HKSAR v. CHAN KA FAI KYOSUKE

HCMA538/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.538 OF 2004

(ON APPEAL FROM KCCC 2648 OF 2004)

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J U D G M E N T

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1. The appellant (the defendant) was charged with two counts of the same offence, namely, being the employer of a person not lawfully employable, contrary to section 17I(1) of the Immigration Ordinance, Cap.115 of the Laws of Hong Kong. He pleaded guilty before Mr Thomas sitting in Kowloon City Magistracy and admitted the facts. He was sentenced to a term of 10 months' imprisonment. He now sought to appeal against the sentence.

2. The facts admitted by the appellant are as follows :

"On Monday 9th February 2004, police officers went to the lane behind the Chan Yee Hing, food stall at 40 Shung Ling Street, San Po Kong, Kowloon. The officers found two females, Liao Mandi and Li Yuncui. Liao was sitting on a stool washing dishes. Li was tidying a bowl of vegetables at a table. The two women were found to be visitors from the mainland. Liao had entered Hong Kong on 15th January 2004 and had been permitted to stay until 14th February 2004. Li had entered Hong Kong on 2nd February 2004 and had been permitted to stay until 16th February 2004. Each woman was prohibited from taking up any employment, whether paid or unpaid.

The appellant was the person in charge of the restaurant and was responsible for employing staff. Under caution, the appellant admitted that he had employed the two women concerned to work at the restaurant on the day in question. Liao to wash dishes and Li to cut vegetables. The appellant said that he would provide the two women with free meals. The appellant had failed to inspect the travel documents or documents of identity of the two women."

3. The appellant was 23 years of age and had no previous record of conviction. He was represented by counsel in the magistracy. In her mitigation, counsel pointed out that the defendant's parents had been separated and he had to look after his deaf and blind grandmother who was dependant on him. Furthermore, his wife had recently come to Hong Kong on a two-way permit to visit him. The real proprietor of the restaurant was like a father to the defendant, so he would go to help out in the restaurant without any pay. On the day in question, two of the restaurant's workers were absent, so the defendant let the two women help out. They were actually his sister-in-law and a distant relative, so it was not a case that the defendant deliberately employed them just to save money. A community service order was proposed as an option of sentence.

4. Having heard the mitigation and having considered two leading authorities on this matter, the learned magistrate adopted 15 months as starting point on each charge. He granted the usual one-third discount for the defendant's pleas and ordered that the two terms to run concurrently. In his Reasons for Sentence, the magistrate concluded that :

"In the present case, the appellant knew full well the status of the two employees. The appellant was operating a commercial enterprise. Had he not been able to call upon the services of his relatives, he would have had to engage local relief workers and to pay them. Accordingly, and despite the assertions made by counsel on his behalf in mitigation, the appellant had saved the restaurant money and he had deprived local workers the chance of employment. However, I noted that the period of employment was short. I considered that, therefore, I would take as a starting point a period of imprisonment of fifteen months on each charge. I gave the appellant full credit for his pleas of guilty and reduced the sentence in each case to one of ten months' imprisonment. There being, in my judgment, no other mitigating factors, those were the sentences that I passed. The employment was on the same occasion with only two workers and I therefore ordered that the two sentences should run concurrently, that is a total period of imprisonment of ten months."

5. Counsel for the appellant had put forward two main grounds in support of this appeal. Leaving aside the details, counsel argued that the learned magistrate had failed to give sufficient weight to the mitigating factors. Second, that the learned magistrate had failed to recognize the unusual feature in this case, and had failed to deal with the factual basis properly. Counsel put forward eight points under Ground 1 and five points under Ground 2.

6. The gist of the criticisms is as follows : the defendant was actually not the owner of the business and he made no financial gain by helping his "god father". The defendant was facing a crisis on that occasion and the initiative came from the workers who were the defendant's relatives. After all, the period of their work was extremely short. The magistrate had not indicated that he would not accept what had been put forward in mitigation and yet at the time of sentence, he nevertheless proceeded to treat the case as the usual run of cases. This case was unusual because the alleged employment was of a very technical nature, one might even say that there was no actual contract of employment at all. There was no evidence to support the magistrate's view that the defendant had denied the Hong Kong citizens from being able to work there.

7. Regarding the criticism of the factual basis of the sentence, what counsel seemed to be suggesting was that there should have been a Newton enquiry to determine whether the matters raised in mitigation were acceptable, but that had not been done. In the absence of a Newton enquiry, it was said that the defendant was entitled to expect that the mitigation had been accepted. But I note that counsel who appeared before the magistrate had never made the suggestion of a Newton enquiry, nor do I think such an enquiry was necessary in the particular circumstances of this case. I think the magistrate had assessed the sentence on the basis of the admitted facts, and he was perfectly entitled to do so. In fact, I could see nothing wrong about the remarks made by the magistrate in the conclusion of the Reasons for Sentence.

