R. v. WONG PUI CHUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.317 OF 1996

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J U D G M E N T

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1. The Appellant was convicted of Employing a person not lawfully employable, contrary to s.17I(1) of the Immigration Ordinance. She was fined $5,000. She now appeals against conviction.

2. The Appellant was arrested together with the 1st defendant in this case on 14th September 1995. The 1st defendant was a visitor from mainland China on a two way permit and she was allowed to remain in Hong Kong until 12th November 1995 but she was not allowed to take up employment whilst in Hong Kong. Two police officers on patrol saw the 1st defendant washing dishes at a rear lane of a noodle shop. Upon enquiries the 1st defendant told one of the officers that she was employed by the Appellant at HK$100 per day. She pointed out the Appellant to the officers. One of them questioned the Appellant who was then inside the rear of the noodle shop chopping meat. The Appellant admitted she employed the 1st defendant.

3. Later at the police station, the Appellant made a statement under caution.

4. The defence of the Appellant was she was not at the rear of the shop and in fact she was sleeping at the time. The 1st defendant was not employed by her though she was her relative on a visit from China.

5. The evidence of the police officers was accepted by the magistrate who rejected the story of the Appellant.

6. But the written cautioned statement was ruled inadmissible by the magistrate at the trial. As regards the verbal admission by the Appellant at the scene, the magistrate in his statement of findings said :

"... But yet, at the end of the day, I found I could not be satisfied beyond reasonable doubt as to what precisely D2 had said, and therefore, although they had been relevant to my decision that there was a case to answer, I disregarded those alleged admissions at the conclusion of the case."

7. In effect the magistrate did not rely on the verbal admission of the Appellant. The magistrate also did not rely on the verbal admission of the 1st defendant which in any case would not have been admissible against the Appellant.

8. The evidence that was left against the Appellant was limited to the Appellant being found at the rear of the noodle shop when the 1st defendant was washing dishes at the opposite side of the rear lane.

9. The magistrate found that the 1st defendant was washing dishes for the shop and "the Appellant was one of the joint bosses who made the decisions about employee and the Appellant was present working for the shop and very close to the 1st defendant while she washed the dishes."

10. There are a number of grounds of appeal. Grounds (i) and (ii) relate to the magistrate's duty towards an unrepresented defendant. Ground (iii) concerns consideration of the clear record of the Appellant and ground (iv) states that the magistrate was wrong in finding the Appellant was the employer of the 1st defendant.

11. In the circumstances of this case, it is convenient to deal with ground (iv) first. If the Appellant succeeds on this ground, there is no need to deal with the rest.

12. Mr Fu for the Appellant submits that there was no evidence establishing an employer and employee relationship between the 1st defendant and the Appellant. The prosecution case depended on the admissions of the Appellant to establish this link. In the absence of such admission there was no such link. Mr Fu submits that the magistrate should have ruled there was no case for the Appellant to answer and if in fact there was no prima facie case, no evidence from the Appellant could have cured the prosecution case.

13. Mr Lo for the Crown submits there was circumstantial evidence to support the finding of employer and employee relationship between the Appellant and the 1st defendant. He submits the link was in the layout of the scene which was part of the noodle shop. He also refers to the presumption under s.17N of the Immigration Ordinance under which any person who is found at a place where employees are in employment of an employer, is presumed to be an employee of that employer. He submits that the 1st defendant was found in the rear lane which was part of the noodle shop and the fact that the magistrate has not relied on this presumption does not bar the Crown from raising it at the appeal.

14. The presumption under s.17N can only be invoked if the 1st defendant was found in a place where there were other employees of the Appellant. There was no other person in the lane except the 1st defendant. The presumption does not apply in the instant case.

15. Even though the magistrate might be entitled to accept the admissions by the Appellant in her evidence that she was one of the two bosses of the shop and she made decisions about employee, there was still no evidence that the 1st defendant was in the employment of the Appellant.

16. The fact that the 1st defendant was washing dishes at a place proximate to the noodle shop does not justify the inevitable conclusion that she was working for the Appellant.

17. The conviction is unsafe and unsatisfactory. The appeal must be allowed. The conviction is quashed and the fine of $5,000 set aside. Fine paid should be returned to the Appellant.