HKSAR v. LOCK WAH WAH

[English Translation – 英譯本]

HCMA 401/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 401 OF 2008

(ON APPEAL FROM ESCC NO. 5095 OF 2007)

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REASONS FOR JUDGMENT

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1. The Appellant herein was charged with one count of “employing a person not lawfully employable”, contrary to section 17I(1) of the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.  Subsequently the prosecution charged the Appellant with the lesser offence of “being an employer, failing to inspect documents of a new employee”, contrary to section 17J(1) and (2) of the same Ordinance.  The Appellant pleaded guilty to the lesser charge and was sentenced by the Magistrate to two months’ imprisonment.  The Appellant appealed against sentence.  At the conclusion of the hearing, I allowed the appeal, set aside the custodial sentence and imposed in its stead a fine of $3,000.  I also awarded the Appellant costs of this appeal, to be taxed if not agreed.  I now set out the reasons for my judgment.

Admitted facts

2. According to the facts admitted by the Appellant, on 11 October 2007 a female Nie Su Ying (聶素英) (Nie) was intercepted by the police.  She failed to produce any proof of identity and alleged that she was working at a restaurant.  The police went to that restaurant with Nie.  Nie produced a “two-way permit”, which showed that she came to Hong Kong as a visitor and was allowed to stay in Hong Kong for only 7 days.

3. Police investigation revealed that on 20 August Nie, using a forged identity card, went to the restaurant to apply for the job of washer-up.  The Appellant, who was the proprietor of the restaurant, interviewed Nie and inspected and made a copy of the identity card provided by her.  He then hired her for a daily wage of $280.  The police officer arrested the Appellant for the offence of “employing a person not employable”, and the Appellant admitted the offence under caution.

4. Subsequently, the police interviewed the Appellant again.  Under caution, the Appellant alleged that he had already kept a record of the identity card produced by Nie.  He admitted he had not made enquiries to ascertain whether the identity card was valid and whether Nie was an employable person.

5. The admitted facts also showed that, according to the photocopy of the identity card that the Appellant had kept as a record, the identity card provided by Nie was not a permanent identity card, and the Appellant did not further inspect Nie’s valid travel documents before employing her.

Reasons for sentence

6. The Magistrate immediately proceeded with sentencing and said (Appeal Bundle P19, L-O):

  “… such cases of people who are not allowed to work in Hong Kong being employed to work at restaurants are very prevalent.  Even if that person has an identity card with the ‘***’ symbol, i.e. a permanent identity card, you are still required by law to make enquiries in order to ensure the identity card is valid.  In the present case, what is more, she was not holding a permanent identity card, which means that you should have been highly suspicious of her identity, but you simply proceeded to employ her.  Under such circumstances, a fine is not an appropriate sentence.  I adopt a starting point of 3 months’ imprisonment, which is reduced to 2 months on account of your guilty plea.  You are sentenced to 2 months’ imprisonment. … ” [emphasis added]

7. In the Reasons for Sentence, the Magistrate had this to say (page 16):

  “6.  Cases having facts similar to the present one are very prevalent.  Defendants in similar cases are generally charged with ‘employing a person not lawfully employable’.  According to case law, even if the defendant is a first offender and has employed only one person not lawfully employable, an immediate custodial sentence is still warranted, and the starting point is 3 months (See HO Mei-wa [2004] 3 HKLRD 270, MCDONALD’s Restaurant, HCMA 304/1998, Leung Chun-sang, HCMA 74/2002).

7.   I understand that in the present case the prosecution has amended the charge to ‘being an employer, failing to inspect documents of a new employee’, which is a less serious offence.  The maximum penalty for ‘employing a person not lawfully employable’ is [a fine of] $350,000 and imprisonment for 3 [years], whereas that of the present offence is [a fine of] $150,000 and imprisonment for one year.  I also understand that there is no sentencing guideline for the present offence.  Although the charge has been altered, the facts remain the same.  The facts of the present case are exactly what the said precedents intend to address. Given that what unlawful workers usually produce are forged Hong Kong permanent identity cards, failure to verify a worker’s identity, albeit inadvertent, should attract a sentence of 3 months’ imprisonment.  The facts in the present case are more serious than usual.  The Defendant had full knowledge that Nie Su Ying was not a Hong Kong permanent resident, but still thoughtlessly employed her as a worker.  The above factor puts the present case  at the highest end of the spectrum.  I adopt 3 months’ imprisonment as the starting point.  The Defendant has pleaded guilty and is entitled to a full discount.  The Defendant is sentenced to 2 months’ imprisonment.” [emphasis added]

New evidence

8. Before the appeal hearing, I allowed the Appellant to adduce new evidence for the purpose of showing that the Magistrate had misunderstood the facts in saying that the Appellant “had full knowledge that Nie Su Ying was not a Hong Kong permanent resident, but still thoughtlessly employed her as a worker”.

