R. v. FOK KAM TONG

IN THE HIGH COURT

1996, No. MA 1040

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J U D G M E N T

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Mayo, J.A.:

1. The appellant appeals against his conviction for aiding and abetting the breach of a condition of stay which had been imposed by the Director of Immigration.

2. The condition had been imposed by the Director when granting permission to D1 in the trial below an Indonesian maid to work and reside in Hong Kong.

3. The condition imposed was that D1 would only perform domestic services for her employer Maria Fok Lai Ha. Madam Fok who gave evidence in the trial is the appellant's daughter.

4. The appellant and his wife run a small retail electrical business at the Chung Fat Market on Tsing Yi Island. It was the prosecution case that D1 was working as a sales assistant in the appellant's business and was thus in breach of the condition which had been imposed.

5. On 16 January 1996 an Immigration Officer attended at the Appellant's electrical business and asked D1 who at that time was standing at the counter to sell her a plug. D1 asked the appellant's wife the price and was told that it was $29. She then started packing the plug. The immigration officer then revealed her identity.

6. The other main evidence relied upon by the prosecution was a cautioned statement made by the appellant. In this statement he admitted that D1 did sometimes work at the shop although her duties were mostly to bring and serve luncheon to the appellant and his wife. Her work did however include serving customers.

7. At the trial before Mr Acton Bond the main thrust of the defence was that the duties performed by D1 were within the scope of her legitimate duties under her contract of employment with Madam Fok.

8. As it transpired the D1 was acquitted of the charge she was charged with which was being in breach of the condition which had been imposed. The reason for this which has little bearing in the present appeal is that the magistrate ruled the cautioned statement she had made to be inadmissible. This was because the interview in question was not conducted in a language the defendant was familiar with.

9. There are two grounds of appeal in the perfected grounds of appeal.

10. The first is that the magistrate failed to define what constituted a "breach of condition" before convicting the appellant. The second was that the magistrate had erred in holding that there had been a breach having regard to all the evidence led before him.

11. There was no necessity for the magistrate to define what constituted the breach complained of. The facts spoke for themselves.

12. It was common ground that the D1 was only permitted to work as a domestic helper in Madam Fok's household.

13. The issue which had to be determined by the magistrate was whether the prosecution had succeeded in proving at the appropriate level that D1 was performing work or services outside the scope of her contract of employment with Madam Fok.

14. The magistrate had the benefit of hearing all of the witnesses. It was for him to decide whether there was sufficient evidence that D1 was performing other duties and for the reasons he gave he was satisfied that this was so.

15. The magistrate could also have placed reliance upon the provisions contained in s17N of Immigration Ordinance Cap 115. Once he was satisfied that D1 was working in the shop that would constitute a breach of the Director's Condition.

16. There is no reason to interfere with this conviction. The appeal is dismissed.