R. v. TSE YUNG KI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 474 OF 1996

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J U D G M E N T

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1. The appellant pleaded guilty before a magistrate to two offences which are of the same nature i.e. employing a person not lawfully employable, contrary to s.17I of the Immigration Ordinance, Cap.115.

2. The agreed facts are these : the appellant who operated a congee shop employed two of his relatives who came to Hong Kong on a 2 way permit from China. They assisted the appellant in serving customers in the shop and they were provided with food and lodging but there was no monetary remuneration. They had only assisted in this manner for three to four days before the police came and arrested the appellant and his two relatives.

3. The appellant was sentenced to 7 months' imprisonment concurrent on each charge. He now appealed against sentence.

4. Mr Grounds for the appellant submitted that the present case should be distinguished from the ordinary cases of employment of illegal immigrants. He submitted that for those aiding and abetting illegal immigrants there was authority that they should expect to be treated as the illegal immigrants where the sentence would, unless there were exceptional circumstances, be in the region of 15 months. The court held, he submitted always treated overstayers differently from illegal immigrants and for those who had not overstayed, they should be treated even more differently.

5. A number of cases were referred to :

R. v. Chong Yuk Yee Mag. App.129/90 is a case where an overstayer who took up employment during his overstay, on his plea of guilty, was sentenced to 10 weeks' imprisonment for overstaying and fined $500 for taking up employment. On appeal, Ryan J. held it was not wrong to impose a sentence of imprisonment for overstaying in order that visitors observed the conditions of stay. As to the length of sentence, it varied according to the circumstances.

In R v. Wong Mok Ding, Mag. App.553/92, referring to Law Chuen Fook (1989) HKLR 164, the Court of Appeal was of the opinion that those who offered opportunities of employment to illegal immigrants must expect to receive sentences certainly not less than those imposed upon the immigrants themselves.

In R v. Yip Wing Tong, Mag. App.253/93, the appellant employed his cousins who lived in China to deliver fruits to the appellant's boat lying in Hong Kong and thence to China. He was sentenced to 3 months' imprisonment. On appeal, the sentence was suspended because the employees were not illegal immigrants who sneaked into Hong Kong to find a job. But a fine was imposed in addition.

In R. v. Tai Wai Hung, Mag. App.529/93, Stock J. drew a distinction between those employees who were illegal immigrants and those who were not and indicated that 15 months' imprisonment should apply to cases involving illegal immigrants and the aiders and abettors.

In R. v. Lee Ah Sang, Application for Review 10/95, the opinion of the Court of Appeal is that employing a person not lawfully employable should be visited by an immediate custodial sentence unless there are extenuating circumstances. This was an application for review of sentence by the Attorney General. The magistrate imposed a fine and no custodial sentence. The Court of Appeal substituted a sentence of 3 months' imprisonment suspended for 2 years and a fine on the respondent who employed two unemployable persons as handyman/watchman. There was no determination as to whether they were illegal immigrants.

6. So far, there is no authority on cases where the unemployable person is neither an illegal immigrant nor an overstayer.

7. The present case must be distinguished from cases involving illegal immigrants where the starting point should be one of 15 months' imprisonment. The employees in the present case were lawfully in Hong Kong and they had not overstayed. They were just helping out their relatives during their time here and there was no evidence of exploitation. They were not here to seek a job. They were merely provided with food which in any case would be provided to them even if they did not assist. In the light of Lee Ah Sang, it would not be wrong in this case to impose a period of imprisonment. However, the sentence of 7 months' imprisonment is manifestly excessive having regard to the special circumstances of the case and the fact that the appellant had pleaded guilty. Bearing in mind that this is not a case worse than Lee Ah Sang, the sentence of 7 months is reduced to one of 3 months' imprisonment on each charge concurrent. The appeal against sentence is accordingly allowed.