HKSAR v. CHEUNG KI

HCMA 773/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 773 OF 2009

(ON APPEAL FROM STCC 3304 OF 2009)

____________

BETWEEN

____________

______________

J U D G M E N T

______________

1.  The Appellant pleaded guilty in the Magistracy to one charge of “Aiding, abetting, counselling or procuring a Breach of Condition of Stay”, contrary to section 89 of the Criminal Procedure Ordinance, Cap. 221 and section 41 of the Immigration Ordinance, Cap. 115, and by virtue of Regulation 2 of the Immigration Regulations. He was sentenced to 10 weeks’ imprisonment and he appealed against that sentence.

2.  There was no dispute about the facts which the Appellant admitted before the Magistrate. On 2 October 2008 a Labour Inspector conducted a raid at the Appellant’s company in Causeway Bay, a clothing company. There a woman was seen removing the label of a coat with a thread - removing knife. Her identity was checked and she was found to be an Indonesian domestic helper employed by the Appellant’s wife under a contract which had started on 1 April 2008 and which was to run until 27 July 2009, or two weeks after the termination of the contract, whichever was earlier.

3.  The woman, who was D1 in the Magistrate’s court proceedings, had been charged with Breach of Condition of Stay, contrary to section 41 of the Immigration Ordinance, Cap. 115. She admitted that she was removing the labels from clothing in the company at the request of the Appellant. She would go there to remove clothing labels about eight times a month, for 20 to 30 minutes each time; the Appellant would pay her $150 a month as a reward for her services.

4.  When he was cautioned the Appellant admitted that he had caused his wife’s domestic helper to go to his company to demonstrate how to remove clothing labels about six or seven times and also to demonstrate selling techniques on two occasions.

5.  The Appellant was not present at the time of the raid. He had a clear record and a background report sought by the Magistrate showed that he was married with two children; lived with his family in a self-owned flat at North Point and was making $30,000-$40,000 a month from his fashion company.

6.  The Magistrate found that there were aggravating features in the case as D1 was a domestic helper in the Appellant’s home and thus was not in a position easily to refuse to work for him at his company, particularly if she wished to keep a good relationship with the Appellant and/or his wife and if she did not wish to jeopardise her job, or renewal of her contract. In acceding to the Appellant’s request to work D1 was committing an offence and risking imprisonment; the near certainty of being refused a renewal of her work visa and, in consequence, financial hardship to herself and her family.

7.  The Magistrate took an initial starting point of 9 weeks for sentence, increased it to 15 weeks to take account of the aggravating features and after discount for plea imposed the 10 weeks’ sentence.

Perfected Grounds of Appeal

8.  Counsel for the Appellant, Mister Simon Ng, who had not been counsel at plea, filed Perfected Grounds of Appeal as follows:

1.  The Magistrate erred in applying the guidelines laid down in Secretary for Justice v Ho Mei-wa CAAR/2003.

2.  The Magistrate erred in enhancing the Appellant’s sentence by two thirds without justifiable reasons.

3.  There is no or no sufficient justification for the substantial disparity in sentence between D1 and the Appellant.

4.  The sentence is wrong in principle and/or manifestly excessive.

Ground 1

9.  The Magistrate considered two cases before sentencing. These were HKSAR v Choi Bik-yee HCMA 556/2004 and a case which followed it, Secretary for Justice v Ho Mei-wa & Anor [2004] 3 HKLRD 270. In the latter case the Court of Appeal reviewed what was a 15 month guideline starting point for sentences under section 17I(1) of the Immigration Ordinance, Cap. 115 which had been set in The Queen v Wong Mok-din [1994] 2 HKCLR 96 – and reaffirmed in AG v Wong Chung-lee [1996] 2 HKCLR 159. The guideline confirmed the deterrent intention behind such sentences. It was made clear that those who offered employment opportunities should expect to receive sentences no less severe than those imposed on the would-be workers.

10.  The sentence affirmed in Wong Chung-lee had fallen into desuetude as the Magistrates, who deal with the bulk of such cases, over a period of time came to believe that the tariff was too high and by the time Ho Mei-wa was decided were passing non-custodial sentences, suspending sentences or routinely imposing sentences of 2-6 months. No challenge to their non-conformist sentences had been made by the Secretary for Justice until the review in 2004.

11.  In Ho Mei-wa the Court of Appeal reviewed the position and after considering, in particular, how the 15 month guideline had evolved, set a 3 month sentence for cases where a single employee was involved on a casual basis, whether the employer had knowledge or was reckless as to the employment of a prohibited person and if no aggravating factors existed.

12.  The court made it clear that such a sentence should be an immediate custodial sentence (not suspended); that such sentence was applicable to a first-time offender only and applied only in the absence of any aggravating or mitigating circumstances. Any aggravating features such as exploitation, multiple employment, or repeat offences would substantially increase the guideline sentence.

