TO CHI LEUNG v. HKSAR

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 675 OF 1997

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrate of a charge of being the employer of a person not lawfully employable, contrary to s. 171(1) of the Immigration Ordinance, Cap. 115. He was sentenced to 12 months imprisonment. This appeal only concerns conviction. A notice of appeal against sentence was abandoned during the hearing.

2. The prosecution case was virtually unchallenged, which was proved by way of admitted facts pursuant to s. 65C of the Criminal Procedure Ordinance, Cap. 221. The facts were these. The person named in the charge sheet, LEUNG Lai-kwan alias CHAN Siu-wah was not lawfully employable. The appellant was her employer at the Artistic Salon at No. 46 Un Chau Street, Kowloon. At about 1:45 p.m. on 27th February 1997, immigration officers visited the premises to check identity cards of the shop's employees and found Leung Lai-kwan working there as a shampoo girl. She was unable to produce any document of identity. Both she and the appellant were arrested and the appellant was later charged with the present offence.

3. The appellant gave evidence before the magistrate in an attempt to raise the statutory defence that all practicable steps were taken to determine whether the employee was lawfully employable and that it was reasonable to conclude that the employee was lawfully employable. He told the magistrate that there were five partners and his duties were mainly to give hair cutting service to the customers and to teach junior staff. Chung Yau-chun was the partner responsible for recruiting staff and Kwok Kee-chun, another partner, was in charge of the employees' records and payment of salary. The appellant said that Leung Lai-kwan had worked in the salon in March 1996 and it was Chung Yau-chun who employed her on that occasion. Chung had shown him the employment record of Leung and he passed it to Kwok Kee-chun for custody. Leung Lai-kwan left after working for a month and told Chung Yau-chun that her family had some problems and that she had to take leave for a period of time. He went on to say that in February 1997, Leung returned to the salon looking for a job. He was standing at the doorway so he interviewed her. Because she had not worked for a year he checked her identity card to confirm her particulars. He asked Kwok Kee-chun to fax the previous employment record so as to check her particulars. He found the previous employment record tallied and agreed to let her return to work. The appellant also said that he tried to telephone the immigration hotline but was unable to get through. Another partner telephoned the Labour Department to make enquiries. The appellant was cross-examined at length about the steps he said he took and this was reproduced by the magistrate in his statement of findings in extenso.

4. The magistrate rejected the appellant's evidence and convicted him as charged.

5. Subsequent to the conviction, Mr. Gilbert Rodway, Senior Counsel, was instructed by the appellant to apply for a review on the ground that an inspection report from the Labour Department was not produced before the magistrate. Had this been the case, he submitted that the result would have been different and on the strength of that document he invited the magistrate to acquit the appellant or alternatively to exercise his discretion to receive fresh evidence by admitting the inspection report and took it into account. This is how the magistrate responded:-

"I did not reject the Appellant's evidence on the basis I found that there was no previous employment. As mentioned above, I approached the Appellant's evidence by considering what steps he said he had taken and only after rejecting that those steps were taken did I then reject that there was a previous employment. I can conscientiously say that had the finding there was no previous employment formed the basis upon which I rejected the Appellant's evidence then I would not have hesitated in exercising my powers under s. 104(7) that the case be re-opened and reheard before another magistrate."

He then went on and quoted what Defence Counsel said during the proceedings:-

"Mr. Tolliday-Wright on behalf of the Appellant had made a conscious decision not to call such evidence. Mr. Tolliday-Wright said (page 38 of the transcript):-

"...it could have been a two-edged sword as well, as you could see, sir, in that it could have revealed that it may be that he should have been aware that she was an I I so when she came... she came back the second time, he should have been aware of it."

6. This is precisely the case. I have had the opportunity of reading this report and my own view is that not only it does not help or further the defence, it does in fact support the prosecution case that the appellant was aware when Leung Lai-kwan returned to seek employment in February 1997 that she was an illegal immigrant. Mr. McCoy was incorrect when he told this Court that the report was not disclosed to the defence. Mr. Tolliday-Wright clearly knew of its existence and made what is, in my view, the right decision not to put it in. It is always difficult for defence counsel to defend or argue a case that is not defensible or not arguable.

7. There is no merit whatsoever in the arguments or grounds advanced on behalf of the appellant. The conviction is neither unsafe nor unsatisfactory. Accordingly, the appeal must be dismissed.