HKSAR v. PROSPEROUS PERSONNEL AGENCY & PUBLIC RELATIONS CO.

HCMA 57/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 57 OF 2001

(ON APPEAL FROM KTS 10380-10381/2000)

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J U D G M E N T

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1. On 24 August 2000, the applicant, the Prosperous Personnel Agency & Public Relations Co Ltd, was convicted by Mr Y T Chan, Special Magistrate, sitting at Kwun Tong Magistracy, of two offences under ss.57(a) and 60(7) of the Employment Ordinance, Cap. 57.

2. The applicant is an employment agency, licensed under s.52 of the Employment Ordinance. Ms Alice Tang Shuk-wei one of its directors represented it at trial. She was not legally represented.

3. The proceedings were brought by summons, the particulars of offence of both read:

'Information has been laid that you on 10 February 2000 at (in each summons the address is given) being the licensee of an employment agency, namely Prosperous Personnel Agency & Public Relations Co Ltd, did receive from a job applicant, named (in each summons the name is given), in connection with obtaining employment for that person payment in an amount of $200, being a payment other than the commission prescribed under Regulation 10(2) and the Second Schedule of the Employment Agency Regs., Cap.57.'

4. The applicant now seeks to appeal both convictions out of time. Mr Peter Duncan, of counsel, represents it. The appeal is brought under s.113(1) of the Magistrates Ordinance.

5. The grounds of appeal are:

'The pleas entered by the appellant were nullities, they being equivocal.

Alternatively: the pleas of the appellant were on the basis of facts, which were equivocal as to the guilt of the appellant and were therefore nullities.

Alternatively: the circumstances in which the pleas of the appellant were entered were such as to render the convictions unsafe and unsatisfactory.'

6. It has only been necessary to deal with the 2nd ground in order to resolve this appeal.

7. Section 113(1) of the Magistrates Ordinance provides:

'(1) Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint may appeal from the conviction, order or determination, in manner hereinafter provided to a judge.'

8. It is settled law that a person convicted of an offence on his own plea of guilty cannot appeal against that conviction under s.113(1) of the Ordinance. It is as equally settled law that a plea of guilty which is a nullity does not amount to a plea at all and is not caught by section 113.

9. In HKSAR v Wong Chi Yuk HCMA 381 of 1999 (unreported) (reserved for hearing by the Court of Appeal) Woo JA, after exhaustively reviewing the authorities on the subject, identified (at pages 12 to 13 of the judgement) 6 circumstances under which a plea will be regarded as a nullity. The first 2 only are relevant to this appeal, they are:

1. The facts admitted by the defendant do not amount to the offence with which he is charged.

2. The admitted facts are equivocal as to guilt.

10. Section 57(a) of the Employment Ordinance provides:

'A licensee shall not, directly or indirectly -

(a) receive from any person on account of having obtained, or in connection with obtaining or seeking to obtain, employment for that person -

(i) any reward of any kind; or

(ii) any payment or other advantage in respect of expenses or otherwise, except the prescribed commission;'

11. Section 60(7) provides for the offence and sets the penalty.

12. By reg.10(2) and Part II of the 2nd Schedule to the Employment Agency Regulations (made under s.62 of the Employment Ordinance) the 'prescribed commission' is a sum not exceeding 10% of the first month's wages received by the job applicant who gains employment using the agency's services, after he has been placed in employment.

13. The mischief that section 57(a) strikes at is the job applicant himself being required to pay the agency (the 'licensee'), either directly or indirectly, a reward, payment or advantage, other than the prescribed commission, for the agency obtaining (etc) employment for him. If the payment is made by another person there is no offence. The use of the word 'indirectly' covers the situation where the applicant makes payment by a third person, who does no more than pay the agency the reward (etc) provided by the applicant. In short, where the third person is no more than a messenger, or conduit, through whom the applicant's payment is made.

14. The facts, which Ms Tang admitted to on behalf of the applicant, were, and I set them out in full as written:

'The defendant was licensed to operate an employment agency known as Prosperous Personnel Agency & Public Relations Co. Ltd. and Miss Tang Shuk-wei Alice (Tang) was its nominated operator.

2. The Employment Agency Administration (EAA) of the Labour Department received a complaint against the said employment agency that it had charged registration fee for placement in a so-called 'Disneyland Construction Project'. Officer of the EAA then paid an inspection to the employment agency on 2.3.2000. During the inspection, Tang admitted that the employment agency charged $200 from a number of job seekers or relatives of overseas job-seekers before any placement was obtained for them. 76 biography data as well as a notice displayed at the employment agency which promoted the 'Disneyland Construction Project' were seized by the officer during the inspection.

3. Ms Flordeliza A. Montalaba (Montalaba) and Ms Elisa G. Belgar (Belgar) were contacted according to biography data seized. It was discovered that they visited the employment agency on 7.2.2000 and 10.2.2000 respectively to look for jobs at the 'Disneyland Construction Project' for their sons, who lived in the Philippines, namely Ferdinand M. Fulgar and Joenil C. Belgar. They were met by Tang who charged them $200 each as registration fee. Biography data of the two job-seekers was also submitted to Tang as requested. Yet, up to present, no job or interviewing opportunity was made available for the job-seekers.

4. By receiving payment other than the prescribed commission indirectly from Ferdinand M. Fulgar and Joenil C. Belgar in connection with obtaining employment for them, the defendants had contravened Section 57(a) and 60(7) of the Employment Ordinance, Cap.57.' (sic)

15. It is not clear from those facts whether the two mothers paid the $200 charged them out of their own funds - in which case the applicant has committed no offence under s.57(a), or whether each of the sons had paid the $200 to his mother and asked her to pay it to the applicant - in which case there would be an offence.

16. At the very least the admitted facts are equivocal as to the applicant's guilt and on the authorities the pleas amount to nullities and must be set aside.

17. The question arose as to whether I should order a re-trial. Mr Duncan argued against this, saying that as the offence was a minor one and the penalty small, and as the applicant had been put to considerable expense in bringing this appeal, justice would not be served by there being a re-trial.

18. I disagree; regulatory offence provisions, such as s.57(a) of the Employment Ordinance is, are a bulwark against fraud and sharp practice. The public interest requires that breaches of them be strenuously prosecuted wherever there is reason to believe that there is a breach. At first sight there appears to such reason here.

19. I therefore grant the applicant leave to bring the appeal out of time and allow the appeal. I quash the conviction and remit the fines paid. However, I order that the case be remitted to Kwun Tong Magistracy for retrial.

20. I make no order for costs.