HKSAR v. MIU WAH LAI, AMY

HCMA 990/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 990 OF 2000

(ON APPEAL FROM ESS 5966/2000)

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J U D G M E N T

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1. The Appellant appeals against her conviction in the Magistracy on the basis of an information laid against her, in that being the licensee of an employment agency, she received from a job applicant in connection with obtaining employment for that person, payment in an amount of HK$6,000.00, which was a payment in excess of the maximum commission prescribed under Regulation 10(2) and the Second Schedule of the Employment Agency Regulations Cap. 57.

2. Briefly, the facts were that a domestic helper was employed by an employer in Hong Kong. She applied from Singapore for the job in Hong Kong through an agency called Balley, which operated in Singapore. When she arrived in Hong Kong she was told that her salary would be deducted for a period of three months at various rates of deduction. In fact, her employer was required to pay the sum of HK$6,000.00 to an agency known as Papel, which operated in Hong Kong and of which the Appellant was the licensee.

3. Magistrate exhaustively canvassed the evidence in this case and correctly set out the issues. She considered the account given by the Appellant indicated that she was a poor and untruthful witness. She found that the two employment agencies were effectively operating in tandem as associated entities and that the Appellant was a partner of the Singapore agency, playing an active role in its day-to-day management. The operation of the two agencies appeared to be a device to avoid penalties for the payment of commissions on employment postings.

4. On appeal, the Appellant put before the court much the same matters that she raised in front of the Magistrate. She pointed out that the employee gave different versions in various statements which were before the Magistrate. The Magistrate specifically dealt with those apparent discrepancies in her Statement of Findings. She concluded that some parts of the employee's evidence were confusing, but those parts of the evidence did not undermine her credibility, or the reliability of her evidence overall. The Magistrate was satisfied beyond reasonable doubt that the payment of HK$6,000.00 was in fact payment received indirectly from the employee and that it was in connection with obtaining her employment.

5. There appear to be no grounds on which I should upset this conviction and the appeal against conviction is dismissed.

6. The Magistrate in considering penalty noted that the maximum penalty for this offence was HK$50,000.00. She was aware that this was a first offence for the Defendant who had had 13 years' experience running an employment agency. The Magistrate considered that a substantial fine was called for after trial. The Magistrate, unsurprisingly, took the view this was an operation run between Singapore and Hong Kong, with a view to exploiting foreign domestic helpers who wished to relocate to Hong Kong from Singapore. In this particular case, the payment received is more than 1-1/2 months of the employee's wages, well in excess of the commission of 10% of the first month's wages permitted under the Ordinance.

7. I am satisfied that the Magistrate had in mind the appropriate matters when sentencing. The appeal against sentence is dismissed also.