HKSAR v. FU YAT HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 271 OF 1998

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J U D G M E N T

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1. On 26th January of this year the Appellant was charged with 4 counts under Section 171(1) of the Immigration Ordinance, Cap.115, of being the employer of a person not lawfully employable. He pleaded guilty and was sentenced to 12 months' imprisonment in respect of each count. I will call these the first 4 counts.

2. He was further charged with 4 counts under Section 89 of the Criminal Procedure Ordinance, Cap.221 and Section 42(1)(a) of the Immigration Ordinance of aiding and abetting the making of a false representation to an immigration officer. He again pleaded guilty and was sentenced to 6 months' imprisonment in respect of each. I will call these the second 4 counts.

3. The Magistrate ordered that the all 8 sentences be served concurrently, making for an effective sentence of 12 months. The Appellant has no complaint concerning the sentences imposed in respect of the second 4 counts. He appeals, however, against the sentences of 12 months each imposed in respect of the first 4 counts on the basis that they are manifestly excessive and/or wrong in principle.

4. The background facts are these. In 1996, the Appellant opened a restaurant in the Tsuen Wan area called the Indian Curry House. As its name states, it was a restaurant specialising in food from the Indian sub-continent. The Appellant came from a family which owned and managed 2 restaurants and he borrowed a sum of approximately $900,000.00 from his family to set up this new venture. However, he encountered considerable difficulty in employing suitable staff. It seems that he was looking specifically for Indian or Nepalese persons. He advertised in a newspaper but met with no success. To resolve his commercial predicament, over a period of time, the Appellant employed 3 Nepalese men each of whom were lawful visitors to Hong Kong but had no right to be employed here. In addition, at a much later stage, he employed a Nepalese woman on a part-time basis. She too was a lawful visitor to Hong Kong but was not entitled to be employed here. These 4 persons were the subject of the first 4 counts.

5. At that time, the Appellant had not obtained a licence for his restaurant. However, he wished to regularise the position of his 4 Nepalese employees by obtaining work visas for them. To this end, he employed a firm of solicitors. To ensure that the 4 had papers to support their applications, the Appellant provided each with false documentation stating that they had been offered work in one of his family's restaurants not in the Indian Curry House. The supply of such documentation is the subject of the second 4 counts. I have been advised that the Appellant did not appreciate the seriousness of his actions in respect of the false documentation as staff moved freely between the family restaurants helping out where necessary.

6. As for his personal circumstances, the Appellant, a young man who has only been married some 6 months, co-operated fully with the police after his arrest and expressed sincere remorse. He has an almost blameless record, having been previously convicted for only two minor licensing offences related to his family's restaurants. His imprisonment has resulted in the closure of his restaurant and the loss thereby of the greater portion of the capital used to set up the business.

7. It must also be mentioned that there has been no suggestion whatsoever of exploitation of the persons employed by the Appellant in his restaurant.

8. Taken together, these are pressing matters of mitigation. They were, however, all known to the Magistrate who took 18 months as the appropriate staring point for the first 4 counts, reducing that by one third for the pleas of guilty. In his reasons for sentence, the Magistrate said the following:

"The appellant was thus seen to have engaged in multiple acts of unlawful employment for purely commercial purposes. It was further seen that he was prepared to support that illegality by attempting to deceive the Immigration Department as to the real status of his employees. Further, all of the said offences were seen to have been carried out in a deliberate and systematic manner."

9. As he was entitled to do, the Magistrate took into account that this was not a single instance of reckless conduct brought on by an unexpected commercial crisis. This was instead a systematic course of conduct involving more than one employee. The Appellant was well aware that his employees were not lawfully employable and although he took steps to regularise their positions (and thereby reduced the risk to himself) he did so by arranging for false documentation. As a result, he compounded his moral culpability. Put succinctly, the Magistrate found that this Appellant took a calculated business risk in knowingly contravening the law.

10. The Magistrate reasoned that an immediate custodial sentence was appropriate for such conduct. Mr. Plowman, who appeared for the Appellant, accepted that this was correct in principle. He submitted, however, that, having regard to the pressing matters of mitigation, the Magistrate's starting point of 18 months was manifestly excessive.

11. In this regard, Mr. Plowman referred me to R. v. Wong Mok-din [1994] 2 HKCLR 96 and Attorney-General v. Lau Chung-ming [1993] 2 HKCLR 11, which were heard together although reported in different years. In Wong Mok-din, the Court of Appeal said this as to the guidelines applicable for the offence of employing a person not lawfully employable:

"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 an 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.

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."

12. In so far as the facts of that case are concerned, one person had been employed on a farm in the New Territories and there was an element of recklessness shown by the offender who had not properly checked the employee's out-dated documents of identity. The facts of that case are therefore of little assistance.

13. The guidelines laid down in Wong Mok-din were approved in the later Appeal Court decision of Attorney-General v. Wong Chung-lee (Application for Review No.10 of 1996) to which the Magistrate made reference. In that case the Court found that the sentencing Magistrate had been entitled to take into account, in assessing sentence, a variety of matters including multiplicity of employees, the commercial nature of the enterprise and the higher levels of unemployment experienced in Hong Kong in recent years. The Court also accepted that in matters of this kind a degree of deterrence may be appropriate. The Court further rejected the argument that there should be a difference in assessing the correct starting point for sentence depending on the classification of person employed. In this regard, Nazareth V.P. said:

"In our view, s.171 is plainly directed at all employment of persons who are not lawfully employable by reference to s.17G(2), which sets out comprehensively those person 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.171 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.171 regardless of the classification or grouping of the employees concerned."

14. It was not therefore a matter of mitigation which this Appellant could place before the Magistrate to say that the persons employed by him had been lawful visitors as opposed to illegal immigrants. In fairness, of course, Mr. Plowman conceded that point.

15. Following the guidelines in Wong Mok-din, in my judgment, the Magistrate was entitled to take into account that there were 4 persons who had been employed not just one. He was entitled to take into account that those persons had been employed over a period of time. He was further entitled to take into account that the decision by the Appellant to employ them had been motivated by commercial imperatives and that the conduct of the Appellant had been calculated and systematic.

16. In the circumstances, whatever personal sympathy one may have for the Appellant, I am satisfied that the sentences passed by the Magistrate were neither manifestly excessive nor wrong in principle. The appeal must be dismissed.