Attorney General v. WONG CHUNG LEE

Application for Review No. 10 of 1996

Headnote

Criminal Law and Procedure - Sentence

Employment of persons not lawfully employable, c/s.17I(1) Immigration Ordinance, Cap. 115. Held: Guideline starting point of 15 months imprisonment in Wong Mok-din [1994]2 HKCLR 96,102 applies to all offences c/s 171I(1). Approach in R. v. Tai Wai-hung (Mag. Appeal No. 529 of 1993, unreported) of sentences graded by reference to grouping of persons not lawfully employable rejected.

IN THE COURT OF APPEAL OF HONG KONG

CRIMINAL JURISDICTION

APPLICATION FOR REVIEW NO.10 OF 1996

(Magistracy Case No.W7548 of 1996)

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

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

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

J U D G M E N T

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

Nazareth, V.-P. (giving the judgment of the Court):

Introduction

1. This is an application made by the Attorney General for the review of 21 sentences imposed by a magistrate, Mr I.S.C. Candy, upon Wong Chung Lee ("the respondent") on 8th May 1996.

2. The respondent pleaded guilty to 21 charges of employing a person not lawfully employable, contrary to s.17I(1) of the Immigration Ordinance, Chapter 115. He was sentenced to a term of imprisonment for three months on each charge, all the sentences to run concurrently. In addition, he was fined $500 on each charge.

Background

3. The facts are these. In the early hours of the morning of 23rd December 1995, the police arrested 21 persons working at a garment factory in Kwun Tong. They had come to Hong Kong from the People's Republic of China as visitors under two-way permits and were prohibited from taking up any form of employment.

4. One of the workers had been employed since 3rd November 1995, while others had commenced employment with the respondent in the month of December. Records seized show that of the 21 visitors found to be unlawfully working, 13 had been working since about 9 am on 22nd December 1995, the previous day. Those same records show that the visitors were paid from $12 to $15 per hour, to $100 per day.

5. The respondent was an independent contractor responsible for the production of garments and, as such, was responsible for the hiring of staff, including the 21 visitors. He admitted that he had not taken any steps to check whether they were lawfully employable.

Reasons for Sentence

6. The magistrate expressed his written Reasons for Sentence in the following way :

"I was referred to the case of A.G. v. Li Ah-sang A.R.10/95. That case was decided on different facts. A distinction can be made between the employment of illegal immigrants and the employment of visitors. In the latter case further distinction can be drawn between visitors who are doing no more than assisting family members in the running of a small family business and those who take up formal employment on a regular or casual basis. In the case of family members this Court will usually impose a fine upon first conviction.

In the instant case the defendant had run a commercial enterprise using illegal labour and at the rates paid I found that there was some element of exploitation of the workers. The level of unemployment has risen in Hong Kong in recent years and the legislature has provided for increased penalties for the instant offences. It is also a fact that the incidence of these offences coming before this Court (which deals with nearly all cases prosecuted by the Immigration Department) has greatly increased in recent times. However, the fact remains that the workers in the instant case were all permitted to be in Hong Kong.

Because of the commercial scale of the defendant's business and the large number of workers employed I took the view that a prison sentence was appropriate to reflect a degree of deterrence in addition to a financial penalty. I took 6 months' imprisonment as the starting point.

I took account of the defendant's plea of guilty and his clear record as well as having regard to his family circumstances. I was aware that any period of imprisonment would have an adverse effect on the defendant's business and would cause some hardship for his family. Nevertheless I considered a prison sentence appropriate but given the mitigating factors, I was satisfied that the 'clang of the prison gates' would serve as sufficient deterrent in this case. I imposed concurrent sentences of 3 months on each charge together with a nominal fine of $500 on each charge."

The Starting Point

7. The submissions of the applicant that the sentences were manifestly inadequate and wrong in principle centred upon the starting point of 6 months taken by the magistrate.

8. The starting point for s.17I(1) offences was addressed by this Court, differently constituted in part, in R. v. Wong Mok-din [1994]2 HKCLR 96, 102 and Attorney General v. Lau Chung-ming [1993]2 HKCLR 11, which were heard together although reported in different years. Having considered the matters before it and reviewed earlier decisions, the Court said this at p.102, l.18-31 of Wong Mok-din :

"We are satisfied that 15 months after trial would be a proper starting point for an offence of this kind where one employee was involved, where there were no circumstances of exploitation and where it was 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.

