THE QUEEN v. WONG MOK DIN

IN THE COURT OF APPEAL

Magistracy Appeal
1992 No. 553
and
Application for Review
1992 No. 553

HEADNOTE

Unlawful employment of an illegal immigrant. Fifteen months is a proper starting point for this offence where one employee is involved and there are no circumstances of exploitation, it having been established that the offender was aware that he had employed an illegal immigrant or had acted recklessly in so doing. This starting point should be increased in cases of multiple employment and where there is an element of exploitation. It will be a mitigating circumstance that the appellant pleads guilty and that he made some but not all practicable enquiries sufficient to establish the statutory defence.

IN THE COURT OF APPEAL

Magistracy Appeal
                                                                                      1992 No. 553

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. Magistracy Criminal Appeal No.553 of 1992 in which Wong Mok-din was the appellant was ordered to be heard together with Application for Review No.10 of 1992 in which Lau Chung-ming was the respondent. Wong Mok-din appealed against sentence having been found guilty after trial before Mr. D.I. Thomas in the Tuen Mun Magistracy of the offence of employing a person not lawfully employable contrary to s.17I(1) of the Immigration ordinance, Cap.115. It was alleged that between the 21st day of December 1991 and the 20th day of January 1992 at Shun Fat Farm, Sha Po Tsuen, Pat Heung, New Territories, he employed Wong Kin-wai, an employee who was not lawfully employable. On 31st March 1992 he was sentenced in the Magistrates Court at Tuen Mun by Mr. D.I. Thomas to imprisonment for one year and on 20th May 1992 he applied for extension of time for giving notice of appeal. This extension was granted by Mr. Thomas.

3. In the Attorney General’s Application the respondent Lau Chung-ming was charged under s.38(1) (b) of the Immigration Ordinance Cap.115 with aiding and abetting the remaining in the Colony of an illegal immigrant. It was alleged that he and another had on 19th May 1992 outside the Caltex Petrol Station, Clear Water Bay Road, Tseung Kwan O, aided and abetted a male Cheung Tin who had landed in the Colony unlawfully to remain in Hong Kong without the authority of the Director of Immigration. He had faced an alternative charge of employing a person not lawfully employable under s.17I(1) which alleged that on 19th May 1992 at a site opposite Ngok Yeung House, Clear Water Bay Road, Sai Kung, he was the employer of Cheung Tin, an employee who was not lawfully employable. On 12th June 1992, the respondent denied the first charge but pleaded guilty to the alternative charge. The Magistrate, Mr. Saunders, accepted the plea, fined him $2,000 and ordered him to pay compensation in the form of unpaid wages to the unlawful immigrant of $1,200. The Crown did not proceed with the first charge. The Attorney General seeks to review that sentence on the ground that it is manifestly inadequate and/or wrong in principle.

4. Turning to the appellant Wong Mok-din’s appeal against sentence. He was represented by Mr. Mullick.

5. The following facts were found by the Magistrate:

“The illegal immigrant in the case, Wong Kin-wai, had unlawfully sneaked into Hong Kong from the P.R.C. He applied to the Appellant for a job on the Appellant’s farm. The appellant took him on at a wage of HKD3,000 per month. The Appellant asked the illegal immigrant for proof of identity and the man produced a Hong Kong identity card in the name of Ng Chi-yung. The Appellant made a photocopy of the identity card as the record of the employee.

The identity card was produced in court and proved to be an old-style card with an expiry date; the expiry date was in December 1990.

The Appellant checked the photograph and the name of the identity card. Because of his poor eyesight he had not checked the other details. The size of the Chinese characters forming the other details was the same as for the name. The Appellant could read Chinese characters. Living on the farm with the Appellant were his wife and youngest son. The son returned from school but the Appellant did not show him the identity card for checking.

The illegal immigrant spoke Punti and the Chiu Chow dialect.

The police visited the farm at 11.22 a.m. on 20th January 1992. The illegal immigrant claimed to have sneaked into Hong Kong on 19th January and to have applied to the Appellant on the morning of 20th January for a job. In view of the Appellant’s replies in cross-examination this timetable could not be right but, because of the confusion in the evidence, I made no finding of fact as to the length of the employment of the illegal immigrant. The Appellant had admitted to the police that he had employed the illegal immigrant.”

The Magistrate went on to give the following Reasons for Sentence:

“The Appellant had been appallingly lax in his dealings with the illegal immigrant. He appeared to know that he was under an obligation to sight the identity card of a new employee but had missed the obvious fact that, even if the potential employee were entitled to possess the identity card in question, the card was considerably out of date. I gave the Appellant the benefit of the doubt that he was of poor eyesight and had missed this obvious detail rather that that he was not telling the truth.

