HKSAR v. HUNG CHUN TIN

HCMA 62/2025

[2026] HKCFI 1663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 62 OF 2025

(ON APPEAL FROM STCC 4053 OF 2024)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  This is an appeal against sentence. At the appeal hearing, I ordered that the appellant’s appeal and the relevant legal proceedings had terminated and abated by reason of the appellant’s death. I now set out the background of the case and the reasons for my order.

2.  The appellant was charged with 7 charges of employing a person who is a prohibited employee and not lawfully employable, contrary to section 17I(1)(b) of the Immigration Ordinance, Cap. 115. The offences took place on 15 February 2023 (charge 1); 11 July 2022 (charges 2 to 5) and 22 November 2022 (charges 6 and 9). A total of seven different prohibited employees were involved.

3.  The appellant was represented by a duty lawyer at trial. He pleaded not guilty to the charges and was convicted of all the 7 charges on 8 January 2025.

The facts of the case

4.  In brief, seven prohibited employees were found washing dishes in the kitchen of “Dragon Palace Restaurant” in Kwun Tong during the raids conducted by the Immigration Department on the dates mentioned in the charges. Investigation revealed that the dishwashing duty of the premises was outsourced to a company named “Kai Kong Cleaning Service Company”, the sole owner of which was the appellant at all material times. The appellant was the employer of the said seven prohibited employees who were not lawfully employable in Hong Kong on the offence dates.

Previous criminal convictions

5.  The appellant has prior convictions, including two counts of “employing a person not lawfully employable” in 1992, each resulting in a fine of HK$3,000; one count of “employer failing to keep record of employee” in 1992: for which he was fined HK$1,000; and one count of “conspiracy to defraud” in 2011 for which he was sentenced to 18 months’ imprisonment.

6.  The mitigation and the reasons for sentence will be mentioned in the paragraphs below.

Sentence

7.  On 23 January 2025, the appellant was sentenced to 4 months’ imprisonment for each of charges 2 to 5 (served concurrently), 3.5 months for each of charges 6 & 9 (served concurrently), and 3 months for charge 1. Additionally, 1 month of charge 1 and 1 month of charges 6 & 9 were to be served consecutively to the sentence for charges 2 to 5, making a total of 6 months’ imprisonment.

Notice of Appeal

8.  On 5 February 2025, the appellant applied to appeal against sentence but did not provide any grounds of appeal in the Notice of Appeal.

The appellant died before the appeal hearing

9.  At the appeal hearing, no one representing the appellant appeared in court. Counsel for the respondent informed the court that the appellant passed away on 2 August 2025. A copy of the medical certificate of the cause of death issued under the Births and Deaths Registration Ordinance, Cap. 174 was produced. The respondent submitted that the court should order that the appeal had terminated and abated because of the appellant’s death. The respondent referred to HKSAR v Choy Wing Lung Geoffrey Donahue [2019] 2 HKLRD 423 in which the appellant passed away before the appeal hearing and Wong J considered the issue as to how the court should deal with the appellant. Wong J said, at paragraphs 8 to 12 of page 425,

“ 8. In the consideration of the matter, I have referred to HKSAR v Cheng Chee-tock Theodore[6] ((2015) 18 HKCFAR 292) a decision of the Court of Final Appeal and HKSAR v Tang Tik Hung[7] CACC 365/2016, a decision of the Court of Appeal, both of which were submitted by Miss Karen Ng, Public Prosecutor, for the respondent.

9. Appeals handled by the Court of Final Appeal and the Court of Appeal are respectively based on the relevant provisions of the Hong Kong Court of Final Appeal Ordinance [8] (Cap. 484) and the Criminal Procedure Ordinance, [9] (Cap. 221) which are different from those governing magistracy appeals.

10. Nevertheless, I consider the principles and factors mentioned in the above two cases are applicable to the handling of a magistracy appeal case in the event of the appellant’s death.

11. The Court of Final Appeal indicated: [10] (the judgment is written in English. The Chinese version of the headnote in the HKCFAR is now adopted):

‘The Court’s discretion whether to continue a criminal appeal after an appellant’s death must be exercised on a principled basis. Factors relevant to the exercise of the discretion included:

(a) Whether leave to appeal had been or would be granted: the Court would be guided primarily by this factor. Where leave to appeal was sought on a point of law, this would probably be a critical factor since the grant of leave on that ground would indicate that it was of sufficient importance to be heard by the Court as the final appellate court;

(b) The existence of an applicant: the existence of a party who wished the appellant’s appeal to be continued and who made an application for such continuation would usually be an essential requirement;

(c) The continuation of the appeal on a proper adversarial basis: the applicant’s willingness to be substituted as appellant and the continuation of the appeal on a proper adversarial basis with appropriate legal representation so that the issues to be determined were properly argued were relevant considerations. In exceptionally important cases, the Court might appoint an amicus curiae;

(d) The applicant’s interest in continuing the appeal: the applicant’s reason for wishing to continue the appeal was relevant. If financial interest was relied on, the nature of that interest and its amount were relevant to the weight to be attached. Similarly, the applicant’s interest in restoring the appellant’s reputation might be relevant and the graver the offence of which the appellant was convicted, the more weight this factor would carry.’

