HKSAR v. PROSPEROUS PERSONNEL AGENCY & PUBLIC RELATIONS CO LTD

HCMA830/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 830 OF 2003

(ON APPEAL FROM KTS 4633/2002)

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J U D G M E N T

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Introduction

1. On 16 July 2003 the appellant was convicted after trial in the Kwun Tong Magistracy of the following offence, contrary to sections 57(a) and 60(7) of the Employment Ordinance, Cap.57 ("the Ordinance") :

".... on 13 December 2003 at Room 1211, 12/F, Good Hope Building, 5 Sai Yeung Choi Street South, Mongkok, Kowloon, being the licensee of an employment agency, namely Prosperous Personnel & Public Relations Co Ltd, did receive from a job applicant, Esterlita L Garcia, on account of having obtained, or in connection with obtaining or seeking to obtain employment for that person, payment in an amount of HK$2,000, being payment other than the commission prescribed under Regulation 10(2) and the Second Schedule of the Employment Agency Regulations, Cap 57...."

2. The appellant was ordered to pay a fine of $7,000.00 and to pay to Ms Garcia compensation of $2,000.00.

3. The appellant appealed against both conviction and sentence which appeals I dismissed on 10 February. My reasons follow.

4. Section 57 of the Ordinance states :

"A licensee shall not, directly or indirectly:-

(a) receive from any person on account of having obtained, or in connection with obtaining or seeking to obtain, employment for that person:-

(i) any reward of any kind; or

(ii) payment or other advantage in respect of expenses or otherwise, except the prescribed commission; ..."

Regulation 10(2) of the Employment Agency Regulations, Cap. 57 states that :

"(2) The maximum commission which may be charged and received by a licensee in connection with the employment of any person shall be that set out in Part II of the Second Schedule."

In the Second Schedule to the said Regulations, the maximum commission which may be received by an employment agency shall be :

"(a) from each person applying to the employment agency for employment, work or contract or hire of his services, an amount not exceeding a sum equal to ten per cent of the first month's wages received by such person after he has been placed in employment by the employment agency."

THE MAGISTRATE'S FINDINGS

5. In his comprehensive findings the magistrate most helpfully sets out the evidence that was placed before him at trial; his conclusions based upon that evidence and his reasons for sentence. Given the grounds of appeal against conviction which I will turn to next it is, I think, helpful if I set out hereunder, inter alia, what the magistrate says, as follows :

" Other than the Assistant Labour Officer whose evidence is agreed .... the prosecution called only one witness. She was the domestic helper [PW1] who went to the appellant company on 13.12.2002 to look for an Alice Tang [AT] to seek employment. ..... [PW1] talked to AT alone in her office. She told AT as her visa was expiring in two days, she needed the job urgently. AT indicated she could help as she had plenty of prospective employers with her. But since it was something of an urgency, [PW1] had to pay her HK$2,000.00. [PW1] thought it was too expensive as she would not then have the money to get an air ticket. Should she fail to secure a job she had to go. But if she did not have enough money to buy an air-ticket, she would be forced to overstay. AT told her she need not worry as she had many employers. [PW1] offered to pay HK$500.00 first. But that was not acceptable to AT. She wanted cash HK$2,000.00. In the middle of the predicament, [PW1] gave cash HK$2,000 to AT there and then. She was not given any receipt and she forgot to ask for one. No one else was in the room when the payment was made. ....

AT made some phone calls while [PW1] waited in the Company. About an hour later, a Chinese lady turned up to ask for [PW1]'s previous employer's phone number. .... She wanted to consult her husband before making up her mind. AT told [PW1] to return the following morning to talk to the lady's husband which she did. Eventually, a contract was signed with the husband, [a Mr Li].

On 20.12.2002, Mr. Li cancelled the contract. [PW1] waited for AT to see whether another employer could be secured for her or whether the money would be returned to her. Although she had spoken to AT on the phone the day the contract was revoked, only the secretary of appellant company was in the office.

On 22.12.2002, [PW1] went to the appellant company and told AT that the contract was cancelled and yet no new employer was introduced to her. She waited ... for a few days. ....

On 31.12.2002, [PW1] understood that AT would neither return the money to her nor get her a new employer .... Her understanding was that if she gave AT yet another sum of $2,000, AT could secure an employer for her. She did not have that kind of money. ....

....

.... She did not ask for any receipt for the $2,000 paid because she was then disoriented and was not thinking of getting a receipt.

