THE QUEEN v. SHUN SHING CONSTRUCTION & ENGINEERING CO LTD

Headnote

S.38A Immigration Ordinance: construction sites: "all practicable steps to prevent" unlawful entrants on the site: meaning. Sentence: Attorney General's Review

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 174 OF 1992

BETWEEN

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Shun Shing Construction & Engineering Co. Ltd. appeared before C.R. Mackintosh, Esq., a magistrate sitting in the Magistrates Court at Kwun Tong, to face a summons which alleged that they did, on 11th April 1991, being the construction site controller of a construction site known as King Lam Estate, Junk Bay Area 23, Phase 4, New Territories on which was found an unlawful entrant, Lo Wing San, commit an offence contrary to section 38A(2) of the Immigration Ordinance, Cap. 115.

3. Section 38A - introduced into the laws by ordinance 75 of 1990 - in its subsection (2) reads:

"Where it is proved that a person to whom section 38(1) applies was on a construction site, the construction site controller of that construction site commits an offence and is liable to a fine of $250,000."

4. Subsection (3) of the section provides a defence and it reads:

"It is a defence in proceedings for an offence under this section for the person charged to prove that he took all practicable steps to prevent persons to whom section 38(1) applies from being on the construction site." (Emphasis supplied)

5. It is accepted that Shun Shing Construction & Engineering Co. Ltd.  the appellant was a construction site controller, it is accepted that King Lam Estate was a construction site; it is accepted that Lo was a person to whom section 38(1) applied, being a person who had landed in Hong Kong without the permission of an Immigration Officer or Immigration Assistant. He had been convicted of that offence.

6. The appellant seeks to upset the conviction. They were fined the sum of $15,000. The Attorney General, with leave, seek to review, under the provisions of section 81A of the Criminal Procedure Ordinance, the propriety of that sentence.

7. The appeal against conviction was transferred to this court by order, made on 7th April 1992, by the Chief Justice under the provisions of section 118(1) (d) of the Magistrates Ordinance.

8. The issue is what is meant by "all practicable steps to prevent persons ...".

9. The facts are basically simple. At about 11:15 a.m. on 11th April 1991 Lo Wing San came out of the sea at Junk Bay having swum from the Mainland to Hong Kong, went to the construction site, met an employee and asked for a job. This request was refused. He was told to leave. He did not, but instead hid himself on 30th floor of a 34-storey block - there were two almost completed 34-storey blocks on the site - took off his clothes to dry them and went to sleep. At about 4:45 on that afternoon, the police in the course of a series of raids which they had been making upon construction sites in the area, known as "Operation Champion", went on to the site and discovered Lo. He was the only unauthorised entrant there.

10. The police had carried out what might be termed a surveillance reconnaissance on the previous day - this being in the course of their attempts to enforce the provisions of the Ordinance. Police officers in plain clothes had gone on to the site, were unquestioned after a period there and departed. They had not seen any security guards.

11. The condition of the site on the day of the offence is relevant. The building works were completed and the finishing touches to the site were proceeding. There had been hoardings completely around the site, which was 25,000 square meters in area, but these had been partially demolished. A low wall upon which was to be placed a wire mesh fence was in the course of being built. The wire mesh fence itself was being put in place with a gap below it to allow for the wall. A trench had been dug to facilitate this work and to prevent vehicles coming on to the site except at certain definite points. Some of the hoardings were still in place but there were gaps.

12. The appellant company had introduced a system on site to ensure that no unlawful entrants were employed. They required all their workers and all sub-contractors workers to carry some form of identification. Identification badges graded in various colours were supposed to be worn by the workers. Finding it difficult to obtain full compliance with this requirement, they introduced a system of fining the sub-contractors: first a fine $100 and then a fine of $500 per day per man for those workers who did not bear identification badges. Notices instructing persons on the site to wear identity cards were posted in a number of places. No person was employed as a worker unless he had a Hong Kong identity card.

13. The company had also engaged a security firm. This firm was required to provide two security guards who worked a 24-shift, one from 8:00 a.m. to 8:00 p.m. and the other from 8:00 p.m. to 8:00 a.m. The cost of this was a total of $9,000 per month. The number of security guards had been specified by the appellant and the security manager for the firm never himself visited the site.