12. The Court of Appeal indicated: [11] (see paragraph 20 of the judgment) ‘In our view, if a convicted and sentenced person dies after applying for leave to appeal against conviction or sentence, the Court of Appeal retains the discretion to consider all relevant factors before deciding if the application for leave should continue or automatically terminate and abate. We find that the factors set out at para 51 in the judgment of Cheng Chee Tock Theodore and in R v Smith [2004] 1 SCR 385 most helpful in guiding the court to decide how to exercise the discretion.’”

10.  Wong J continued to say at paragraph 14 of page 426:

“In my judgment, when a person who has lodged his magistracy appeal died before the hearing, the court entertaining the appeal has a discretion to decide whether the appeal should continue or abate. The decision must be made upon consideration of the overall relevant circumstances”.

11.  In the present case, the magistrate called for a background report at the request of the duty lawyer.

12.  In mitigation, the duty lawyer submitted that (i) the appellant was 72 years old; (ii) he was suffering from multiple medical conditions including incontinence, diabetes, backbone pain and cataracts which required regular medical follow-ups; (iii) and the appellant’s previous convictions occurred long time ago. The duty lawyer invited the court to impose the most lenient sentence on the appellant if a suspended sentence was deemed inappropriate.

The Reasons for Sentence

13.  The magistrate was of the view that an immediate custodial sentence of imprisonment was the only appropriate sentence having considered SJ v Ho Mei Wa and Another [2004] 3 HKLRD 270, HKSAR v Leung Chun Sang MA 74/2002 and HKSAR v McDonald’s Restaurant MA 304/1998.

14.  The magistrate said that the appellant committed the offences on three separate and distinct occasions and considered that consecutive sentences were appropriate subject to totality of sentence.

15.  The magistrate noted that the appellant had previous convictions but she attached no weight to the convictions in 1992 because they happened long time ago.

16.  Having considered the overall circumstances of the offences, including the number of illegal workers involved, the mitigation put forward and the contents of the background report, the magistrate sentenced the appellant to serve a total sentence of 6 months’ imprisonment.

Respondent’s reply

17.  The respondent referred to a number of authorities, some of which dealt with the sentence of the subject offence[1], others dealt with the totality principles[2]. The respondent said that the magistrate did not err in imposing the sentences that she did.

18.  The respondent submitted that (i) the sentence imposed was appropriate; (ii) no one has indicated on behalf of the appellant to contend that the appeal should proceed; and (iii) the appeal concerns only sentence, and the conviction is not challenged. In view of the principles laid down in HKSAR v Choy Wing Lung Geoffrey Donahue, HKSAR v Cheng Chee Tock Theodore (2015) 18 HKCFAR 292 and HKSAR v Tang Tik Hung [2018] 5 HKJLRD 389, the respondent invited the court to terminate and abate the present appeal.

Consideration

19.  It is noted that the court has on 27 February 2025 issued a letter to the appellant and directed him to file his perfected grounds of appeal and written submissions within 21 days after he was granted or refused legal aid.

20.  It is also noted that the appellant was refused legal aid on 19 March 2025.

21.  According to records, the appeal hearing was first fixed to be heard on 30 April 2025. On 29 April 2025, the court was informed by the Correctional Services Department that the appellant would not be able to attend court for he was hospitalized. The appeal hearing on 30 April 2025 was therefore vacated and refixed to be heard on 3 March 2026.

22.  At no stage did the appellant file any perfected grounds of appeal and/or written submissions.

23.  I have considered all the materials in the appeal bundle. I come to the view that the magistrate, in sentencing, has taken the appropriate starting points of sentence for each charge. The magistrate has also considered the totality principles for sentence and the ultimate sentence imposed on the appellant is neither wrong in principle nor manifestly excessive.

24.  In light of all the circumstances of the case, I agreed with the respondent’s submission that terminating the appeal would not have affected the appellant, other persons, the interest of justice or any other interest. As such, I ordered that the appellant’s appeal and the relevant legal proceedings had terminated and abated by reason of the appellant’s death.