The level of seriousness of cases falling within the suggested guideline of 15 months will vary according to the circumstances of each case.

At one end of the range stands the offender who wilfully and knowingly or recklessly employs an unlawful immigrant. At the other end stands the offender who makes some, but not all, practicable inquires and is genuinely unaware that he is employing an unlawful immigrant. Credit must as in all cases be given for a plea of guilty and some, but lesser, credit may be appropriate where an offender admits his complicity but seeks, without untruthfulness, to take advantage of the statutory defence."

This guideline of 15 months imprisonment as the starting point was, needless to say, also applied in Lau Chung-ming.

9. It is not suggested that the magistrate was unaware of the guideline; Wong Mok-din was in any case expressly mentioned in Li Ah-sang, to which the magistrate says he was referred. It is plain from that part of his reasons, that the magistrate was relying upon a distinction that he drew between employment of illegal immigrants and the employment of visitors. Wong Mok-din and Lau Chung-ming were concerned with the employment of illegal immigrants whose presence in Hong Kong was illegal; here the workers were visitors who were not lawfully employable but were lawfully present in Hong Kong (for the most part that is, for we were informed that nine of them had overstayed the periods for which they were admitted).

Respondent's submissions

10. It is this same distinction upon which Mr Daniel Marash for the respondent, who did not appear before the magistrate, relied primarily. He argued that upon existing decisions of the Hong Kong courts, sentencing for employing persons who were not employable contrary to s.17I(1) was to be determined by reference to the following four groups of unemployable persons in decreasing order of severity :

(i) illegal immigrants;

(ii) overstayers i.e. persons who overstayed the periods for which they were authorised to stay;

(iii) fishermen from the People's Republic of China and Tolerated Border Crossers (See R. v. Tai Wai-hung Mag.App.No.529 of 1993, unreported, for a description of the latter);

(iv) visitors admitted for a limited period, who have no right to work.

Any difficulty in distinguishing between (ii) and (iv) matters little since both occupy a lower position in the scale of severity projected. It is the proposition that sentences for the single offence of employing persons not lawfully employable have to be graded by reference to the suggested grouping of those persons that has to be examined. While it is common ground that there is no authority directly on the point, Mr Marash seeks to pray in aid two decisions.

11. First, that of Stock, J. in Tai Wai-hung which does, indeed, appear to conclude that the established sentencing policy relevant, is directed at particular groups of persons not lawfully employable and that accordingly employers of tolerated border crossers should expect heavier sentences than those employing overstayers from abroad. The Judge's exposition began with the observation of Cons, V.-P. in Law Chuen-fook [1989]1 HKLR 164, 165 that :

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

That however was said in the context of charges of aiding and abetting illegal immigrants to remain in Hong Kong contrary to s.38(1)(b) of the Immigration Ordinance. It is not authority for the conclusion or assumption that the severity of sentences for an offence contrary to s.17I, i.e. of employment of persons not lawfully employable should be determined by the proximity of the purpose of the employment to that of aiding and abetting the employees to remain in Hong Kong, or even by reference to the particular group to which the person not lawfully employable belongs. The object of sanctions against aiding and abetting illegal immigrants to remain in Hong Kong plainly must be the same or very similar to those against illegal immigrants themselves. The turpitude of such aiders and abettors is usually far worse than that of illegal immigrants, who until relatively recently have been very leniently dealt with in Hong Kong. Hence the foregoing observations of Cons V-P in Law Chuen-fook. The corresponding considerations and position relevant to employers of persons not lawfully employable can be very different. The substantial element in sentencing for the offence of remaining in Hong Kong unlawfully and related offences of unlawful possession and use of identity cards, i.e. unlawful presence in Hong Kong, identified in R. v. So Man-king [1989]1 HKLR 142, also relied upon by Stock J. in reaching his conclusion, may be wholly lacking in the offence of employing persons not lawfully employable, e.g. in the case of PRC visitors on two-way permits. A substantial element might be the unemployment situation in Hong Kong; see e.g. the judgment of Liu JA in Li Ah-sang at pp.4 and 5. Finally whether a person is lawfully employable is defined in s.17G(2), by reference to documents that pertain as much to the taking up of employment as they do to unlawful presence in Hong Kong.

