HKSAR v. Pun Kam Hung

HCMA 183/2022

[2022] HKCFI 2600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 183 OF 2022

(ON APPEAL FROM STCC 3878 OF 2020)

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BETWEEN

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REASONS FOR JUDGMENT

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1.On 26 April 2022, the appellant was convicted after trial of two charges of “Employing a person not lawfully employable”, contrary to section 17I(1)  of the Immigration Ordinance, Cap 115 (“the IO”). He was acquitted of a third charge in similar terms. He received a sentence of 6 months on each charge to be served concurrently. The appellant originally sought to appeal both conviction and sentence under his Notice of Appeal dated 27 April 2022. On 8 July 2022, he abandoned his appeal against conviction. This hearing is in respect of his appeal against sentence alone.

Prosecution case

2.The appellant (D1)  runs a construction company. At the material time, he employed three South Asian males to demolish and clean a site.  All three South Asian males (D2-D4)  were arrested and prosecuted for taking employment contrary to s38AA of the IO and the appellant was prosecuted for employing them under s17I of the IO.  D1 and D2 pleaded not guilty and were tried together.  D3 and D4 pleaded guilty.  The appellant elected not to give evidence on either the special or general issue but evidence was adduced of admissions that he had employed the three males the previous day at a daily rate of $700 and that he had not checked their ID documents before employing them.  The appellant unsuccessfully sought to avail himself of the statutory defence under s17I(1A)  of the IO on the basis that all practical steps had been taken to determine whether the employee in question was lawfully employable and that it was reasonable to conclude that he was lawfully employable.

Magistrate’s Reasons for Sentence

3.Other than the appellant’s personal circumstances, no other mitigation was advanced.  The magistrate relied heavily, as he was entitled to do, upon HKSAR v Ho Mei Wa [2004] 3 HKLRD 270, CAAR 3/2003.  In particular, he relied upon the following per Ma CJHC (as he then was):

“30. Given the importance of the sentencing issue before us, we take this opportunity to state the applicable principles regarding sentencing for section 17I offences : -

(1)  The sentencing policy with regard to section 17I offences is, it must be recognized, based largely on deterrence. The offence under that section is a strict liability one. It has been referred to as not a "truly criminal" offence, as it is an offence that does not involve dishonesty nor malicious intent. See here : - Attorney General v Yip Man-cheong [1989] HKLR 547. Rather, the offence is very much one that reflects a social concern and the immigration policy in Hong Kong. One facet of the public policy behind this offence is that workers from abroad (and this includes especially the Mainland)  should not be permitted to take away employment opportunities that should belong to available and willing workers who are permanent residents of Hong Kong or who are otherwise permitted to work and live here. Another facet, just as important, is the discouragement of persons entering Hong Kong to seek employment when they are not entitled to work here. It matters not whether such persons enter or stay in Hong Kong illegally or do so in breach of their conditions of stay : - see Wong Chung-lee.

(2)  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.

(3)  In the factual situation identified by the Magistrate in the Reasons for Ruling (see paragraphs 24(2)  and 25 above), namely, single employee, full knowledge or recklessness as to the employment of a prohibited person, no aggravated features present and employment on a casual basis, it was the collective view of the magistrates that an immediate 3-month sentence (after trial)  would be appropriate. 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.

(4)  The guideline of 3 months after trial stated above is applicable in the absence of any aggravating or, correspondingly, mitigating circumstances. However, it is important when sentencing to take into account all relevant circumstances, whether for or against the offender. Recognized aggravating features include of course an element of exploitation, multiple employment or that the offence is a repeat one. The presence of such features are likely to be indicative of a calculated and deliberate attempt to flout both the spirit and wording of the offence, and is exactly the kind of behaviour that does encourage illegal immigration or the breach of conditions of stay by visitors. The presence of such aggravating features will in most cases substantially increase the guideline sentence. As for mitigating factors, we agree with the Magistrate that employing a relative or clansman should not of itself amount to any mitigation. It would of course be unwise to set out extensively just what might amount to mitigating (or indeed aggravating)  factors. It is better to leave the identification of such factors to the wisdom and experience of magistrates who have the day-to-day conduct of such offences and therefore knowledge of the very circumstances under which they can be committed. They would have therefore the 'feel' for the offence and its gravity in any given case.”

