HKSAR v. Chan Chun Sang and Another

HCMA 608/2021

[2022] HKCFI 2203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 608 OF 2021

(ON APPEAL FROM STCC NO 1852 OF 2021 and STS NO 3813 OF 2021)

________________

________________

Before:  Hon Yau J in Court

Date of Hearing:  5 May 2022

Date of Judgment:  25 July 2022

________________

J U D G M E N T

________________

1.The 1^st and 2^nd appellant faced respectively 2 charges and 2 summonses of being the employer of a person not legally employable, contrary to s 17I(1) of the Immigration Ordinance, Cap. 115, and the unemployable employees named in the charges and summonses were Yu Xiulian (“Yu”) and Hung Ming Yee (“Hung”).

2.After trial the 2 appellants were acquitted of the charge and summons in relation to Yu but convicted of those relating to Hung. The 1^st appellant was sentenced to 9 weeks imprisonment and the 2^nd appellant was fined $15,000.

3.The 1^st appellant appealed both conviction and sentence while the 2^nd appellant appealed only the conviction.

Case of the Prosecution

4.The prosecution case was virtually unchallenged. Yu, being a visitor, and Hung, being an illegal immigrant, were not lawfully employable. The Chan Yee Hing Café (“the Café”) and Chan Yee Hing Food Stall (“the Food Stall”) were owned and operated by the 2^nd appellant. The 1^st appellant was the sole director and shareholder of the 2^nd appellant.

5.On 2 December 2020, in an operation mounted by immigration officers, Yu was observed serving food and drinks to customers of the Café and Hung working in the Food Stall. It is not in dispute that the 1^st appellant was their employer.

6.The immigration officers searched Yu’s home and found a forged identity card in the name of Wang Alian.

7.During the job interview Hung, at the request of the 1^st appellant, produced a Hong Kong Identity Card which turned out to be a forgery.

8.The 1^st appellant was the person in charge of both the Café and the Food Stall and was ultimately responsible for the hiring of staff of the 2 eateries. At the time the immigration officers mounted the operation, Yu and Hung had worked for the 1^st appellant for respectively about a month and a few days, although Yu had earlier worked in the Café for a short time in August 2019.

Case of the Defence

9.The 1^st appellant gave evidence before the magistrate in an attempt to raise the statutory defence that all practicable steps had been taken to determine whether the 2 employees were lawfully employable and that it was reasonable to conclude that they were lawfully employable. He told the magistrate that the 2^nd appellant which he had established owned 8 restaurants, with about 100 employees. He attended to the operation of the 8 restaurants personally.

10.There were guidelines for the recruitment of staff by the 2^nd appellant and when the 1^st appellant interviewed job candidates he would ask them for their Hong Kong identity cards, and talk with them about their working experience, family background and proficiency in speaking Cantonese.

11.Yu had worked in the Café for a short period of time in the past and the 1^st appellant interviewed her in Cantonese after he was told on 1 November 2020 that Yu, known to him as Ah Lin, wished to be re-employed. Yu told him, producing some photographs in support, that she had worked in a bakery, a fast food shop and a Japanese restaurant when she was not working for the Café. Yu showed him her Hong Kong identity card and further told him that she was living in Kowloon City with her husband who was a Hong Kong citizen. He found that the photograph on the identity card matched with Yu.

12.Not suspecting Yu to be legally unemployable he hired her at an hourly wage of $60. An application form in which Yu set out her personal details, working experience and emergency contact was kept by the restaurant.

13.Hung used to work for one Kwai Kee Restaurant. In early 2019 she and a few female workers, led by one Siu Ma, the nephew of the marinated chef, Po Shuk, of the 1^st appellant, would come to the restaurant of the 1^st appellant for night dinner about 2 to 3 times a month. The 1^st appellant talked to her in Cantonese and learnt that she had been married to a Hong Kong citizen and had been living nearby. The 1^st appellant had seen her working in Kwai Kee and had met her husband and parents-in-law.

14.In mid-November 2020, the 1^st appellant interviewed Hung when Po Shuk asked him to employ her following the closing down of Kwai Kee. The interview was in Cantonese and Hung produced a Hong Kong identity card. He found that it was not a permanent identity card, but he hired her without checking other travel documents of her because he had known her for a long time and had met her family, thus not suspecting her being not lawfully employable in Hong Kong.

Grounds of Appeal

15.For the conviction of the 2 appellants the ground of appeal is that the magistrate erroneously concluded that the appellants had failed to take all practical steps in determining whether Hung was lawfully employable, and in respect of the sentence the ground of appeal is that it is manifestly excessive.

