HKSAR v. GOLDEN HORSE (2000) LTD

HCMA 415/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 415 OF 2004

(ON APPEAL FROM KCS 1388, 1389 and 1390 /2004)

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J U D G M E N T

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1. The Appellant is a limited company which operates a restaurant. It faced three summonses for being the employer of a person not lawfully employable, contrary to section 171(1) of the Immigration Ordinance, Chapter 115.

2. On 2 April 2004, before D.I. Thomas Esq. in the Magistrate's Court at Kowloon City, it pleaded guilty through a director on those three summonses. Through its solicitor, it admitted the facts which the Magistrate summarised as follows in his Reasons for Sentence:

"As shown on the letter of authorisation submitted to me, the Appellant's company trades at the address more particularly described in the three summonses under the name of Lucky House Seafood Restaurant.

Police Officers went to the restaurant on Wednesday 7 January 2004. The officers found five workers insider the kitchen. Two were Hong Kong residents and three were Mainland visitors. The worker named in summons KCS 1388 had entered Hong Kong on 28 December 2003. She was washing dishes. The worker named in summons KCS 1389 had entered Hong Kong on 3 January 2004. She was also washing dishes. The worker named in summons KCS 1390 had entered Hong Kong on 12 December 2003. She was preparing dim sum. All three women had been permitted to enter Hong Kong as visitors and was each prohibited from taking up any employment, whether paid or unpaid."

3. In addition to the fact that it had a clear criminal record, the mitigation offered on the Appellant's behalf by its solicitor, as summarised by the Magistrate in his Reasons for Sentence, is as follows:

"Its solicitor asked me to impose small fines on the Appellant company. I was told that the usual level of fines was in the range of $4,000 and $5,000 per summons. When I enquired further of prosecuting counsel and of the solicitor for the Appellant company, however, it turned out that summonses of this nature are so rare that there had been only one previous such case and the level of fine was that imposed in that one case."

4. The Magistrate fined that the Appellant a total of $200,000.00 made up of a fine of $100,000.00 on the summons in KCS 1388/04, a fine of $50,000.00 on the summons in KCS 1389/04 and $50,000.00 on the summons in KCS 1390/04.

5. Now, three perfected grounds of appeal against sentence have been filed on the Appellant's behalf. Before coming to them, I will set out what the Magistrate said as to why he sentenced the Appellant as he did. This is what he said in his Reasons for Sentence:

"These are serious offences, in the case of corporeal defendants periods of imprisonment invariably result. The leading case where such defendants appear is that of AG v Wong Chung-lee [1996] 2 HKCLR 159 CA. This held that the starting point of offence of the present nature is 15 months' imprisonment after trial where one employee is involved, where there are no circumstances for exploitation and where it is established that the offender was aware that he was employing an unlawful immigrant or had acted recklessly in so doing.

This starting point should be increased in cases of multiple employment and where there is element of exploitation. Furthermore, the case held that there was no distinction to be made between employed illegal immigrants and those who were otherwise lawfully in Hong Kong but had breached condition attaching to their stay.

Furthermore, the unlawful workers in question also faced invariable imprisonment. I dealt with the three workers concerned in present case in the same court sitting as that in which I dealt with the case of the Appellant company. I sentenced each of them to period of imprisonment of two months after each had pleaded guilty to breaching their condition of stay.

I therefore considered that, in the case of an incorporeal defendant, the fine should reflect the concern that the legislature and courts had clearly felt in the case of corporeal defendant. I bore in mind the fact that the maximum fine for the offences in present summonses in $350,000.00. I considered that the fine should be higher in the case of the unlawful worker who was preparing dim sum and who was, therefore, depriving a skill local worker of employment. I noted that the only effective mitigation put forward as the Appellant company was experiencing financial hardship. No expression of remorse regret was extended, particularly concerning the unlawful workers whose liberty the Appellant company had put at risk. I therefore imposed the fines that I had set out above.

I should acknowledge the fact that the worker preparing dim sum was Zheng Xiiulian; the worker Zeng Niangfeng was washing dishes. I should therefore had imposed a fine of $50,000 for summons KCS 1389. I should be imposed the fine of $100,000 for summons KCS 1390."

6. I now set out the perfected grounds of appeal against sentence, and they read as follows:

"1st Ground

The fines imposed on each of the three offences are disproportionate to the Appellant's criminality and not in line with the fines imposed by other learned magistrates in recent years.

The brief facts of case and the prosecution did not suggest any exploitation on the part of the Appellant.