12. Mr Marash's second authority was Li Ah-sang, upon page 8 of which he sought to rely. But it can be seen from page 9 that the observations made at page 8, which arguably favour his contentions, were provisional in that the entire matter of a starting point and guideline was reserved to an occasion when the Crown had an opportunity of presenting the factual material and full submissions necessary.

13. We therefore decline to follow Tai Wai-hung in the foregoing respect and reject the contention that the starting point of sentences for s.17I offences should be graded by reference to the classification or grouping suggested of persons not lawfully employable.

14. In our view, s.17I is plainly directed at all employment of persons who are not lawfully employable by reference to s.17G(2), which sets out comprehensively those persons who are lawfully employable. There is nothing in that subsection nor in any other provision of the law that has been drawn or has come to our attention that directs the penalty in s.17I specifically or primarily against the employment of illegal immigrants or any other similar group of persons not lawfully employable; nor is there any such suggestion in Wong Mok-din. In our view the guideline in Wong Mok-din with its express and implicit range of sentences and flexibility applies to all offences under s.17I regardless of the classification or grouping of the employees concerned.

Factors relevant to the starting point

15. We turn then to the other factors recognised by the Court in Wong Mok-din as relevant to the starting point. The magistrate listed these as the commercial nature of the enterprise, which reflects the multiplicity of employees, and some element of exploitation of the workers. He also mentioned the higher levels of unemployment in Hong Kong in recent years, the greatly increased incidence of unlawful employment, and the increased penalties provided by the legislature. The latter was no doubt a reference to the increase in 1990 from a maximum fine of $50,000 and one year's imprisonment, to a maximum fine of $250,000 and two years' imprisonment. Despite his express reference to those factors and his view that a degree of deterrence was appropriate, with which we agree, in our view the magistrate failed to accord any real weight to them in adopting a starting point of six months.

Conclusion

16. Having regard to the respondent's recklessness in not checking any of the workers' documents, the number of workers involved - no less than 21 - and the foregoing aggravating factors mentioned by the magistrate, we think the starting point should have been at least 20 months.

17. Such a starting point would be subject to a usual one-third discount for the respondent's plea of guilt. In allowing a discount of 50% the magistrate was clearly wrong in principle. A discount of that extent lies at the bottom of the range reserved for the exceptional "supergrass" category. Moreover in our view, a "clang of the prison gates" sentence would be clearly inappropriate to the circumstances of the offences in this matter and of the respondent.

18. However Mr Marash drew our attention to certain matters that are not revealed in the magistrate's Reasons. Mr Cross did not object to his doing so, making it clear that the Crown is concerned with the proper guidelines and starting point, rather than pursuing the respondent who is now at liberty, having served his sentence. The respondent was an independent contractor to the factory. He was unable to secure workers and came under considerable pressure and stress to complete the packaging of goods in time to avoid the loss of export quotas. The workers were all procured for the respondent in one transaction by a single individual. Although their remuneration appeared low, the rates rose very steeply for extra hours which was what attracted the workers to put in the very long hours in question. Moreover the respondent voluntarily paid the fines imposed on the workers amounting to some $22,000. Finally to cap all his misfortunes, the factory terminated his contract as a result of being involved in this matter. In our view, the magistrate must have taken a sympathetic view of those matters; we see no reason to dissent.

19. The application by the Attorney General was made out of time and that no doubt contributed to the delay which resulted in the respondent's release prior to its determination. A return to imprisonment now, following upon all he has already endured, would be disproportionately punitive.

20. Having given careful consideration to all the foregoing matters and the somewhat unusual circumstances, we think the proper sentence should be one of imprisonment for 13 months, but that such part of that sentence as has not already been served should be suspended for two years. We accordingly grant the application, set aside the 21 concurrent sentences of 3 months imprisonment and substitute concurrent sentences of 13 months imprisonment suspended for two years as to the unserved balance.

21. We would add that those minded to employ workers who are not lawfully employable should not doubt the liability they would incur to substantial sentences of imprisonment, not to mention maximum fines that were in January this year increased from $250,000 to $350,000.