THE QUEEN v. NG YUET CHEONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1352 OF 1990

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BETWEEN

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Judgment

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1. This is an appeal against sentence imposed in the magistrates court on the 22nd August 1990 of six months' imprisonment in respect of the offence of employing a person not lawfully employable contrary to section 17I(1) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong.

2. I have already allowed the appeal and reduced the sentence and now give my reasons why.

3. On the 10th of August 1990 the appellant was the person in charge of a restaurant known as the Lung Yuen Restaurant situated at No. 4, Block A of Greenery Garden, Tai Woo Road, Tai Po. On that day at 1205 hours PC46491 of the Uniform Branch of Tai Po Police Station went to the said restaurant to check the kitchen to see if there were any illegal immigrants working there. He arrested a Chinese male called LAM Tong who was found washing. dishes inside the kitchen. LAM Tong admitted at this time that he was an evader and had come to Hong Kong from China. He had been to the restaurant at 1030 hours on that day to have breakfast and later was employed by the appellant. At that time the appellant was not inside the restaurant and the person in charge of the restaurant was Chinese female NG Pui-yi (the daughter of the appellant) and she was taken to the Tai Po Police Station for the investigation. Enquiries revealed that LAM Tong was allowed to stay and work in the Restaurant as a dish washer by the appellant with effect from 1030 hours on. that same day. Eventually, the appellant was arrested for the offence charged and cautioned by PC7704. During the investigation, he was helpful and co-operative with the Police and he admitted that he was the owner of the restaurant and that he did employ LAM Tong. When the appellant was charged before the magistrate he pleaded guilty and was duly convicted. He had a clear record and in mitigation merely contented himself with saying that "I don't think I have much to say."

4. At this stage, the magistrate informed him that the. offence "carries prison custody" and suggested that he say whatever he can. The appellant remained silent so the magistrate felt it incumbent upon him to ask some questions. These questions merely illicited the fact that the appellant employed the illegal immigrant because he was very busy at the time and therefore did not ask for the identity card for inspection. He is 56 years of age, married with three daughters and one son in Hong Kong ranging between the ages of 21 to 35. He has a wife who is a housewife and his youngest daughter works at the restaurant. The other 2 are in Mainland China. He is running the restaurant at a loss.

        When passing sentence the magistrate said :-

 

"Take into account plea of quilty, clear record and personal circumstances. However only an immediate custodial sentence is appropriate for this type of offence. To serve a period of 6 months' imprisonment."

 

5. On the 22nd August 1990 the appellant was represented by Mr. Andrew KAN, instructed by K.K. LEONG & Co. when he sought a review of the sentence.

6. Mr KAN pointed out that there were no guideline decisions relating to this type of offence and that it was an offence of strict liability. He pointed out that the prosecution preceeded under this section and not under the section which makes it an offence to aid and abet illegal immigrants to remain in Hong Kong having landed unlawfully in Hong Kong. He stressed the fact that it was the illegal immigrant who approached the appellant for a job, that the appellant was busy at the time and that he had no reason to suspect that the evader was an illegal immigrant. It was sheer inadvertance on his part that he did not ask for the illegal immigrant's identity card. When the Police raided the premises, he volunteered information to the Police about the employment of the illegal immigrant, he made a frank admission. He argued that the offence being one of strict liability does not normally attract an immediate custodial sentence for a first offender without aggravating factors such as knowledge of the identity of the illegal immigrant. He pointed out that the appellant had now been in prison for 10 days and there was no suggestion that he would be likely to commit further offences. He asked for a review of sentence suggesting a fine would be appropriate.

7. Unfortunately, the magistrate having allowed the application to review stated: "I decline to review myself" and confirmed the sentence as imposed.

8. The appellant's application for bail was also refused.

9. The learned magistrate in setting out his reasons for sentence for the purposes of this appeal, said :-

"The facts of this case made it very different from the more frequently encountered scenario of the employer being duped into employing a person by the production of documentation. Here, the appellant made no attempt at all to establish any thing about the employee.

 

I accepted, as the corollary, that it also differed from the situation of an employer unscrupulously employing a person not lawfully employable at reduced wages or for extended hours.

 

In the former case there is authority for the proposition that, if the employer has taken "... all reasonable precautions ...", an absolute discharge may be appropriate." SIU Wai-kin v R.

