Attorney General v. Li Ah-sang

Application for Review No. 10 of 1995

IN THE COURT OF APPEAL

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J U D G M E N T

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Liu JA :

1. Pursuant to leave granted by the Chief Justice, the Attorney General seeks a review of the sentence passed on the respondent under Section 81A of the Criminal Procedure Ordinance. In this case, the respondent faced two similar charges before Mr Christie at Fanling Magistracy. In each of the two charges, it is alleged that on 13 April 1995, at a fish farm in Sha Tau Kok Hoi the respondent employed a person who was not lawfully employable contrary to section 17I(1) of the Immigration Ordinance. These employees were taken on as handymen/watchmen at a salary of $2,000 per month; one had been employed for 13 months and the other 6 months. The Magistrate fined the respondent $5,000 on each charge and refused to review the sentences on the application of the prosecution. Of those sentences, the Attorney General now seeks a review on the ground that they are manifestly inadequate and wrong in principle.

2. The respondent pleaded guilty to the charges and the "Brief Facts of Case" for sentence were as follows:

" At 1000 hours on 13 April 1995, PW(1), PW(2) and PW (3) were in uniform, on board police vessel No. 48 for 'Champion' Operation at Sea of Sha Tau Kok.

2 Around 1100 hours of the same day, while PW(1), PW(2) and PW(3) were patrolling Sea of Sha Tau Kok near Sha Tau Kok Pier, where they saw 7 to 9 males at fish-raft No. 2841. PW(4) and PW(5) appeared to be Chinese citizens and acting with suspicious.(sic) PW(1) PW(2) and PW(3) then visited the fish-raft 2841 for routine check.

3. After police party asked to see proofs of identity, PW(4) and PW(5) produced their Chinese Identity Cards, together with Chinese Fisherman Identity Cards to officers for inspection. Further enquiries were conducted, (sic) PW(4) and PW(5) subsequently admitted that they were employed as handyman/watchman (sic) for salary $2000-HK per month by defendant.

4. Defendant was located at scene. He admitted that he had employed PW(4) and PW(5) and was arrested by PW(3). Under caution, defendant admitted he had, from March 1994 and November 1994, employed PW(4) and PW(5).

5. Defendant was placed on bail on 19 April 1995 when he was charged and was instructed to appear in (sic) Fanling Magistracy on 20 April 1995."

3. The respondent pleaded guilty to both charges. Earlier on the same day, in separate cases the same magistrate came to the conclusion that the two employees of the respondent were not illegal immigrants and that they were not guilty of "landing" as charged under Section 38(1)(a) of the Immigration Ordinance. On the basis of such found status of the employees, the magistrate proceeded to fine the respondent as he did.

4. We are invited to entertain this appeal on the basis that the respondent's said two employees were illegal immigrants. The Crown "wished to appeal" against the determination of the magistrate by way of a case stated, but by the time the stated case was signed by the magistrate the respondent's two employees had been repatriated. There exist today, albeit in different prosecution cases, identical unreversed determinations of the status of these two former employees of the respondent. However, Mr Grenville Cross for the Attorney General submits that the true status of these former employees is still a live issue of law before us for review under Section 81(A) of the Criminal Procedure Ordinance. But counsel's proposition would seem to hinge upon whether the status of these former employees had been decided as a matter of mixed law and fact by the magistrate in the charges the respondent faced or whether it was there only assumed as a fact for sentencing. If no determination was or was sought to be made on the employees' status by Mr Christie, no issue of law could be said to be extant for our present deliberation on review.

5. In the "Brief Facts of Case" for sentence, these two former employees were not categorised. Nowhere was it suggested there that they were illegal immigrants. By what the magistrate accepted as facts, not only were these two former employees not regarded as illegal immigrants but their status which had been determined earlier in the day was clearly taken in as part of the accepted facts for sentencing the respondent. Whatever was the intention of the Crown after the acquittals of the respondent's two former employees, no issue was taken by the prosecution with these stated facts before Mr Christie, and more importantly, with the status of these two former employees, upon which the magistrate proceeded to consider the respondent's proper punishment. The magistrate did not and did not purport to make a further determination on the status of these former employees. He assumed it as a fact for sentencing. The magistrate was not asked by the prosecution to conduct a Newton enquiry. Clearly, the magistrate in this case made no independent determination in law on the status of the respondent's employees. Before Mr Christie their status was fait accompli and assumed as a fact for the sentencing of the respondent. The prosecution took no steps then to discourage the magistrate from proceeding so to consider the respondent's sentence on such an assumed fact. In my view, it is not open to the Attorney General to seek a review on facts other than those on which the magistrate was apparently free to act. This court should not be asked to adjudicate on the hypothetical basis that the facts for sentencing were different.

6. I would therefore proceed on the same factual basis for sentencing the respondent in the instant review. The magistrate advanced four reasons for the sentences in the two charges: first, the respondent's employees were not illegal immigrants; secondly, there was no prosecution policy with respect to employers of PRC fishermen in circumstances akin to those of this case where the employees were said to live on a fish-raft; thirdly, the employees being paid $2,000 per month each had not been exploited; lastly, the offences were of a technical nature.

7. The first reason for sentence needs no further elaboration. In 1990, the legislature sought to reinforce our policy of deterrence of, inter alia, unlawful employment. The maximum penalty for employing persons not lawfully employable was increased from a fine of $50,000 and imprisonment for one year to a maximum fine of $250,000 and imprisonment for three years. We are told by Mr Grenville Cross that Government has taken every practical step to prevent persons who are not lawfully employable from working in Hong Kong and that the prosecution policy has been such that whenever the Legal Department is consulted on cases of employment of persons not lawfully employable, the employers would be duly prosecuted. In cases on which the Legal Department have not been consulted, to his knowledge prosecutions would likewise ensue. There have been recent decisions laying great emphasis, time and again, on the importance of enforcing legislation in this direction. I also note with concern the present high rate of unemployment within our community. It would appear to be all the more crucial for such legislation to be stringently observed. In my view, employers of persons not lawfully employable should be incarcerated unless there are extenuating circumstances. The two offences of the respondent can in no way be described as being of a technical nature.

