HKSAR v. NG CHI KWONG

HCMA181/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 181 OF 1999

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J U D G M E N T

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1. The Appellant pleaded guilty to an offence of employing a person not lawfully employable, contrary to s.17I(1) of the Immigration Ordinance, Cap.115. Before the Magistrate, he admitted the amended brief facts. The Magistrate sentenced him to a term of eight months' imprisonment after adopting the starting point of 15 months.

2. The offence is obviously a serious one. 15 months' imprisonment as a starting point after trial has been set down by the case of R v Wong Mok-din [1994] 2 HKCLR 96 and followed by R v Tsang Kam-loong [1997] 2 HKC 490.

3. In Wong Mok-din's case, Power JA, as he then was, deliverying the judgment of the Court of Appeal, had this to say at p.102 of the report :

"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."

In that case before the Court of Appeal, the appellant employed an illegal immigrant to work in his farm in the New Territories at a monthly wage of $3,000 and the employment was between 21 December 1991 and 20 January 1992. Having held that 15 months' imprisonment after trial was an appropriate starting point, the Court reduced the sentence of one year's imprisonment passed by the magistrate to eight months because the Court apparently accepted that the appellant was merely careless in not looking carefully at the Hong Kong identity card of the illegal immigrant which had in fact expired.

4. In the present case, the Magistrate took into account mainly four factors in reaching his conclusion of the eight months' imprisonment sentence being appropriate, namely :

(1) the guilty plea of the Appellant;

(2) the Appellant stupidly thought that hiring an illegal immigrant on the high seas was not an offence;

(3) the two employed illegal immigrants had never left the Appellant's boat; and

(4) there was no exploitation of the two employees.

5. However it seems to me that the Magistrate had failed to take into consideration two other matters : First, the Appellant employed the two illegal immigrants outside the territorial waters of Hong Kong and therefore they were not illegal immigrants in Hong Kong at the time of the employment, although when they were brought into Hong Kong, they became illegal immigrants. On this matter the Magistrate had this to say when he passed sentence after the plea of guilty was entered :

"There is some differentiating circumstances from the usual situation about the facts of your case. You did not encounter the illegal immigrants in Hong Kong, you came across them in China. I have yet to decide whether that is an aggravating or a mitigating factor, because having encountered them in China, you then bring them to Hong Kong and you place them in a situation of illegality."

6. Owing to the point not being decided, it is clear that the Magistrate when passing sentence treated it as neutral. As I considered it, it is more a mitigating factor in the circumstances of this case. The two employees only became illegal immigrants when they entered Hong Kong waters. Whether they were lawfully employed outside Hong Kong is not a matter for this Court to decide. In the present case, it was not that people who had no right to enter and stay in Hong Kong were employed in Hong Kong; therefore it does not have the effect of an encouragement to people coming to Hong Kong illegally to seek employment. It would thus amount to a factor that has a mitigating effect, however slight.

7. The second omitted fact is that the employment of the two persons was at most for three days according to the amended brief facts as admitted, that is, from 9 November to 11 November 1998. The short period of criminality should properly be taken into account as a mitigating factor. I draw analogy from illegal overstaying cases where a longer period of overstaying would attract a more severe sentence.

8. By leave granted by me, a psychological report on the Appellant's wife's stress and hardship of not having the Appellant around after his imprisonment was adduced in evidence before me. The Appellant's wife has become stressful and has had ailments affecting her physical state and her temper, which have reflected in her stricter or harsher treatment of the two children of the family. The Appellant's absence from the family also means that his wife has to try to make ends meet and look after the children all by herself. Although I sympathise with her, yet there is nothing special in this kind of hardship to any family if the father and breadwinner has to serve a term of imprisonment for an offence of which he is convicted. I cannot find this a sufficient ground to reduce the sentence.

9. In order to reflect the two mitigating circumstances which the Magistrate had apparently failed to take into account, I am prepared to reduce the sentence by one month. The appeal is allowed to the extent that the sentence is altered to be seven months' imprisonment instead.

10. Appeal allowed, sentence altered to be one of seven months' imprisonment.