HKSAR v. WONG PUI YUK

[English Translation – 英譯本]

HCMA 537/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 537 OF 2004

(ON APPEAL FROM KCCC 2166 OF 2004)

_________________

---------------

JUDGMENT

---------------

1. The appellant was convicted after trial of one count of “employing a person not lawfully employable”, contrary to section 17I(1) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong. She now appeals against conviction.

THE PROSECUTION’S CASE

2. Huang Yan (黃艷), a two-way exit permit holder, was found by PW1, a police officer, to be clearing rubbish at No. 109 Ma Tau Wai Road. Subsequently, the appellant was investigated.

3. The appellant admitted to PW1 that the cleaning work at that location ought to have been carried out by her personally. As to Huang Yan’s act on the day in question, the appellant said, “I did not employ her to do any job. She just gave me a helping hand there. I did not pay her any wages. I only took care of her and let her stay at my home.”

4. The appellant voluntarily elaborated on her above statement in a subsequent cautioned statement:

(1)      Since Huang Yan had a problem with her husband, she had been staying at the appellant’s home for about one week, but she was not required to pay any charges.

(2)      As the appellant had to make various New Year visits during the last Lunar New Year festival, Huang Yan cleared rubbish for her. The same happened two or three days before the incident that led to the present charge because the appellant was not feeling well, but on each occasion Huang Yan did not clear rubbish for a long period of time.

(3)      Huang Yan cleared rubbish for her at No. 109 Ma Tau Wai Road.

(4)      Although the appellant ran a cleaning company in partnership with a relative-friend of hers who was surnamed Chan, she also “worked” for Chan and was responsible for clearing rubbish for 15 blocks of tenements in To Kwa Wan including No. 109 Ma Tau Wai Road.

(5)      The appellant felt unwell again on the day in question. Therefore, Huang Yan went to No. 109 Ma Tau Wai Road to do the work for her.

(6)      The appellant knew that Huang Yan came to Hong Kong on a Permit for travelling to and from Hong Kong and Macau and that she was not allowed to work in Hong Kong.

THE DEFENCE CASE

5. The appellant stated in court that she formed a cleaning company jointly with her “sworn mother” but she was still responsible for some cleaning work and could earn extra wages therefrom. As to Huang Yan, she was a fellow villager of the appellant’s husband. She called up the appellant a few days prior to the incident in question, saying that she had a dispute with her husband. The appellant eventually asked her to stay at her home temporarily. On the day in question, the appellant happened to feel unwell. Huang Yan offered to go to No. 109 Ma Tau Wai Road to clear rubbish for the appellant, who then accepted the offer. In other words, the appellant’s testimony was by and large the same as the contents of her cautioned statement.

THE MAGISTRATE’S FINDINGS

6. The magistrate pointed out in his Reasons for Verdict that he would only focus on what happened on the day in question and would not consider what had happened before that. The magistrate also stated that he accepted the various statements of facts made by the appellant in her cautioned statement. Whether there was between the appellant and Huang Yan an employment relationship, which was necessary for the charge to be established, was a question of law for the magistrate to determine.

7. On this question, the magistrate concluded as follows:

11.      In my judgment, the incident arose because Huang Yan took the initiative to offer to help. But the defendant took up the offer and allowed Huang Yan to do the work. In these circumstances, the act of the defendant can, in my view, be taken as instructing Huang Yan to perform those acts. I have considered that the clearing of rubbish at No.109 Ma Tau Wai Road by the defendant was a service that carried a commercial element as opposed to voluntary work. By working there at that time, Huang Yan was, for and on behalf of the defendant, performing the duty that the defendant was required to perform under the contract. Every act of Huang Yan would directly affect the defendant’s personal interest.

12.      Although there was no mention in the evidence of details of the instructions that the defendant gave Huang Yan in relation to work procedure, Huang Yan at least went to the said address to provide service according to the usual work hours of the defendant and worked in accordance with the usual practice of the defendant. She also had to go out of her way to the said address to provide service. For these reasons, I hold that, at the material time, the defendant had considerable control over Huang Yan’s acts and that such control would affect the standard and quality of the service.

13.      I am of the view that the ‘helping hand’ or the ‘help’ given by Huang Yan at the material time was not ‘handy help’ in the social sense; rather, she was acting on the defendant’s instruction to go there to provide a full set of commercial services on behalf of the defendant. For this reason, I am satisfied that an employment relationship existed in which the defendant was the employer and Huang Yan was the employee. I am also satisfied that Huang Yan was a visitor to Hong Kong and, as such, was not allowed to take up employment.

THE PRESENT APPEAL

8. The appellant has advanced two perfected grounds of appeal:

(1)      The magistrate had not properly analysed the issue of whether there was an employment relationship between the defendant and Huang Yan. He failed to consider and examine whether there was any contract of employment between the defendant and Huang Yan and, if there was, the terms of the contract.

(2)   When considering whether there was an employment relationship between the defendant and Huang Yan, the magistrate wrongly took into account an irrelevant matter, namely that the defendant’s work carried a commercial element and was not voluntary work. But this matter could neither support nor refute the suggestion that Huang Yan was employed by the defendant.

9. I will simply point out at this juncture that there is nothing in the second ground of appeal.

10. It is very obvious that when the magistrate mentioned that the work carried a commercial element, his purpose was to point out that the appellant was certainly very concerned with the work attitude of Huang Yan. In other words, the magistrate was explaining why he considered that the appellant had considerable “control” over Huang Yan and, on that basis, concluded that there was an “employment relationship” between the two. This can be seen from paragraphs 11 to 13 of the Reasons for Verdict, which must be read in their proper context.

11. The first ground of appeal is quite another matter.

12. As pointed out by the appellant, the magistrate was not entirely accurate when he said that there was no definition of “employment” in the Immigration Ordinance. At the very least, section 17G of the Ordinance, an interpretative provision, does define the following terms:

‘employer’(僱主) means 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;

‘employee’(僱員) means any person who has entered into a contract of employment to be employed by any other person as an employee or apprentice;

‘contract of employment’(僱傭合約) 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; …

13. Furthermore, the English version of section 17I(1) of the Ordinance, which formed the basis of the charge against the appellant, uses the words “employer” and “employee” at the same time. The Chinese version of that section at least also states that any person who employs another person who is not lawfully employable as an “employee” commits an offence.

14. It is very obvious that, for the charge to be established, there must be a “contract of employment” between the two persons concerned. This is something which the magistrate appeared to have overlooked. It is true that, under the interpretative provision of section 17G, the relevant contract can be oral or even implied. But the magistrate’s analysis was essentially built upon the appellant’s side of the matter and in the end concluded that she had “instructed” Huang Yan to work. The magistrate never considered Huang Yan’s side of the matter apart from  mentioning that she had offered to help the appellant.

15. What the appellant meant was that, while this could be taken to suggest that the appellant had made use of Huang Yan, but it did not necessarily follow that a contract of employment existed between them.

16. In my judgment, this complaint of the appellant is reasonable.

JUDGMENT

17. The appeal is allowed. Both the conviction and the sentence are set aside. I decide not to order a retrial in view of the fact that this case has been casting a shadow on the appellant for a considerable period of time. The appellant is to be released immediately.