Discussion

16.The law relating to the offence of being the employer of a person not legally employable is well-settled. It is an offence of strict liability and a defendant has an evidential burden to raise the statutory defence that all practicable steps had been taken to determine whether the employee was lawfully employable. It is then for the prosecution to prove beyond a reasonable doubt that the statutory defence has not been made out in that the defendant has not taken all such steps, or if they have done so, it would not be reasonable to conclude that the employee was lawfully employable. The magistrate correctly stated the law and in convicting the 2 appellants respectively of the charge and summons in respect of Hung, he said[1]:

“38. Whilst it is accepted that Hung did speak Cantonese and the 1^st Defendant has met her family members, the fact that Hung only managed to produce a Hong Kong Identity Card which was not a Hong Kong Permanent Card must have raised suspicion as to her legal status, given cross-border marriage in Hong Kong is common. Not to mention the 1^st Defendant did not ask for any other travel documents of Hung and thus in breach of his own guidelines, he did not even ask the simplest question of “why”, i.e. why did Hung hold a Hong Kong Identity Card only, and he simply assumed Hung could work in Hong Kong. In the circumstances, making oral enquiries must have been the easiest and most feasible and practical thing to be done; yet, he failed to do so. It was unfortunate that the he has placed too much reliance upon the fact that he had known this woman prior to her coming to work for him, and he, as a result failed to take all feasible steps, which were definitely known to him and capable of being done without too much effort or resources.

39. Without any enquiry about the Hong Kong Identity Card, there should have been a doubt in relation to Hung’s legal status, and thus it would not be reasonable to conclude that she was, at the material time, lawfully employable.

40. As such, I find that the Defendants have successfully established the statutory defence in relation to Yu, and thus they are acquitted of Charge 1 in STC 1852/2021 and Summons STS 3812/2021; however, I also find that the Prosecution has successfully rebut the same defence in relation to Hung and the Defence has failed to establish the Defence. The 1^st Defendant is convicted of Charge 2 in STC 1852/2021, and the 2^nd Defendant is convicted of the Summons STS 3813/2021.”

In the quotation, the 1^st defendant and the 2^nd defendant are respectively the 1^st and the 2^nd appellant.

17.Counsel for the 2 appellants, Mr Kwan, complains, in effect, that the verdicts of the magistrate in convicting the appellants in relation to the employment of Hung and acquitting them in relation to that of Yu are inconsistent because the circumstances under which the two were employed did not bear significant differences.

18.This the Court does not agree. There were a number of factors distinguishing the case of Yu from that of Hung which the magistrate took into consideration. An obvious one is that Yu had worked in the Café in August 2019 for a short period of time while Hung had not. The question of whether Yu was lawfully employable would have already been scrutinised during her first employment with the 2^nd appellant and Hung had not. This surely was one of the reasons why the 1^st appellant did not suspect Yu to be legally unemployable.

19.Hung had only been employed by Kwai Kee. Although the 1^st appellant had seen her working there he had not checked with Kwai Kee and had no knowledge how Kwai Kee scrutinise whether an employee was legally employable.

20.Most important of all, Yu produced during the job interview a Hong Kong permanent identity card. As a forged Hong Kong identity card bearing the portrait of Yu was found at her home, the magistrate came to the conclusion that it was the one which Yu produced to the 1^st appellant. The identity card seems to be proper on its face, with nothing suggesting that it was a forgery. The Court agrees with the analysis of the magistrate that there was nothing to raise the suspicion of the 1^st appellant that Yu was not lawfully employable and that the 1^st appellant had taken all practical steps to determine and to come to a reasonable conclusion that Yu was legally employable.

21.Hung on the other hand only produced a Hong Kong identity card. It is common knowledge that the holder of a non-permanent Hong Kong identity card is not allowed to work in Hong Kong, unless there is an endorsement in his travel document that he is so allowed. It is impossible that the 1^st appellant, being responsible for the recruitment of staff for the Café and the Food Stall, did not know about this. Even if he was really unaware of such legal requirement it is not a defence to the offence.

22.As rightly pointed out by the magistrate, to prove “all practical steps” have been taken to ascertain if a person is lawfully employable, it is necessary for the employer to prove that he has taken all feasible steps which are capable of being carried out within known means or resources. The magistrate further said that what amount to “all practical steps” would differ in different cases, but certainly do not mean “all possible steps”. This is in accordance with the judgement of the Court of Appeal in R v Shun Shing Construction and Engineering Co Ltd[2] which formulated the definition of “all practical steps” in relation to the practical steps to be taken to prevent a person who was not lawfully employable from being employed in a construction site. In The Queen v Hui Wai Man[3] the Court of Appeal ruled that this definition is applicable to the statutory defence for the offence of employing a person not lawfully employable.

