R. v. TSENG KAM LOONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 312 OF 1997

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J U D G M E N T

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1. The appellant pleaded guilty to two charges of employing a person not lawfully employable. He was sentenced to 15 months imprisonment on each charge concurrent.

2. The facts as admitted by the appellant were that during a raid, police found the appellant and two illegal immigrants picking up cement at the appellant's hut. The appellant admitted under caution that the two illegal immigrants had been helping him to redecorate his hut for 15 days and he paid them $130 each per day.

3. The magistrate in her reasons for sentence accepted that there was no exploitation. She considered that the appellant knew the two workers were illegal immigrants when he employed them and therefore it was rather a case of actually offering employment to illegal immigrants. Following R v. Law Chuen Fook [1989] 1 HKLR 164 in which the Court of Appeal considered that "those who offer opportunities of employment to illegal immigrants must expect to receive sentences certainly not less than those imposed on the illegal immigrants themselves" and R v. So Man King & others [1989] 1 HKLR 142 which laid down the guideline of 15 months after plea to the offence of remaining in Hong Kong without authority, the magistrate arrived at the sentences imposed on the appellant.

4. Mr Kevin Wong for the appellant submitted that the magistrate was wrong in following R v. Law Chuen Fook and, referring to AG v. Wong Chung Lee Application for Review 10/96, further submitted that the magistrate should have followed R v. Wong Mok Din [1994] 2 HKCLR 102 where the Court of Appeal held that 15 months should be the proper starting point after trial. Mr Wong submitted that the magistrate should have allowed a discount for the plea so that 15 months would be wrong and excessive in the present case.

5. In AG v. Wong Chung Lee the Court of Appeal drew a distinction between an offence under s.17I of the Immigration Ordinance and the offence of aiding and abetting an illegal immigrant to remain in Hong Kong contrary to s.38(I)(b) of that Ordinance. The Court of Appeal was of the opinion that the observation in Law Chuen fook cited above should apply to an offence under s.38(I)(b) but not an offence under s.17I. Nazareth V-P. at page 6 of the judgment said this:

"In our view, s. 17I is plainly directed at all employment of persons who are not lawfully employable by reference to s.17G(2), which sets out comprehensively those persons who are lawfully employable. There is nothing in that subsection nor in any other provision of the law that has been drawn or has come to our attention that directs the penalty in s.17I specifically or primarily against the employment of illegal immigrants or any other similar group of persons not lawfully employable; nor is there any such suggestion in Wong Mok-din. In our view the guideline in Wong Mok-din with its express and implicit range of sentences and flexibility applies to all offences under s.17I regardless of the classification or grouping of the employees concerned."

6. In Wong Mok-din, Power J.A. in delivering the judgment of the court said (at p.102) :

"We are satisfied that 15 months after trial would be a proper starting point for an offence of this kind where one employee was involved, where there were no circumstances of exploitation and where it was established that the offender was aware that he was employing an unlawful immigrant or had acted recklessly in so doing.

This starting point should be increased in cases of multiple employment and where there is any element of exploitation.

The level of seriousness of cases falling within the suggested guideline of 15 months will vary according to the circumstances of each case."

7. Mr Cheung for the prosecution referred to AG v. Lau Chung Ming [1993] 2 HKLCR 11 which decided that where there was no exploitation and just one illegal immigrant was employed the starting point on conviction after trial for an offence under s.17I was 15 months imprisonment and the sentence might be increased if there were more than one illegal immigrant employee. Mr Cheung submitted that in the present case, the sentence was right because there were two illegal immigrant employees.

8. Mr Wong submitted that whether there was a single or more than one employee was not relevant but the consideration should be that increase in sentence should only be justified if there was a group of employees employed on a commercial basis.

9. It should be noted that AG v. Lau Chung-ming and AG v. Wong Mok-din were decided on the same day in the same Court of Appeal. In Wong Mok Din, enhancement of sentence should only be made in the presence of two elements - multiple employment and exploitation. In the present case, it would be wrong for the magistrate to apply R v. So Man King. She should have followed the guideline in Wong Mok Din. Though there were two workers, the magistrate had accepted there was no exploitation and the appellant employed them as an act of mercy. The appropriate starting point should be one of 15 months after trial. The appellant having pleaded guilty, should be given a discount.

10. In the circumstances, the appeal against sentence is allowed and the sentence of 15 months set aside. A sentence of 10 months imprisonment is substituted.