HKSAR v. CHAN PO KAI FREDDY

HCMA 1250/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1250 OF 1998

(ON APPEAL FROM FLC NO.1432 OF 1998)

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J U D G M E N T

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1. After his trial in the Fanling Magistracy, the appellant Chan Tat Fai was convicted of one charge of Employing Persons not Lawfully Employable, contrary to s.17I(1) of the Immigration Ordinance. He was sentenced to 15 months' imprisonment and he now appeals against his conviction and sentence.

2. The charge alleged that on 15 July 1998 at a jewelry shop located at Chung Ying Street, Sha Tau Kok, New Territories, the appellant employed three persons who were not lawfully employable. The alleged employees were also charged with one count each of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to s.38(1)(b) of the Immigration Ordinance. The appellant and the alleged employees were jointly tried in the same proceedings at the end of which only two of the employees were convicted of the charge. Each was sentenced to 15 months' imprisonment. The 3rd employee, one Ngai Sun Chung, was found not guilty by the learned magistrate.

3. Briefly the facts were : on 15 July 1998, the police mounted an undercover operation whereby police officers, posing as customers, went into a jewelry shop located at No.20 Chung Ying Street, Sha Tau Kok, New Territories. The object of the police operation was to check if there was any illegal immigrant working in the shop. The 2nd defendant Lau Wai Kat was observed by the police officers to have been working behind a counter in the shop offering to sell items of gold to the police officers. She also took out gold items from the display counter and showed them to the police officers, and offered a free pendant as a gift if they bought a necklace from the shop. The 3rd defendant Chan Lam Keung was observed to be standing behind another display counter inviting the undercover police officers into the shop to browse.

4. At a given signal, the police officers moved in and arrested the 2nd and 3rd defendants. Both were unable to produce a Hong Kong identity card. The appellant identified himself to the police as the person in charge of the shop. When questioned, he told the police that he knew the other three arrested persons by their nicknames only and they were there to offer assistance in the shop when they were free. He did not pay them "officially". A post-record of the answers given by the appellant in response to the police's questions were produced before the magistrate.

5. The prosecution also produced two certificates pursuant to s.17I(4) of the Immigration Ordinance certifying that Lau Wai Kat, the 2nd defendant, and Chan Lam Keung, the 3rd defendant, were not lawfully employable. It would be useful to note that at the trial it was never suggested that the two defendants were not the persons named in the certificates.

6. The learned magistrate found at the time of the police raid, both the 2nd and 3rd defendants were in fact working in the shop premises and both were in the employment of the appellant. She also found that both defendants were not lawfully employable.

7. Subsequent to the appellant's conviction, he applied to review against his conviction and sentence. The learned magistrate dismissed the application in November 1998.

8. Mr Keane, SC for the appellant advanced two grounds of appeal against the appellant's conviction. The first ground was that there was no direct evidence to support the finding that the other defendants were employed by the appellant. While Mr Keane accepted that the learned magistrate was entitled to infer a contract of employment from the circumstantial evidence in this case, it was submitted that the circumstantial evidence was less than compelling. The inference and the conclusion thus reached by the learned magistrate was therefore not sustainable.

9. In my view, once the learned magistrate accepted the evidence of the 1st and 2nd prosecution witnesses and their account of the activities of the 2nd and 3rd defendants, there is sufficient evidence to enable her to find that they were in fact working in the jewelry shop. It would also be opened to the magistrate to infer that they were employed to work in the premises. In order to secure a conviction, however, the prosecution must go further and prove that they were employed by the appellant and not by anyone else.

10. The evidence against the appellant on the issue of employing the two defendants can be summarised as follows : the appellant, as well as the two defendants, were all inside the shop at the time of the raid. The appellant identified himself to the police as the person in charge of the shop. He also told the police that the three defendants offered assistance in the shop when there were a lot of business and they would be responsible for serving tourists. He also admitted to the police that he knew the arrested persons were from the Mainland. It was based on the totality of the above evidence that the learned magistrate came to the conclusion that the 2nd and 3rd defendants were in the employment of the appellant. There was ample evidence for the learned magistrate to draw the irresistible inference as she did. There is no justification of the criticism levelled at the magistrate by learned leading counsel and I see no merit in the first ground of appeal.

11. Ground two of the appeal was that there was no admissible evidence to support the learned magistrate's finding that the 2nd and/or the 3rd defendant were persons not lawfully employable. It was submitted that she erred in relying on the certificates issued by the Director of Immigration pursuant to s.17I(4) to establish her finding. In so doing, it was said, she had erroneously relied upon a non-existent presumption that the 2nd and 3rd defendants were the persons named in the certificates issued by the Director of Immigration. Mr Keane relied on R. v. Ho Chun Wai [1991] 2 HKC 332 and the more recent case of HKSAR v. Wong Lee Yuen, HCMA No.756 of 1999. These two cases are authorities for the proposition that evidence must be produced by the prosecution to establish the person named in a s.17I(4) certificate is the same person referred to in the charge as the person not lawfully employable.