14. It was the evidence of one of those security guards that, while he normally worked at 12-hour shift, there were occasions when he was required to cover the full 24 hours. There was a security room at the site of the main gate, at the Po Lam Road side of the site, from which he patrolled the construction site once in every one and a half to two hours. That would of course leave the security room unmanned. The site itself was triangular in shape being bounded by King Lau House, Po Lam Road and reclaimed land.

15. The patrol upon which the guard went would take approximately 40 minutes and he would go up to the 34th floor of each of the blocks during the course of it.

16. The security guard wore uniform and it was part of his duties to prevent construction site material being taken away; to prevent burglary; and to prevent unauthorised vehicles or persons entering the construction site. The single guard was responsible for all security. He described the gaps in the hoarding as doors through which workers came and went and which would be closed during the night. He would attempt to check those who failed to display their working identity cards. Some of the workers wore them while some of them put them into their pockets. If the card was not being displayed he would then instruct that particular worker to put it on.

17. Lo, the unlawful entrant, gave evidence to the effect that he had entered the construction site from, he thought, a road and by walking through an entrance, though he was somewhat vague as to what form that entrance took. He said it was at a point where there was a flight of stairs and he went up those stairs as he wanted to find a job. He then was told he would not be employed. The person who spoke to him asked him to leave. He saw no security guard.

18. He had, prior to his entrance upon the site, crossed the border on the Chinese side evading the guards and negotiating a barbed wire fence. He then swam towards the Hong Kong side and, after landing, climbed a mountain crossing the Hong Kong patrolled border.

19. The defence - Mr. Graham appeared for the appellant both here and below - called one witness, Mrs. Sally Yeung Sai Hee. She was the project manager of the buildings on the construction site and was responsible for the progress of building works and site management. There were, at the time of the incident, some 170 workers employed on this almost finished project. She said that the hoarding that remained had gaps in it for vehicle access. This was the remains of the original hoarding which had surrounded the whole site and which had but one entrance for vehicles. When the hoarding was pulled down, on the Po Lam Road side, a trench had been dug to stop vehicles coming across the area. There was a gate in the fencing which was being put up. It was impossible to maintain the full hoarding given the nature of the finishing works being carried out because workers had to have access to the trench, materials had to be delivered and concrete trucks had to pull up close by.

20. It is clear, and it is not contested, that during the construction works on this site, the company had taken every step to ensure that they did not employ unlawful entrants. In this they were 100% successful. It cannot be a requirement, and we entirely accept Mr. Graham's submission on this, that a construction site is required to become an enclosed armed camp to provide the defence as set out in section 38A(3). What a company is required to do is to take "all practicable steps" to prevent the encroachment of unlawful entrants onto the site. It is the case for the Crown that the provision of but one security guard in each shift did not meet that requirement.

21. Mrs. Yeung was asked in the examination-in-chief:

"Q.     Do you consider having enough security guards was a realistic proposal?

A.     Even if you employ so many guards, no way upon (sic) can stop because sneak in when not watching - lots of construction on the site and many passers by."

"Q.     We have already heard evidence of scheme of identity card.

A.     Not possible to devise a system, to stop them (illegal immigrant) coming into site."

22. We agree that the prohibition on the employment of illegal immigrants would have been practicable step to prevent persons to whom section 38(1) applies from being on the site and that the appellant took this step.

23. In cross-examination it was put to Mrs. Yeung:

"Q.    Possible to request security company to increase provision of man power to 3/4 security guards during day so that one security guard would be responsible to guard against unauthorised entry while another patrolled perimeter a 3rd on patrol in building A.

And building is 34 storeys, 3 rooms in each flat - would take whole day to check and patrol. Meaningless even to employ 10 or 20 - same as if you employ one."

24. Mr. Graham lays great emphasis upon this answer. His cri de coeur on behalf of the appellant is: what are we to do we have asked for but been refused guidelines by Security Branch; we were informed that they would use discretion in mounting prosecutions, but that was all. Even if we did put up notices telling unlawful entrants not to enter upon the site this would be most unlikely to have any effect upon persons who had embarked on a hazardous journey such as that undertaken by Lo. It is, he says, impossible to make the site totally secure. He asks rhetorically: if we had employed 3 or 4 or 10 or more security guards would it then be said we should have employed 20 or more security guards and thus still be liable?