9. The new evidence includes:

(1)  The photocopy of the identity card produced by Nie, which was made by the Appellant and kept as record.  The photocopy shows that the words “Hong Kong Identity Card” appear on the front of the card.  The holder is “Nie Su Ying” (聶素英).  Below the date of birth is the symbol “CX”.

(2)  The Appellant’s post-recorded response upon arrest and under caution, i.e. the first interview.  The Appellant’s response was “Ah Sir, I did not know that her identity card was false.  I don’t know how to distinguish the genuine from the false.  Had I known that it was false, I would not have employed her.  I would not run the risk of being sent to jail, would I?”

(3)  The record of the Appellant’s second interview with the police. In making enquiries of the Appellant, the police officer told him that “having no ‘***’ symbol means not being allowed to work in Hong Kong” and “having no ‘***’ symbol means not being a Hong Kong permanent resident”.  The Appellant said that he had not noticed there was no “***” symbol on the identity card and hence had not checked with the Immigration Department whether Nie could work in Hong Kong.  He had never suspected that the identity card was false.

(4)  The document of identity of one Madam Xie.  Xie holds a one-way permit and is not a Hong Kong permanent resident.  Her identity card bears no “***” symbol.  However, she can lawfully work in Hong Kong and has proof of work.

(5)  The identity card of a District Councillor surnamed Cheng and a letter addressed to me.  Madam Cheng holds a Hong Kong Permanent Identity Card, but the card bears no “***” symbol. 

(6)  Information on the front of Hong Kong Identity Card.

(7)  Explanatory notes on applications for Hong Kong SAR “Re-entry Permits”.

(8)  Script of the narration in the TV announcement on “Employing Illegal Workers” issued by the Government.

10. Subsequently I also allowed the Appellant to submit other relevant publicity materials to the court (Exhibit P2).

11. On the other hand, I also allowed the Respondent to call Wong Chi Leung (Wong), a staff member of the Immigration Department, to give evidence and elaborate on such matters as the “***” symbol, Hong Kong permanent residents, and the documents specified in section 17J of the Immigration Ordinance.  Wong also submitted to the court a booklet entitled “Don’t Employ Illegal Workers” (Exhibit P1).

12. I do not consider it necessary to set out all the details.  In essence, the “***” symbol originates from the Easy Travel Scheme of the Immigration Department.  A holder of an identity card bearing “***” (or “*” or “R”, neither of which is relevant to the present case) may travel between Hong Kong and the Mainland and/or Macau without having to use a “re-entry permit”.

13. Having the “***” symbol is not equivalent to being a “Hong Kong permanent resident”, and the identity card of a “Hong Kong permanent resident” does not necessarily bear the “***” symbol.  Therefore, the absence of the “***” symbol on an identity card does not necessarily mean that the holder of that card cannot lawfully work in Hong Kong.  Is it the case that the holder of an identity card bearing “***” symbol can definitely work in Hong Kong lawfully?  Wong was unable to give a firm answer – although he could not give me an example of the holder of an identity card with the “***” symbol being unable to work lawfully in Hong Kong.

Grounds of appeal

14. Ms Lo, Counsel for the Appellant, has put forward the grounds of appeal in her detailed and orderly written submissions.  The main thrust of her submissions is that the police officer, the Appellant’s legal advisers and the Magistrate had all mixed up the “***” symbol and “Hong Kong permanent resident”.  In fact, having “***” does not necessarily mean being a “Hong Kong permanent resident”, and the identity card of a “Hong Kong permanent resident” may not have “***”.  Given that even those who are in regular contact with the legislation do not have a clear grasp of the law, it is understandable and excusable for the Appellant, who is only an ordinary citizen, to be ignorant of the law.  Ms Lo submits that the Magistrate was wrong in saying that the Appellant “had full knowledge” that Nie was not employable, and that the starting point of 3 months adopted by the Magistrate is wrong and excessive.

15. Ms Lo also refers to the publicity materials of the Government and points out that the relevant materials only stress that those having “no identity cards” are not employable, without specifying the need to inspect other valid travel documents where the identity card being provided is not a “Hong Kong permanent” identity card.  Ms Lo submits that it was excusable for the Appellant, an ordinary citizen, to mistakenly think that Nie was employable simply because she had an identity card.

