HKSAR v. Hui Pak Mui

HCMA000488/2004

HCMA488/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.488 OF 2004

(On Appeal From KCCC 2165 Of 2004)

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Coram: Deputy High Court Judge D. Pang in Court

Date of Hearing: 20 July 2004

Date of Judgment: 28 July 2004

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J U D G M E N T

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1.The appellant was convicted after trial of one charge of 'Employing a person not lawfully employable', contrary to section 17I(1) of the Immigration Ordinance, Cap.155. She now appeals against both conviction and sentence.

The Facts

2.The prosecution's case was straightforward and unchallenged, the main features of which were admitted under section 65C of the Criminal Procedure Ordinance, Cap.221.

3.Briefly, Huang Chun Xiang ("Huang"), a female mainlander on two-way permit was found working at a fruit stall owned and operated by the appellant. As a result, both Huang and the appellant were arrested. In the ensuing investigation, the appellant gave a voluntary record of interview containing, amongst other things, the following passages :

"Q1	After I cautioned you, you spoke to me, 'Ah sir, give me a chance! It was my oversight. I didn't know she has no Identity Card!' What did you mean?
A1	Ah sir, I hired a female holder of a two-way exit permit to sell fruit and was arrested by you Ah sir. So I want you to give me a chance.
.....
Q3	You said it was your oversight and that you didn't know she had no Identity Card. What did you mean?
A3	Ah sir, I placed an advertisement in Oriental Daily to hire people to sell fruit. The female Ah Xiang came for a job interview. I hired her without checking if she had a Hong Kong Identity Card. I didn't know she had no Identity Card. So I said it was my oversight!
Q4	Did you know Ah Xiang is a holder of a Chinese Permit for Travelling to and from Hong Kong and Macau?
A4	I didn't know. When Ah Xiang came for a job interview, she said she had a Hong Kong Identity Card. So I hired her without checking!
.....
Q9	How many days have you hired the female Ah Xiang to work?
A9	I have hired her, Ah Xiang, to work for two days.
Q10	What is her daily wage?
A10	Three hundred dollars per day.
.....
Q21	When you hired Ah Xiang, did you request Ah Xiang to produce her Hong Kong identity document?
A21	No. She said she had an Identity Card. So, I believed her.
Q22	When you hire workers, do you make entries in a register of employees?
A22	I did so before. But I didn't make an entry when I hired Ah Xiang this time."

4.Turning to the defence, the appellant gave evidence and called one of her employees, Mr Wong as witness (DW2). Their account of the incident was as follows.

5.The appellant had been in the fruit-selling business for 10 years. She needed a relief worker for the Lunar New Year period. An advertisement was placed outside the stall and in a newspaper for the purpose. It was answered by Huang on "the second last day of the outgoing year" (20 January 2004). As Huang came in the evening, when the stall had under an hour to go but was still busy, little was said by way of a job interview. What the appellant did ask was if Huang had experience, whether she had an identity card and whereabouts did she live. As Huang did not speak with an accent, and was sophisticated in appearance, there was no suspicion about her background. Feeling too tired and too much pain from her bone spur to check it on the spot, the appellant told Huang to just bring her identity card to work the following day. The idea was for it to be photocopied by DW2. It was something that DW2 did for all other employees because the appellant was illiterate. In any event, the appellant did instruct DW2 to photocopy Huang's identity card after Huang left the interview.

6.Nothing else happened until "the 8th day of the New Year" (29 January 2004). It was Huang's second day at work. The police found out about her status and made their arrests. What the appellant did not know or did not recall during the ensuing investigation was that DW2 should have had done his job and made a copy of what purported to be Huang's identity card. She simply did not have that fact in her head until meeting up with DW2 two days later. Likewise, DW2 was summoned back to the stall when Huang and the appellant were arrested, but professed to have no idea what was going on. When the appellant finally recounted everything to him, he told her about the photocopy, yet neither reported the matter back to the authorities. In the event, this document was produced at trial. It bore Huang's photograph, a year of birth close enough to be passable and a name in typical local style (Yip Wai Ying). In sum, it was not disputed that the appellant was the one who recruited Huang. The statutory defence was however relied on that the appellant had taken all practicable steps to determine Huang's employability, and that it was reasonable to conclude that she was lawfully employable : section 17I(1A).

