HKSAR v. CHOI BIK YEE

HCMA556/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.556 OF 2004

(ON APPEAL FROM KCCC5932 OF 2004)

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J U D G M E N T

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1. The appellant, Choi Bik Yee, pleaded guilty before a magistrate to two charges of aiding and abetting the breach of condition of stay, contrary to section 41 of the Immigration Ordinance and regulation 2 of the Immigration Regulations (Cap. 115) and section 89 of the Criminal Procedure Ordinance (Cap.221). She was sentenced to 10 months' imprisonment each, to be served concurrently. She now appeals against the sentence.

The facts

2. The appellant aided and abetted the breach of condition of stay by two Mainland visitors, Li Guihua and Ju Jian, both subject to the condition that they should not take up any employment, whether paid or unpaid.

3. The appellant was the person-in-charge of a foot massage shop. Li and Ju worked as foot masseurs at the shop. The appellant was responsible for providing job orientation to the masseurs upon their commencement of work in the shop and would call them to the shop if there were customers requesting for service.

Reasons for the magistrate

4. The learned Magistrate referred to A.G. v. Wong Chung Lee [1996] 2 HKCLR 159 (CA), which laid down the guideline starting point of 15 months' imprisonment after trial for offence of employing a person not lawfully employable, where one employee is involved and where there are no circumstances of exploitation.

5. The Magistrate noted in mitigation it was submitted that about seven months before the appellant's court appearance, she set up the business on her own and she could serve only three customers at a time. The appellant tried to engage local staff but found it difficult, that is why she employed the women to work only on the day of the offences. Counsel said there were no under payment and no exploitation.

6. The Magistrate took the starting point of 15 months' imprisonment and reduced it to 10 months' upon plea and the two terms were concurrent.

Grounds of appeal

7. Mr Chan on behalf of the appellant submitted that the learned Magistrate erred in adopting A.G. v. Wong Chung Lee as the starting point in the present case as that case concerned with the offence of employing a person not lawfully employable.

8. Mr Chan pointed out that the appellant originally faced the charge of employing a person not lawfully employable and her plea to the alternative offence of aiding and abetting the breach of condition of stay are accepted by the Prosecution.

9. Mr Chan submitted that the two offences of employing a person unemployable and aiding and abetting the breach of condition of stay are different, and the former being more serious with the higher maximum sentence of three years' imprisonment, and the latter with the maximum sentence of only two years' imprisonment.

Consideration upon appeal

10. In my earlier judgment in HKSAR v. Chu Hing Cheong, HCMA564/2004, the appellant therein faced one charge of aiding and abetting the breach of condition of stay against taking up employment in Hong Kong. In that case the respondent conceded there is no tariff for the offence of breach of condition of stay and the aiding and abetting thereof. For the offence of aiding and abetting the breach of condition of stay against taking up illegal employment, the sentence upon a plea of guilty before magistrates in Hong Kong usually range from two to six months' imprisonment. I observed that in more serious case the sentence might be higher.

11. In the present case, the respondent maintained that the principle in A.G. v. Wong Chung Lee is applicable to the present case and sought to support the sentence of the Magistrate. The learned Magistrate no doubt took into account the fact that although there was no admission as to the employment in the agreed facts, when in mitigation it was said that the appellant ran the business herself.

12. I note that there is no tariff sentence for the aiding and abetting the breach of condition of stay and the practice in the magistrates' courts is such that even though facts which are similar to employing a person unemployable are admitted for the offence of aiding and abetting the breach of condition of stay, magistrates are in fact handing down sentences which are less than the one prescribed by A.G. v. Wong Chung Lee.

13. As the offence is one of aiding and abetting the breach of condition of stay, I find that A.G. v. Wong Chung Lee is not directly binding on the magistrate although he is entitled to take into account the clear principle of the law behind A.G. v. Wong Chung Lee, that is to deter visitors who have no right to enter employment in Hong Kong from working here, and that those who enable them to perform work duties in Hong Kong should likewise be deterred from doing so.

14. In the present case, I hold that the sentence of 10 months' imprisonment is excessive in relation to the normal range of sentences of two to six months upon plea currently passed by magistrates in Hong Kong, which has been admitted by the respondent.

15. In such circumstances, I set aside the original sentence. I adopt the starting point of six months' imprisonment, reduced to four months for each offence. Since two visitors were involved in two charges, I order the sentence to be partly consecutive, making a total of six months' imprisonment.