25. We have considerable sympathy with this company. They were obviously conscientious on the employment issue. They had taken steps to prevent unauthorised persons coming onto the site. The magistrate held - and it must be remembered that this court will be very reluctant to overturn conclusions justifiably drawn from proven primary facts - that the provision of more security guards was both practicable and would have made a significant difference. He said in his Statement of Findings (p.137 of the record):

"The provision even of two more guards on day shift would have enabled one to stay at the main gate with the others patrolling the vulnerable areas of the perimeter. It may not have made it impossible for an illegal immigrant to be on the site, but the sub-section does not require that. It would certainly have made the discovery of unauthorised persons trying to enter much more likely and would therefore have gone a long way to prevent illegal immigrants from being on the site."

26. He was aware that the steps which the company had taken could well have provided a complete defence to a charge, brought under section 171 of the Immigration Ordinance, of employing an illegal immigrant. But the severe provisions of section 38A(2) were clearly enacted in order, because of the multifarious sub and sub-sub-contractors who work on construction sites in Hong Kong, to make one main body liable: the construction site controller.

27. It is the case for the Crown that the use of the phrase "all practicable steps" imports a high obligation. We have been referred to various authorities in the English jurisdiction construing similar phrases in various Acts of Parliament such as: "as far as practicable" in London County Council v. Great Eastern Railway Company [1906] 2 KB 312; "as the court considers practicable" in Re Farquhar [1943] 2 All ER 783; "as low as practicable" in Lee v. Nursery Furnishing Limited [1945] 1 All ER 387; "practicable measures" in Adsett v. K & L Steelfounders and Engineers Limited [1953] 1 WLR 773; and "all practicable measures" in Gregson v. Hick Hargeaves & Co. Ltd. [1955] 1 WLR 1252.

28. Giving to each word of the phrase "all practicable steps to prevent" its full meaning, we distill from these cases the principle that the steps must be feasible steps. This does not imply that which is capable of being achieved regardless of expense, but means steps which are capable of being carried out within known means or resources: we are not concerned with "reasonably practicable" but whether the steps taken were "possible and practicable" (c.f. Parker, J. (as he then was) in Knight v, Demolition and Construction Co. Ltd. [1953] 1 WLR 981 at 986). The duty is not an absolute one, but it is higher than all reasonable steps or measures. The emphasis of the whole section is on prevention and it is that at which a construction company must aim. Mrs. Yeung's suggestion that even 10 to 20 guards would have not been enough clearly goes to absolute prevention, which is not required.

29. Accepting that all other preventative steps had been taken by the appellant, the provision of a single security guard on duty by himself on a site of this nature is not, in our judgment, sufficient to enable it to say that it had taken "all practicable steps."

30. We would emphasise that each case depends very much on its own facts. It is not possible for the court to give guidance on what actual steps would, generally, erect the defence contained in s.38A(3) other than to set out the test as we think it to be.

31. Despite Mr. Graham's able arguments, and the strong sense of grievance which we are informed this company nurtures in its corporate breast, we are not persuaded that, in all of the circumstances here, the findings of the magistrate should be interfered with.

32. The appeal against conviction is therefore dismissed.

33. We shall now proceed to hear the Attorney General's application to Review the sentence.

BETWEEN

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Silke, V.-P.:

34. The Attorney General, with leave, now seeks to review, under the provisions of section 81A of the Criminal Procedure Ordinance, the sentence passed on the appellant - now the respondent - of a fine of $15,000 for contravention of the provisions of section 38A of the Immigration Ordinance.

35. The facts have been sufficiently set out in the judgment just delivered in relation to the company's appeal against conviction so that they do not need repetition here.

36. We entirely accept the general submissions of Mr. Macleod as to the necessity for deterrence to prevent the employment of unlawful entrants and the urgent necessity to ensure, as reflected by the policy set out by the legislature in the relevant legislation, that unlawful entrants are not employed in Hong Kong, be it on construction sites or anywhere else. Construction sites, of course, are the easiest source of employment.

37. We are, however, concerned with the culpability of the company here. From the facts we have recited it would appear that that culpability was minimal. The company had successfully taken steps to ensure, throughout the entirety of the construction of the buildings upon this site, that no unlawful entrants were employed. It was accepted that those steps were 100% successful. We are somewhat surprised that this prosecution was ever mounted.

38. We do not consider that the fine of $15,000 in this particular case - we are by no means to be taken as setting out what should be a level of fine in this type of case other than to say that we accept the principle of deterrence - was in any way either wrong in principle or manifestly inadequate. We, therefore, dismiss the application.