4.The magistrate noted that the appellant was 44 years of age and married with three children.  He operated a business within the construction industry and had done so since 2018.  He received a monthly income of HK$50,000 per month.  He adopted a starting point after trial of 3 months on each charge, in accordance with Ho Mei Wa, but distinguished it, as do I.  In Ho Mei Wa, the defendant had employed two visitors from the Mainland, one of which was her younger brother and both of whom were staying lawfully in Hong Kong for a period of 14 days.  There were no other aggravating features.  In the case before him, the employees were three South Asian males who were Form 8 holders and unknown to the appellant.  The appellant stated that he had employed them “out of greed of small advantages” since they were cheap.  The magistrate took the view that employment had been planned as they had been employed the previous day with a view to them working on a demolition site, which the appellant supervised personally.  The magistrate considered these to be aggravating features and increased each sentence by 3 months to 6 months but the two sentences were to run concurrently.  It is upon this uplift that this appeal truly turns.

The Perfected Grounds of Appeal

5.Mr McGowan, on behalf of the appellant, seeks a reduction of sentence.  He submits that the learned magistrate erred when he sentenced the appellant on the basis that he had intended to employ three South Asian males when the appellant had been convicted of employing only two.  He further erred in finding that it was exploitative to pay just $700 dollars per day to the lawful workers. He also erred in that he doubled the Ho Mei Wa sentence guidelines.  The former two grounds fell away for the reasons given below.

Discussion

6.The learned magistrate made a number of findings against the appellant during trial.  Those findings, whilst not enunciated in detail[1], fell to form the background to the sentencing process.  They included the fact that the appellant had said at one stage that he had checked the identity documents of the men, and later in interview, he admitted that he had not done so.  This admission was a more credible answer given that all three men were not holders of a HKID and none were produced upon arrest.  He correctly and properly sentenced the appellant upon the basis of the admissions which he found the appellant to have made.  Those submissions included an admission that he had employed not two but three South Asian males on the same basis and that he had done so “out of greed of small advantages”.  There is no merit in Mr McGowan’s argument that as the magistrate had acquitted D2, then the learned magistrate should put out of his mind the admissions made by his client as to D2.  The magistrate did not seek to punish the appellant for employing three males.  He had convicted him only of the charges in respect of D3 and D4.  But it would be wrong to suggest that he should ignore the appellant’s admissions or that he was not allowed to take into account the evidence before him relevant to the whole circumstances of the case.  The fact that the prosecution were unable to meet the burden of proof placed upon them in respect of Charge 2 does not render the evidence irrelevant or inadmissible in sentencing terms as general background information.  He did not seek to enhance the appellant’s sentence as a result, he merely commented upon it.

7.Nor did he actually say that the appellant had ‘exploited’ the three men as Mr McGowan suggested.  Indeed, it would appear that he simply took advantage of the situation presented to him out of greed. His case was that the men had approached him for work.  He knew he could employ them cheaply and so he intended to take them on as casual labour.  That does not however mean that this is not an aggravating feature of the case.  The availability of work for undocumented persons in Hong Kong is a significant issue.  People enter either lawfully and overstay their entry visa or they enter unlawfully knowing that not only will they be supported by ISS if they bring a claim under the UNHCR but also they can find employment and earn sufficient money to support their families overseas.  They enter Hong Kong taking the risk of being caught because it is to their financial advantage to do so and the courts have a duty to deter non-residents from doing so for the reasons enunciated in Ho Mei Wa.  All of the evidence relied upon by the magistrate came from the appellant himself.  It was wholly proper for the learned magistrate to direct his mind to it.  All the more so because of the principles of sentencing outlined above.

8.The real issue was the argument that the learned magistrate increased the guideline sentence by some 100%.  Of course, it is easier to increase a sentence by a substantial percentage when the original sentence is a modest one.  A sentence of three months enhanced by one month is already an enhancement of 33.3%, whereas a sentence of 21 years enhanced to a similar extent would be the result in an increase of 7 years.  It was double the going rate nevertheless but that increase should be considered in the context of the overall totality of sentence.  The appellant was by no means a man of good character albeit this offending was wholly dissimilar to his previous offending.  This was not a single employee, the employment was deliberate, for financial gain and was in principle to the disadvantage of society at large especially as it was the employment of Form 8 holders.  There was a significant deterrent element to be discharged.

Conclusion

9.I am satisfied that the appellant went into this offending with his eyes wide open and knowing the risk he was taking by employing men he could not lawfully employ.  He was convicted of employing two such people in order to obtain cheap labour not because he sought to exploit them but simply to make money for himself.  He paid no regard to the greater social implications of his behaviour for he acted, as he admitted, out of greed.  A total sentence of 6 months in the circumstances of this case is neither manifestly excessive nor wrong in principle.  Those that employ several unknown people in these circumstances, especially Form 8 holders, will be at risk of greater sentences than those who employ people known to them or family members lawfully in Hong Kong.

10.For these reasons the sentence is not manifestly excessive or wrong in principle.  This appeal is dismissed.  There will be no order as to costs.

Mr Fergus Chau, SPP of the Department of Justice, for the respondent

Mr James McGowan, instructed by Chaudhry Solicitors, for the appellant