THE QUEEN v. YIP WING TONG

MA No. 253 of 1993

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HEADNOTE

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Employing a person not lawfully employable - non-residence in Hong Kong a mitigating factor - sentence suspended.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 253 OF 1993

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J U D G M E N T

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1. The appellant pleaded guilty in Kwun Tong Magistrate’s court to two charges of employing a person not lawfully employable, contrary to section 17I(1) of the Immigration Ordinance. He was sentenced by Mr McKee on 16th March to three months’ imprisonment on each charge, the sentences to run concurrently.

The facts were unusual. The appellant owns a ship which plies between Hong Kong and China. The employees named in the charges were his cousins, who lived in China but were employed by the appellant to deliver fruit from Yaumatei to the ship berthed at Lei Yue Mun and thence to China.

According to the probation officer’s report, this business had a turnover of $200,000 per month and a net profit of $10,000. The employees had made several trips before their arrest, staying overnight at the pier and receiving $200 per delivery. The appellant now employs an agency to deliver the fruit to the ship at greatly increased cost.

Mr Grounds, who appeared for the appellant on appeal, informed me that at the date of sentencing there were no guidelines for this offence. In R v. Ng Yuet-cheong MA 1352 Hooper, J. held that punishment of a first offence by way of imprisonment should be a last resort.

In 1990 the section was amended by the addition of a statutory defence and by dramatic increases in the maximum penalties. The magistrate bore this in mind when sentencing the appellant.

He also cited R v. Law Chuen-fook (1989) HKLR 164, a case concerning the aiding and abetting the remaining in Hong Kong of a person who has landed unlawfully. Cons V-P said that those who gave employment to illegal immigrants must expect to and receive sentences not less than those imposed upon the immigrants themselves.

The magistrate also cited R v. Ng Hok-ping MA 1207/89, an aiding and abetting case in which the illegal immigrant had been employed. Wong J reduced the sentence from nine to six months on account of the family relationship.

Then on 19th March 1993 - the day before this appellant was sentenced - the Court of Appeal in R v. Wong Mok-din MA 553/92 said that Ng Yuet-cheong should not be followed and that 15 months was the proper starting point when one employee was involved and there was no exploitation. The court recognised that the majority of magistrates in 1992, guided apparently by R v. Ng Yuet-cheong, were imposing suspended sentences for this offence.

Mr Grounds pointed out correctly that this decision was not retrospective. The appellant had spent his whole life in Hong Kong and was unaware of the seriousness of the offence. He was not exploiting illegal immigrates. He was unlikely to offend again.

It seemed to me that a distinguishing aspect of this case was that the employees were not living in Hong Kong. They were not illegal immigrants who had sneaked in to find a job. They were being used as cheap labour by the appellant, but they were returning to China in the course of their employment.

For this reason, plus the fact that Wong Mok-din was decided after sentence had been passed, I allowed the appeal and ordered that the sentences be suspended for two years. I also ordered that the appellant pay a fine of $1,000 on each charge.