ATTORNEY GENERAL v. LAU CHUNG-MING

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 NO. 553 OF 1992

AND

APPLICATION FOR REVIEW NO. 10 OF 1992

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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. As set out in the decision in Magistracy Appeal No. 553 of 1992 which was heard together with this application, the respondent was charged with aiding and abetting the remaining in the colony of an illegal immigrant contrary to s.38(1)(b) of the Immigration Ordinance Cap.115, and alternatively with employing a person not lawfully employable contrary to s.171(1) of the Immigration Ordinance Cap.115. The date of the offences was 19th May 1992. The respondent pleaded guilty to the alternative charge. Mr. Saunders when sentencing, on 17th June 1992, noted that he had a clear record and had admitted the offence albeit not at the first opportunity. He took into account that he was aged 56 and was the sole bread-winner for a family which included four children. He imposed a fine of $2,000 and ordered the respondent to pay compensation in the form of unpaid wages to the illegal immigrant of $1,200. He declined to review this sentence upon application made by the Crown. He stated when sentencing that he had:

"... followed what I understood to be the usual practice of Magistrates in Hong Kong and imposed a monetary penalty for a first offender charged under s.171(1) of the Ordinance. I was aware that the usual penalty for aiding and abetting an illegal Immigrant under s.38(2)(b) was an immediate custodial sentence but took the view that as the Crown were prepared not only to lay an alternative charge but accept a plea to that charge I should follow the guidelines for sentencing in respect of the charge to which the Defendant had pleaded."

As we have indicated in Magistracy Appeal No. 553 of 1992 what the magistrate refers to as "the usual practice" appears to have had its foundation in the decision of Hooper J. in R. v. Ng Yuet-cheong. The magistrate expressly declined to follow the indication as to penalty given in R. v. Law Chuen-fook [1988] H.K.L.R. 164 where the Court said:

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

Although his attention was drawn to the amendment to the penalty provisions of s.171(1) he was not persuaded that it so affected the position as to require him to impose a custodial sentence. He observed that Crown Counsel

"could not point me to any case, whether in the Magistracy or on appeal in which an immediate custodial sentence had been imposed for an offence against s.171(2) of the Ordinance."

We appreciate the difficulty in which the magistrate thought himself to be placed but the fact of the matter is that he had misconceived the position. After the amendment to s.171, the decision in Ng Yuet-cheong should not have been regarded as having any further application to offences under the section. They should, as we have indicated in Magistracy Appeal No. 553 of 1992, have been dealt with upon the basis of the law as it then stood. We are satisfied, as we have stated in that decision, that the appropriate starting point for offences under the section is 15 months after trial.

3. The magistrate was in error when he said that the usual practice in 1992 was to impose a monetary penalty for such offences. A list furnished by the Crown shows the penalties imposed on offenders in 1992 in twenty-three offences under s.171. The magistracies involved are spread throughout the territory. In 20 of these cases, a sentence of suspended imprisonment or of suspended imprisonment and a fine was imposed. Ten of these involved the employment of more than one illegal immigrant and one involved the employment of eight such persons.

4. The three cases in which prison sentences were imposed were: Magistracy Appeal No.553 of 1992, with which we have just dealt, in which a sentence of twelve months' imprisonment was imposed; Case TM 4972 in which a sentence of nine months' imprisonment was imposed; this was reduced on an appeal in the course of which Sears J. indicated that three to four months would have been appropriate; and Case KT 500143, which involved five charges, in which an overall sentence of imprisonment of four months was imposed.

5. We turn now to the facts of the present case. The unlawful immigrant told the police that he had sneaked into Hong Kong on 21st April 1992 from Shenzhen by climbing over the mountains and that he met the respondent on 2nd May 1992 and asked him for a job. He said that he told him that he had no Hong Kong identity card and that the respondent hired him as a casual pipe repair worker and briefed him not to wander around as he might be caught. The facts went on to state that the respondent arranged refreshment and transport to and from work for the illegal immigrant who had worked totally for 17 days prior to apprehension and had received $500 up to that time. These facts were admitted by the respondent.

6. The starting point after trial for an offence of this nature involving the employment of a single unlawful entrant with knowledge of his status should have been 15 months. This starting point is liable to increase if it is shown that there was exploitation of the unlawful entrant. While the facts in the present case suggest that the employee may have been exploited, the matter was not sufficiently canvassed for us to come to any concluded decision in that regard. Taking into account the respondent's clear record and his plea of guilty, we are satisfied that a sentence of ten months would have been appropriate. However, bearing in mind that this was brought by the Crown as a test case and that sentences involving immediate imprisonment for this offence were, during 1992, imposed upon a very small number of like offenders and for only relatively short periods, we think it proper to order that this offender be imprisoned for five months.

7. We have not been able to discover any power in the magistrate to order the payment of compensation to the illegal immigrant. The application by the Attorney General is granted, the original order of the magistrate quashed and in place thereof we order that the respondent serve a sentence of imprisonment of five months.