THE QUEEN v. JIMMY C. RABOSA

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 721 OF 1995

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JUDGMENT

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1. The Appellant was convicted on his own plea, by a Magistrate, of one charge of a breach of a condition of stay imposed upon him by an Immigration Assistant on his arrival in Hong Kong contrary to the provisions of Section 41 of the Immigration Ordinance Cap. 115. The Appellant was sentenced on the 13th of April 1995 to two months imprisonment suspended for eighteen months and fined the sum of $2000.

2. Although the Appellant, who was unrepresented in the court below, entered a plea of guilty in that court he now seeks leave to appeal his sentence out of time arguing that at the time of the plea he was in fear that he would lose his employment. I granted leave for him to appeal his sentence out of time and heard the appeal.

3. The facts are simple. The Appellant was at all relevant times employed on contract as a domestic servant by a man named Lai Chi-lun. His stay in Hong Kong was conditional upon his working as a domestic helper for Lai the condition being imposed by an Immigration Assistant. On the 15th of March 1995 the Appellant was found performing work at a newspaper shop in Discovery Bay. It is common ground that he was not paid for that work but others working with him performing the same work at the same time were paid. The managers of the newspaper shop were named in the agreed facts as Chui Kwai and Chan Kit-fong. In his affirmation the Appellant alleged the owner of the newspaper shop was Lai but the source of that knowledge, other than the general averment the contents of the affirmation were his own knowledge, was not stated. From the Bar table Mr. Tam quoted a search at the Companies Office as showing the proprietor of the business to be Wong Lap-kong.

4. Mr. Harris for the Appellant argues that the work done by the Appellant was not employment as he was not paid and therefore the contract of employment was not supported by consideration. He further argues that Lai was both the contractual employer of the Appellant and the owner of the newspaper shop so that if the work done by the Appellant were employment then it was for the same employer and was no more than extra work without pay. In neither instance he argued was it a breach of the condition of stay.

5. Mr. Tam argues that the work at the newspaper shop was employment by virtue of the provisions of Section 17N of the Immigration Ord. Further he argued that in any event the work done constituted employed not contemplated by the domestic service agreement and was thereby in breach of the condition of stay

6. Section 17N of the Immigration Ord reads:

7. The words "lawfully employable" are interpreted by Section 17G(2) of the Ord as follows:

8. Mr. Harris first argues that these sections fall within a part of the Ord. that does not apply to persons lawfully in Hong Kong. I do not accept that argument. The part refers to "Illegal Immigrants and Others" and in any event an Ord. is not limited by the headings to various parts.

9. Secondly he argues that Section 17N and Section 17G(2) being penal in nature must be given a liberal construction and if on an ordinary reading of the sections a construction favourable to the Appellant is made out he should have the benefit of that construction. I accept that argument.

10. Mr. Harris argues that the Appellant is lawfully employable since he is the holder of an identity card and therefore at the relevant time he could not be presumed to be employed pursuant to the provisions of Section 17N of the Ord. The interpretation of the words "lawfully employable" set out in Section 17G(n) are clearly, even on the most liberal construction, intended to exclude from that term persons whose stay is conditional where that condition relates to the provisions of this part of the Ord. The legislature in using the words "Without prejudice to any provision of this Ordinance relating to conditions of stay which may be imposed on any person" must be construed as meaning that the words "lawfully employable" do not include persons whose stay is conditional upon terms limiting their employment. Accordingly I hold that by virtue of the interpretation in Section 17G(2) the Appellant was not lawfully employable for the purposes of Section 17N. Nor can I find any evidence in the facts of this matter rebutting the presumption of employment raised by the section.

11. Notwithstanding the different allegations as to the ownership and control of the newspaper shop it is an agreed fact that the managers of the business were Chui Kwai and Chan Kit-fong and it follows that on the relevant date they were the employers of those persons working at the newspaper shop. Accordingly it follows that by virtue of the provisions of Section 17N the Appellant is presumed to have been employed by those two persons and I have found that presumption not to have been rebutted.

12. Without having set out the law in detail the Magistrate reached the same conclusion as to the employment of the Appellant. Since the Appellant was as a matter of law held to be the employee of Chui and Chan at the relevant time he was in breach of the condition of stay imposed upon him that he work only as a domestic servant for Lai

13. I do not in the circumstances need to deal with the issues of consideration in an employment contract nor whether the Appellant was working for Lai at the relevant time.

14. This appeal against conviction is dismissed.