 

However, I thought it of significance that, in that judgment, Bokhary, J., said, at page 2:

 

'Where the employer was deceived he would not have been dishonest; and he would be entitled to a certain measure of leniency as a result.'

 

It seemed to me to be quite clear that where the employer had not even bothered to make the most basic checks he was, in effect, being dishonest in that he was turning a 'blind eye' to the possibility of a situation such as the present arising - and, indeed, ignoring his lawful obligations. Consequently, the '...certain measure of leniency ...' seemed to me to be reduced even further.

 

In the latter case (i.e. of exploitation of an employee and thus direct knowledge of his lack of employability) the employer would be charged, almost inevitably, with aiding and abetting the illegal immigrant. Once more, there is ample authority for the fact that given such a situation the appropriate sentence would be one of immediate imprisonment and that :-

 

'... those who offer opportunities of employment to illegal immigrants must expect to receive sentences certainly not less than those. imposed upon the immigrants themselves.'

 

per Cons, V.-P., in LAW Chuen-fook v R

 

In the light of A.G. v NG Kin-hung and OTHERS

 

the period of imprisonment for the employer would be fifteen months in the absence of strong humanitarian or aggravating features.

 

I was careful to ensure, when arriving at my decision, that I sentenced the appellant for the instant offence and not that of aiding and abetting the illegal immigrant. There is clearly a distinction and it redounds to the benefit of the appellant. However, I regarded the fact that the employee was an illegal immigrant as adverse to the appellant.

 

I was unable to find any guideline of the appropriate sentence in matters of this nature. I consequently regarded myself as being at large as to sentence but within a range from absolute discharge to immediate imprisonment of a not insubstantial period.

 

I did enquire of the appellant as to his financial means. He simply indicated that his business was running at a loss. On the basis that a fine must be within the offender's ability to make payment and in view of the fact that any fine in a matter such as this would have to be very substantial indeed, this was clearly not an option. However, I did not regard this offence as meriting a financial penalty.

 

I recognized that, firstly, immediate imprisonment for a first offender is normally to be avoided and, secondly, deterrence is not of the same degree of emphasis where a first offender is concerned. There are, however, certain exceptions to these rules. It seemed to me that this class of offence committed in these circumstances was or ought to be such an exception.

 

I consequently decided that the appropriate penalty was one of immediate imprisonment. I took as my starting point twelve months imprisonment and reduced it by half when allowing for the plea of guilty, the clear record and the fact that the appellant had failed to make enquiries rather than having made them and elected to ignore the results.

 

Having determined the length of imprisonment which was to be imposed I then followed

 

LAM Lai-chun v R

 

and considered whether I would be justified in suspending it. I gave this aspect particularly anxious consideration. I came to the conclusion that, notwithstanding all that could be said in favour of the Appellant, there was no such justification.

 

I sentenced the appellant accordingly."

10. In my view the sentence was wrong in principle. Clearly it was wrong for the magistrate to impute dishonesty to the appellant in a situation where no facts had been admitted which gave rise to an inference of dishonesty and the offence to which the appellant pleaded guilty was one of absolute liability. It did not behove the magistrate in the circumstances to indicate that the offence was one which carried an. immediate custodial sentence. Secondly, he was wrong in principle in taking a starting point of 12 months' imprisonment, a matter which is conceded by Miss Evena CHAN for the respondent.

11. I was informed by Miss CHAN that enquiries made by her and one of her colleagues had not unearthed a single case where a man has been sentenced to imprisonment for this offence. There is the added mitigation that the appellant was a first offender. Punishment by imprisonment should be a last resort. The mere fact that the appellant had stated that his business was running at a loss did not mean that it was not possible for him to pay a reasonable fine imposed by the court. It may reasonably be assumed that a person running a restaurant would have the capital or the means of raising capital to enable him to go on running the business after having paid a fine. If, of course, he was an employee of the owner of the restaurant, his salary and savings would have been relevant to the amount of any fine.

12. I considered that this was a case where the magistrate should have considered imposing a reasonable fine on the appellant. The appellant has now been imprisoned for some 10 days prior to obtaining bail pending appeal and in the circumstances the most appropriate course was to allow his appeal and impose a prison sentence of such length as would enable him to be immediately released; which I so did.