HKSAR v. LO MAN WING ALAN ZHIVAGO

HCMA1041/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1041 OF 2004

(ON APPEAL FROM KCCC 8569 OF 2004)

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

1. The appellant was convicted on 23 September 2004 of one charge of being the employer of a person not lawfully employable contrary to section 17I(1) of the Immigration Ordinance.  He was sentenced to 40 days’ imprisonment.  He sought to review that sentence and the sentence was reconsidered by the magistrate on 23 September 2004 and confirmed the sentence.  The appellant now appeals that sentence.

2. The ground of appeal is that the magistrate failed to take sufficient consideration of various mitigating circumstances. 

3. The facts were that on 7 June 2004, police officers on patrol in Kwai Chung intercepted a Chinese male Wu Tianbao.  He was pushing a handcart loaded with rice and oil.  It was found that he was not a resident of Hong Kong but was here on a two-way permit.  The employer of Wu was questioned and admitted that he was the owner of a grocery company, and that he was responsible for the recruitment of staff.  He said that on that day his regular employee was ill and had telephoned in saying that she would be unable to work that day.  She asked if her younger brother Wu Tianbao could be permitted to work at the company for one day in substitution for her.  The appellant agreed and did not inspect Wu’s identity card prior to permitting him to work for his company. 

4. Wu is a Cantonese speaker and introduced by a regular employee.  Mr Wong for the appellant argues that the appellant was misled into permitting the substitution and not inspecting the identity card of Wu by the fact that it was a substitution and not a recruitment.

5. I am referred to the recent case of HKSAR v. Ho Mei Wa, CAAR3/2003, where the Court of Appeal considered in detail the tariff which should apply in circumstances such as these.  A number of points were made.  Ma CJHC, in determining firstly the nature of the penalty, said this :

“The maintenance of the public policy just referred to therefore requires that a deterrent sentence be imposed even for a strict liability and not ‘truly criminal’ offence such as section 17I.  An immediate custodial sentence is accordingly called for in many cases.”

6. The magistrate in considering his sentence did take into account the question of Community Service Order.  He said this :

“I did consider a Community Service Order in considering the range of options and I have rejected that.  There is no doubt in the court’s mind — or anybody in the gallery, I’m sure — in terms of you being qualified to meet all the criteria set out by the case law for Community Service.  Nonetheless, the Court of Appeal has said, clearly, that immediate terms of imprisonment is the appropriate sentence.”

7. The facts in Ho Mei Wa were these : at the time of the offence, Ho was the owner of a poultry shop in Shamshuipo.  She employed two persons from the Mainland in the shop both of whom were not lawfully employable in Hong Kong — one was her younger brother.  Both were visitors prohibited from taking up any employment.  One was used as a stand-in waiter relieving regular staff and the other was a waiter.  Neither employee was an overstayer.  Both could be treated as having been employed on a casual basis.

8. In considering the appropriate sentence in Ho Mei Wa, the Court of Appeal said this :

“	… This factual situation is, we perceive, a common one encountered by the courts.  For our part, we accept that this sentence is appropriate on this factual scenario.  However, we wish to make clear the following points in relation to this sentence and the facts to which it applies :
	(a)	It is an immediate custodial sentence, and not a suspended one.
	(b)	The sentence is applicable to a first time offender.
	(c)	The relevant employment should be one in relation to the employer’s commercial or business interests, for example, employment in a restaurant or shop or construction site.  We say nothing about the applicability of this sentencing guideline to domestic situations nor have we heard any arguments on this aspect.
	(d)	The reference to employment on a casual basis means a short term, temporary and one-off employment.  By short term we have in mind days, not weeks and certainly not months.
	(e)	As to knowledge, given that all employers of workers in Hong Kong should by now realize the need to see identification documents before a person is hired as an employee (such as those types of documentation referred to in section 17G(2) of the IO), short of deception, it is perhaps difficult to see how an employer who is found guilty or pleads guilty to the offence will be able to say that he did not have the requisite knowledge or was not reckless.”

9. In respect of those facts the appropriate sentence found by the Chief Judge was three months after trial in the absence of any aggravating mitigating circumstances.

10. What I must consider here is whether the manner of the introduction of Wu to the appellant was such that it was mitigation which should have reduced the starting point of three months.  I cannot see that it amounts to any significant mitigation.  Notwithstanding the manner in which an employee is introduced or whether the employee is a relation, or connected in some way to the employer, it is still incumbent, as was said by the Court of Appeal, upon every employer in Hong Kong that they must view the identification documents of a person hired as an employee.

11. This case falls squarely within that of Ho Mei Wa.  The starting point of three months is appropriate and the sentence of 40 days’ imprisonment is an appropriate sentence which cannot be said to be either wrong in principle or manifestly excessive. 

12. The appeal against sentence is dismissed.