HKSAR v. WONG SHUK FONG

HCMA1225/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1225 OF 2007

(ON APPEAL FROM KTCC 5286 OF 2007)

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J U D G M E N T

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1. This is an appeal by the appellant against her conviction at Kwun Tong Magistrates’ Court on 4 December 2007 on a charge of employing a person not lawfully employable, contrary to section 17I(1) of the Immigration Ordinance, Cap. 115.

2. The charge alleged that “on the 27^th day of March 2007 in Tsang Fai Restaurant, Block B, Ground Floor, 31-33 Shek Kip Mei Street, Kowloon, in Hong Kong” the appellant was “the employer of Tam Lai Fong, an employee who was not lawfully employable.”

3. On that day, there were two premises being run under the name Tsang Fai Restaurant in Shek Kip Mei Street, the premises that were the subject of the charge (“No. 31-33”) and premises on the other side of the road at 38 Shek Kip Mei Street (“No. 38”).  There were separate business registration certificates in respect of each premises.  Whereas the restaurant at No. 38 had a liquor licence, the restaurant at No. 31-33 was still awaiting the grant of such a licence.

4. It is common ground that on the day in question, police officers posing as customers entered the restaurant at No. 31-33 where they were served by Ms Tam Lai Fong (“Tam”), an illegal immigrant and therefore not “lawfully employable” for the purpose of section 17I(1) of the Immigration Ordinance, Cap. 115.

5. It is also common ground that at the time the police officers were being served by Tam, the appellant was not in the premises at No. 31-33.  It was only after the police had revealed their identities and asked to speak to the person in charge that a worker at the premises at No. 31-33 had gone across the road to No. 38 and returned with the appellant.

6. According to the evidence of one of the male police officers, the appellant had claimed that she was the person in charge of the restaurant.  The appellant’s evidence was that she had told the female officer that her husband was in charge of No. 31-33.

7. It is also common ground that at some stage after the appellant arrived at the premises at No. 31-33, the appellant was cautioned in respect of the unlawful employment of Tam and insofar as that allegation was concerned had simply replied : “I did not employ that woman”. 

8. There was no challenge to the admissibility of what was said by the appellant at the scene.  There was however a challenge to the admissibility of two subsequent records of interview made at Sham Shui Po Police Station (“SSPO”). 

9. The first written record of the interview was made by a police officer later that evening (Exh. P2).  In that record of interview, the appellant is recorded as having admitted that she had engaged Tam the previous day after Tam had approached her at No. 38 looking for work.  Because she knew her husband needed a waitress at No. 31-33, she had asked Tam if she was prepared to work at $20 per hour and when Tam had agreed, she had told her to start work.  Tam had shown her a copy of an identity card.

10. A second written record of interview with the appellant was made a few hours later, in the early hours of 29 March 2007 (Exh. P3).  In that interview, the appellant is recorded as having admitted telling Tam to start work at 7 p.m. but claiming she had forgotten to make a record of Tam’s particulars because she was so busy.

The appellant’s evidence

11. The appellant gave evidence she was the person responsible for the restaurant at No. 38 whereas her husband was responsible for No. 31-33, which was a new restaurant which had opened at the end of the previous year.  She had never done anything in relation to the business of No. 31-33 since it had opened.

12. Tam had approached her while she was working at No. 38 and asked whether they were hiring staff.  She had replied that they were hiring workers at the restaurant across the street and had pointed to her husband’s restaurant.  She had told Tam the pay and the working hours and had looked at a photocopy of her identity card.  She had then told her to go to No. 31-33 and look for “Manager Chan”.  She had told her this because the manager, Chan Shun Hing, was the next most senior person in the restaurant at No. 31-33 after her husband and was responsible for interviewing people.  It would be Manager Chan’s decision whether to employ her.

13. She was at No. 38 on the evening in question when an employee of the restaurant at No. 31-33 came across and told her that the police were looking for the person in charge.  She had gone over to No. 31-33 and, after telling the police that her husband was the person in charge, she had telephoned her husband at the request of the police.  After finding that her husband would not be able to come back to the restaurant for approximately an hour, she had informed the police, whereupon she was told by a female police officer that since her husband had not returned, she would be taken to be the person in charge.  She said that Manager Chan was present in the restaurant at No. 31-33 at this time.  After she was arrested for this offence and an offence of selling liquor without a licence, she had denied that she was the person who had hired Tam.

14. Her explanation for the interviews recorded in Exhs. P2 and P3, and the basis for the challenge to their admissibility, was that before the first interview, after she had denied employing Tam, the interviewing officer had told her that since she had been the person who had seen Tam, she must be the person who had hired her.  She said that because of what the officer said and the fact that she was scared and confused, she had said what she did in Exhs. P2 and P3.

15. The first ground of appeal is an allegation that the learned magistrate infringed the appellant’s right of silence by certain questions he asked of her relating to Manager Chan during her evidence and by taking into account in assessing her credibility, her silence relating to Manager Chan while the police were at No. 31-33.  

16. Having established that Manager Chan was present at No. 31-33 at the time the police were there, the magistrate asked :

“COURT: …as far as you were concerned, Chan was more involved with Shop No. 31-33 than you.  You had nothing to do with it, according to your evidence.

A.   That’s right.

COURT:   Why didn’t you tell the police so as the scene?

