HKSAR v. CHOW KIN CHEUNG

HCMA 248/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 248 OF 2012

(ON APPEAL FROM STCC NO 5383 OF 2011)

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J U D G M E N T

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1. The appellant was charged with one count of being the employer of a person not lawfully employable, contrary to section 17I(1) of the Immigration Ordinance, Cap 115. He pleaded not guilty and was convicted after trial. He appealed against his conviction. At the end of hearing, I allowed the appeal. These are the reasons.

2. The prosecution case is essentially undisputed.  On the material day, police officers conducted observation outside one shopping mall in Tsimshatsui.  They saw the appellant and the 1^st defendant speaking to each other.  The 1^st defendant was holding a trolley.

3. Later, both the appellant and the 1^st defendant were seen walking along Carnarvon Road to one TST Plaza at Chatham Road, the appellant in the front followed by the 1^st defendant pushing his trolley behind.  They entered a shop at TST Plaza.  After the appellant pointed to a wooden cabinet, the 1^st defendant started to upload the wooden cabinet onto his trolley.  Both left TST Plaza together and headed to one refuse collection depot at Minden Row where the wooden cabinet was eventually unloaded. The appellant was seen to hand over $60 to the 1^st defendant.

4. Both the appellant and the 1^st defendant were then arrested by the police.  The 1^st defendant was a person not lawfully employable in Hong Kong.

5. Under caution, the appellant admitted that since he was not strong enough to move the wooden cabinet himself, the 1^st defendant was hired to move it to the refuse collection point for $60.  The appellant further told the police that it was his shop’s last day of business and that the premises were going to deliver vacant possession to the landlord that day.

6. The appellant did not give evidence. 

7. The only issue before the learned magistrate (and before this court) was whether there was sufficient evidence to establish one employer-employee relationship between the appellant and the 1^st defendant.  The learned magistrate concluded that there was this employment relationship. 

8. In coming to that conclusion, the learned magistrate placed particular emphasis on the control exercised by the appellant over the 1^st defendant (paras 37 and 38, Statement of Findings):

“37. After [the 1^st defendant] moved the wooden cabinet by himself and placed it on the iron trolley, and finished securing the wooden cabinet on the iron trolley, [the 1st defendant] followed [the appellant] to leave TST Plaza and walked along Chatham Road South, and [the appellant] led [the 1^st defendant] to reach the Refuse Collection Point at Minden Row. Then [the 1^st defendant] put down the wooden cabinet from the iron trolley and placed it there.

38.  [The 1^st defendant] was not free to choose when and where to dispose the wooden cabinet, and during the journey to the Refuse Collection Point at Minden Row, [the 1^st defendant] was not free to work for others if he wished to.  In fact, if [the 1^st defendant] was an independent contractor, after the wooden cabinet passed to [the 1^st defendant], [the appellant] should not be bothered on how [the 1^st defendant] treated the wooden cabinet, whether [the 1^st defendant] gave it to someone else for whatsoever purpose, or kept it for himself or took it to somewhere else other than the Refuse Collection Point at Minden Row.  It would be [the 1^st defendant]’s own discretion on how to deal with the wooden cabinet.  However, [the 1^st defendant] was not free to do whatever he liked to do with the wooden cabinet.”

9. Depending on circumstances, contract of employment might arise in relation to a specific engagement.  The modern approach to the question whether one person is another’s employee is therefore to examine all the features 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 (Poon Chau Nam v Yim Siu Cheung [2007] 10 HKCFAR). 

10. Control is one indicia that the learned magistrate can take into account.  However, in the present case, there are other features as well:

(i)  the appellant did not know the 1^st defendant prior;

(ii)  the job was unlikely to be repeated;

(iii)  the remuneration was on item basis and described as transportation fee in the record of interview of the appellant; and

(iv)  the 1^st defendant provided all the tools, trolley and ropes, and was not part of the employer’s business activity and would never be.

11. It may be the case that once the wooden cabinet was passed to the 1^st defendant that the appellant did not have any more interest in it.  However, evidence clearly shows that it was the intention of the appellant that the wooden cabinet be disposed of properly and not abandoned in any other ways.  This in fact was the engagement that day.  The appellant led the 1^st defendant to the refuse collection point and only after that the 1^st defendant received his $60.  Naturally, during this short journey, the 1^st defendant was not in a position to engage in other work. 

12. The fundamental test to be applied (as formulated by Cooke J in Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173) is this: “Is the person who has engaged himself to perform these services performing them as a person in business on his own account?”  It seems to me what the 1^st defendant provided is akin to rendering removal service.

13. It was upon the control indicia that the learned magistrate drew the irresistible inference that the relationship was one of employer-employee rather than contractor.  In my view, viewing all the circumstances, including all those features outlined above objectively, that may not be the only inference one can draw.  Needless to say, the standard of proof in a criminal case is high and differs from cases concerning employee’s compensation. 

14. Having examined all the circumstances of the case, I cannot say the conviction is safe and satisfactory.  I therefore allow the appeal and set aside the conviction.