The Magistrate's findings

7.The relevant part of the Magistrate's Statement of Findings is summarized as follows :

"16. Counsel for the Defendant submitted, inter alia, that the Defendant was an illiterate. It was reasonable for her to entrust the recruitment duties to Mr. Wong who was employed as the person in charge of the stall. Moreover, the business run by the Defendant was a small scale one and the staff employed by the Defendant only worked for a short time. It was not surprising that the Defendant had a loose management of the business. It was submitted that the copy of identity card produced by the Defendant could not be a fabrication. It was submitted that both the Defendant and Mr. Wong had taken all the reasonable steps.

17. Having considered the evidence of the case and submission made by defence counsel, I must say that neither the Defendant nor her witness, Mr. Wong, impressed me as reliable witnesses. In giving their evidence, both of them were evasive.

18. The Defendant had operated her fruit stall business, with quite a number of stalls, for ten years. She was not an inexperienced employer. She knew the requirements for checking an employee's identity card. She did interview Huang but she did not ask to see Huang's identity card. She claimed to have entrusted such an easy but important step to her staff. Even if it were true, when she came to the stall and saw both Huang and Mr. Wong, it should be the most natural and convenient thing for her to ask whether the check had been done. Yet she did not do it. Moreover she did not mention the delegation of such duty to Mr. Wong in her Record of Interview.

19. Mr. Wong said he did check Huang's identity card and keep a copy. He received a call from the Defendant on the day of her arrest. No doubt he would know why she was arrested. Yet he did not immediately inform the Defendant or the police about the checking of Huang's identity card. Indeed neither the Defendant nor Mr. Wong clarified the matter with the authorities until the hearing of the case.

Findings of fact

20. I found the evidence of both the Defendant and Mr. Wong unconvincing and against commonsense and logic. I rejected their evidence. I did not believe that the Defendant had entrusted the duty of checking of identity card to Mr. Wong. Nor did I believe that Mr. Wong had indeed checked the identity card of Huang. Accordingly, I found that the Defendant had failed to prove the statutory defence.

21. In passing, I should also say that even if I were to accept the Defendant's evidence, I would have found that she had failed to prove the statutory defence."

The appeal against conviction

8.A total of six grounds have been filed.

9.Ground 1 :

"There are lurking doubts in the Appellant's conviction and the learned magistrate has failed to adequately consider the Defence case including, but not limited to the following facts:-

a. The Appellant had openly advertised the said job vacancy in the newspaper;

b. The appellant had enquired about the work experience and the address of the said employee;

c. A generous salary in the sum of HK$320.00 per day was offered to the said employee. There was nothing to suggest that it was a salary so low as to indicate that the Appellant was taking unfair advantage of the position of the said employee;

d. The said employee's hair was dyed and she is without any assent.

e. Although the said employee was interviewed by the Appellant towards the close of business on 20th January 2004, the very task of verifying the identity of the said employee was in fact, entrusted and delegated to the other employee, Mr. Wong (DW2) being the person in charge of the Appellant's fruit stall. Further, it was reasonable for the Appellant to rely on Mr. Wong when she is an illiterate;

f. The learned magistrate failed to adequately deal with the issue relating to the photocopied HK identity card kept by Mr. Wong for the purpose of photocopying for record. Also, Mr. Wong had checked the resemblance of the photograph on the identity card with the actual appearance of the said employee. Had the learned magistrate properly considered the effect of the identity card of the said employee, he would not have lightly rejected the evidence of Mr. Wong and the Appellant. The finding of guilt of the Appellant was contrary to the weight of the evidence;

g. There was not sufficient suspicious feature about the recruitment to put a reasonable employer on enquiry let alone for an illiterate fruit stall employer busily working at around the time in Chinese New Year. To impose the stringent duty on an illiterate fruit stall keeper here will certainly create serious harshness on her."

