When blind prosecution fails

Post Date: Nov 28th, 2013 | Categories: Advocacy | COMMENT

High Court Judge Stuart-Moore is lauded as a hero in the refugee community. He reversed the conviction of a Vision First member who was charged with, “Taking employment while being a person in respect of whom a removal order is in force”. There Bangladeshi refugees were leaning against sheets of corrugated metal by an abandoned stone house, when police pounced and arrested them for working.

They might have been scavenging for material to strengthen their government funded shacks. ISS-HK settled them, with complete disregard to their health and safety, in appalling ghettos in Ping Che. They had very good reasons to look for something better. They became easy targets for questionable police tactics. Perhaps these officers pursued quick and easy arrests and … Shatin Magistracy readily obliged.

The judgment HCMA 745/2012 states some interesting points of fact and law:

“The facts could hardly have been more straightforward.  These arose from the arrest of D1, D2 and two others at the scene of an apparently derelict metal shed close to an abandoned stone house.  It was alleged that the four men, all originally from Bangladesh, were removing sheets of corrugated metal and taking them away from the shed in the course of employment.”

“Straightforward though the case was in the factual sense, the way it has been handled in the past reveals a complete shambles. It may be that the prosecution and the courts (Shatin Magistracy Court) must together share the blame for this. I shall not attempt to identify where the blame lies …”

“The learned magistrate decided that “there was simply no good reason for them to be near a lamppost, except to work for money”. She accepted as truthful the observation evidence given by the police and she rejected the claims of the defendants that they were only in the area because “they each had their own reason to move away from their current place, either because of increase of rent or personal preference.

“Hence, D1 and D2 together with D3 were convicted after the magistrate had referred to the relevant law and had drawn an inference that employment in the legal sense had been established.”

“As if it were not bad enough already that three defendants (D1, D2 and D3) had been convicted on the same evidence that D4 had been acquitted, the case now took a further turn for the worse as it entered the appeal stage.”

“Such a situation can only lead to a deeply felt grievance on the part of D1, D2 and D3 as they will almost certainly realise that, if their trial had come before Mr David Cheung at Shatin Magistrates’ Court, they would have been acquitted with D4.”

“In neither situation, however, would the standard of proof required in a criminal trial have been achieved as possible or even probable guilt is not the same at all as guilt about which there is no reasonable doubt and as to which the tribunal of fact is able to feel sure.”

“Each of these appeals is allowed.  The convictions of D1 and of D2 are quashed and so also are the sentences which were imposed on them.”

No. 54 – The slum under the jack tree

click above to see why refugee might need metal sheets