giving evidence in court) as those two persons identified by PW6 is neither here nor there.
96. In any event, I do not agree with Mr Sutherland that the magistrate had entered into the arena in assisting the prosecution to lay the groundwork for such an identification.
Conclusion
97. For the reasons stated, the appeals against conviction launched by both appellants are dismissed.
| | (Judianna Barnes) |
| | Judge of the Court of First Instance |
| | High Court |
Mr Andrew Li Hay Chit, SPP of the Department of Justice, for the respondent
Mr Mark Richard Charlton Sutherland, instructed by David Ravenscroft & Co, assigned by the Director of Legal Aid, for both appellants (on conviction)