R. v. HUI WAI MAN

M.A. No. 927 of 1993

H E A D N O T E

In order to prove that "all practicable steps" were taken to determine whether an employee was lawfully employable within section 17I(1A) of the Immigration Ordinance (Cap. 115), it is necessary for the employer to prove that he took all feasible steps which were capable of being carried out within known means or resources. However, each case depends very much on its own facts, and although it is not possible to lay down any general principles, guidance is given to magistrates as to how the test should be applied in practice.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 927 OF 1993

_________________

J U D G M E N T

_________________

Keith J. (giving the judgment of the court):

INTRODUCTION

1. On 29th October 1993 at Tuen Mun Magistrates' Court, the Appellant was convicted, after pleading not guilty, of two charges of employing a person who was not lawfully employable. He was sentenced to 4 months' imprisonment consecutive on each charge, making 8 months' imprisonment in all.

2. The Appellant originally appealed against both his conviction and sentence. His appeal against sentence was abandoned some time ago. His appeal against conviction, however, came before Kaplan J. on 9th May 1994. Having heard the arguments, Kaplan J. directed that the appeal be argued before the Court of Appeal.

THE STATUTORY FRAMEWORK

3. Many illegal immigrants come to Hong Kong to seek employment. Accordingly, section 17I(1) of the Immigration Ordinance (Cap. 115) ("the Ordinance") seeks to deter employers from employing them by providing that "[a]ny person who is the employer of an employee who is not lawfully employable commits an offence". In Attorney-General v. Yip Man-cheong [1989] 2 HKLR 547, the Court of Appeal held that the offence created by section 171(1) is one of strict liability. It is not a defence, therefore, to a charge under section 17I(1) that the defendant did not know that the person he employed was not lawfully employable.

4. However, the imposition of strict liability could be unfair in those cases in which the employer had done everything he could to ascertain whether an applicant for employment was an illegal immigrant, and reasonably believed him to be lawfully employable. Accordingly, to mitigate the inflexibility of the doctrine of strict liability, the Ordinance was amended in 1990 by the addition of section 17I(1A) which provides a statutory defence for employers who employ a person not lawfully employable. Section 17I(1A) provides :

"It is a defence in proceedings for an offence under this section for the person charged to prove that all practicable steps were taken to determine whether the employee in respect of whom the offence is alleged to have been committed was lawfully employable and that it was reasonable to conclude that the employee was lawfully employable".

Accordingly, to establish the statutory defence, the employer must first prove that all practicable steps were taken to determine whether the employee was lawfully employable. If he does not prove that those steps were taken, the question whether it was reasonable to conclude that the employee was lawfully employable does not arise.

THE MEANING OF "ALL PRACTICABLE STEPS"

5. There is no authority on the meaning of the words "all practicable steps" in section 17I(1A), though in R. v. Shun Shing Construction and Engineering Co. Ltd. [1993] 1 HKCLR 69, the Court of Appeal had to decide whether the Appellant had taken "all practicable steps to prevent" persons not lawfully employable from being employed on a construction site. The court held that "practicable steps" meant "feasible steps" which were "capable of being carried out within known means or resources", though "each case depends very much on its own facts". In our view, that definition of what constitutes "all practicable steps" applies to section 17I(1A) as well, though we should add that the test to be applied to determine whether "all practicable steps" have been taken is an objective one.

6. The fact that each case depends on its own facts means that it is not possible to lay down any general principles as to how the test should be applied in practice. However, if the employee produces what purports to be his identity card, and the employer does nothing more to check that the employee is lawfully employable, we imagine that a magistrate would rarely be satisfied that the employer has taken all practicable steps to determine the employee's status. Since section 17J(1) of the Ordinance requires an employer to inspect the employee's identity card before employing him, the employer will, in such a case, have done no more than the minimum that the law requires him to do. We imagine that a magistrate would want to be satisfied, at the very least, that the employer had questioned the employee about his domestic circumstances, his skills and his previous work experience, and had received such answers which could not have alerted the employer to the possibility that the employee might be an illegal immigrant.