....

She was adamant that she talked to AT on the phone on 20.12.2002 and stated that AT recalled her when she mentioned Mr. Li. She did not file the complaint until 6.1.2003 because she had sympathy for AT and in fact she had been giving a lot of thoughts to the matter for some time.

.... While she agreed that there were Filipino maids who lodged complaints in order to extend their stay to try and find employment, she emphasized that hers [was] an altogether different case. She had to buy an air-ticket and she needed the money, so she was forced to it.

AT gave evidence for the Appellant .... She had been working for the company since 1994. .... She denied ever taking HK$2,000 from [PW1]. Nothing of the kind alleged ever took place. Neither had she suggested [that PW1] pay her another HK$2,000. And she never received or answered any calls from [PW1] whilst she was in China.

AT maintained that she talked to [PW1] in her company, but outside her room and not privately on 13.12.2002 (sic) when she first met [her]. There were rooms, but they were for the purpose of interviewing the domestic helpers. She knew [PW1]'s visa was due to expire in 2 days, but she did not ask for $2,000 from her. She did not agree she deliberately refrained from issuing a receipt. She knew that if the company was found to have overcharged a helper, chances were that the licence would be taken away. She disagreed that was the reason that no receipt was given to [PW1]. .... She denied being pestered by [PW1] for employers, saying she did not see [PW1] and that she [AT] was out of town on 20.12.2002.

....

The question for the court to resolve is basically one of credibility. I had the opportunity of observing the demeanour of the representative of the appellant company and have carefully considered her evidence. I had also given myself a Berrada direction as to propensity .... and ... credibility .... [AT] did not impress me as an honest and reliable witness. I rejected her evidence. ....

Counsel for the appellant questioned the credibility of [PW1]. No allegation of overcharging was made of AT by the other job seekers. There was no apparent reason for the delay in filing the complaint. No receipt was ever sought for the alleged extra payment. [PW1] had not been telling the whole truth. It was a case of an employee employing the delaying tactics.

While I might disbelieve the evidence of [AT], I was fully aware that the onus always remains with the prosecution to prove the case beyond reasonable doubt. I've heard and carefully considered the evidence of [PW1]. I found her to be frank and honest. I accepted her evidence. Given the plight she found herself in, the fact that she had only 2 days left and it was already rather late on Friday with the following day having only half a day to manoeuvre, it being a Saturday, and she knew it was like a gamble, she bowed to the demand of [AT] for the $2,000. She was anxious, she was disoriented, so it was perfectly understandable that she forgot to get a receipt .... The thing that was in the forefront of her mind is to stay in Hong Kong having regard to the time, twelve years, she had been in Hong Kong... So when the arrangement eventually fell through, it was only natural that she would want to have her money back. She would of course go day after day to the appellant's office for that purpose as the $2,000 was something so dear to her at that time. Apparently her persistence did not pay. She had been thinking about lodging a complaint and it was comprehensible that it took her days to make up her mind to act since [AT] did manage to get her a job and as she said 'she had sympathy for her'. There must come a time when she was disillusioned. Her story had every ring of truth in it. ...

I never for one moment suspected that [PW1's] case could be one of those employed by the Filipino domestic helpers as a delaying tactic to stay in Hong Kong. ....

Having therefore considered all the evidence and submission, I was satisfied so that I was sure that the prosecution had proved the case beyond reasonable doubt and the appellant was convicted accordingly."

The appeal

6. As I have said the appellant appeals against both conviction and sentence. As to sentence the appellant suggests that "it was too severe and that it was inappropriate to make a compensation order since the present case did not involve personal injury or loss of or damage to property".

7. As to the appeal against conviction, this was first listed for hearing on 29 September 2003. Counsel who then appeared for the appellant (solely to seek an adjournment) obtained such adjournment. He made his application upon the footing that whilst it had been intended that the appellant would be represented at the appeal by Alice Tang and not by a lawyer the appellant then felt that the matter was more complicated than had been anticipated and that legal representation for the appeal should be secured. It had been secured at the last moment and counsel required time to settle the grounds of appeal.

8. The adjournment was not objected to by the respondent and it was granted subject to the grounds of appeal being settled by 10 October. Grounds were settled (on 8 October) by counsel who ultimately did not appear before me on 10 February 2004.

