HKSAR v. LAW WING SHING (羅永成) AND ANOTHER

FAMC No. 33 of 2018

[2019] HKCFA 16

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 235 OF 2017)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.  We dismissed this application for leave to appeal after hearing counsel for the applicants.  We indicated that we would hand down our reasons for doing so in due course, which we now do.

The charge and the underlying facts

2.  The applicants were each convicted of one count of employing a person not lawfully employable, contrary to section 17I(1) of the Immigration Ordinance,[1] which provides that:

“Any person who is the employer of an employee who is not lawfully employable commits an offence and is liable to a fine of $350,000 and to imprisonment for 3 years.”

3.  The offence is subject to statutory defences set out in section 17I(1A) and (2).  Section 17I(1A) provides:

“It is a defence in proceedings for an offence under this section for the person charged to prove that all practicable steps were taken to determine whether the employee in respect of whom the offence is alleged to have been committed was lawfully employable and that it was reasonable to conclude that the employee was lawfully employable.”

4.  The charges arose out of the employment of a Vietnamese man, Luong Cao Duy (“Luong”) (also known as Dang Khac Tung), as a cleaning worker at a residential estate in Ngau Chi Wan.  It was not in dispute that Luong was not a person lawfully employable in Hong Kong.  The 2^nd applicant was the cleaning contractor for the estate and the 1^st applicant was employed by the 2^nd applicant as its Regional Manager, in charge of affairs in relation to cleaning services in residential estates.  In a record of interview, the 1^st applicant admitted that he had employed Luong for the 2^nd applicant.  The 1^st applicant claimed he had told the security guard at the estate to check Luong’s identity card and that, if it was thought there was no problem, he would give him a contract of employment to sign.  The 1^st applicant only relied on someone else checking the identity card and did not inspect Luong’s identity card himself.  Luong’s identity card was not a permanent resident identity card and no one took the further step to check his passport to determine whether that supported the fact of his being lawfully employable.

The proceedings below

5.  At trial in the Magistracy, the defence challenged the admissibility of the record of interview.  The 1^st applicant denied he was the employer of Luong and both applicants relied on the statutory defence that they had taken all practicable steps to determine whether Luong was lawfully employable and reasonably concluded he was.[2] The defence also contended that, in addition to the statutory defence to the offence, a common law defence of honest and reasonable belief that the employee was employable was available and, on the facts, was established.

6.  The Magistrate ruled the record of interview to have been made voluntarily.[3] He was satisfied beyond reasonable doubt that the 2^nd applicant employed Luong as a cleaning worker at the estate when the latter was not allowed to work in Hong Kong.[4]  He construed the offence under section 17I(1) as being one of strict liability, subject to the statutory defence, and rejected the defence contention that a common law defence of honest and reasonable belief was available.[5]  The Magistrate went on to hold, however, that even if he had held the common law defence to be available, he would have found that it was not established on the facts.[6]  He rejected the 2^nd applicant’s reliance on the statutory defence and therefore convicted it of the offence. [7]

7.  In respect of the 1^st applicant, the Magistrate rejected the defence contention that he could not be the employer of Luong within the meaning of section 17I(1).  He found the 1^st applicant to have been the authorised manager of the 2^nd applicant, who was the legal employer of Luong, and therefore within the definition of “employer” in section 17G(1) of the Ordinance,[8] which relevantly defined “employer” as meaning:

“any person who has entered into a contract of employment to employ any other person as an employee or apprentice, and the duly authorized agent, manager or factor of such first mentioned person”.

The Magistrate rejected the 1^st applicant’s reliance on the statutory defence and so found him guilty of the offence as charged.[9]

8.  Deputy High Court Judge Anthony Kwok dismissed the appeals of the applicants against conviction.[10] The grounds of appeal were that (i) the Magistrate was wrong to hold that (a) the offence was one of strict liability; (b) the applicants could not rely on the common law defence; (c) there could be more than one employer under section 17I(1); (d) the applicants’ evidence did not support the defences.  On this basis, it was contended that, as a whole, the convictions were unsafe and unsatisfactory.[11]

9.  The Judge rejected each of the grounds of appeal.  He held that the offence under section 17I(1) is one of strict liability.[12] He also held that the Magistrate was right in holding that the statutory defence in section 17I(1A) and the common law defence are not compatible and that the statutory defence excludes the common law defence, so that the offence belongs to the Fourth Alternative identified in Kulemesin v HKSAR (2013) 16 HKCFAR 195 at [83].[13]

