HKSAR v. YU CHI WAN

HCMA 521/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 521 OF 2002

(ON APPEAL FROM KCCC 1616/2002)

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J U D G M E N T

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1. The Appellant appeals his conviction by a Deputy Magistrate on a single charge of aiding and abetting another to breach a condition of stay. The basis of the appeal is a repetition of the submissions made to the Magistrate.

2. The allegation at trial was that the Appellant aided and abetted a foreign teacher to take up employment in a school during the period 1st to 30th September 1999 when the teacher's permission to remain in Hong Kong as a visitor was subject to a prohibition against taking up paid or unpaid employment.

3. In a concise but comprehensive Statement of Findings the Magistrate rightly identified that the prosecution had to satisfy him, to the usual standard, that the Appellant knew that the presence of the teacher was subject to that prohibition and that, with that knowledge, he performed some act that aided and abetted the taking up of employment. He based his positive findings on both of these issues upon the documentary evidence and the oral testimony of the witnesses.

4. As to the documentation, it was not in dispute that documents purporting to bear the signature of the Appellant in fact had been signed by him. Those of particular relevance, in chronological order, were:

Exhibit P18 A letter dated 2nd November 1998 addressed to the Immigration Department indicating an intention by the Islamic Kasim Yuet Memorial College [the College] to employ the teacher, signed by the Appellant as "Principal".

Exhibit P19 A letter dated 24th December 1998 addressed to the Immigration Department by The Chinese Muslim Cultural and Fraternal Association [CMCFA], signed by the Appellant "for Chairman", effectively repeating that contained in Exhibit P18.

Exhibit P20 A letter dated 18th March 1999 addressed to the Immigration Department by CMCFA, signed by the Appellant "for Chairman", confirming that the "full set of documents for application for [the teacher's] working visa" had been submitted.

Exhibit P21 A letter dated 26th April 1999 addressed to the Immigration Department by CMCFA, signed by the Appellant "for Chairman", withdrawing the application for the "working visa".

Exhibit P28 An Education Department appointment form which is dated 27th August 1999, signed by both the Appellant and the teacher, which indicates that the teacher's "date of appointment" would be 1st September 1999. Annexed to that form were copies of pages, certified by the Appellant as true, from the teachers passport clearly showing his status in Hong Kong as that of "visitor".

Exhibit P30 A letter dated 2nd September 19999 addressed to the College by the Education Department in which the teacher's employment status was specifically canvassed.

Exhibit P31 A letter dated 8th September 1999 addressed to the Education Department by the College, signed by the Appellant as "Principal", in which he specifically refers to Exhibit P30, the only plausible inference being that he was aware of the contents of that earlier letter.

Exhibit P12 A letter dated 20th September 1999 addressed "To whom it may concern", signed by the Appellant, in which it is stated: "He commenced his teaching on first of September and he will be ending his teaching on 15th of July 2000. His working permission from Immigration Department is in process". [my emphasis]

Exhibit P32 A letter dated 7th October 1999 addressed to the Education Department by the College, signed by the Appellant as "Principal", in which he states that "Mr Yerlikaya's employment as a full-time teacher has been terminated with effect from October 1, 1999".

5. The provision of information and documentation to third parties was necessary to secure the teacher's eventual lawful employment. Its relevance to this matter is that it shows that the Appellant was aware both prior to 1st September 1999 and during that month of the Appellant's restricted status. It would have been perverse of the Magistrate to have concluded, in the absence of any evidence to the contrary, other than that the Appellant was fully aware of the teacher's status.

6. As to the oral evidence, the most important of the witnesses, from the Appellant's point of view, was PW10. The majority of the oral evidence, like the documents, was not challenged. The Magistrate was addressed fully on two occasions by Mr Egan who appeared both here and below on behalf of the Appellant. He was reminded that there may be animosity between PW10 and the Appellant. Fully aware of that, he accepted the evidence of PW10 whom he specifically found to be an honest and reliable witness.

7. The Magistrate found that PW10's evidence established that the teacher had been about the College earlier than August 1999; that in August 1999 the Appellant, as Principal, had introduced the teacher to other teachers of the College at a staff meeting as a person who would join the staff to teach full time in September 1999 for a period of nine months; that the teacher in fact had taught during September 1999; and that the Appellant had arranged teaching duties for him during that period. There is direct support for this evidence contained in the letter, under the Appellant's hand, in Exhibit P12. He further found that the Appellant had had a discussion with an officer from the Education Department, PW8, regarding the proposed duties of the teacher and had responded twice to her request for further information. Plainly these actions aided and abetted the teacher in breaching his condition of stay.

8. He also found, apparently without proper foundation, that the Appellant had prior approval from one Supervisor Chow to do so. Nothing turns on this finding which is, anyway, superfluous.

9. Whether other persons, say the Supervisor or a committee of the College, were responsible for the actual appointment of teaching staff or the allocation of duties at the College is not the issue: the allegation is not that the Appellant unlawfully employed the teacher but that he aided and abetted him in breaching his condition of stay. Similarly, whether others also may have aided and abetted the teacher is not a relevant consideration. Nor is the subsequent regularisation of the employment by either the Education or Immigration Department.

10. The Magistrate simply had to decide the issues which he had correctly identified. There was no evidence to contradict that of the prosecution: the Appellant exercised his right to elect not to give evidence but simply to put the prosecution to proof.

11. On the totality of the evidence the Magistrate was fully justified in his decision, correctly drawing the inferences upon which he relied. The conviction is in no way unsafe or unsatisfactory nor is there any doubt, lurking or otherwise. The appeal is dismissed.