9. The hearing of the appeal was then set down for hearing before me on 3 February 2004. By then it became apparent that the appellant was no longer represented by counsel who had settled the grounds of appeal or by those who had instructed him and Mr Yaddy Cheung appeared before me to say that his firm had very recently been instructed and that he was asking for a further adjournment so that another counsel could be instructed for the appeal.

10. Needless to say, that application was not well-received either by me or by Ms Shine who appears for the respondent. Nevertheless I allowed the adjournment for one week until 10 February 2004.

11. On 7 February what he described as being 'perfected grounds of appeal against conviction in substitution' were settled by, and filed on behalf of, Mr Luk King Wang.

12. Those grounds read as follows :

"Ground 1. The learned special magistrate erred in law in rejecting the evidence of the only defence witness on a fundamentally flawed approach inasmuch as [he], in his reasons for verdict obviously disbelieved the defence witness with no cogent reason but for the reason that he believed the only prosecution witness, the complainant.

Ground 2. Alternatively .... the magistrate erred in law in giving ex post facto reasoning for rejecting the evidence of the defence witness inasmuch as the reasons he provides in his statement of findings for rejecting the evidence of the defence witness are materially different to the initial reason, if any, he gave for his decision at the time of conviction. Justice may not have been done and certainly has not been seen to be done."

13. As to the first ground Mr Luk sought to rely on something which was said by the magistrate when he gave oral reasons for verdict after 5 p.m. on 16 July which reasons he prefaced by saying this :

"What I am going to say is brief, very brief reasons for my verdict."

14. In fact what he said was not brief at all - it was lengthy, and it was plainly said to assist the appellant in understanding the reason for conviction, but the single sentence out of this lengthy explanation to which Mr Luk takes exception was this :

"The central issue that I have to decide would still be whether the prosecution witness is a credible witness, or whether the defence witness is a credible witness."

15. Mr Luk says that that sentence shows the fundamentally flawed approach of the magistrate and he prays in aid the judgment of Huggins J in R. v. Lok Chi Wai [1973] HKLR 577 (at page 579).

16. If that was all that the magistrate had said both in his oral and written reasons for verdict there would have been substance in this ground of appeal. But given what I have recited in paragraph 5 above, and given the lengthy oral reasons which he gave at the time of convicting the appellant (which included a correct statement concerning the burden and standard of proof), this complaint was taken totally out of context and in isolation. That being the case this ground of appeal was without merit.

17. As to the second ground of appeal, Mr Luk appeared in his argument before me to be suggesting that whilst the magistrate at the time of conviction had failed to fully analyse and present his reasons for his decision as to credibility he had somehow later 'over analysed' them in his written reasons.

18. With respect I do not agree with that for one moment. And nor do I agree with the contention that the oral reasons differ materially from the written reasons, albeit that the latter clearly (and entirely reasonably) expand upon the former as the magistrate clearly indicated (at the time of conviction) that they would do.

19. It must follow that in my judgment the second ground of appeal was equally without merit.

20. The appeal against sentence was not pursued before me beyond a reliance upon what is stated in paragraph 6 above.

21. As to that I respectfully agree with Ms Shine's written submissions as follows :

" The Respondent would submit that the $7,000 fine imposed upon the Appellant cannot be said to be harsh or manifestly excessive. The Respondent has caused enquiry to be made through its instructing Department, the Labour Department, as to the average fine imposed upon other convicted offenders after trial in the Magistracies during 2002 to August 2003 upon conviction of the same offence. The fines imposed by the courts in similar cases have ranged from $4,571 (per summons) to $12,625 (per summons)."

and

" The Respondent would submit that the Magistrate was entitled to order the Appellant to pay compensation of $2,000 to PW1. It was accepted by the court that PW1 had paid $2,000 to Ms Tang of the Appellant company on 13.12.2002 and that such amount had not since been recovered by PW1. Indeed, on PW1's evidence, which was accepted, Ms Tang asked PW1 to pay an additional sum of $2,000 at a later meeting, although PW1 did not hand any money over on that occasion as she did not have it. Moreover, there was no objection at trial taken by defence Counsel to the prosecution's application for a section 98 compensation Order. Although the learned Magistrate said ... that it was 'with a bit of reluctance' that he granted the section 98 order, the Respondent would submit that the Magistrate was lawfully entitled to make such order. Further, it is submitted that PW1's loss of $2,000 may be termed 'loss of property' as specified in section 98 of Cap 227."

22. It was for all of these reasons that I dismissed these appeals.