HKSAR v. MASIH, SHAMOON AND OTHERS

HCMA 357/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 357 OF 2017

(ON APPEAL FROM FLCC NO 1427 OF 2017)

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J U D G M E N T

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Introduction

1.  On 21 June 2017, following a trial before Mr Chu Chung Keung, a magistrate, the four appellants were each convicted of the offence of prohibition of taking employment, contrary to section 38AA(1)(a) and (2) of the Immigration Ordinance, Cap 115 (the Ordinance).  The particulars of the charge against each of them was the same, namely:

“that on 1 October 2016 at House 101, Hong Lok Yuen, Fifth Street, Tai Po, New Territories, in Hong Kong, while being a person who, having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director of Immigration under section 13, did take up employment whether paid or unpaid, namely providing house removal services.”

2.  The four appellants were respectively designated D2 to D5 at trial.  They had stood trial with another defendant whose name was Michael George, who was designated D1 at trial. However, he did not appear, and the trial proceeded against the four appellants only.  Upon their conviction, the four appellants were each sentenced to 22 months and 15 days’ imprisonment. 

3.  The four appellants appealed their conviction on the basis that the evidence did not support the charge found against them.  They each appeared in person. 

4.  I adjourned the hearing of the appeal in order to obtain transcript of the proceedings as the appellants’ complaints generally concerned the evidence that had been presented against them and the magistrate’s statement of findings had not adequately summarized the police evidence.

The offence provision

5.  Each of the four appellants faced the charge of prohibition of taking employment, contrary to section 38AA(1)(a) and (2) of the Ordinance.  This section is under Part VIII of the Ordinance which is entitled “Offences and Forfeiture”.

6.  So far as material, section 38AA reads:

“(1) A person-

(a) who, having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director under section 13; or

(b) in respect of whom a removal order or a deportation order is in force,

must not take any employment, whether paid or unpaid, or establish or join in any business.

…

(2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 3 years.”

The prohibition of taking up employment

7.  The first matter that needs to be noted is that the person to whom this section relates “must not take any employment”.  The second matter is that employment under this Part of the Ordinance is not defined except for the qualification in this section that it is employment “whether paid or unpaid”. 

8.  Under Part IVB entitled “Prohibition of Employment of Illegal Immigrants and Others” there is the offence under section 17I of employing a person not lawfully employable.  In the interpretation section of section 17G it is provided under this Part that a “contract of employment” means any agreement whether in writing or oral, express or implied, whereby one person agrees to employ another and that other agrees to serve his employer as an employee and includes a contract of apprenticeship; “employee” means any person who has entered into a contract of employment to be employed by any other person as an employee or apprentice; and “employer” means any person who has entered into a contract of employment to employee any other person as an employee or apprentice, and the duly authorised agent, manager or factor of such first mentioned person.

9.  In R v Ip Po Fai, HCMA 1201 of 1995, 10 April 1996, unreported, Patrick Chan J (as he then was), when addressing the offence of employing a person not lawfully employable under section 17I, had occasion to examine the definitions relating to employment set out in section 17G under Part IVB.  He examined the definition of “contract of employment” which he considered to be circular and that it begged the question of what was sufficient evidence to show employment.  He held that there was no useful definition of employment in the Ordinance, although he added that it was not necessary to show that there was payment of wages or remuneration in order to establish there was an employment, and that the mere working at a place per se is not employment. 

10.  In subsequent magistracy appeals, the definition of employment has been discussed and sometimes with reference to the definition provided in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156.  See HKSAR v Chow Kin Cheung [2013] 1 HKC 246 and HKSAR v Liu Chenghao [2014] 2 HKLRD 413. 

11.  In Poon Chau Nam,the Court of Final Appeal was concerned with a personal injury claim where it needed to resolve whether there was an employer-employee relationship.  In the context of that case, the Court held that the modern approach to the question whether a person was an employee was to examine all the features of their relationship against the background of the indicia of employment with a view to deciding whether, as a matter of overall impression, the relationship was one of employment.  The Court explained that the indicia included the degree of control exercised by the “employer”; whether the person performing the services provided his own equipment; whether he hired his own helpers; what degree of financial risk he took; what degree of responsibility for investment and management he had; and whether and how far he had an opportunity of profiting from sound management in the performance of his task. 