A.   It was said that they were looking for my husband.  I did not know what was going on.  I just went over there.

COURT:   You knew you were arrested and cautioned.

A.   It wasn’t until I had arrived over there that I came to know.

COURT:   What I do not understand is why didn’t you tell the police Manager Chan was there, ‘Ask him’?

A.  At that moment.  I did not.”

17. In his Statement of Findings, the learned magistrate said this :

“  I rejected defendant’s evidence on the general issues.  I rejected as inherently improbable the evidence that the defendant did not ask Chan to explain the matter to the police if Chan was indeed the person in-charge of the Shop No. 31-33 when the defendant’s husband was not around.  If Chan was the second in-charge of the restaurant, the defendant’s attendance would not be required, and the defendant had no reason to take up responsibilities from Chan who was present the restaurant.”

18. Not only had the appellant made no reference to Manager Chan while the police were at the restaurant but she had made no mention of him until she gave evidence at the trial.

19. Bearing in mind the appellant’s evidence that she knew that the police were looking for the person in charge of the restaurant at No. 31-33 and that she knew that her husband who was normally in charge of the restaurant was absent but that the next most senior person in that restaurant was present, it might be thought logical for someone in her position to draw that to the attention of the police when she arrived.  While as a matter of normal experience the magistrate’s conclusion that her failure to do so cast doubt on her evidence that it was Manager Chan, rather than she, who was in charge of the restaurant in the absence of her husband might seen entirely reasonable, the question for this court is whether he was entitled to do so.

20. I am satisfied that by reason of the appellant’s right to silence he was not.

21. It is well established since the decision of the Court of Final Appeal in Lee Fuk Hing v. HKSAR [2004] 7 HKCFAR 600 that any distinction previously drawn between using silence to infer guilt and using it to attack the weight of an account given at trial but not earlier cannot now be sustained.  It is inappropriate in Hong Kong to use a person’s silence against him in any way.

22. Ms Chan, for the respondent, has argued that the circumstances of this case fall within the exception referred to by Mortimer NPJ when he said that :

“…if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross examine and comment upon that statement and its relevance to the defence.  The judge may also invite the jury to draw relevant and fair inferences even if they are adverse to the accused.”

23. Ms Chan accepts that nothing was said by the appellant at the restaurant which was inconsistent with her defence, and if there had been no evidence of anything said later by the appellant, then the magistrate would have been wrong to draw inferences adverse to her credibility from her failure to refer to Manager Chan.

24. Ms Chan however submits that the exception to the prohibition of drawing adverse inferences from a defendant’s exercise of his or her right of silence applies if he or she has made statements inconsistent with his defence at any time prior to a trial.  If that is the case, then adverse inferences can be drawn if appropriate from the defendant’s silence at any stage.

25. She relies upon Li Siu Hing v. HKSAR, FAMC32/2007 and HKSAR v. Chiao Li, HCMA495/2005 as supporting such a proposition.

26. In this case, Ms Chan relies upon the records of interview (Exhs. P2 and P3) as being statements inconsistent with the appellant’s defence.  She accepts that in determining the admissibility of those records of interview the failure of the appellant to refer to Manager Chan would have been irrelevant.  However, she maintains that once the records of interview were found admissible then the appellant’s earlier silence regarding Manager Chan becomes part of the evidence which can be taken into account on the general issue in determining the weight to be attached to the records of interview.

27. I do not find this an attractive argument.  If a defendant has chosen to exercise his or her right of silence on an earlier occasion in the knowledge that no adverse inferences can be drawn therefrom and on a subsequent occasion is alleged to have made admission, I do not see why in fairness his or her earlier exercise of the right of silence should possibly count against him or her.

28. I am satisfied that neither Li Siu Hing v. HKSAR nor HKSAR v. Chiao Li support the proposition put forward by Ms Chan.

29. The Court of Final Appeal was satisfied that Li Siu Hung’s case was not a case in which the appellant had at first exercised a right of silence but a case in which the appellant had first given an explanation inconsistent with his evidence at trial.  In Chao Li’s case, the circumstances were quite different to those in the present case.  The appellant had chosen to take the initiative to explain why he had not apologized after committing the alleged indecent assault.  Deputy Judge Pang found that as he had chosen not to exercise his right of silence and explained why he had not apologized, that explanation could be the subject of cross-examination to show how implausible the explanation was.  He pointed out that the magistrate had not drawn an adverse inference against the appellant for not apologizing.

30. I find therefore that the learned magistrate erred in asking the appellant why she had not told the police to ask Manager Chan about the case.  

31. When considering the credibility of the appellant, the magistrate said that he rejected as “inherently improbable the evidence that the defendant did not ask Chan to explain the matter to the police if Chan was indeed the person in-charge of Shop No. 31-33.”  There was no evidence that the appellant did not ask Chan to explain the matters to the police, but it is clear from the context that what the magistrate was referring to was the evidence that the appellant had not told the police to ask Manager Chan about the case.  I am satisfied that in drawing such an adverse inference, he infringed the appellant’s right of silence.

32. I allow the appeal and set aside the appellant’s conviction and sentence.

33. I have borne in mind that the matter has been hanging over the head of the appellant since March 2007.  However, it is a serious allegation.  In my view, a retrial is warranted.  I remit the case to Kwun Tong Magistrates’ Court for retrial.