HKSAR v. CHU HING CHEONG

HCMA564/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.564 OF 2004

(ON APPEAL FROM KCCC 6519 OF 2004)

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J U D G M E N T

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1. The appellant Chu Hing Cheong pleaded guilty before a magistrate to one charge of aiding and abetting, procuring and counselling breach of condition of stay of Zhong Lihua, contrary to section 41 of the Immigration Ordinance and regulation 2 of the Immigration Regulations (Cap.115) and section 89 of the Criminal Procedure Ordinance (Cap.221). He was sentenced to 10 months' imprisonment.

The facts

2. Zhong Lihua was a visitor from the Mainland. She was subject to a condition of stay of prohibition against taking up any employment, whether paid or unpaid.

3. On 30 March 2004, police officers entered the Yue Cheong Ginseng & Marine Product shop which the appellant was the person in charge. He admitted that Zhong Lihua was his wife's clansman and he deployed her to work in the shop because of shortage of labour and he provided her with free meals and accommodation. He was aware that Zhong Lihua was not lawfully employable in Hong Kong.

Reasons of the magistrate

4. The learned magistrate referred to A.G. v. Wong Chung Lee [1996] 2 HKCLR 159 (CA), which laid down the guideline starting point of 15 months' imprisonment after trial for the offence of employment of person not lawfully employable where one employee is involved and where there are no circumstances of exploitation.

5. The magistrate stated that the appellant operated a commercial enterprise and was fully aware of Zhong Lihua's status. He adopted the starting point of 15 months' imprisonment and reduced it to 10 months' for plea of guilty.

Grounds of appeal

6. Mr Yu, counsel for the appellant, submitted that the appellant originally faced the charge of employing a person not lawfully employable. His plea to the alternative charge of aiding and abetting breach of condition of stay was accepted by the prosecution and the brief facts were amended from employing Zhong Lihua to deploying Zhong Lihua.

7. The appellant also adduced evidence that on 10 June 2004 Zhong Lihua herself pleaded guilty to a charge of breach of condition of stay for working in Yue Cheong Ginseng & Marine Product shop as a shop assistant and was sentenced to only two months' imprisonment.

8. Mr Yu argued that :

(1) The magistrate failed to distinguish the offence of employing a person not lawfully employable and aiding and abetting breach of condition of stay.

(2) The learned magistrate wrongly found that the presence of Zhong Lihua enabled the appellant to save the cost of another employee.

(3) The learned magistrate erred in failing to give weight or sufficient weight to the fact that Zhong Lihua was the cousin of the appellant's wife and is not stranger to the appellant.

(4) There is a great disparity in sentence between Zhong Lihua and the appellant.

9. Mr Yu submitted that the present case does not fall within the more serious end of the range of sentence in that only one unemployable person is involved; the period is relatively short; the worker is the cousin of the appellant's wife and she was merely relieving the appellant's wife because she was sick.

Consideration upon appeal

10. There is no tariff for the offence of breach of condition of stay and the aiding and abetting thereof. Much depends on the nature of the breach and the seriousness of the circumstances. Counsel for the respondent agreed that for the offence of aiding and abetting breach of condition of stay for taking up illegal employment, the sentence upon a plea of guilty before a magistrate usually ranged from two to six months' imprisonment. I daresay in a more serious case the sentence may be higher. But in this case the respondent conceded that the sentence of 10 months' imprisonment was manifestly excessive though it was emphatically stated that the concession was not made on the ground of disparity of sentence.

11. The nature of the breach in the present case is that Zhong Lihua took up employment, whether paid or unpaid in Hong Kang and the appellant aided or abetted such breach by permitting or deploying Zhong Lihua to work in the shop under his charge.

12. The learned magistrate referred to Wong Chung Lee. No doubt he had in mind the clear policy of the law : to deter visitors who have no right to enter into employment in Hong Kong from working here. And this policy is well publicized in Hong Kong. That being said, it is ultimately up to those with the control of the workplace to offer employment and/or to permit the visitor to work in their workplace. I am yet to hear that visitors barge in to perform work duties without permission. Allowing a visitor to work must have necessarily saved a position otherwise open to a Hong Kong resident, even as a temporarily relief worker. Hence, the culpability of those who have control as to whether employment, paid or unpaid, do take place must not be lower than that of the visitor worker. Any disparity in sentence between the aider and abettor and the worker reflecting the appreciable difference in degree of culpability is justifiable.

13. In the circumstances of this case, I consider the starting point of four months' imprisonment appropriate and the sentence is reduced to two and a half months upon plea and mitigation.

14. Hence, the appeal is allowed and the sentence of 10 months' imprisonment is set aside and the appellant is sentenced to 21/2 months' imprisonment.