HKSAR v. Chan Fat Che

HCMA386/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.386 OF 2004

(ON APPEAL FROM KCCC4357 OF 2004)

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Coram: Deputy High Court Judge Fung in Court

Date of Hearing: 30 June 2004

Date of Judgment: 30 June 2004

Date of Reasons for Judgment: 8 July 2004

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REASON  FOR JUDGMENT

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1.The appellant Chan Fat Che pleaded guilty before a magistrate to a charge of aiding, abetting, counselling or procuring the breach of condition of stay by Chen Fayin, contrary to section 41 of the Immigration Ordinance and regulation 2 of the Immigration Regulations (Cap. 115) and section 89 of the Criminal Procedure Ordinance (Cap. 221). She was sentenced to eight months' imprisonment. She now appeals against the sentence. Upon hearing the appeal. I set aside the sentence and imposed a sentence with effect of allowing the immediate release of the appellant. I now give my reasons.

The facts

2.Chen Fayin was a visitor from the mainland. She entered Hong Kong on 14 December 2003 and was permitted to stay for 90 days, subject to the condition that she was prohibited from taking up any employment, whether paid or unpaid.

3.The appellant was the elder sister of Chen Fayin. Before Chen Fayin came to Hong Kong, the appellant contacted her and asked her whether she was willing to work as a domestic helper for one Miss Hung. Upon arrival, the appellant brought Chen Fayin to have an interview with Miss Hung. Chen Fayin was employed as a domestic helper of Miss Hung with monthly wage of $2,000.00, and continued working until she quitted the job on 10 February 2003. The appellant was aware that Chen Fayin was not allowed to work in Hong Kong. She introduced Chen Fayin to Miss Hung because Chen Fayin was in need of money.

Reasons of the magistrate

4.The learned magistrate referred to A.G. v. Wong Chung Lee [1996] 2 HKCLR 159 (CA), which laid down the guideline starting point of 15 months' imprisonment after trial for the offence of employment of person not lawfully employable where one employee is involved, and where there are no circumstances of exploitation.

5.The magistrate noted that the appellant knew full well the status of Chen Fayin. She acted as an agent and procured Chen Fayin to come to Hong Kong for employment. The wage was lower than the minimum for foreign domestic helper. Accordingly, the magistrate held that she was in no different position than that of someone who actually employed someone who was not lawfully employable.

Additional facts

6.The appellant has since her conviction and sentence testified for the prosecution in the trial of Miss Hung. The case was adjourned part-heard to July this year for submissions and verdict. The respondent has helpfully indicated that the witness statement of the appellant and her willingness to give evidence against Miss Hung was the sole basis of the bringing of the prosecution of Miss Hung. The appellant has given evidence according to the tenor of her witness statement. Even before the conclusion of the case, the respondent is able to indicate that the appellant has given useful assistance to the prosecution, in the sense that further discount is customarily given over and above the discount upon a plea of guilty.

7.The respondent has served almost four months of the term of eight months imprisonment already.

Grounds of appeal

8.Miss Cheng for the appellant had filed multiple grounds of appeal. But in view of the additional facts and the indication from the respondent that there would not be an objection to an order allowing the appeal and substituting a sentence with effect of allowing the immediate release of the appellant, Miss Cheng did not rely on those grounds except the one on further discount for assistance to the prosecution.

Conclusion

9.In the circumstances, I allowed the appeal and substituted a sentence which allowed the immediate release of the appellant.

Representation:

Ms Denise Chan, SGC of Department of Justice, for the Respondent

Ms Cheng Suk Yee Flora, instructed by Messrs Henry Lam & Associates, assigned by DLA, for the Appellant