The statistics provided by the Department of Justice show that between December 1999 and March 2004 there were 7 cases of Section 17I(1), Cap. 115 convictions (believed to be in the magistrate courts). The fines imposed for convictions upon guilty pleas were between $4,000 and $20,000. The fines imposed for the two convictions after trial were $20,000 and $50,000.

The fines imposed by the learned magistrate on the Appellant were manifestly excessive when comparing with the fines ($4,000 to $20,000) received by those who had also pleaded guilty.

It is noted that every case depends on its own facts. It is, however, submitted that the Appellant's transgression of the law is not the most serious of its kind.

2nd Ground

The learned magistrate considered there was no effective mitigation other than the financial hardship of the Appellant.

It is submitted that he had paid no regard for the guilty pleas of the Appellant when imposing sentence and that he had failed to give credit or sufficient credit for the Appellant's guilty plea.

3rd Ground

The learned magistrate erred in placing any difference between the case of an unemployable dim sum worker and that of an unemployable dish washer.

As stated in his Statement of Findings and the transcript, the learned magistrate meant to impose a $50,000 fine in respect of the case of each of two dish washers (KSC1388/2004 and KSC1389/2004) and to impose a find of $100,000 (KSC1390/2004) in respect of the case if the dim sum worker. When he imposed sentence, he confused with KSC1388/2004 and KCS1389/2004 with KCS1390/2004. He has, however, clarified the position in his Statement of Findings.

When imposing sentence, the learned magistrate said that dim sum workers were traditionally able to command a relatively large salary and by employing unemployable skilled dim sum workers from the mainland, the Appellant could have saved considerably on the wage bill.

In his Statement of Findings, the learned magistrate, however, stated that he considered that the fine should be higher in the case of the unlawful worker who was preparing dim sum and who was, therefore, depriving a skilled local worker of employment.

It is not sure what the real basis was for the learned magistrate imposing such a vast difference the case of an unemployable dish washer and that of a dim sum worker.

Both local skilled workers and local unskilled workers deserve the same degree or protection.

If dim sum workers are able to command a higher salary than employable dish washers, so do unemployable dim sum workers. The money saved on the wage bill, if indeed any, might be about the same in both cases.

It is submitted that the learned magistrate should not have placed any difference between a dish washer and a dim sum worker.

4th Ground

The learned magistrate failed to adhere to the totality principle and to ensure the fines were excessive.

In Chelmsford Crown Court ex p Birchall [1990] Crim L R 352, the Court had this to say somewhere at the bottom of page 353:

"It must be remember that the application of rigid formula was not right, even for single offence, and it was wrong to apply it to each of the 10 offences and add up. The courts had to consider all the circumstances and apply the principles of sentencing which were well known."

The three offences in question are under the same section of Cap.115 and occurred at the same time. It is submitted that the learned magistrate should not have simply added up the fine in respect of each of the three offences and that he should have applied the totality principle and scaled down the total fine.

5th Ground/Conclusion

For the above grounds, as expanded above, and in all the circumstances, it is respectively submitted that the fines imposed on each of three offences (making a total of $200,000) is manifestly excessive and inappropriate. This Honourable Court is invited to reduce the same by appropriate amounts."

7. At the Appellant's request the Respondent supplied it with certain statistics which the Appellant has, without objection from the Respondent, placed before me. These statistics pertain to the fines imposed on corporations from December 1999 to May 2004 for being the employer of a person not lawfully unemployable.

8. During this period, the corporations apart from this Appellant who were so fined are:

(1) a corporation which was fined $10,000.00 on 9 December 1999 on one charge upon a plea of guilty;

(2) a corporation which was fined a total of $30,000.00 on 13 January 2000 on two charges upon a plea of guilty;

(3) a corporation which was fined $20,000.00 on 30 October 2000 on one charge upon a conviction after trial;

(4) a corporation which was fined $10,000.00 on 18 October 2001 on one charge upon a guilty plea;

(5) a corporation which was fined $4,000.00 on 14 November 2002 on one charge upon a guilty plea;

(6) a corporation which was fined $15,000.00 on 29 September 2003 on one charge upon a conviction after trial; and

(7) a corporation which was fined $4,500.00 on 18 March 2004 on one charge upon a guilty plea.

9. Counsel for the Appellant suggests a fine of $10,000.00 on each summons. Counsel for the Respondent does not argue against this.

10. In my view, a total fine of $30,000.00 would be appropriate. I will allow the appeal to reduce the total fine to that sum arrived at by way of a fine of $10,000.00 of each summons. The appeal is allowed accordingly.