ATTORNEY GENERAL v. YIP MAN-CHEONG

1988, M.A. No. 1753

HEADNOTE

    Section 171(1) of the Immigration Ordinance Cap. 115 provides:

"Any person who is an employer of an employee who is not lawfully employable commits an offence and is liable to a fine of $50,000.00 and to imprisonment for 1 year."

On 1st July 1987 R, the Respondent, employed an illegal immigrant who produced an I.D. card issued to another. The Magistrate acquitted R ruling that Section 171 did not create an offence of strict liability and guilty knowledge had not been proved.

    The Crown appealed by way of case stated.

    On a direction by Bewley J. under Section 118(1)(d) of the magistrates Court Ordinance, Cap. 227 that the point of law should be reserved for this court -

    Held: allowing the appeal, that reading Section 171 sub-section (1) in conjunction with sub-section (2)(h) and applying Gammon (H.K.) Ltd. v. A.G. of H.K. 1984 2 All ER 503 the Section creates an offence of strict liability.

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

Magistracy Appeal No. 1753 of 1988

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J U D G M E N T

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Mortimer J.:

1. This is the judgment of the Court.

2. The Respondent employer was charged in the Magistrates Court with an offence of employing a person not lawfully employable contrary to Section 17I of the Immigration Ordinance Cap. 115. The facts were agreed . On 1st July 1987, he employed Yip Sang. Yip Sang was an illegal immigrant who produced for the Respondent's inspection an identity card issued to another person.

3. The Magistrate acquitted the Respondent having ruled that Section 17I did not create an offence of strict liability and guilty knowledge had not been proved.

4. The Crown appealed by way of case stated. This came before Bewley J. and pursuant to Section 118 (l)(d) of the Magistrates Ordinance Cap. 227, he directed that a point of law should be reserved for this court.

5. The question for decision is whether the Magistrate was correct in his ruling that Section 17I of the Immigration Ordinance does not create an offence of strict liability. The case stated is annexed to this judgment.

6. Mr. Lugar-Nawson for the Crown contends that the learned magistrate was in error. He submits that the offence created is one of strict liability because the presumption that guilty knowledge is a necessary constituent of the offence is displaced by necessary implication when Section 17I(1) is read with Section 17I(2)(b) and by the application of the propositions in Gammon (Hong Kong) Limited and others v. A.G. of Hong Kong (1984) 2 All ER 503 at 508e.

7. For the Respondent, Mr. Mayne contends the contrary. He relies upon the presumption that mens rea is required; he submits that the presumption is not displaced by the application of the above propositions, and argues that Section 17I(2)(b) is for clarity only. Further, he points to the steps required of an employer in the Ordinance and submits that if the employer takes the steps specified he is protected. Mr. Mayne urges the court to conclude that the legislature cannot therefore have intended to create an offence of strict liability

8. The relevant parts of Section 17I read:

"17I(1) Any person who is an employer of an employee who is not lawfully employable commits an offence and is liable to a fine of $50,000.00 and to imprisonment for 1 year.

    (2) It shall be a defence in proceedings for an offence under this Section for the person charged to prove that the employee in respect of whom the offence is alleged to have been committed

(a) .....

(b) is the holder of a Vietnamese refugee card, that at the time the contract of employment was entered into with the employee the Vietnamese refugee card held by the employee did not prohibit the employee from taking employment and that the person charged had no knowledge that the Vietnamese refugee card held by the employee was, after the contract of employment was entered into, replaced by a new Vietnamese refugee card prohibiting the employee from taking employment."

9. The principles to be applied are not in doubt. There is an initial presumption of law that mens rea is a necessary constituent of an offence either at common law or created by Ordinance. This presumption is disturbed in an offence created by Ordinance only by clear words or necessary implication: see Brend v. Wood (1946) 175 LT 306 at 307 per Lord Goddard C.J.,

"It is of the utmost importance for the protection of liberty of the subject that the court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind."

10. Relevant applicable propositions appear in Gammon (Hong Kong) Limited and others v. A.G. of Hong Kong, (1984) 2 All ER 503 at 508e in Lord Scarman's speech. These are (where relevant) "

(1) There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;

(2) The presumption is particularly strong where the offence is 'truly criminal' in character;

(3) The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute;

(4) The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern;.....

(5) Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

11. Each of these propositions is supported by earlier authority.

12. With the presumption in mind the starting point must be the words of the enactment. "The question must always be-what has Parliament enacted?" Sweet v. Parsley [1970] A.C. 132 per Lord Morris at 153H.

13. In spite of the clarity of Section 17I(1) and even though words such as 'knowingly' 'wilfully' or 'negligently' are not used the terminology of this sub-section does not disturb the presumption. See Sweet v. Parsley (above) per Lord Diplock at 162D. However, if sub-section (1) is read in conjunction with-sub-section (2)(b) the necessary implication is that the legislature intended to create an offence of strict liability. Sub-section 2(b) provides a defence, the burden of which is on the defendant, whereby he can prove he had no knowledge of a refugee's change of status after initial lawful employment. As the offence is a continuing one, Section (2)(b) can only have effect and meaning if the offence created by sub-section (1) is of strict liability. If it was not Section (2)(b) would be superfluous.

14. Even so, the remaining Scarman propositions must be considered. We now turn to them.

15. The offence created is not 'truly criminal' in character as it involves no dishonesty and is designed to enforce Immigration policy. It follows that the presumption is not 'particularly strong'. See proposition (2).

16. Further, this Ordinance is solely related to an issue of social concern. In Hong Kong Immigration policy is and for many years has been a matter of major social importance. The Section is therefore one in respect of which the presumption can be displaced.

17. Finally, there is reason to think that the creation of an offence of strict liability will be effective to promote the objects of the Ordinance by encouraging stricter vigilance to prevent the employment of those who cannot lawfully be employed. This proposition arose from the advice of the Privy Council, in LIM Chin-aik v. R. [1963] AC 160 at 175, where the converse is addressed:

"Where it can be shown that the imposition of strict liability would result in the prosecution and conviction of a class of persons whose conduct could not in any way affect the observance of the law even where the statute is dealing with a great social evil, strict liability is not likely to be intended."

18. The instant case is easily distinguishable. Although it must be accepted that on occasions the employer will be deceived by documents produced strict liability will promote the object of the Ordinance by encouraging greater vigilance by the employer. He is the person directly concerned with the giving of the employment. Where an employer has been deceived after taking all proper precautions he can expect appropriate leniency from the court if he is prosecuted.

19. This court is always reluctant to hold that the legislature has created an offence of strict liability. It will not do so unless the intention of the legislature is clear from the terminology used in its legislative context. In our judgment, for the reasons given there is no doubt that Section 17I of the Immigration Ordinance creates an offence of strict liability.

20. The answer to the question posed therefore is : No, the magistrate's ruling is incorrect.