12.  Care needs to be taken when guided by this case when determining the question of employment in the criminal context, for in such a situation a court is required to make findings of fact that are proved beyond reasonable doubt from which to draw the only reasonable inference that the defendant was in employment.  It is not a matter of overall impression.

13.  Deputy High Court Judge Woo in Liu Chenghao reviewed various cases that addressed the issue of the definition of employment in the context of immigration offences.  He concluded that in order to prove employment, “it is not only necessary to prove that the offender did work, but must also prove the existence of fiduciary duties applicable to an employer and employee relationship, and the absence of a special relationship which featured in Ip Po Fai and other authorities… .”[1]

14.  Deputy High Court Judge Woo referred to and adopted the written submission of appellant counsel which included an extract of the judgment of Deputy High Court Judge Maggie Poon (as she then was) in HKSAR v Liu Zhi Hui, HCMA 302/2003, 26 June 2003, unreported, [2003] HKLRD (Yrbk) 310.  The extract of Deputy High Court Judge Maggie Poon’s judgment stated: 

“[11] In my view, ‘employment’ subsists on the basis of an ‘employer and employee relationship’, that is to say, when one of the parties works for the other party, he regards the other party as his employer, and the other party (ie the party who is regarded as the employer) acknowledges their mutual duties or obligations and further, fiduciary duties exist between the two of them. In addition, the employer must have the power to arrange work for the employee and to deploy or instruct the employee to work.

[12] The trial Magistrate found that since the Ordinance was about criminal law, it was not necessary to consider the question of whether there was any offer or acceptance. In my judgment, even if the Magistrate’s view is correct, at the very least, a common understanding should exist between the person who employs and the person who is employed. If that is not the case, then once a party, without the other party’s consent, knowledge or acquiescence, took the liberty of doing some simple labour of a short duration, an inference could be drawn that an employer and employee relationship existed between these two persons, leading to the result that the other party, who had not knowingly allowed this to happen, automatically committed the offence of being the employer of a person not lawfully employable. Such a conclusion strikes me as too severe, too harsh and too arbitrary.”[2]

15.  The prohibition under section 38AA(1) is not to take up employment which is broadly expressed as “any employment”.  To summarise, employment in the context of this section involves an employer-employee relationship where a person does work for or renders services to another.  In other words, there is a mutual obligation or understanding to provide and accept work.  In the context of this section, this may or may not involve remuneration for the work done or services rendered. 

The prosecution case

16.  The prosecution case against the appellants was straightforward.  An occupier of a village house, House 101, arranged to move to a new house, House 73, in the same village, and he therefore sought the services of a removal company to transport his household contents to his new home.  Through the internet he commissioned a removal company to do the job.  He was charged $7,000.  It was alleged that the appellants were part of a work team that provided the removal services. 

17.  It was an admitted fact that the appellants had landed in Hong Kong unlawfully; that they remained in Hong Kong without the authority of the Director of Immigration under section 13 of the Ordinance; and that they were prohibited from taking up employment.[3]  It would appear that they were granted a recognizance (Form 8), having made a torture claim. 

18.  The issue at trial was whether the evidence proved to the requisite standard that they were in employment.

19.  The main evidence against the appellants came from the domestic helper of the occupier of the village house, who was designated as PW1 at the trial.  She testified that on 1 October 2016 she was assisting her employer to move the contents from the old house to the new house in the village.  The magistrate in his statement of findings summarised her evidence as follows:

“She was the one who opened the door for the five removal workers in the morning.  She did not look at their faces at that time.  She needed to pack things and to accompany the workers to the new house from the old one.  Around 30 minutes later, police came and arrested four workers.  She told the police that there should be five workers.  Then, the police found the last one.  In the presence of the police, she identified these five persons one by one as the workers whom she allowed to go into her house. Although she was busy in removal, she knew that these five persons were the men she saw earlier because it was her “job” to pay attention to the guests who came into the houses.”

