HKSAR v. YIU SAU PIK

1997, NO. MA 870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellant Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted by her own plea of the offence of employing a person not lawfully employable. The facts admitted by her are that she was found by patrolling officers that she employed an overstaying visitor who was not allowed to work in Hong Kong. The appellant admitted that she employed this person to work in her shop. She was sentenced to 10 months imprisonment.

2. The magistrate in his reasons for sentence said that the normal sentence is 15 months and there were no mitigating circumstances except her plea. That being the case, the magistrate sentenced her to 10 months imprisonment.

3. The appellant now appeals against sentence. Mr Newman Wong, counsel on her behalf, refers to an affidavit filed by the appellant to which reference Counsel for the Government makes no objection. In this affidavit, she deposes that her father was suffering from terminal stage blood cancer. She also states that she employed the unemployable person because her husband told her a friend of his would introduce a Filipino to their shop to work. Later the unemployable person came and she recognised that he had been working in the area for sometime. Without hesitation or any thought about his employment status, she hired him. There was no exploitation of this person by her because she paid him reasonable wages and allowance each month. The appellant also deposes that the magistrate was not aware of these factors when he sentenced her to 10 months imprisonment. Indeed there was no mention of these in the magistrate's reasons for sentence.

4. Mr Wong submits that the appellant was no doubt careless in employing the unemployable person but she was not grossly negligent and her culpability was at the lower end of the scale. He submits that had the information in the affidavit of the appellant been put before the magistrate, the magistrate might have decided otherwise. Reference is made to R v. Wong Mok-Din [1994] 2 HKCLR 96 where the Court of Appeal held that the normal sentence for an offence of this kind is 15 months if there is only one employee and there are no circumstances of exploitation or the offender was aware that he was employing an unemployable person or he had acted recklessly and Mr Wong has no quarrel about the sentence of 10 months dicounting from 15 months for the appellant's plea. However, he submits by referring to Lam Chor Hung v. R Mag. App. No. 114/95 that the courts are always ready to consider special mitigating factors which, in the present case, are that the appellant had made some practical enquiries and is genuinely unaware that she was employing an unemployable person.

5. At the time of sentencing, the special mitigating factors of the appellant now contained in her affidavit were not brought to the attention of the magistrate and this was so through no fault of hers. Had these been placed before the magistrate, the magistrate might have considered giving the appellant more reduction. The sentence of 10 months imposed by the magistrate after the appellant's plea is in accordance with the authorities and nothing can be said against that sentence. However this is one of those cases where the court should exercise clemency, having regard to the particular circumstances of the appellant. I am of the opinion that the appellant should have further reduction and the appropriate sentence should be one of 6 months. The appeal is allowed and the sentence of 10 months set aside and a sentence of 6 months is substituted.