In R. v NG Yuet-cheong (unrep. MA 1352/90) Hooper J. stated that a starting point of twelve months was wrong in principle for an offence under section 17I(1) of Cap.115 and that punishment of a first offender by way of imprisonment should be a last resort. His Lordship stated that the court which sentenced an offender under this section should not impute dishonesty where no facts had been admitted which gave rise to such an imputation as the offence was one of strict liability. His Lordship allowed the appeal against a sentence of six months’ imprisonment and substituted a term that would allow the Appellant’s immediate release.”

The Magistrate noted that s. 17I was amended, by Ordinance 75 of 1990 sub-section(1A), by the addition of a statutory defence to the charge in the following terms:

“(1A). It is a defence in proceedings for an offence under this section for the person charged to prove that all practicable steps were taken to determine whether the employee in respect of whom the offence is alleged to have been committed was lawfully employable and that it was reasonable to conclude that the employee was lawfully employable.”

The Magistrate correctly observed that the taking of all practicable steps by the employer to check the status of a potential employee was, thereafter, not a matter of mitigation but was a defence to the charge. He further observed that the court when sentencing must have concluded that all practical steps had not been taken. He noted also that the amendment increased the maximum penalty for the offence from a fine of $50,000 and imprisonment for a period of one year to a fine of $250,000 and imprisonment for three years.

6. We are satisfied that the magistrate’s observation that after the amendment, the offence was “a more serious one” was a proper one in so far as it reflected the clear intention of the legislature that a much more serious view of offences under s.17I(1) should be taken.

7. The Magistrate was also careful to note that at the same time, the offence of remaining in the colony without permission contrary to s.38(1)(b) of the Immigration Ordinance and also, by implication, of aiding and abetting such remaining, which had originally been punishable by a maximum fine of $5,000 and a maximum period of imprisonment for three years, was raised to maximum fine of $10,000. The maximum period of imprisonment for three years remained the same.

8. The Magistrate concluded that the decision in Ng Yuet-cheong, Magistracy Appeal No. 1352 of 1990, in which Hooper J. held that where no dishonesty could be inferred from the facts, an immediate custodial sentence was not necessarily required to be imposed for sentences under s.17I(1) and that it was wrong in principle to take a starting point of 12 months imprisonment, was no longer applicable.

9. The Magistrate referred to The Queen v. Law Chuen-fook [1989] 1 H.K.L.R. 164, a Magistrate’s appeal which was also reserved to the Court of Appeal, in which the appellant pleaded guilty to two charges of aiding and abetting the remaining in Hong Kong of a person who had landed unlawfully contrary to s.38 of the Immigration Ordinance. The appellant was sentenced to twelve months’ imprisonment on each charge to be served concurrently. The facts showed that the appellant had given the unlawful immigrants casual work on board a lighter. At the time when he employed them, he did not ask for documents but he subsequently became aware that they were illegal immigrants. The magistrate was guided by the ruling of Cons V.-P. at p.165:

“Very recently in R. v. So Man-king Mag.App.No. 408 of 1988 [See [1989] 1 HKLR 142] this Court reconsidered the situation with regard to offences committed by illegal immigrants themselves. In so far as they are concerned, the circumstances with regard to their presence in Hong Kong are unlikely to vary greatly from one immigrant to another. Nor, generally speaking, are illegal immigrants likely to have much to offer by way of mitigation. The situation is such that guidelines from this Court can play a most useful part in ensuring consistency of sentence and preventing disparities that would otherwise become immediately obvious.

On the other hand, the circumstances which give rise to a charge of aiding and abetting may vary tremendously. Towards one extreme may well be, for example, the daughter who conceals her aged and sick mother so that the mother may see out the end of her days in the comfort and love of her family. At the other perhaps we may find the greedy contractor who engages a large number of immigrant workmen at wages considerably below the going market rate.

But all who are guilty of the offence of aiding and abetting have one thing in common. To some extent, at least, they encourage yet others to seek refuge here, thereby undermining the policy behind the sentences imposed for the principal offenders, that is, to deter would-be illegal immigrants from putting their intentions into practice. This is particularly so where opportunities for employment are offered, for it is the hope of substantially higher wages which at present is one of the principal attractions. If a would-be illegal immigrant knew that his hope of employment was unlikely to be fulfilled, he would be much less inclined to take the gamble of smuggling himself here. Therefore although we agree …… that except in the rarest cases the offence was one which deserved an immediate custodial sentence ……. we feel it inappropriate to suggest any particular period of imprisonment as being in general suitable for those convicted of aiding and abetting, save to say that those who offer opportunities of employment to illegal immigrants must expect to receive sentences certainly not less than those imposed upon the immigrants themselves.”