20.  When testifying, the domestic helper was only able to recognise two of the appellants as the removal workers.  She explained that this was due to the passage of time.  However, she did identify the four appellants at the time that they were arrested by the police officers.  She said:

“So, actually, after the police officers arrived, I was asked by the police to identify them one-by-one. Then I recognised all of them because I was the one who opened the door for them.”

21.  PW1 said that it was about 30 minutes after the removal workers had commenced the job that the police came and arrested them.

22.  The person who arranged the removal services was the employer of PW1, who was PW2.  He was the occupier of House 101 and was moving to House 73.  He testified that he commissioned Rainbow Transportation Company to move his household items from one house to the other.  He learnt of the company from a website and made contact by a WhatsApp number.  Either one or two persons came to the house and quoted $7,000 for the job which included packing the household items in boxes and transporting them to the new house.  The quote was accepted and prior to the move, boxes were dropped off at the house for the removal services. 

23.  PW2 said that on the day in question, 1 October 2016, about six men came.  He said that the moving company dropped off the workers at House 101 in a GoGoVan.  He said that they had brought boxes, wooden pallets, a trolley and equipment for the move.  He said that as soon as they got there, they started to pack the boxes and then moved them between the two houses.  He explained that he was busy packing items but when he went down to the old house, House 101, he saw the police were already there and questioning some of the moving people.  He said that the only people that were there were the people that came from the moving company and there were no other strangers.  He confirmed in cross examination that he was not discarding any items, and that he was taking everything from one house to the other.  He thought that the person he contacted for the removal services was a person called John Victor, but that he also dealt with another person about the job.

24.  Five police officers gave evidence at trial in relation to the arrest of the five persons which included the four appellants.  The magistrate mentioned the police officers who testified but did not summarise their evidence. 

25.  The police officers had been requested to go to Hong Lok Yuen as they got a report that there were five Southeast Asian males carrying out a removal job at the village. 

26.  Chu Tsz-kwong, PC5518, (PW4), testified that he went to House 101 for investigation where two suspected foreign workers were located inside the house.  Both persons were holders of a Form 8 recognizance.  One of the persons was Michael George who he arrested.  He observed that around them there were packed boxes of domestic miscellaneous items and furniture. 

27.  Chiu Chi-chung, PC58532, (PW5), testified that he went inside House 101 with PW4 and he saw two South Asian males on the first floor of the house.  He said that the males were not doing anything at the time but furniture was being packed in the house.  He arrested the 1^st appellant who was D2 at trial, after he established that he was a Form 8 recognizance holder. 

28.  Ho Ka Chun, PC8948, (PW6), testified that he intercepted the 2^nd appellant who was D3 at trial, outside 85 Hong Lok Yuen. 

29.  Wong Kwok Hei, PC8108, (PW7), testified that he saw the 3^rd appellant who was D4 at trial, walking in the direction of House 101 and arrested him. 

30.  Lui Ho Ting, PC15767, (PW8), testified that he went to House 73 and inside saw the 4^th appellant who was D5 at trial.  He initially testified that he saw him bending over arranging things but later said “he did not see for sure”.  He stated that around the 4^th appellant were carton boxes and miscellaneous items. 

31.  The owner of the removal company, Mr John Victor, (PW3), also testified.  It is unclear as to the involvement of his company in the removal job.  He denied that he received the removal job.  It was put to him that Michael George, D1, was his brother which he initially denied as his brother’s name was Michael William.  He acknowledged that his brother was a torture claimant and later accepted that D1 was his brother when he was shown a Form 8 recognizance which depicted a photograph of his brother in the name of Michael George. 

32.  He stated that he was not aware of or involved in the removal job and did not know the four appellants. The suggestion in cross-examination of PW3 was that D1 had arranged the removal job.  It should be noted that from the evidence of PW4, D1 was found to have in his possession two identity cards, one of which was in the name of John Victor. 

The defence case

33.  At trial, the appellants neither gave evidence, nor called evidence on their behalf. 

34.  The defence case was that the appellants had been told by the 1^st defendant that someone was discarding household items at the village which they could come and collect, and that was why they were at the village at that time.  It was submitted that they did not take part in the removal services, even though they were there at the time; and that the removal services were in fact provided by other persons. 

