THE QUEEN v. FUNG YING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1280 OF 1990

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BETWEEN

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JUDGMENT

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1. The appellant was convicted by Mr Wright at Kwun Tong Magistrates Court of employing a person not lawfully employable, contrary to Section 17I(1) of the Immigration Ordinance, Cap. 115. She was fined $1,000 with $1,000 costs. She appeals against conviction and applies for leave to appeal out of time against sentence.

2. The employee in question was an illegal immigrant who presented a forged identity card when applying for work at the company at which the appellant was personnel manager. The appellant processed her application and then took her to the supervisor in the wool beating section to see if she was suitable for employment in that section. She passed the test and was enrolled on the books.

3. The manager of the company testified that both the appellant and the supervisor had power to engage staff and that it was the appellant's job to check the identity cards and note the particulars of applicants.

4. In a cautioned statement the appellant admitted interviewing the employee and, after she was found suitable, telling her to report for duty next day. In her evidence she admitted only checking the employee's identity card and making entries in the record.

5. The employee signed an application form, which was also signed by the supervisor but not by the appellant, although there was a space in which she was supposed to have signed.

6. Section 17G of the Ordinance defines "employer" as "any person who has entered into a contract of employment to employ any other person as an employee or apprentice, and the duly authorized agent, manager or factor of such first mentioned person."

7. There is no doubt that the appellant was the duly authorized agent of the company in the employment of the employee. The fact that the supervisor may have also been such an agent does hot help the appellant and she was properly convicted. Her appeal against conviction is dismissed.

8. Two weeks after the conviction a bill was published in which a defence was provided to a charge under this section if all practicable steps were taken to determine that the employee was lawfully employable.

9. The appellant has been receiving treatment from a psychiatrist for insomnia and depression. The medical report reveals that she is suffering for emotional turmoil but not mental illness. This has been brought about by the appellant's anxiety that a conviction will prejudice her family's emigration to Canada.

10. Having regard to both these matters, which were not before the magistrate, together with the circumstances of her conviction, I give leave to appeal out of time against sentence, allow the appeal, quash the fine and substitute therefor an absolute discharge.