7. If the photograph and particulars on the identity card produced by the employee do not in any way put the employer on enquiry that the card is forged or does not relate to the employee, and if the information which the employee gives about himself and his previous work experience is such that there is no reason for the employer to suspect that the employee might be an illegal immigrant, it may be appropriate for a magistrate to conclude that getting in touch with the employee's previous employer to check the accuracy of the information or the Immigration Department to check the authenticity and use of the identity card are not practicable steps to take in the circumstances. There can, we think, be no hard and fast rule that employers have to have made one or other or both of those checks before establishing that they took all practicable steps to determine the employee's status. Indeed, having regard to the number of people employed in Hong Kong every day, the Immigration Department's hot-line would have to be constantly manned by a large team of officers in order to answer prospective employers' enquiries for information, and employers would be inundated with requests for information about previous employees to such an extent that their businesses could be disrupted to an unacceptable degree.

8. However, in view of the infinite variety of situations which can arise, we resist the temptation to be any more positive than that. Apart from the prospective employee's appearance, his apparent ethnic origin, and the fluency, accent or dialect of his Cantonese, we imagine that magistrates will want to ask themselves the following questions. Where was the job for which the employee was applying, i.e. close to Hong Kong's border with China or not? Was the job for which he was applying skilled or unskilled? How did he come to apply for the job, i.e. was the vacancy advertised, or did the employee turn up on the off-chance that work might be available? And what did he tell his prospective employer about his previous work experience, his skills and his domestic circumstances? In the Legislative Council debate on the clause which became section 17I(1A), the Secretary for Security said that "whether the measures taken constitute an arguable defence will be for the court to determine in each case" : Hong Kong Legislative Council, 7th November 1990, Reports of Debates, p. 340. We leave it to the good sense of magistrates, armed with such guidance as we have given, to decide, in each individual case, whether the particular facts justify the conclusion that all practicable steps have or have not been taken.

THE BACKGROUND FACTS

9. The Appellant was one of two partners in a business which traded in motorcycles from premises in Pat Heung in the New Territories. The two charges related to two employees (PW2 and PW3) whom he employed within 10 days or so of each other in August 1993. The Appellant had asked each of them for their identity cards, and they had each produced what purported to be their identity cards. In fact, the cards were either forged, or related to other persons, and the two employees were illegal immigrants who had recently arrived in Hong Kong surreptitiously.

10. The magistrate found as a fact that the Appellant did not know that the employees were illegal immigrants, and therefore not lawfully employable. However, he took the view that there were a sufficient number of suspicious features about their recruitment to put a reasonable employer on enquiry as to their status, that it was insufficient in the circumstances for the Appellant to do no more than inspect their identity cards and ask them a few perfunctory questions about whether they were from Hong Kong, and that the practicable steps which the Appellant should have taken to determine their status included asking them more questions about themselves and telephoning the Immigration Department's hot-line to check the authenticity of the identity cards and the employees' right to use them.

SHOULD THE APPELLANT HAVE BEEN PUT ON ENQUIRY?

11. There were two matters which the magistrate found should have made the Appellant particularly vigilant when it came to employing casual workers :

(i) The location of the Appellant's premises in the New Territories meant that they might be targeted by illegal immigrants from China seeking employment. This finding was attacked by Mr. Daniel Fung Q.C. for the Appellant on the basis that it was unsupported by the evidence, and that the magistrate failed to disclose his thinking on this topic to the Appellant and his counsel, thereby depriving the Appellant of the opportunity of giving evidence about it and his counsel of the opportunity of addressing the magistrate on it. We reject these criticisms. This was not the magistrate's local knowledge of a kind which the magistrate was obliged to inform the Appellant of and the use to which he intended to put it. In our view, a magistrate can take judicial notice of the fact that the closer premises are to the Chinese border, the more likely they are to be targeted by illegal immigrants who cross the border surreptitiously looking for work.

(ii) The jobs which the Appellant had available were of the kind which would be attractive to illegal immigrants from China seeking employment. This finding was attacked on the basis that the jobs which were offered to PW2 and PW3 were stripping motorcycles, and there was no evidence that work of that kind was likely to attract illegal immigrants. We reject these criticisms as well. We think that what the magistrate must have had in mind was that the jobs which the Appellant could offer were unskilled or involved a minimal amount of skill only. In our view, a magistrate can take judicial notice of the fact that stripping motorcycles involves at the most a minimal amount of skill, and that work which involves little or no skill is exactly the sort of work which the majority of illegal immigrants from China would be looking for.

We agree with the magistrate that these two features of the employment which the Appellant was offering - their location and the nature of the work - should have made the Appellant wary about the status of workers who sought jobs with him.