The Respondent’s reply

16.  At the outset of the hearing, Mr Patrick Cheung, Senior Assistant Director of Public Prosecutions and Miss Agnes Chan, Senior Public Prosecutor for the Respondent made it clear, in my view very fairly and appropriately, that the appeal should be allowed and that the sentence imposed by the Magistrate was manifestly excessive.  From the information provided by the Respondent on previous sentencing practices, it can be seen that during the 1½ year between 1 January 2007 and 30 June 2008, a total of 10 persons were prosecuted.  Most of them were fined between $1,000 and $10,000.  In some cases, the defendants were ordered to perform community service or were bound over.

17.  The Respondent does not intend to dispute whether the Appellant “had full knowledge” that Nie was not employable and takes the view that although the reasons for allowing the appeal are different, this is just a matter of achieving the same result by different routes.

Discussion

18.  Under section 17I of the Immigration Ordinance, the maximum sentence for “employing a person who is not lawfully employable” is a fine of $350,000 and imprisonment for 3 years.

19.  In Secretary for Justice v. Ho Mei Wa [2004] 3 HKLRD 270, the Court of Appeal laid down a new sentence guideline for “employing a person not lawfully employable”.  Where a case involves a single employee, and the employer had “full knowledge” of the person concerned being not lawfully employable or was reckless as to whether that person was lawfully employable, and that person was employed on a casual basis, then, in the absence of any aggravating features, the appropriate sentence upon conviction after trial is imprisonment for 3 months.  The Court of Appeal has also made it clear that the new guideline is applicable to a first time offender, that the employment should be one in relation to the employer’s commercial or business interests as opposed to domestic employment, and that employment on a casual basis means short-term or one-off, as opposed to long-term, employment.

20.  Section 17J of the Immigration Ordinance provides as follows:

“(1)  No person shall in Hong Kong enter into a contract of employment to employ any other person unless he first inspects ―

(a)    the identity card held by such other person and where the identity card held by such other person is not a permanent identity card as defined in the Registration of Persons Ordinance (Cap 177), a valid travel document held by him; (Replaced 59 of 1996 s. 3)

(b)   the official passport held by such other person; or

(c)    where such other person is not the holder of an identity card and is not required to be registered under the Registration of Persons Ordinance (Cap 177) ―

(i)  a valid travel document;

(ii)    (Repealed 31 of 1984 s. 6)

(iii)   a Vietnamese refugee card;

(iv)  a certificate of exemption; or

(v)    any other approved document,

held by him.

(2)    Any person who contravenes subsection (1) commits an offence and is liable to a fine of $150,000 and to imprisonment for 1 year.”

21. The Registration of Persons Ordinance defines “permanent identity card” (永久性居民身分證) as an identity card containing a statement: “the holder has the right of abode in Hong Kong”.

22. If the witness holds a “permanent identity card”, it is not necessary to inspect other documents of identity; otherwise, it is necessary to inspect the documents of identity specified in section 17J(1)(b) or (c).

23. The maximum penalty under section 17J is obviously less severe than that under section 17I.

24. It can be seen from the aforesaid Ordinances that a person holding a “permanent identity card” is lawfully employable in Hong Kong.  It is not necessarily the case that a person not holding a “permanent identity card” is not lawfully employable in Hong Kong, but the “employer” has to inspect other valid documents of identity as required by the law.

25. The offence under section 17J is a strict liability offence.  The prosecution is not required to establish mens rea on the part of the defendant.  Although the Ordinance itself does not expressly provide for any statutory defence, the accused may establish a defence by proving “on a balance of probabilities” that he had good and sufficient reasons to believe that he had satisfied the requirements at law, even if the belief might be mistaken (see The Queen v. Wang Shih Hung and Attorney General v. Fong Chin Yue & others [1995] 1 HKCLR 193).

26. The “***” symbol on identity cards has quite a long history in Hong Kong.  Although the “***” symbol was intended to facilitate Hong Kong residents in travelling between Hong Kong and the Mainland and/or Macau, the fact is that many people (including, in the present case, the investigating police officer, Counsel who had represented the Appellant at trial and the Magistrate) are mixing up “permanent resident” and the “***” symbol.

Police officer

27. The police officer in the present case said that “having no ‘***’ symbol on the identity card means not being allowed to work in Hong Kong”, (Q(7) in the second record of interview) and “having no ‘***’ symbol means not being a Hong Kong permanent resident” (Q(8) in the Appeal record).