The magistrate’s statement of findings

35.  The magistrate in his evaluation of the evidence, accepted the testimony of the domestic helper.  He said:

“The court considered that she had in fact looked at the facial appearances of the workers continuously during the whole course of the house removal. Although it was not clear how long did PW1 observe the facial appearances of the workers, the court considered that it must not be a fleeting glance because PW1 claimed that she was responsible to pay attention to the workers. She must be keeping an eye on the workers as frequently as she could. In the presence of the police officers, she identified each of the five arrested persons were the removal workers she allowed to go into the house earlier. The court accepted that she correctly identified the five arrested persons were in fact the removal workers.”

36.  The magistrate concluded that all five arrested persons at the scene had provided home removal services which included the four appellants.  There was an issue as to the exact number of workers but the magistrate found that there were five persons who did the removal work, with possibly a sixth person who drove the workers to the village.

The grounds of appeal

37.  The four appellants appear in person and their general ground of appeal which is the same in each case is that the evidence did not support the conviction.  They all had arrived in Hong Kong unlawfully and were permitted to remain in Hong Kong on the condition that they did not take up employment whether paid or unpaid. 

38.  The issue at trial was whether the appellants had taken up employment by working for a removal company, namely providing removal services.  They submitted that the evidence of the domestic helper was unclear and unreliable, and that none of the police officers actually testified that they observed the appellants working when they arrested them.  However, one of the appellants was arrested walking in the direction of the new house, while two others were arrested inside the old house. 

39.  It would appear that the magistrate, having found that the four appellants carried out removal services for which the occupier of the house was to pay the removal company to perform, drew the inference of employment.  See HKSAR v Ferosh [2014] 5 HKC 104; Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156 at paragraphs 9 to 18; HKSAR v Chow Kin Cheung [2013] 1 HKC 246.  In order to draw such an inference, it must be the only reasonable inference to be drawn from the evidence.  With respect to the magistrate, he should have made this clearer in his statement of findings. 

40.  It is well recognised that a tribunal of fact is entitled to draw inferences, that is, it is entitled to infer the existence of other facts from facts proved.  However it may only do so if that inference is the only reasonable inference to draw from the proved facts. 

41.  So the question in the present case is whether from the facts proved the only reasonable inference to draw is that each appellant was in employment at the time alleged.  It needs to be borne in mind that the appellants did not give or call evidence on their behalf, so there is no evidence of their account of events on the day.  What suggestions had been put to the prosecution witnesses reflecting their account of events, had been rejected.

42.  As this is a rehearing on the papers, I am satisfied that the only reasonable inference to be drawn from the following facts proved was that the appellants were in employment, namely that they had been employed by a person to pack and transport the household contents from House 101 to House 73 on 1 October 2016.

(1) PW2 arranged removal services with Rainbow Transportation Company through a website and WhatsApp for the transportation of the household contents of House 101 to House 73.  Either one or two persons attended House 101 and gave a price for the job of $7,000.  The price was accepted and boxes were dropped off at the house.

(2) Arrangements were made for the removal services to take place on 1 October 2016

(3) Five Southeast Asian males attended House 101 on 1 October 2016 to carry out the removal services.  They had been dropped off in a GoGoVan together with boxes, wooden trolley or pallets and equipment.

(4) There was no one else carrying out removal services or any strangers present at the houses at the time.

(5) The five males had commenced packing and transporting household items from House 101 to House 73 for about half an hour when they were intercepted and arrested by the police.

(6) PW1 identified the five males who were carrying out the removal services to the police who arrested them.  She identified Michael George and the four appellants.

(7) The five males performing the removal services were Michael George and the four appellants.

(8) The four appellants were all torture claimants and holders of a Form 8 recognizance.  They were prohibited from taking up employment, whether paid or unpaid.

43.  I find that the four appellants were in employment on the day in question in that they had been employed to do work for another (whether it be Michael George or someone else), and that they had entered into an employer-employee relationship for the purpose of carrying out work in providing removal services.

44.  For the reasons given, the appeals of the four appellants are dismissed.