8. The defendant had admitted to be the responsible person of the restaurant and he allowed two relatives to work when he knew about their visitor status. His relationship with the real owner is really neither here nor there as the gravaman of the offence is the employment of such persons.

9. Counsel went as far as implying that there was really no contract of employment arisen and even if there were, it would be of a technical nature. I cannot accept this submission. There might not be a written or formal contract of employment but it is trite law that the existence of a contract does not depend on whether there is a written or formal document. A contract of employment can be made orally or inferred from parties' conduct. Here, the two relatives were given work in exchange of free meals. One may perhaps argue that the consideration involved was really illusory as free meals would be given in any event but the defendant had chosen to plead guilty to the offences. In any case, the conditions in the visitors' permits would be that they could not take up any employment, paid or unpaid.

10. I also see nothing wrong about the magistrate's comment that by employing these two persons the restaurant had saved money. What would happen if these two relatives were not in Hong Kong at the time? Obviously, the defendant would have to go to the market to seek substitute workers and he would have to pay them. That was what the magistrate was trying to point out. The defendant should have conducted the business on the basis that these visitors were not available to offer help or work; it would have made no difference whether there was a crisis or otherwise.

11. In terms of the starting point, the magistrate had relied on the authorities of Wong Chung Lee¹ and also Fu Yau Hung². It appeared that the Court of Appeal had, in the earlier case of Wong Mok Din³ stated the proper starting point for this offence would be 15 months after trial, where one employee was involved. In the subsequent case of Wong Chung Lee, the Court of Appeal approved the guideline in Wong Mok Din and expressly declined to follow R. v. Tai Wai Hung⁴, which attempted to draw distinctions between different categories of those who were not lawfully employable. The Court of Appeal stated that :

"The starting point for s.17I(1) offences is 15 months' imprisonment after trial where one employee is involved, where there are no circumstances of exploitation and where it is established that the offender was aware that he was employing an unlawful immigrant or had acted recklessly in so doing. This starting point should be increased in cases of multiple employment and where there is any element of exploitation. ...."

Hence, the tariff of 15 months appeared to have been settled law.

12. It has come to my notice that the Secretary for Justice is recently seeking a review of sentence before the Court of Appeal for this type of offence. The submissions by the Secretary for Justice appeared to be that the 15-month guideline adopted in Wong Mok Din had not been generally adhered to by the magistrates, and many of them chose to suspend the term of imprisonment. The Court of Appeal has reserved its judgment and one would welcome a clarification by the Court of Appeal. But this court has not been invited to adjourn the case further to wait for the decision by the Court of Appeal. As the defendant is in custody now, I do not think it appropriate to further delay my decision.

13. I would mention in passing that I think the social and economic circumstances in which Wong Mok Din was decided have changed quite significantly. One of the factors in determining sentences was said to be whether there was an element of exploitation of the visitor-workers. In the early 1990's, Hong Kong was enjoying economic success and the court was concerned mainly with the protection of the visitors who might be exploited by the unscrupulous employers in Hong Kong. But now, the situation is rather different as we still have a high unemployment rate, and that there are a lot more visitors coming from the Mainland. If the employers in Hong Kong turn to them for employment so that they could avoid the legal responsibility pertaining to the hiring of a local worker and make savings from the lower salary demanded by the visitors, the local workforce would be seriously affected. I believe the focus should now be shifted more to the protection of the local workforce. Hence, even if there is no element of exploitation, the 15 months should be enforced generally and suspended sentences would be regarded as wrong in principle.

14. Coming back to the present case and having said all that, this case falls into the less serious category of similar offences. The two visitors were related to the defendant and the period of employment was very short. The defendant might also feel somewhat aggrieved as he had received a level of sentence which had not been consistently imposed by the other magistrates. In the circumstances, I would consider that the proper starting point should have been 12 months and, after the one-third reduction, the sentence would be 8 months for both charges. Applying the same concurrent order imposed by the learned magistrate, the overall sentence is therefore 8 months. The appeal is allowed to that extent.

1 AG. v. Wong Chung Lee [1996] 2 HKCLR 159 CA

2 HKSAR v. Fu Yat Hung, HCMA271/1998

3 R. v. Wong Mok Din (1994) 2 HKCLR 96

4 R. v. Tai Wai Hung, HCMA529/1993