13.  Although no tariff sentence had been set for offences under section 89 those offences were considered comparable to those under section 17I although the maximum sentences differed, that for section 89 being 2 years imprisonment and a band 5 fine, while section 17I offences had a maximum sentence of 3 years’ imprisonment and a fine of $350,000.

14.  The complaint that the Magistrate was not entitled to and should not have compared offences under section 17I with offences under section 89, appears to have been made regularly by appellants convicted of these offences. Miss Ho, Counsel for the Respondent referred to HKSAR v Coloma Zenaida Ursua HCMA 944/2004, where in response to a similar complaint Tong J stated:

“ I can see nothing wrong in comparing the two types of cases, especially if the consequence of their conduct is considered, by taking up work, they have deprived the local workers of the chance of employment.”

15.  In HKSAR v Choi Bik-yee HCMA 556/2004, a case of aiding and abetting a breach of condition of stay, Deputy High Court Judge Fung (as he then was) stated:

“I note that there is no tariff sentence for the aiding and abetting the breach of condition of stay and the practice in the Magistrates courts is such that even though facts which are similar to employing a person unemployable are admitted for the offence of aiding and abetting the breach of condition of stay, Magistrates are in fact handing down sentences which are less than the one prescribed by AG v Wong Chung-lee.”

16.  He continued as follows:

“as the offence is one of aiding and abetting the breach of condition of stay, I find the AG v Wong Chung-lee is not directly binding on the Magistrate although he is entitled to take into account the clear principle of the law behind AG v Wong Chung-lee, that is to deter visitors who have no right to enter employment in Hong Kong from working here, and that those who enable them to perform work duties in Hong Kong should likewise be deterred from doing so.”

(Emphasis supplied)

17.  In paragraph 5 of her Reasons for Sentence the Magistrate referred to Ho Mei-wa and noted that:

“some of the sentencing principles in that case also applies; namely, that the present workers from abroad should not be permitted to take away employment opportunities that should belong to available workers who are permanent residents in Hong Kong and the discouragement of persons seeking employment when they are not entitled to do such work here.”

18.  As Miss Ho pointed out, D1 could work only as a domestic helper at the address in her contract and therefore was not lawfully employable in the fashion company of the Appellant on the day in question. The aim of the legislature in each of section 17I and section 89 is comparable as both are directed at protecting jobs for Hong Kong residents. Further, they aimed also at discouraging persons from seeking employment when they were not entitled to work in Hong Kong.

19.  The Magistrate was aware that section 89 is in a lower sentencing bracket, and purported to take the lesser sentence into account when assessing the starting point for sentence. (see paras. 12 and 13 of S of F).

20.  After considering the sentencing principles in Ho Mei-wa, the Magistrate looked at possible aggravating features which might affect sentence. In Ho Mei-wa a three months’ starting point after trial was the guideline sentence for a first offender where a single employee only was affected; where the aider and abettor had knowledge of or was reckless about the illicit employment; where the employment was on a casual basis (meaning temporary work for days rather than weeks); where the work related to the employer’s commercial or business interests and where there were no aggravating or mitigating circumstances. The Court of Appeal stipulated that such a sentence should be an immediate custodial sentence, except in very rare circumstances.

21.  The Magistrate did not err in using the guideline case of Ho Mei-wa. It is recognised that the guideline has particular specificity for offences under section 17I, but in the absence of specific guidelines for section 89 offences a sentencer is entitled to look at comparable offences and sentencing principles. This ground of appeal fails.

Consideration of Ground 2

22.  Mr Ng objected in his second ground of appeal to what the Magistrate had referred to as “enhancing” the sentence. His argument was that what the Magistrate considered aggravating features were present in all Breach of Condition of Stay cases. That is not correct - each case must be looked at on its own facts. In some cases the person in breach may have initiated the employment without instigation from anyone else; in others there may be serious exploitation of the worker by an employer - the only common feature is that anyone found in breach of the condition of stay risks being sent to prison.

23.  In this case D1 did not initiate the employment; her position meant she had no real choice in the matter; she received a very small payment given the risk she was running; that she did not have separate representation places a question mark over the voluntariness of her plea and the accuracy of the facts she admitted and she was punished in addition by the loss of any right to work in Hong Kong in future. The employment had occurred regularly and with premediatation, albeit for short periods.

24.  The complaint that the Magistrate enhanced the starting point suggests an enhancement in the technical sense which is meant when dealing with sentence under the Organised and Serious Crimes Ordinance, Cap. 455 (OSCO), or section 56A of the Dangerous Drugs Ordinance, Cap. 134, or for crimes that are becoming prevalent and have a serious effect on the community.

25.  From the context of her Statement of Findings what the Magistrate did was to increase the starting point for sentence because of aggravating factors. Such an exercise is a very common part of the sentencing process carried out by judges and magistrates on a daily basis. An appeal court must look to see what the basic starting point was and then whether there existed factors which would justify an increase of the starting point.