The magistrate, conscious that So Man-king had held that 15 months was the proper penalty to be imposed on an illegal immigrant after plea, held that “the starting point after trial was 15 months. I gave the appellant credit for his age and his previously clear record and imposed an immediate custodial sentence of twelve months.” Mr. Mullick, while acknowledging that the offence was committed after the 1990 amendment to s.17I, nonetheless submitted that the magistrate was wrong to follow Law Chuen-fook. We cannot agree. We are unable to fault the reasoning of the magistrate in his careful judgment. When so doing we echo, as he did, the words of Cons V.-P. when he said:

“... those who offered opportunities of employment to illegal immigrants must expect to receive sentences certainly not less than those imposed upon the  immigrants themselves.”

10. Mr. Mullick further submitted that the magistrate failed to give due weight to the personal background and circumstances of the commission of the offence.

11. He referred firstly to the fact that the magistrate had given “the benefit of the doubt that he was of poor eyesight and had missed this obvious detail (the expiry date of the card) rather than that he was not telling the truth”. He submitted that this finding placed the appellant in the category of a “careless” offender rather than that of the offender who wilfully and knowingly employs an illegal immigrant or who does so recklessly making no effort to establish the real position. There is force in this argument but we must, when considering it, bear in mind that the appellant could, with a very little effort, have complied with the duty which the law imposed upon him. He needed only to have looked carefully at the card himself or to have asked someone else to do so.

12. Mr. Mullick next submitted that more weight should have been given to the fact that the appellant had immediately admitted employing PW1 when questioned by the police. He had, however, little option but to do so as the unlawful immigrant was found working on his farm. He was, in effect, caught red-handed. We think it proper, however, to add that the appellant was found to have been a truthful witness who had never sought to mislead the authorities or the court. This must, to an extent, tell in his favour as a mitigating circumstance.

13. Mr. Mullick pointed out that there was no element of exploitation in the employment by the appellant of the illegal immigrant. The evidence was that the appellant had agreed to employ the illegal immigrant as a casual worker and to pay him $3,000 per month. While this does not appear to be a generous salary, there was nothing to suggest that it was a salary so low as to indicate that the appellant was taking unfair advantage of the position of the illegal immigrant. Given the nature of his defence, we have no doubt, had this been so, that the matter would have been raised at the hearing.

14. Mr. Mullick also submitted that weight had to be given to the fact that the appellant operated a one man business as a New Territories farmer and was not a sophisticated commercial employer. While there is some merit in this submission, it is to an extent weakened by the fact that the appellant was sufficiently sophisticated to take a photocopy of the card and by the fact that the card itself, which is in both English and Chinese characters, would upon proper inspection have immediately revealed that it was expired.

15. Before turning to consider the propriety of the sentence we think it proper to voice our concern that, should imprisonment be the only appropriate punishment for this offence, small, unincorporated employers will receive prison sentences while corporations will, of necessity, only be fined. We observe, however, that this apparent inequality of treatment can to an extent be overcome by the imposition of substantial fines on the corporate employers and where appropriate, by the prosecution not only of the corporation but also of the responsible officer of the corporation be he employee or director.

16. 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.

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

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

19. At one end of the range stands the offender who wilfully and knowingly or recklessly employs an unlawful immigrant. At the other end stands the offender who makes some, but not all, practicable inquiries and is genuinely unaware that he is employing an unlawful immigrant. Credit must as in all cases be given for a plea of guilty and some, but lesser, credit may be appropriate where an offender admits his complicity but seeks, without untruthfulness, to take advantage of the statutory defence.

20. In the present case, bearing in mind the factors set out above, we are satisfied, given a starting point of 15 months, that a sentence of imprisonment of eight months would have been appropriate. The appellant was sentenced on 31st March 1992 and was not granted bail until 25th August 1992, and had, therefore, served almost five months’ imprisonment by that date. We are satisfied that it would be proper in the circumstances to make an order which will allow him to be released immediately. We bear in mind when so doing that the majority of magistrates in 1992, guided it appears by the decision in R. v. Ng Yuet-cheong, were imposing suspended sentences on charges under s.17I.

21. The appeal is allowed and the appellant is ordered to be released immediately.