R. v. But Wai Yip

HCMA000453/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.453 OF 1996

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Coram : Hon Leong, J. in Court

Date of hearing : 28 May 1996

Date of judgment : 28 May 1996

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J U D G M E N T

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1. The Appellant was convicted after a trial of three offences of the same nature : employing a person not lawfully employable (Charges A to C on the charge sheet) contrary to s.17I(1) of the Immigration Ordinance, Cap.115.

2. Three illegal immigrants were found working in the Wing Wah Restaurant of the Appellant by police officers in the evening of 24th May 1995.

Two police officers later went to the premises of the Appellant early in the next morning and arrested the Appellant. In a cautioned statement the Appellant admitted that in May 1995 a man and a woman came to seek work. He enquired if they were Hong Kong people but they did not say anything. Nevertheless he employed them. He later came to know they were illegal immigrants. In mid May he employed one more illegal immigrant because he had already employed two. He paid them each $5,000 per month with food and lodging.

3. In his evidence, the Appellant told the magistrate that he ran two restaurants and he entrusted the supervisor Yeung Fook Keung DW2 who had worked for him for 10 years with the responsibility for administrating and employing staff in the Wing Wah Restaurant. He was seldom in this restaurant and had given instructions to Yeung to check identity cards, addresses and experience of those seeking employment and the practice was to record employees' identity card numbers and addresses in a record book. Only photocopies of identity cards were checked. He admitted that the illegal immigrants' addresses were not recorded in the record book and he had noticed that the illegal immigrants spoke with a Putonghua accent. As regards the cautioned statement, he told the magistrate that he was induced to make that statement and it was copied by him from something which was written out by the interviewing officer.

4. His witness DW2 Yeung told the magistrate that he interviewed the three illegal immigrants and he had ascertained from them their addresses, experience and the time they had stayed in Hong Kong. He had checked with them the routes of transport and he had no reason to suspect they were illegal immigrants. He confirmed their salaries were no different from the other employees in the restaurant. Their particulars were given to the Appellant.

5. One of the illegal immigrants was in court for the magistrate to check her likeness with that of the photograph in the photocopy of the identity card and the magistrate was satisfied they looked alike.

6. Be that as it may, the magistrate found the cautioned statements of the Appellant voluntary and admitted it in evidence. He also found the Appellant and DW2 Yeung not reliable and he rejected their evidence. His reason for rejecting their evidence was the inconsistencies between their evidence and the inherent improbability in their evidence.

7. In finding the offences proved beyond reasonable doubt against the Appellant, he also relied on the cautioned statement.

8. The grounds of appeal are:

1. The magistrate failed to make any finding of whether the Appellant was entitled to rely on the delegation of making enquiries as to whether a person was lawfully employable to another employee within the Appellant's business.

2. The magistrate failed to make any specific findings as to whether the Appellant had sufficiently raised a defence pursuant to s.17I(1A) of the Immigration Ordinance, Cap.115.

3. In finding DW2 unreliable, the magistrate failed to address the issue of whether the Appellant reasonably believed that he had employed only those people who were lawfully employable under the Ordinance.

4. The magistrate erred in law in equating the voluntariness of the cautioned statement with its truth where the magistrate ought to have addressed his mind to the question of whether or not he was affirmatively satisfied of the truth and accuracy of its contents.

9. The magistrate in his findings relating to the evidence of the Appellant specifically found the Appellant's evidence unreliable. After giving his reasons for that conclusion, he said "I did not think a defence under s.17I(1A) was established on the balance of probabilities." In relation to the evidence of DW2, he similarly, after pointing out the improbabilities of DW2's story, made a specific finding that DW2's evidence was not reliable and that the defence under s.17I(1A) had not been made out. The magistrate said "he did not see any reason to discount the contents of the cautioned statement". It is submitted for the Appellant that the magistrate had not addressed his mind to whether it was true or not. What the magistrate meant in the context of his statement of finding was that he relied on the cautioned statement and he gave it full weight. It is clear from such findings, that the magistrate had found there was no delegation by the Appellant to DW2 to make enquiries. In rejecting the evidence of the Appellant and his witness, the magistrate did not accept that the Appellant had reasonably believed that the persons employed were lawfully employable. The reference to s.17I(1A) in his findings relating to the evidence of the Appellant and DW2 indicated that the magistrate had made a specific finding that the defence thereunder had not been made out. The convictions cannot be regarded as wrong or unsafe and unsatisfactory. The appeal against conviction is dismissed. The appeal against sentence has been withdrawn by the Appellant.

Representation:

Mr Wesley W.C. Wong, S.C.C., for Crown

Mr Keith Oderberg, inst'd by M/s Jesse H.Y. Kwok & Co., for Appellant