R. v. JAVIER DEOLITO J

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL
NO. 1021 OF 1995

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J U D G M E N T

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Duffy, J.:

1. This was an appeal against a conviction for breach of a condition of stay, contrary to s.41 of the Immigration Ordinance, Cap.115 and by virtue of Regulation 2 of the Immigration Regulations 1972.

2. The Appellant was a domestic helper employed by Madam Pang Kwai-ching in Robinson Road, Hong Kong. An employment contract was completed and signed between them. When still under this contract, the Appellant began a part-time job as a security guard for JLW Management Services Limited in Peak Road, Hong Kong. That is the subject matter of the present charge.

3. Section 41 of the Immigration Ordinance reads as follows :-

"Any person who contravenes a condition of stay in force in respect of him shall be guilty of an offence and shall be liable on conviction to a fine of HK$5,000 and to imprisonment for 2 years."

Regulation 2 of the Immigration Regulations deals with conditions of stay. Sub-section (4) of that Regulation is to this effect :-

"Permission given to a person to land in Hong Kong for employment shall be subject to the condition of stay that he shall only take such employment or establish or join in such business as may be approved by the Director."

4. It was not in dispute that a condition of the Appellant's stay in Hong Kong was that he be employed by Madam Pang, in terms of his contract. However, Mr Laskey, who appeared on the appeal, advanced two principal grounds of appeal. He submitted that the term "land" which appears in s.2(4) of the Immigration Regulations should not be given a meaning which included "remain". Furthermore, he submitted that what the Appellant did in this case was not to change his employer, but merely to find an extra job, thus not offending against the condition that he must not change his employer, and not in breach of a condition of stay.

5. Mr Laskey referred me to a number of passages from Craies on Statute Law 7th Edition in support of his contention that the word "land" should be given its ordinary meaning. I shall certainly give the relevant provisions "such fair, large and liberal construction as will best ensure the attainment of the object of the Ordinance, according to its true intent, meaning and spirit" in accordance with s.19 of the Interpretation and General Clauses Ordinance, Cap.1.

6. When the Appellant first came to Hong Kong, he was given permission to land in Hong Kong on condition that he was here to work for Madam Pang. That meant, of course, that he could stay in Hong Kong as long as he worked for Madam Pang in terms of the contract he had signed with her. He could not work for Madam Pang unless he remained in Hong Kong. He had, therefore, effectively been given permission to remain in Hong Kong so long as he worked for Madam Pang. Thereafter, he applied to the Immigration Department for permission to continue his stay in Hong Kong, and permission was granted to him on the same condition, i.e. that he worked for Madam Pang and could not change his employer. Clearly, the effect of the legislation was to enable a person, who came here to work, to remain here and work, subject to the conditions applied.

7. Section 2(4) of the Immigration Regulations clearly restricts the Appellant to working for the employer approved by the Director of Immigration. That employer was Madam Pang and no one else. He had no permission from the Direction of Immigration to work for JLW Management Services Limited. He required such permission. Therefore working for JLW Management Services Limited was a breach of his condition of stay.

8. Before ending this ruling, I must express the hope that the Appellant in this case suffers no more than the penalty he received from the learned Magistrate. I trust that the Immigration Department will recognise that there is abroad in Hong Kong a failure to appreciate the full meaning and intent of the Immigration Regulations, which bear upon the employment of overseas workers, particularly domestic helpers. As well as which, the Appellant in this case was fulfilling the condition of his permission to stay in Hong Kong, in that he was working as a domestic helper for his employer. His case, therefore, should be distinguished from the cases of others who come to Hong Kong merely on the pretence of coming to work as a domestic helper in terms of a contract, when their real intention is to work elsewhere. I would suggest it would be harsh punishment indeed were the present Appellant to suffer deportation, and I strongly recommend that this line of action be not taken in his case. I must, however, dismiss the appeal.