12. In every charge brought under this section, it is incumbent upon the prosecution to prove that the person named in the charge is not lawfully employable. More often than not, the prosecution would produce, by way of evidence, a certificate issued by the Director of Immigration stating that the person named in the certificate belongs to that category of persons. But what is the evidence available to establish that the person whose name appears on the charge sheet is the same person who is referred to in the certificate? Each case must depend on its own facts.

13. Section 17I(4) reads :

" Where a person is charged with an offence under this section a certificate purporting to be signed by the Director and certifying that the employee in respect of whom the offence is alleged to have been committed was, at the date of the alleged offence, not lawfully employable, shall be admitted in evidence on its production without further proof and, until evidence to the contrary is adduced, it shall be presumed-

(a) ...

(b) that the employee in respect of whom the offence is alleged to have been committed was, at the date of the alleged offence, not lawfully employable."

It is clear that the wording of this section creates a rebuttable presumption that the person named in the certificate was, at the date of the alleged offence, not lawfully employable. No evidence was adduced at the trial to rebut this presumption. There is however nothing in the section to suggest there is a presumption that the person named in the certificate is the same as the person named in the charge. In cases where the identity of the person named in the certificate is not in dispute, this would pose no problem for the magistrate. If however, the prosecution cannot prove that the person named in the charge is the same person named in the certificate, and if there is no other admissible evidence to prove the status of the employee, then the prosecution must fail. One would appreciate that in this context, matching the identity of the person named in the charge and that of the person named in the certificate is of crucial importance. To give an extreme example, even if the names appearing in both documents are the same but they are in fact two different persons, the prosecution must also fail for the obvious reason that the prosecution could not rely on the certificate. On the other hand, if the prosecution is able to prove the person named in the charge is the same person who is referred to in the certificate, then even though they may be known by different names, the prosecution is still entitled to succeed provided all the other elements of the charge can also be proved. In my view, it is in the following context that the judgment of Leonard J in R. v. Cheung Long, HCMA No.1132 of 1996 should be read and understood : in cases where the only evidence of employability is based on a certificate issued under s.17I(4) or where the identity of the person named in the certificate is in dispute, the prosecution must prove the person named in the charge and the person named in the certificate is in fact the same person.

14. In the present case, the learned magistrate approached the issue of the certificates in this manner in paragraph 14 of her Statement of Findings :

"... Exhibits P4 and 6 were admitted into evidence by agreement. They were the 'illegal immigrants certificates' relating to D2 and D3, issued under Section 17I(4) of the Ordinance. The Immigration Department have certified that the defendants are not lawfully employable. This was not challenged either. I was satisfied beyond reasonable doubt that they were not lawfully employable by D1. ..."

It is plain that she did not approach the issue as if there is a statutory presumption to the effect that the persons named in the certificates were those persons named in the charge sheet. Further, there were ample independent evidence, apart from the certificates before the magistrate, to establish the identities of the persons named in the certificates. They were both arrested by the police together with the appellant inside the jewelry shop. Both were subsequently identified in court by the prosecution witnesses as the persons who were arrested during the operation and they were tried together with the appellant. The evidence before the magistrate that the 2nd and 3rd defendants were the persons named in the certificates was overwhelming. With respect to Mr Keane, the magistrate had at no time either assumed or had acted upon a non-existent presumption. She was fully entitled to make the findings as she did and I cannot find any substance on the second ground of appeal.

15. For the reasons given, the appeal against conviction is dismissed.

Appeal against sentence

16. The appellant was sentenced to 15 months' imprisonment. This term of sentence falls within the guidelines set out in AG v. Wong Chung Lee [1996] 2 HKCLR 159 in which the Court of Appeal observed, in a review against sentence by the Attorney General, that the starting point is 15 months' imprisonment after trial for an offence under s.17I(1) is appropriate. The starting point should be increased in cases of multiple employment or where there are circumstances of exploitation.

17. Mr Keane submitted that the presence of the two defendants in the appellant's shop was tolerated by the Hong Kong authorities and any employment of them by the appellant was only on a casual and occasional basis. It was also suggested that since the appellant was granted bail pending appeal over a year ago, this matter has been hanging over his head for a considerable period of time and he has suffered psychologically and emotionally because of the pending appeal.

18. I do not feel I am attracted by the reasons behind Mr Keane's submissions. This is a case where more than one employee were involved. The learned magistrate saw fit to impose the tariff sentence of 15 months' imprisonment and I am not in any way persuaded that it is either manifestly excessive or wrong in principle. The prison term is proper and it should not be interfered with.

19. The appeal against sentence is also dismissed.