ATTORNEY GENERAL v. LAM SIK CHEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 700 OF 1991

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RULING

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1. This was an appeal by way of case stated by the Attorney General against the decision of Mr G. Andree-Wiltens, Magistrate at Kwun Tong to dismiss an information alleging that Lam Sik-cheung had committed an offence against s.17I(1) of the Immigration Ordinance, Cap. 115, by employing Yu Yee-hung. an employee who was not lawfully employable.

2. The facts set out in the case stated included that the illegal immigrant, Yu Yee-hung, had been employed by the respondent on 1st November 1990 as a transportation worker for the Well Well Transportation Company of Kwun Tong. The illegal immigrant was discovered and arrested by the police on the 28th December 1990.

3. Whereas formerly an offence under s. 17I (1) was an offence of strict liability, now under subsection l(a), there is provided a defence for the person charged if it can be proved on the balance of probabilities that all practicable steps were taken to determine whether the employee in respect of whom the offence was alleged to have been committed, was lawfully employable, and that it was reasonable to conclude that the employee was lawfully employable.

4. At para. 6 of the case stated is the following finding by the learned Magistrate :

5. The answer to the second question would of course follow automatically upon the decision made in relation to the first question.

6. The point simply was this : if an employer had no reasonable grounds for suspecting that his employee was an illegal immigrant, was he still under an obligation to take all practicable steps to ensure that the employee Was not an illegal immigrant. The question as to whether the employer has reasonable grounds to suspect that his employee is an illegal immigrant is a question of fact to be determined by the evidence in each individual case. In the instant case the magistrate came to the conclusion on the evidence that there were no reasonable grounds for the employer to suspect that his employee was an illegal immigrant. I would not interfere with that finding.

7. Miss Crabtree who appeared for the appellant submitted that an employer must take all practicable steps to determine that an employee is lawfully employable and in determining whether he has taken all such steps, the question of whether he suspected or should have suspected the status of the employee is not a relevant factor. I did not agree. Such an argument suggested that every employer had to take all practicable steps in relation to every employee's status even where no possible grounds for suspicion existed.

8. When employing anyone an employer is required by the Immigration Ordinance to inspect the identity card of the new employee and to keep a record of that identity card. If in a particular case the employer, having inspected the identity card of a prospective employee, maintained that he found no reasonable grounds for doubting its authenticity or that it was the identity card of the employee, and the magistrate was of the view, having heard the, evidence and perhaps seen the identity card that he could not fault the employer in that regard, then that would amount to a finding that on the balance of probabilities at least that employer had taken all practicable steps in the circumstances of that case to ensure his employee was lawfully employable. and that it was reasonable for him to conclude that his employee-was lawfully employable. It was reasonable for him so to conclude, the Magistrate had found, without his doing anymore than inspecting the identity card.

9. It follows, of course, that I find that it is a factor to be taken in account in determining whether. all practicable steps have been taken to ensure that the employee is employable that the employer has no reasonable grounds for suspecting, that he is an illegal immigrant The answer to the first question is yes.

10. It follows that the answer to the second question must also be yes.