8. Returning to the circumstances of this case, the respondent's former employees were accepted for the purposes of sentencing as non-illegal immigrants but their precise status was not specified. It is difficult, in these exceptional circumstances, to suggest a proper starting point. Doing the best I could and taking into account his plea of guilty and the fact that the former employees had not been exploited, a term of 3 months would seem to be appropriate. The fines imposed by the magistrate are manifestly inadequate and wrong in principle. Employing a person not lawfully employable should be visited by an immediate custodial sentence. Bearing in mind that this is an application for review, some consideration should be allowed the respondent. I would allow the fine of $5,000 on each charge to stand but in addition sentence the respondent to three months' imprisonment on each charge, such sentences to run concurrently but be suspended for a period of two years. In the result, the sentences are quashed and on each charge the respondent is fined $5,000 and be sentenced to a term of 3 months which is to run concurrently with the custodial sentence in the other charge and suspended for 2 years.

Gall J:

9. I agree.

Nazareth V-P:

10. As I read his reasons for sentence, the magistrate did not make a determination that the two employees were not illegal immigrants. He simply assumed that as part of the accepted facts, and these were not challenged or questioned by the Crown.

11. Understandably, the Crown is now concerned about the assumption made by the magistrate, because in his reasons for sentence, he has embodied the reasons he gave in the separate case against one of the two employees. The latter include his view that the employee as a fisherman from China, who is transported by boat to an inshore fish-farming raft in Hong Kong on which he is provided with accommodation and apparently lives for 13 months, has not 'landed' in Hong Kong (in terms of the definition of the expression 'to land' in s.2(1) of the Immigration Ordinance). That view, with its attendant implications, is of obvious concern to the Crown, and Mr Grenville Cross QC, who with Miss M.A. Crabtree, appeared for the Crown, had powerful submissions to make upon it. However meritorious they may be, I am not persuaded that they enable the Crown to rely upon a factual basis different to that apparently accepted at the trial by the Crown. Accordingly, in my view, this appeal is not an appropriate occasion to mount that challenge.

12. Turning then to the matter of the sentence imposed upon the respondent, the magistrate referred to four reasons. First, that neither of the employees were 'illegal immigrants'. This as an accepted fact, I do not think can in the circumstances be questioned here. In so far as it reflects a view of the law, in particular a construction of the expression 'to land', it is a matter that will have to be considered. Second, that employers of PRC fishermen are not normally prosecuted; that work on a fish farm is similar to work on a fishing vessel; that prosecution of fish farm employees is a recent development which amounts to a departure from normal prosecution practice and that if a sentencing guideline applied, it would warrant a departure from the guideline in R v So Man-king [1989]1 HKLR 142, 146. Mr Cross took issue with the several matters of fact. They are not matters upon which I think it would be useful to comment here. The Crown could have challenged these factual assumptions and if necessary asked for a Newton enquiry. Third, that was no exploitation of the employees. Again the burden must lie on the Crown to show that there was exploitation. Fourth, that the offences were of a technical nature. This view appears to have been founded upon the magistrate's belief that the employers of PRC fishermen are not normally prosecuted (which, as I have said, is a matter of fact), and that their employees do not 'land' in Hong Kong. Again, the latter aspect must await further consideration or a review.

13. However the foregoing matters may be, an immediate custodial sentence, assessed by reference to a starting point of 15 months, is ordinarily warranted for an offence contrary to s.17I(1) of the Immigration Ordinance committed by the employment of an illegal immigrant R v Wong Mok-din [1994]2 HKCLR 96. Nice questions are posed as to the ordinary starting point of a sentence for such an offence in the present sort of circumstance, i.e. employment of a person who is not lawfully employable, but is not an illegal immigrant because he has not landed. I have stated it in that way to highlight the apparent anomaly in a person being said to be employed and working in Hong Kong and yet not having 'landed'. However that may be, having regard to the objects of the Immigration Ordinance, and the need for the deterrence of breaches of its provisions (both of which matters are touched upon in some of the authorities cited to us), it would seem that the starting point should at least lie closer to the 15 month starting point for the employment of illegal immigrants, rather than that for the employment of overstayers, persons in breach of conditions of stay and tolerated border crossers (see R v Tai Wai-hung Magistracy Appeal No. 529 of 1993, unreported 12th November 1993). That, it seems to me to follow, since overstayers, persons in breach of conditions of stay and tolerated border crossers, have all entered Hong Kong pursuant to authority granted by the Immigration Department. PRC fishermen who might be employed in Hong Kong and be able to live on fish farming rafts without such permission have not. Of course, the threat they pose to Hong Kong was not canvassed, and in that regard as in others, the magistrate was not assisted by the Crown.

14. Mr McGuinniety for his part, doubtless on instructions, was concerned not with guidelines and the like, but entirely to persuade the court not to increase the specific penalties imposed by the magistrate in the particular circumstances.

15. In the result, it is neither possible nor meaningful to suggest any starting point, much less actual guidelines. Hopefully the Crown will in the context of another similar case have an early opportunity of presenting the factual material necessary and full submissions to a court at first instance and then have the matter reviewed in the ordinary way. In the particular and unusual circumstances I agree that the matter would be appropriately dealt with by allowing the fines of $5,000 on each charge to stand, and, in addition, by imposing upon the respondent in respect of each charge a sentence of 3 months to run concurrently suspended for 2 years. We allow the appeal and so order.