Counsel for the Appellant at trial

28. Counsel for the Appellant at trial said in mitigation (lines R-T on p.18 of the Appeal Bundle):

“… for the identity card, there is the ‘***’ requirement, the so-called permanent identity card, but there was no such symbol on the identity card in question.  Today he pleaded guilty to the offence under section 17J, which expressly states that if a job-seeker produces an identity card bearing no ‘***’ symbol or other than a permanent identity card, then he should also inspect the job-seeker’s travel document.”  [emphasis added]

The Magistrate

29. In delivering the sentence orally, the Magistrate said:

“… Even if that person has an identity card with the ‘***’ symbol, i.e. a permanent identity card, …”  [emphasis added]

30.  It can be seen that the three of them all thought that having the “***” symbol was equivalent to being a Hong Kong permanent resident.

31.  Speaking for myself, prior to the present appeal, although I knew that the absence of the “***” symbol on an identity card did not mean that the cardholder was not a “Hong Kong permanent resident”, I was all along under the misconception that the holder of an identity card with the “***” symbol must be a “Hong Kong permanent resident”.

32. In fact, what the law requires is that the holder of an identity card must be a “Hong Kong permanent resident”, and it has nothing to do with whether the card bears the “***” symbol.  It appears that, to some extent, the Magistrate said the Appellant “had full knowledge” of Nie not being lawfully employable because the identity card provided by Nie was seen not to have the “***” symbol.

33. I must also point out that the facts admitted by the Appellant were actually inconsistent with what actually happened.  The Appellant’s response under caution differed from the statement “The Defendant has admitted the offence” in paragraph 2 of the admitted facts.  And the Appellant’s reply at the second interview was given on the premise of the police officer’s statement that “having no ‘***’ symbol means not lawfully employable”.

34. The Magistrate said that even if the identity card had the “***” symbol, i.e. it was a permanent identity card, the Appellant was still required to make enquiries to see if it was valid.  With respect, I do not understand what the Magistrate was referring to.  Putting aside the issue of “***” symbol for the time being, according to section 17J, if what the Appellant inspected was a “Hong Kong permanent identity card”, he was not required to make further enquiries.  It is true that, had the forged identity card been so shoddy that its falsity could easily be discovered upon close inspection, it would have been difficult for the Appellant to absolve himself from the blame.  However, having carefully inspected the photocopy of the identity card in question, I consider it to be understandable that the Appellant was deceived by Nie and did not know that the identity card was a forged one.

35. Regarding the Government publicity materials submitted to me by Ms Lo for reference, I take the view that the announcements on radio and television and by the press are chiefly directed against employing illegal workers, in particular against employing illegal immigrants with no identity cards, visitors holding two-way permits and foreign domestic helpers already under the employ of others.  Those publicity materials do not specifically inform the public that if the person seeking employment does produce an identity card but it is not a “Hong Kong permanent identity card”, the employer must inspect the valid travel document or valid document of identity of that person before entering into a contract of employment with that person.

36.  I have had the opportunity of reading the booklet provided by Wong.  It is very detailed and expressly states that “an employer must inspect the valid travel document of a job-seeker who is holding a non-Hong Kong permanent identity card”.  It further sets out samples of the endorsements of “employable” and “not employable” as shown on travel documents.

37.  The Appellant said he had thought that it was sufficient for an employee to have an identity card, and he did not know that further inspection of other valid documents of identity was required of a person who held a non-“Hong Kong permanent identity card”.  I see no reason for disbelieving this explanation.  On the other hand, however, I think that, as an employer in a community with well-developed information and communication networks, the Appellant could, through the Internet or direct enquiries with the relevant government departments, easily have obtained information as detailed as that in the booklet.

38.  The circumstances under which the Appellant committed the present offence may indeed be described as “excusable”.  As the Respondent has fairly conceded, the two-month immediate custodial sentence imposed by the Magistrate is manifestly excessive.

39. Having taken into account the usual sentence, all the circumstances of the present case, the Appellant’s background (being a first offender and the proprietor of a small restaurant, and earning a monthly income of $9,000), I am satisfied that a fine of $3,000 sufficiently reflects his culpability.

40. It is worth noting that, although the Respondent agreed at a very early stage that the appeal should be allowed, Ms Lo still has requested me to address the issue of the “***” symbol so that, through my judgment, members of the public will become aware that the relevant law requires a “Hong Kong permanent identity card” rather than the “***” symbol thereon, and will also understand the requirements of section 17J, so that other civilians will not inadvertently be caught by the law as the Appellant has been.  Ms Lo has protected her client’s interests and done the best she could in the present appeal, and at the same time has not lost sight of public interest.  This approach, which fully demonstrates that Ms Lo is a righteous Counsel, is eminently commendable.