26.  The Magistrate took into account the Appellant’s knowledge that D1 was unable to work legally in his company and that it was he who had suggested she do so. Such work was a regular and premeditated occurrence. The Magistrate said she accepted the submission by Mr Donald, who appeared for the Appellant on plea, that D1 was not exploited because she was paid $150 per month for her work which took place 8-9 times per month for 20-30 minutes each time.

27.  With respect to the Magistrate I cannot agree that the fact of payment meant that D1 was not exploited. For a derisory sum which was, on average, a little under $20 for each occasion, she was required to do work which her domestic helper contract did not allow and for which, on each occasion, she ran the risk of prison, loss of visa and loss of income.

28.  I do not agree that the Magistrate enhanced the sentence; what she did was to take into account exacerbating features thereby increasing the starting point.

Consideration of Ground 3

29.  The basis of Ground 3 was a complaint of alleged disparity of sentence. At plea D1 was represented by the same counsel as the Appellant who, as appears from the court transcript, was paying for D1’s representation [B24K]. In light of the linked charges and the particular facts defence counsel was unwise to represent both parties, not least because the Appellant’s wife was D1’s employer. To a bystander in court it might appear that D1 would be hampered in giving a full account of events, or in presenting mitigatory factors and/or that her interests were being sacrificed for the benefit of the Appellant.

30.  In the event the Magistrate, sensibly, dealt with D1 by way of a conditional discharge. This forms the basis for the Appellant’s complaint - the disparity, as he perceived it, between Dl’s sentence and his own.

31.  I cannot see that a disparity, if such exists, would be unjustified. The facts show that D1 did not initiate working in the Appellant’s commercial enterprise. Given her employment as a domestic helper it is entirely unrealistic to suggest, as counsel did, that D1 had a free choice in the matter. Even accepting that her relationship with her employers was good, it would be a preternaturally brave domestic helper who could refuse to assist in the family business when asked to do so.

32.  It is true that D1 could have reported to the police or immigration authorities that she was being required to work in breach of her contract. That would have ensured the loss of her employment and thus placed her at a significant financial disadvantage particularly if, as is not uncommon, she owed money to employment agents. Any refusal could mean that she might not receive a Letter of Release from her employer, or that she might not receive wages or allowances due to her. The consequences for a domestic helper in such a situation are draconian and it is grossly unfair that an employer should place the helper in such a position. For that reasonalone there should be a significant difference in the sentences as between D1 and the Appellant.

33.  The rules and conditions for the employment of domestic helpers have been devised very carefully to reflect government policy and are embodied in the standard form contracts that govern the terms and conditions of their work in Hong Kong. The underlying policy is that domestic helpers are permitted to enter and reside in Hong Kong to perform domestic work for which there is a shortage of local applicants, or which cannot be done by, or which is not attractive to, the work force comprising Hong Kong residents.

34.  Domestic helpers are employed under strict conditions because the government aims to protect Hong Kong’s indigenous work force from depredations by foreign workers, particularly those from Mainland China, who might take jobs which should be available for Hong Kong residents. Contracts for domestic helpers are carefully scrutinised; their visas for entry to and exit from Hong Kong are monitored; their residential details are fixed and any breaches discovered are dealt with severely. Domestic helpers do not attain rights of entry or permanent residence, by virtue of their contracts, even though they might have lived in Hong Kong for many years.

35.  The principle behind the legislation, whether section 17I or section 89 of the Immigration Ordinance, is to deter both lawful visitors and illegal immigrants who have no right to work in Hong Kong from doing so and, where permission to work has been granted, to ensure that any conditions governing that permission are fulfilled.

36.  For that reason the principles in Ho Mei-wa are relevant to section 89 offences, even if there is a difference in the maximum sentences. The case of Wong Chung-lee, the guideline case which preceded Ho Mei-wa was referred to routinely by sentencers in relation to both section 17I and section 89 offence cases.

37.  In my judgment the Magistrate did not err in using HO Mei-wa as a comparable case. Nor was her starting point of 9 weeks excessive given that their maximum sentences indicate that a section 89 offence might be regarded as less serious than an offence under section 17I and thus warranted a slightly lesser sentence. The Magistrate picked out correctly the aggravating features which would justify an increased starting point.

38.  Where I am of the view she erred was in adding 6 weeks to the starting point making it 15 weeks. The aggravating features of the Appellant’s actions could be marked adequately by adopting the Ho Mei-wa starting point of 12 weeks, which with a full discount for plea makes a sentence of 8 weeks. Sentences for these offences must have a generally deterrent effect to be of any value, but they must still be proportionate to the offence charged.

39.  Accordingly I allow the appeal against sentence to the extent of reducing the final sentence to one of 8 weeks’ imprisonment.