HKSAR v. LAU, CHUNG KWONG

HCMA 216/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 216 OF 2009

(ON APPEAL FROM STCC NO. 7219/2008)

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J U D G M E N T

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1.  The Appellant was charged in the Magistracy with three separate offences of “Being the Employer of a Person not Lawfully Employable”.

2.  There were total of three ladies found in the restaurant in Shatin, the Appellant is a partner in that restaurant.

3.  There is no dispute that on the day when the labour officers went to the restaurant, they were seen working in the restaurant.  Their evidence as to that went unchallenged.

4.  The prosecution called evidence of an interview conducted with the Appellant initially under caution and the Appellant had said that the three ladies had told him they had identity cards.  The record of interview was produced as Exhibit P7.

5.  According to the record of interview, the Appellant said that the three ladies said they had Hong Kong identity cards but they did not show it to him, nor did he ask them to show it to him.  So he didn’t register their particulars either.

6.  He had employed them, a few days prior to the arrival of the labour officers, about 5 days ago, and they worked from 8:00 am in the morning to 10:30 pm in the evening.  The Appellant said that these ladies were being employed at $5,000 a month and that there was a person called Ah Man who had brought the three ladies to be interviewed by him.

7.  The Appellant gave evidence himself and called his wife as his witness.  They, in their defence, relied on the statutory defence, that they had taken all reasonable steps to ensure that they did not commit the offence.

8.  Section 17I as the learned Magistrate observed, is an offence of strict liability.  The learned Magistrate was well aware, as he said in his statement of findings, that all the defence had to do was established on a balance of probabilities their statutory defence.

9.  The Appellant’s evidence was that he had taken on these three ladies as employees on a probationary basis because the restaurant was busy over the festival period.  The Appellant himself was a chef in the restaurant, which was his primary responsibility.  He said that when they arrived, he had looked at their identity cards and established that they had Hong Kong ID cards, and then had taken them on as employees.  But he failed to make photocopies, because there was no photocopy machine in his shop.  He said in cross-examination, that he thought his son would have registered their particulars or his wife would sometimes take on that responsibility.

10.  The learned Magistrate observed that from the evidence of the Appellant, there doesn’t seem to be any register kept of the identity card numbers of these employees.

11.  The learned Magistrate also observed that apart from not taking down particulars of the ID cards, there was no check caused by the Appellant about whether these identity cards were valid, or whether these people were lawfully employable.

12.  The Appellant was cross-examined on the basis that what he said in evidence contradicted what he said in the record of interview, because in the record of interview, he had said that the three ladies had only said to him that they had identity cards.  He said, “But they did not show it to me, nor did I ask them to show it to me” and he did not register their particulars.

13.  The Appellant’s wife gave evidence.  She was not present when the ladies were taken on as employees.  But she said that a few days later, they had shown her their identity cards.  Subsequently, the Appellant said that an identity card had been found in a locker used by one of the ladies after their arrests and that identity card was accepted as an Exhibit by the learned Magistrate and given a number Exhibit D1.  But unfortunately, it didn’t seem to have made its way into the list of Exhibits kept by the court.

14.  And so, on the appeal, the Appellant’s counsel then sought leave to produce that actual document via an affirmation of the Appellant.  I accepted it and it is to be put into the Exhibit list because it was actually admitted as an Exhibit by the learned Magistrate without any objection from the prosecution.

15.  The Appellant’s wife had also been cross-examined.  It was put to her that she had never mentioned seeing the identity cards of these ladies in any of the statements she had made.  She had made two statements, one to the police and one to the Immigration Department.  She alleged that she had been threatened by the Immigration officers, and also by the police officers, not to mention about seeing the Identity Cards.

16.  At the end of the day, the learned Magistrate then made an analysis of the evidence before him.  As I have said, he correctly pointed out, the burden of proof in raising the statutory defence.

17.  At the end of the day, the learned Magistrate did not find either the Appellant or his wife to be credible or reliable.  So he found that the statutory defence had not been made out.  At the end, he convicted the Appellant of the offences.

18.  In the appeal, Ms Ling who represented the Appellant set out some seven grounds of appeal, and all of them were really to do with the learned Magistrate ignoring or not putting any weight on the defence evidence and on the identity card Exhibit D1.