12. The features about the recruitment of PW2 which the magistrate thought should have put the Appellant on enquiry were the following :

(i) PW2 told the Appellant that he lived in Kowloon, and that it would be inconvenient for him to travel to and from work every day. He therefore asked the Appellant whether he could sleep on the premises. We accept that this may have been an understandable request for even a Hong Kong resident to make, but it was nevertheless a request which the Appellant must have regarded as unusual, because apart from an employee from China who had in the past slept in the premises overnight, the Appellant had never had such a request before in the two years that he had been employing people at the premises.

(ii) In his evidence, the Appellant said that although PW2 resembled the photograph on the identity card which PW2 produced, he had noticed "some slight differences" between PW2 and the photograph. He said that he attributed those differences to the fact that one's appearance changes when one gets older. However, when he compared PW2 with the photograph while he was giving evidence, he accepted that "they're not alike but their general look is alike". Moreover, the magistrate had an opportunity to compare the photograph with PW2. He found that the photograph was of a man some years older than PW2.

We entirely agree with the magistrate that these were two significant features which should have put the Appellant on enquiry as to whether PW2 was an illegal immigrant and therefore lawfully employable. In the interests of completeness, we should add that PW2's evidence was that although he spoke to the Appellant in punti, he could only speak a few sentences in that dialect, whereas the Appellant's evidence was that PW2 spoke to him in Cantonese without a noticeable accent. The magistrate made no findings on this issue, and he therefore made no finding as to whether PW2's proficiency or otherwise in Cantonese should have put the Appellant on enquiry.

13. We turn to PW3. The Appellant admitted having asked PW3 for his identity card, and while PW3 was in the course of producing it, he asked PW3 whether he was from the mainland. PW3 replied that he was from Hong Kong. He explained that the reason why he asked that question was because, although PW3 spoke to him in Cantonese, he did so with a slight accent. He claimed that that did not make him suspicious about PW3 "because even my friends who have been here for 20-30 years have accents". On the basis of this evidence, the magistrate found as a fact that the Appellant must have had some suspicions about PW3, and we find it quite impossible to say that this was a finding of fact which was either contrary to the weight of the evidence or one which the magistrate could not reasonably reach. We should add, in view of one of Mr. Fung's submissions, that the fact that the Appellant asked PW3 whether he was from the mainland could not by itself have shown that the Appellant was already suspicious about PW3. It was the fact that he asked that question because of PW3's accent that, in our view, entitled the magistrate to make the finding that he did.

HAD THE APPELLANT TAKEN "ALL PRACTICABLE STEPS" IN THE CIRCUMSTANCES?

14. The magistrate having, justifiably in our view, reached the conclusion that the circumstances in which PW2 and PW3 applied for work should have alerted the Appellant to the possibility that they might be illegal immigrants, the magistrate then had to decide whether in those circumstances the Appellant had proved that he had taken all practicable steps to determine whether they were in fact illegal immigrants. Other than inspecting the identity cards they produced, and asking PW3 whether he was from the mainland, the Appellant did nothing. The practicable steps which the magistrate found he should have taken in the circumstances were

(i) to question them further about their domestic circumstances and previous work experience, and

(ii) to telephone the Immigration Department's hot-line to check whether the identity cards produced by them had been lawfully issued or whether they had been reported lost or stolen.

15. We agree with the magistrate. As to (i), we do not think that it is all that difficult for a prospective employer to ask pertinent questions designed to test the explicit or implicit assertion by the employee that he is lawfully in Hong Kong and entitled to work in Hong Kong. As to (ii), we do not think that the magistrate was asking too much of the Appellant. In any event, the Appellant himself admitted that he knew that he could check the validity of the identity cards produced to him with the Immigration Department but chose not to.

16. Mr. Fung argued that a layman like the Appellant (who is neither a police or immigration officer, and who is not paid or trained to detect the presence of illegal immigrants in Hong Kong) should be entitled to assume that people who apply for jobs are law-abiding rather than illegal immigrants, and to assume that the answers they give to any questions he asks them are true. We disagree. The prevalence of illegal immigrants looking for work in Hong Kong means that employers - especially those in areas close to the border with China who have casual unskilled work on offer - must be particularly vigilant to ensure that their employees are lawfully employable. That does not mean that they can never rely on what a prospective employee tells them. It does mean, though, that they should approach the recruitment of casual workers, and what they are told by job applicants, with such scepticism as the circumstances warrant.

CONCLUSION

17. For these reasons, the magistrate's finding that the Appellant had not taken all practicable steps to determine whether PW2 and PW3 were lawfully employable is unassailable. The Appellant's reliance on the statutory defence, therefore, had to fail. Accordingly, this appeal must be dismissed.