10.  In relation to the 1^st applicant’s contention that he could not be Luong’s employer under section 17I(1), the Judge held that the definition of “employer” in section 17G(1) meant that more than one person could be the employer in the context of section 17I(1) and could include both the employer and the agent, manager or factor duly authorised by the employer.[14] He also rejected the submission that the Chinese version of section 17I(1) required the court to hold that the offence was only committed by the person legally in an employment relationship with the person who was not lawfully employable.[15]

11.  The Judge upheld the Magistrate’s conclusion that the statutory defence was not made out in respect of either applicant.[16] Finally, the Judge rejected the contention that the convictions were unsafe and unsatisfactory[17] and dismissed the appeals and upheld the convictions.

12.  The Judge refused to certify that points of law of great and general importance were involved in his decision.[18]

The application for leave to appeal

13.  The applicants sought leave to appeal to the Court of Final Appeal on the basis that the questions of law, which the Judge refused to certify, were of the requisite importance and were reasonably arguable.  Those questions were:

“1.  Notwithstanding that Attorney-General v Yip Man-cheong [1989] 2 HKLR 547 as a leading authority had classified the Offence as a strict liability offence, which alternative should the Offence be classified as, when considering the guidelines set out by the Court of Final Appeal on the possible alternatives of statutory offences where the provisions thereof are silent on the mens rea (the ‘Guidelines’):-

(1)  Whether the mens rea of the Offence should be displaced;

(2)  Should the answer to (1) above be in the positive, whether the statutory defence provided under section 17I(1A) of the Ordinance is consistent with the common law defence of honest and reasonable belief; and

(3)  Should the answer to (2) above be in the positive, whether the Offence should be classified as an offence of the second or third alternative.

2.  In view of the discrepancy between the Chinese and English versions of the statutory provision of the Offence:-

(1)  Whether the discrepancy could be resolved by way of construing the actus reus of the Offence under the Chinese version (i.e. ‘employs’) as equivalent to that under the English version (i.e. being ‘an employer’); and

(2)  Should the answer to (1) above be in the positive, whether such construction is compatible with the principle of legal certainty and requirement of accessibility and the principle against doubtful penalization, and whether it is unconstitutional.”

14.  As regards Question 1, whilst the statutory construction exercise of determining the mental requirements of the offence under section 17I(1) is one of some importance, we do not think it is reasonably arguable that the Judge erred in concluding that the offence is properly to be placed in the Fourth Alternative under Kulemesin. The Judge did not simply follow the Court of Appeal decision of Attorney General v Yip Man-cheong[19] without reference to the later decisions of Hin Lin Yee v HKSAR[20] and Kulemesin v HKSAR.[21]  On the contrary, in addressing the first ground of appeal before him, it is clear that the Judge subjected section 17I(1) to close analysis and came to the view that the conclusion of the Court of Appeal in Attorney General v Yip Man-cheong was consistent with the analysis of the Court of Final Appeal in Hin Lin Yee v HKSAR and that the offence should be categorised as being in the Fourth Alternative under Kulemesin.[22]  We were not satisfied that it is reasonably arguable that the Judge was wrong in reaching the conclusion he did. 

15.  In any event, even if the common law defence of “honest and reasonable belief” were available to the applicants, that defence would fail on the Magistrate’s findings, which were not set aside by the Judge, and the appeal in relation to Question 1 would be academic.

16.  As regards Question 2, which raises a question of statutory construction concerning a suggested difference between the Chinese and English texts of section 17I(1), we were similarly not satisfied that it was reasonably arguable that the Judge erred in holding that, reading sections 17G(1) and 17I(1) together, as one must, there was no material difference in substance in the meaning between the Chinese and English versions of section 17I(1).[23] We respectfully agree with the Judge that the offence in section 17I(1) is aimed at both the person who enters into a legal relationship of employment with the person not lawfully employable, which in the great majority of cases is likely to be a limited company, and also the duly authorised agent, manager or factor of the legal employer.  If such agent, manager or factor is in fact the person who, being duly authorised to do so, brings about the employment relationship between the legal employer and the person not lawfully employable, then he too is liable for the offence unless the statutory defence is established. 

17.  There being no discrepancy between the Chinese and English versions of section 17I(1), the invocation of the principle of legal certainty, the requirement of accessibility, the principle against doubtful penalisation and question of whether the section is unconstitutional do not arise.

18.  For these reasons, we dismissed the application for leave to appeal.