19.  Ms Ling alleged that the learned Magistrate had placed improper weight on the evidence of PW1 to PW3.  It is clear from the transcript that the learned Magistrate had established from the Appellant, who was unrepresented, that he did not dispute the evidence of the labour officers who arrived in the restaurant and found the three ladies to be working inside the restaurant.  It is clear the Appellant said that he had no questions for any of the three officers and he did not dispute their evidence.

20.  The defence was clear that on the day of employing these ladies, according to the Appellant, he had seen their identity cards.  So the Appellant said he did everything reasonable at the time when he employed these ladies.  So there was no any dispute at all about their working in the restaurant.  I cannot see how the allegation made by Ms Ling as to the learned Magistrate placing “improper weight” on the evidence of PW1 to PW3 can actually be made out.

21.  The other matter is Ms Ling said the Appellant was not able to put his case to PW1 to PW3 that these three mainland workers did have Hong Kong ID cards.  That is not the point.  The point is that PW1 to PW3 was not present at the time when the Appellant allegedly saw the three identity cards when he employed the three ladies.  I don’t understand this ground of appeal at all.

22.  The 3^rd ground of appeal had that the learned Magistrate disregarded the evidence and its weight of the Appellant as to the finding by the Defence of the Hong Kong Identity Card of one of the mainland workers in the premises.  I was at a loss to decide first this ground of appeal but I think what Ms Ling meant was that the learned Magistrate failed to place any weight on the defence evidence that Exhibit D1 was found subsequently in the locker used by one of the three ladies.

23.  The learned Magistrate in fact did not disregard such evidence because he mentioned this in his statement of findings.  He was well aware that Exhibit D1 was produced to the court by the defence.  But at the end of the day, he found that he could not believe the evidence of the Appellant nor his wife.  So he didn’t disregard the evidence.  He just did not place any weight on the evidence.

24.  The 4^th ground is that the court had disregarded the evidence of DW2 as to the investigation by both the police and the Immigration Department thereby improperly considering the two statements given by DW2 to the authorities at the investigation stage which were not part of the evidence in court in the current case.  Again, I have difficulty understanding this ground of appeal.  It took me some time to decipher it but I think what Ms Ling alleges is that the learned Magistrate should not paid any attention to what DW2 said in her statements because the statements were not produced in court and there were allegations by DW2 that the police and Immigration officers had acted improperly.

25.  As we can see from the transcript, some of the content of the statement was brought out in the cross-examination of DW2.  And this cross-examination was allowed because the prosecution sought to impugn the credibility of DW2 to this is perfectly proper.

26.  The 5^th ground is that the court wrongly and improperly rejected the evidence of the Appellant’s defence of inspecting the identity cards of the workers involved.  Ms Ling has not shown by reference to any evidence or Exhibit that the court, in any way, had acted wrongly or improperly in rejecting the evidence of the Appellant.  The court was well aware that the Appellant only needed to raise on the balance of probabilities his statutory defence, and that was not reached by the defence.

27.  Finally, it is alleged that the court did not give proper consideration and weight to the defence relied on the Appellant.  And again, it is a repeat of the 5^th ground.

28.  As I have mentioned, because of the poorly drafted grounds settled by counsel, I had to read the transcript, and I found that the learned Magistrate had acted properly.  He had made sure that, at the end, he could properly understand the defence case and the Appellant had his opportunity to cross-examine the witnesses.

29.  I see no unfairness by Mr Casewell, the learned Magistrate.  Because the learned Magistrate in fact was very lenient in admitting Exhibit D1.  He actually should have asked the defence to call the person who actually found the ID card as Mr Goodman said.  But he accepted this Exhibit produced by the Appellant when he gave evidence.

30.  So I can see nothing wrong at all in the assessment of the evidence by Mr Casewell.  He properly directed himself as to the burden of proof.  He properly considered the evidence both of the prosecution and for the defence.  But at the end of the day, he could not find that the Appellant and his wife were creditable and reliable witnesses, therefore, he convicted the Appellant.  So there are no merit at all in the grounds of appeal as submitted by Ms Ling.

31.  I find that the conviction is safe and supported by the evidence.  And the appeal is, therefore, dismissed.