R. v. LAM CHOR HUNG

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 114 OF 1995

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J U D G M E N T

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1. The appellant was charged with the offence of employing persons not lawfully employable contrary to section 171(1) of the Immigration Ordinance, Cap. 115. He was found guilty of this charge before a magistrate and sentenced to 3 months imprisonment. He now appeals against both conviction and sentence.

2. The particulars of offence are as follows:-

"LAM Chor-hung, you are charged that on the 5th day of September, 1994, at 'Yau Tong Wholesale Fish Market', No. 10, Tung Yuen Street, Yau Tong, Kowloon, you were the employer of Tsang Tai, Chan Kwai-tat, Cheung Ah-ying, Siu Kong, employees who were not lawfully employable."

3. The prosecution case was briefly that a team of police officers from the Tactical Unit of Kowloon East were on anti-illegal immigrant duty at the Yau Tong Wholesale Fish Market at about 2:30 p.m. on 5 September, 1994. They saw some workers unloading fish on to the shore when they walked to the side of one of the fishing boats. The appellant was standing beside the boat holding a book and counting the goods. He admitted to the officers that he was the owner of the boat. The four workers who were unloading goods were found to be illegal immigrants. They had been relaying the goods from one to another, unloading the goods from the ship to the shore. The appellant also told the officers that the workers were employed by him from Mainland China. He told the officers in the past when marine officers stopped his boat and found workers on board they just gave warnings. The appellant was arrested and subsequently charged with the offence.

4. Mr. McNamara for the appellant argued a total of five grounds in this appeal. The first being:

"the conviction of the appellant for employing persons not lawfully employable was wrong in law in that there was no or insufficient evidence to link the employees with those persons named in the certificates produced under section 171(4) of the Immigration Ordinance, Cap. 115. See R v. Ho Chun Wai, Magistracy Appeal No. 1768 of 1990."

5. There is no merit in this ground because the appellant admitted that with the exception of Siu Kong, all the others were his employees. They were taken back to Kwun Tong Police Station together with the appellant. The names of two of the workers were recorded in the register of his vessel and this document was admitted into evidence as an exhibit. There is ample evidence to support this finding. The magistrate accepted and found that Siu Kong was not an employee of the appellant. The facts in R v. HO Chun-wai are different and have no application to the present situation. This ground fails.

Grounds 2 and 3 can be dealt with together.

Ground 2:

"The magistrate decided the case on the basis that the alleged offence has occurred on the shore (See Statement of Findings, page 47). There was no or no sufficient evidence to show that the employees were on shore and not still on the appellant's boat."

Ground 3:

"By saying "Since it was part of the Appellant's case that the employees never went ashore, it should have been put to PW1 in terms for him to deal with more fully." (See Statement of Findings, page 47) the magistrate was effectively reversing the onus of proof. Such an approach was wrong in law."

6. I readily accept that the magistrate was wrong to find that the unloading of fish by the illegal immigrants took place on shore. There is no evidence to support this finding. In fact, the evidence points to the opposite direction that these illegal immigrants unloaded the goods from the boat. The fact nevertheless remains that the illegal immigrants were working in Hong Kong and they were employed by the appellant. Whether they worked on boat or on shore is immaterial in terms of guilt. Section 171(1) of the Immigration Ordinance provides:

"Any person who is the employer of an employee who is not lawfully employable commits an offence and is liable etc."

7. Being illegal immigrants, the workers were persons not lawfully employable and the offence under this section has been fully made out. Grounds 2 and 3 must also fail.

8. The appellant sought to raise and argue the statutory defence in Ground 4 which reads:

"The magistrate was wrong to find that the Appellant had made no effort to find out the law in Hong Kong (See Statement of Findings, page 48) when he then went on to make a specific finding that the Appellant had asked of and had been told the law by Marine Police officers."

9. This is what the appellant said in his evidence:

"In Hong Kong waters, I have been stopped by Marine Police on 8 occasions. They said once they saw the fishermen's certificates they let me go. When they saw the Chinese registration, they did not charge me. As to coming ashore with the crew, I would not

allow that. Marine police issued warning that they could be allowed to work on vessel, but never to go ashore."

10. Section (1A) of the Immigration Ordinance deals with the statutory defence and it says:

"It is a defence in proceedings for an offence under this section for the person charged to prove that all practicable steps were taken to determine whether the employee in respect of whom the offence is alleged to have been committed was lawfully employable and that it was reasonable to conclude that the employee was lawfully employable."

11. For this defence to succeed, it is necessary for the employer to have taken all practicable steps to find out whether a person is employable. The law imposes a positive duty on the employer to make inquiries. It is not enough to say that when his boat was stopped he was told by Marine Police officers that the crew could be allowed to work on boat. This information coming from unidentifiable source through the mouth of the appellant is hearsay and inadmissible. There is no means of checking or verifying its accuracy. In any event, this does not amount to practicable steps taken by the appellant. He had taken no steps. See R v. Hui Wai Man, Magistracy Appeal No. 927 of 1993. In my judgment, the appellant has failed to establish the statutory defence on a balance of probabilities. This ground of appeal also fails.

12. In view of the conclusions I have reached on Grounds 1-4, it has

become unnecessary for me to deal with Ground 5. The appeal against conviction is dismissed.

Sentence

13. The magistrate had seriously considered to suspend the sentence and only decided against it having taken the view that he was bound by the decision of the Court of Appeal in R v. Wong Mok-din, Magistracy Appeal No. 553 of 1992. Since I have reversed the magistrate on his finding that the unloading took place on shore, there are, in my judgment, sufficient reasons to justify a departure from the guideline in Wong Mok-din, especially the magistrate accepted the evidence of the appellant that the appellant had been told by Marine Police officers when his boat was stopped that he would not be prosecuted as long as his crew did not go ashore.

14. In the circumstances of this case, I would allow the appeal to the extent that the sentence of 3 months imprisonment imposed by the magistrate is to be suspended for a period of 2 years.