HKSAR v. LEUNG CHUN SANG

HCMA 74/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 74 OF 2002

____________

____________

_______________

J U D G M E N T

_______________

1. On 11 December 2001 the appellant who was then aged 37 and who had not previously offended pleaded guilty to 2 offences of being the employer of a person not lawfully employable contrary to section 17I of the Immigration Ordinance. He was sentenced to 4 months imprisonment in respect of each offence those sentences to be served concurrently. It is against those sentences which he appeals.

2. The grounds of appeal advanced on behalf of the appellant by Mr Kwong can be shortly stated as follows:-

a) The learned Magistrate should have suspended those sentences of imprisonment and, it not,

b) the sentences were manifestly excessive.

3. In his reasons for sentence what the Magistrate had to say was this:-

"The accused, pleaded guilty to 2 charges of employing a person not lawfully employable. In June 2001, he had taken on two mainland visitors as employees in his car repair business on Castle Peak Road. Neither employee was an overstayer. They were seen working on taxis by police officers.

Of the two employees, D1 was sentenced to two months' imprisonment suspended for two years. D2 was sentenced to two months' immediate imprisonment. I sentenced this accused, as the employer, to four months' imprisonment.

With regard to employing a person not lawfully employable, the prosecution produced an authority on sentence, Wong Chung Lee, AR No. 10 of 1996, though I was informed by the prosecution that it was not routinely followed and that suspended sentences of imprisonment were often imposed. It will be seen from the transcript that my enquiries showed that Wong Chung Lee was indeed often distinguished from the cases which came before the courts on a daily basis because they do not involve such large scale or organised unlawful employment as was present in that case. Having regard to the fact that the unlawful employment in the present case was casual and short term and that there was no admissible evidence of exploitation, I concluded that Wong Chung Lee could be distinguished in this case as well.

However, it could not be ignored and there was no basis in the case of any unlawful employment of visitors to Hong Kong for the suspension of sentences. Indeed Wong Chung Lee and the earlier case of Wong Mok Din [1994] 2 HKCLR 102, lead to the conclusion that the sentence of about ten months' imprisonment upon a plea of guilty would be appropriate where there are no aggravating circumstances. This has subsequently been confirmed by magistracy appeals, see Tseng Kam Loong HCMA 312 of 1997 for example. In the circumstances, it is evident that my sentence of four months' imprisonment was well below the proper tariff and I had given too generous an allowance for the lack of aggravating features."

4. In his submissions before me Mr Kwong suggested that the learned Magistrate's approach had been quite wrong in that he appeared not to be looking for exceptional circumstances which might justify the suspension of the sentences - but for reasons for not suspending them.

5. Upon my enquiring of Mr Kwong what exceptional circumstances there were relating either to the offences or to the appellant which might justify the sentences being suspended he told me, in effect, that there were none beyond the facts that the appellant had pleaded guilty and that he had not previously offended.

6. Plainly, on authority, those circumstances of themselves do not justify the suspending of prison sentences.

7. Mr Kwong then went on to tell me that it has become customary in the Magistrates Courts, where cases us of this nature are usually dealt with, to impose a suspended prison sentence upon a plea of guilty.

8. In my view if that is indeed so and prison sentence are routinely suspended without there being 'exceptional circumstances' to justify such suspension, then that is wrong in principle, and the practice should forthwith stop.

9. It goes without saying that, if that is the practice, then plainly a defendant such as this appellant will understandably feel aggrieved if his sentence is not suspended.

10. Dealing then with the second ground of appeal, the sentence of 4 months imprisonment imposed in this case upon the appellant cannot be said to be manifestly excessive for the reasons clearly set out by the learned Magistrate.

11. This appeal must be dismissed.