HKSAR v. TSE SUN WONG

HCMA 312/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 312 OF 2009

(ON APPEAL FROM STCC 166 OF 2009)

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J U D G M E N T

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1.  On 18 February 2009, the Appellant was acquitted after trial by a Magistrate sitting at Shatin Magistracy of five charges of being the employer of a person not lawfully employable, contrary to section 17I(1) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong.

2.  Counsel for the Appellant appearing in the court below made an application for costs pursuant to the acquittal.  The application was refused and it is against this refusal that that the Appellant appeals.

3.  The prosecution case was presented through the facts admitted pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong.  Evidently, a raid was carried out by an Immigration Task Force on 16 May 2008 at a massage parlour named “Foot Generation” in Richmond Plaza, Causeway Bay when five visitors from the mainland were found working and providing massage services to customers.  Later, the Appellant was summoned back to the parlour and it was discovered that he was the person in charge of the establishment.

4.  The Appellant elected to give evidence.  He is the sole proprietor of the massage parlour at which he also worked as a masseur.  Due to his poor eyesight, his elder sister would help him check the identity cards of the masseuses he employed.  There were three other masseuses hired by him in addition to his sister, all of whom had Hong Kong identity cards.  His evidence was that on the material day, he left the massage parlour around lunchtime and returned by about 9 pm to 10 pm when summoned by his sister.  It was only then that he came to know there were five illegal workers working in the massage parlour.

5.  In refusing costs, in her Statement of Findings, the learned Magistrate said this:

“I was satisfied that the appellant had knowledge of the illegal workers, and at the very least, he had acquiesced to them working at his massage parlour, this could only have been done with his tacit consent, and thus he had brought suspicion on himself.”

6.  It is clear from the learned Magistrate’s Statement of Findings that she did not believe the evidence of the Appellant describing it as “incredible”, and later on saying she found him to be “untruthful” and “unreliable”.

7.  However, notwithstanding this, it is apparent from a reading of the transcript that the Magistrate interrupted defence counsel in his final submissions and hereunder, I set out the relevant portion:-

“Court: Actually, I don’t need to hear from you anymore, Mr Kwong.

Mr Kwong: Sorry?

Court:  Actually, I don’t need to hear from you anymore.

Mr Kwong:  I see.  In that case, I simply say the presumption has been rebutted and the prosecution has not proven that the defendant was the employer beyond all reasonable doubt.

Court: Yes, yes.  A lot of what defence counsel says I do agree with.”

“These are just brief salient reasons.  The defendant gave evidence that he did not know, and did not employ the illegal workers.  There is a possibility that of the other Hong Kong sifus that were working there, one or more of them might have been on a frolic of their own in employing the illegal workers.  It is also possible that in doing this, they would then skim off the money that is earned through the massages given by the illegal workers.”

8.  This passage highlights the thrust of defence counsels submission to the learned Magistrate, that is, that the Appellant did not employ or even have knowledge of the existence of the illegal workers.  And it appears that the Magistrate was accepting that fact as a possibility.  However, this is at variance with her Statement of Findings.

9.  Perfected grounds of appeal dated 26 May 2009 were filed by those acting for the Appellant and they can be summarized as follows:-

a)  the learned Magistrate erred in law in refusing the Appellant’s costs in the court below upon his acquittal after trial; and

b)  the learned Magistrate erred in law in holding that the Appellant had brought suspicion on himself.

10.  Under section 3(1)(c) of the costs in Criminal Cases Ordinance, Cap. 492, a Magistrate may order costs to be awarded to a defendant who has been acquitted unless there are positive reasons for making a different order such as where the defendant’s own conduct has brought suspicion on himself.

11.  In the present case, I can see no basis for the learned Magistrate to conclude that the Appellant had brought suspicion on himself, nor can I see any reason for her to deny the Appellant his costs bearing in mind her ex tempore comments after hearing defence counsel’s closing submissions.

12.  In the circumstances, I allow this appeal.  The Appellant is to have his costs, including costs of appeal.  Such costs are to be agreed in the absence of which, taxed.