ATTORNEY GENERAL v. YAU LEE CONSTRUCTION CO. LTD.

IN THE COURT OF APPEAL

                          1991, No 10
(Application for Review)

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J U D G M E N T

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Kempster, JA (giving the judgment of the Court):

1. For many years it has been a criminal offence to enter Hong Kong without permission from an Immigration Officer, to remain without the authority of the Director of Immigration and to employ any person unlawfully in the Colony. Immigration Ordinance (Cap 115) ss 171 and 38(l). Since May 1988 it has been the policy of the Director to prosecute illegal immigrants from China found on building sites rather than immediately to repatriate them on arrest. Sentences of some 15 months imprisonment after pleas of guilty have been held appropriate on the basis of deterrence. R v So Man-King & Ors (1989] 1HKLR 142.

2. On 9 November 1990 s 38A of the Ordinance took effect and a main contractor became liable to a fine of HK$250,000 if a person who had landed or remained in Hong Kong unlawfully, as provided by s 38(1), was found on a construction site for which the main contractor was responsible. Presumably the widespread practice of sub-contracting labour had rendered s 171 ineffective.

3. On 12 December 1990 some 300 legitimate workers and 2 illegal immigrants to whom s 38(1) applied were found on a construction site called "Wan Tau Tong Estate, Phase I, Tai Po", for which Yau Lee Construction Co Ltd were responsible as the main contractors. In the terminology of s 38A(1) that company was the "construction site controller". Having regard to the terms of subsection (2) that company was liable to a fine unless, if charged, it could satisfy a court in the terms of subsection (3) which reads:

"It is a defence in proceedings for an offence under this section for the person charged to prove that he took all practicable steps to prevent persons to whom section 38(1) applies from being on the construction site."

4. On 3 May 1991 a summons charging Yau Lee Construction Co Ltd with the offence in question was issued by and returnable before the Magistrates' Court at Fanling. That summons only mentioned one illegal immigrant but it was later amended, to conform with "the agreen facts" drafted by the solicitor for the company, to allege the presence of two such persons.

5. No attempt was made to rely upon subsection (3) and on 24 may a plea of "guilty" was entered.

6. The Magistrate, Mr Sweeney, was much impressed with the plea, with the argument that it was virtually impossible to take "all practical steps" and with the compay's written skeleton argument in mitigation which, unlike a defence, could not be tested by cross-examination. He imposed a fine of $10,000 expressing the view that:

"a fine should be pitched high enough to encourage main contractors ... to continue their preventative measures."

7. On 6 September in a carefully written judgment, which tends to blur the distinction between "evidence" and the contents of a "plea in mitigation", the Magistrate refused the Crown's application, on review, for an increase in the fine. ,

8. The matter then came before this Court on a second application for review this time made by the Attorney General pursuant to s 81A(1) of the Criminal Procedure Ordinance (Cap 221) and to leave granted by the Chief Justice on 1 October. An application was filed on 3 October signed, as is required, by the Attorney General personally inviting the finding that the Magistrate's sentence was manifestly inadequate and wrong in principle.

9. The subsequent history of the application is somewhat chequered. It was set down for hearing on 20 March of.this year but, on 18 March and through no fault of either party, that date had to be vacated and today's date fixed.

10. Last Friday, 27 March, Ms M.A. Crabtree, Senior Assistant Crown Prosecutor, wrote to the Registrar of the Supreme Court, with copies to Mr McCoy, who had been instructed on behalf of the company, and to its solicitors. stating:

"As I understand was indicated to yourself (the Registrar) at the time, the counsel who was to appear for the Applicant is not available on the new date, since he is prosecuting HC182/92 ...

Another counsel was then allocated to take over this matter but unfortunately he has fallen sick and will not be available on 1 April. No other counsel is now available for that date ..."

The counsel referred to was Mr Bruce who, although not yet fully recovered, with Mr Casewell represents the Attorney General this morning. We emphasise the words "No other counsel is now available for that date". They were used on 27 March on behalf of a Department having quite a large establishment of prosecuting counsel and which is entitled to "brief out" if available human resources are inadequate. The letter concluded with the words:

"I am therefore writing to request that the hearing date be vacated."

11. The response of the company's solicitors, which we need not presently read, was less than sympathetic but the request was, in any event, refused by a letter written on behalf of the Registrar dated 20 March in the following terms:

"With reference to your letter dated 27th March, 1992 applying to vacate the hearing date of 1st April, 1992, please be informed that the Hon Sir Derek Cons, Vice President ... has ... made the following directions:

'I have looked at the papers. Any counsel should be able to get this up in less than a day. I am not prepared to vacate the date.' "

12. Some hours later on the same day Ms Crabtree, on behalf of the Attorney General, came back with a facsimile letter reading:

"I refer to my letter of 27th March, 1992 and your reply thereto, bearing in mind all factors, the Attorney General now wishes to abandon this application for review."

All factors, we must assume, included not only the administrative difficulties that appear to have prevailed in the Attorney General's Chambers but also the public interest.

13. The intimation that the Application for Review was to be abandoned resulted in a further direction from my Lord the Vice President which is quoted in a letter to the Attorney General signed on behalf of the Registrar and dated 31 March:

"I am not aware of any provision enabling an application of this kind to be abandoned, as example there is with regard to criminal appeals: see Rule 39 of the Criminal Appeal Rules. I take it therefore that his letter is intended, very properly, merely to be advance notice of the Attorney's intention not to pursue the application when it is called on tomorrow morning, although he will, I expect, take the opportunity to explain, out of courtesy to the Chief Justice, from whom he sought and obtained leave to proceed, why it is no longer in the public interest to do so. There may also be a question of costs ..."

14. Ms Crabtree replied to the Registrar of the Supreme Court the same day as follows:

"... We experienced difficulties in identifying a counsel who would have been available on the refixed hearing date and who would have continued with the preparation of the case, which would have included the submission of a skeleton argument and list of authorities in accordance with the Practice Directions."

There is then reference to an informal approach that had been made for an alternative date and a reference to some other Review. Counsel appearing before us today have no knowledge of the approach or of the Review mentioned. She continued:

"... We were then in the situation that there was no counsel available to take over the case ..."

and referred to the unsuccessful written application to adjourn the hearing and to the view of her chambers that the matter in question should be taken no further as the Practice Directions could not be complied with. In the final paragraph she concluded:

"However in view of the comments of the Honourable Sir Derek Cons, the Director of Public Prosecutions (meaning the Crown Prosecutor) has reconsidered the matter. We are not in a position to say that it is no longer in the public interest to continue with the application. In the circumstances he has directed that Mr T. Casewell will attend court tomorrow to proceed with the Application. A list of authorities is being prepared and will be supplied to the Court and the Respondent as soon as possible."

15. While Mr Casewell has attended before us this morning, no list of authorities has been supplied to the Court. The view of the Attorney General has changed yet again. It is once more his view that it would not be appropriate to continue with this application for review of sentence.

16. This is a sorry story and we do not think it calls for further comment from us. In the circumstances outlined, which may have raised hopes in the company's corporate mind, we accept that it would not be appropriate to require the Attorney General to pursue the application. The course we propose to take is, therefore, to refuse it and to make it quite plain that our conclusion and order involve no finding as to the propriety or otherwise of the sentence passed by the Magistrate on 24 May 1991.

17. We will now hear the parties in relation to costs.