23.According to the case of AG v Lam Sik Cheung[4] cited by the appellants, whether the employer has reasonable grounds to suspect the employee to be not lawfully employable is a factor to be taken in determining whether all practicable steps have been taken in order to invoke the defence. The magistrate accepted that Hung did speak Cantonese and the 1^st appellant had seen her working in Kwai Kee and had also met her family members. He was, however, of the view that suspicion must have been raised regarding the legal status of Hung because the Hong Kong identity card produced by her was not a permanent one. The finding of the magistrate makes sense and is logical and can by no means be faulted.

24.What the 1^st appellant should have done was to ask Hung to produce her travel document for inspection. It was an easy, simple and feasible, and in the present case, a necessary step to take. If the 1^st appellant was still in doubt after checking the travel document he should consult the Immigration Department.

25.Mr Kwan submits that the 1^st appellant explained in detail in his evidence of his acquaintance with Hung and her family members and about his knowledge of her background, working experience and family circumstances and his evidence was not challenged by the prosecution. As the Court understands it, the contention of Mr Kwan is that there was nothing which caused the 1^st appellant to be suspicious about the legal status of Hung and that what he had done constituted the practical steps required to be taken under the statute.

26.The Court has no hesitation to reject such an argument. In the case of Hui Wai Man the Court of Appeal held that the test to be applied to determine whether “all practical steps” have been taken is an objective one. The assertion of the 1^st appellant that he did not have any suspicion of Hung and that he believed “all practical steps” had been taken were his own subjective feeling. As analysed above any reasonable man would become suspicious and take further steps to ascertain the legal status of Hung when she was only able to produce a non-permanent Hong Kong identity card.

27.There is no merit whatsoever in the arguments or grounds advanced on behalf of the appellants. The convictions are neither unsafe nor unsatisfactory. Accordingly, the appeal against conviction of the 2 appellants must be dismissed.

Appeal Against Sentence

28.The sentence of the offence of employing a person not lawfully employable is normally one of immediate custodial. As pointed out in the case of Secretary for Justice v Ho Mei Wa and Another [2004] 3 HKLRD 270 cited by the magistrate and Mr Kwan, when the offence involved a single employee with no aggravating features 3 months imprisonment after trial is appropriate for a first offender. According to the case this applies if the employer had full knowledge or being reckless that the employee was not lawfully employable.

29.The respondent submits that although the 1^st appellant was deceived by Hung who produced a Hong Kong identity card which turned out to be forged he was reckless in not taking further steps to scrutinise the legal status of Hung, thus the sentence of 9 weeks imprisonment is not manifestly excessive.

30.The Court does not agree that the 1^st appellant was reckless in employing Hung and the reasons will become clear when the Court deals with the special circumstances in this case. Such special circumstances include:

(a)  Hung produced a forged Hong Kong identity card which bore her portrait;

(b)  The 1^st appellant established the 2^nd appellant in 2017 and both of them have never been convicted of employing a person not lawfully employable;

(c)  The 2^nd appellant operated 8 restaurants, employing around 100 employees and there is no evidence that there was any other employee who was not lawfully employable;

(d)  The 1^st appellant is aged 56 having no similar previous conviction and his criminal record relates only to sale/supply or possession for sale/supply of liquor without a licence;

(e)  Yu and Hung were paid $60 per hour which was relatively high in the trade and the 1^st appellant was thus not exploiting them to save costs.

31.Mr Kwan has put forward some of these special circumstances in his submission. Another very important factor which the Court has to consider is that the 1^st appellant was aquatinted with Hung and her family, having known them for quite some time. As they lived nearby and Hung occasionally patronised the restaurants of the 2^nd appellant, the 1^st appellant was able to see her from time to time. He also had the opportunity to see her working in Kwai Kee. The Court is of the view that the 1^st appellant was not reckless, only that he made a wrong judgment not to take further steps to ascertain if Hung was lawfully employable, with his mind being overborne by the special circumstances in this case.

32.I agree with the submission of Mr Kwan that due to the special circumstances of this case the term of imprisonment imposed by the magistrate should be suspended.

Conclusion

33.Appeals against conviction by the 2 appellants are dismissed and the convictions are to stand.

34.Appeal against sentence by the 1^st appellant is allowed and the 9 weeks imprisonment is to be suspended for 2 years.

Mr Jason Lau, PP of the Department of Justice, for the respondent

Mr Johnathan Kwan and Mr Thomas Nip, instructed by Messrs Kitty So & Tong, Solicitors for the appellants