THE QUEEN v. IP PO FAI

HCMA 1201/1995 

MAGISTRACY APPEAL

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1201 OF 1995

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JUDGMENT

1. The appellant was convicted after trial of two counts of employing a person not lawfully employable. He now appeals against the two convictions.

2. The facts are these.  On the day in question, three police officers in plain clothes were on patrol in the Tuen Mun area.  They passed by the appellant’s shop which was selling snake soup.  They observed outside the shop for about five or more minutes.  They noticed a man attending to customers at two tables outside the shop.  He served the customers and later the customers had left, cleaned up the table.  So the officers went into the shop, they stopped the man they saw and found out that he was a person from China with a 2-way permit.  This person, Mr Kwok, was the cousin of the appellant.  According to the officers, the appellant was questioned as to whether there were any other persons working in the kitchen. The appellant replied in the positive.  There the officers found another man, Mr Lai, in the kitchen. He was there chopping snakes.  Mr Lai, who was inside the kitchen, was also a person from China with a 2-way permit and it is not disputed that both the cousin, and Mr Lai were not employable here although I think one of the grounds of appeal was that there is no sufficient evidence to show that.

3. The person in the kitchen, Mr. Lai, was called and he was PW3 for the Crown.  Unfortunately as in many cases, he gave evidence which confirmed the appellant’s case.  The defence was that Mr Kwok, the cousin, came to Hong Kong with his friend.  They stayed with the appellant’s mother and had visited the shop on a few occasions before.  This time they came there to chat and Mr Lai, who said he was interested in the snake soup business because he had a restaurant in China, was there to learn the trade. It is important to note that there was no other person employed in the shop apart from the appellant’s mother.  Some immigration certificates were produced and that was all the evidence in this case.

4. The learned Magistrate believed the two officers and he went on to say that he rejected the evidence of the appellant and PW3, Mr Lai.  He came to the conclusion that the only reasonable inference was that Mr Kwok and Mr Lai were employed by the appellant.

5. The main ground of the appeal is that the learned Magistrate was not entitled to draw such an inference.  In her written skeleton submission, counsel for the appellant submitted that there was no definition of employment as such which will be helpful to the learned Magistrate in the Immigration Ordinance and the presumption in s.17N of the Ordinance does not apply.  As a subsidiary point, counsel also submitted that there was no admissible evidence that the two persons were not lawfully employable.

6. In my view, it is clear that working at a place per se is not employment, although in the absence of other evidence, one may draw the necessary inference.  There is no useful definition of employment in the Immigration Ordinance. Section 17G of the Ordinance refers to contract of employment which is defined to mean any agreement, whether in writing or oral, express or implied, whereby one person agrees to employ another and that other agrees to serve him as an employee and includes a contract of apprenticeship.  In my view, this is a circular definition.  This begs the question as to what is sufficient evidence to show employment.  Even if the learned Magistrate was correct in rejecting the appellant’s evidence and I hasten to add that he was absolutely correct to do so, we still have to look at the Crown’s case.  It is accepted that the evidence shows that the two persons who were not employable were found working there during the five or so minutes under observation by the police officers : one was serving customers and cleaning the tables and one was working in the kitchen.  There is no evidence of any payment of wages, but that of course is not necessary.  It is not necessary to show that there was payment of wages or remuneration in order to establish there was an employment.  The Employment Ordinance clearly provides that this is not essential and the Immigration Regulations also make this clear in regulation 2(1).

7. However, it does appear to me that in the present case, the Crown’s case is nothing more than that these two persons were found physically doing work in the shop.  But there is evidence of their relationship with the appellant : one of them was a cousin of the appellant and the other a close friend.  There is also the evidence that they were staying with the appellant’s mother and as a matter of fact, the mother appeared also to be working inside the shop.  Then the question is : is there any difference between the mother and these two persons?  I must say that the Crown had a difficult task in proving employment in a case of this sort.  The Crown need to prove more than mere working in the shop to establish employment.  With respect to the learned Magistrate, I do not think that in the circumstances of this case, the evidence is such that the only reasonable inference or the compelling inference was that these two persons were employed at the time when the officers entered into the shop or at any time at all. In the present case, I think the evidence falls short of proving employment beyond reasonable doubt.

8. In the circumstances, I do not think that the convictions are safe or satisfactory.  I would allow the appeal, quash the conviction and set aside the sentence.  I will also refuse the application for costs.