10.In my judgment, nothing in this long set-out ground can detract from the fact that the Magistrate did not believe the appellant and her witness. Paragraph 20 of the Statement of Findings sees the rejection of any actual or delegated inspection of Huang's identity card. The reasons given in the preceding paragraphs (paragraphs 17 to 19) explain it. These reasons are cogent and not to be undermined by the fact that the appellant was in genuine need of a relief worker, or that she was willing to pay good money for it, or that Huang looked, spoke and behaved like a Hong Kong resident. At the bottom line, the case against the appellant was that to be found in her record of interview - she took Huang's word and assumed her to be lawfully employable.

11.Concerning the copy identity card produced at trial, the Magistrate was entitled not to pay attention to it. It made no difference that it bore Huang's photograph. The possibilities of why it should be so were sufficiently varied and in some cases unfavourable to the appellant for anyone not to indulge in speculation, the Magistrate included. The question remains why if it existed, it was not known, not remembered and/or not drawn to the authorities' attention.

12.Ground 2 :

"The finding of guilt of the Appellant was against the weight of evidence especially when the learned magistrate was satisfied that the photograph on the identity card matched with the actual appearance of the said employee. ...."

13.This is a repeat of Ground 1(f). It has been dealt with in paragraph 11 above. No further treatment is required.

14.Ground 3 :

"The learned magistrate failed to consider the means and resources of the Appellant in determining whether she has taken all practicable steps to check to see if the said employee was lawfully employable.

The Queen v Hui Wai Man MA No.927 of 1993"

15.I repeat, the Magistrate had rejected the defence account of what happened with justification. That must be the end of the matter.

16.For the sake of completeness, however, the Magistrate did indicate that if he were to believe the appellant's evidence, he would still have found the statutory defence not made out.

17.I think he must be right.

18.The case of Hui Wai Man (ibid) has indeed given us an idea of what proving the defence requires :

".... Since section 17J(1) of the Ordinance requires an employer to inspect the employee's identity card before employing him, the employer will, in such a case, have done no more than the minimum that the law requires him to do. We imagine that a magistrate would want to be satisfied, at the very least, that the employer had questioned the employee about his domestic circumstances, his skills and his previous work experience, and had received such answers which could not have alerted the employer ....." (per Keith J (as he then was))

19.Looking at the appellant's account, no enquiry of the kind mentioned was undertaken in Huang's interview. Apart from the failure to inspect her identity card, and the lack of questions on her domestic circumstances, everything else asked and answered were but perfunctory, as the transcript may show :

"Q. ... When you asked her about her experience, what did she tell you?

A. She asked me whether I would employ her.

Q. Yes.

A. Then I asked her whether she had an identity card, and I also asked her where she lived.

Q. What was her reply?

A. At the time, she answers me that she had an identity card and she lived in the Sham Shui Po District.

Q. Anything else said between the two of you?

A.	I asked her to bring along her identity card the following day and that my fokie would make a photocopy of it. And I said that it was important for her to have experience, and I asked her to come back to work on the following day.

.....

Q.	During the interview with this Miss Huang, were you satisfied that she had the relevant experience that you needed?

A. Yes, I think so.

Q. And ....

A. Yes. Because she was accurate in using the scales ......."

20.Finally, the questions that ought to have been asked were simple, commonsense questions. The appellant, on the other hand, was a successful fruit-seller. I cannot see how it can be argued that those questions were beyond the appellant even though the appellant was illiterate.

21.Ground 4 :

"There was no sufficient evidential basis for the learned magistrate to completely reject the evidence of the Appellant and Mr. Wong."

22.Counsel seems to argue that the statutory defence is easily made out as all it requires is proof on a balance of probabilities. She seems to argue that in those circumstances, the Magistrate was setting too high a standard for the defence case to be completely rejected.

23.I must say I find this ground extraordinary. I will simply say that it has no merit.

24.Ground 5 :

"The said employee was merely provisionally employed by the Appellant subject to the identity verification carried out by Mr. Wong. In other words, the said employee was not employed by the Appellant. ...."

25.It is stated in counsel's skeleton argument that this ground is abandoned. I should add that it was specifically conceded at trial that the appellant was responsible for hiring Huang (the transcript at p.133F).

26.Ground 6 :

"The learned magistrate failed to consider the law that 'in determining whether the Applicant suspected or ought to have suspected that the said employee was lawfully employable was a factor in determining whether all practicable steps had been taken'. There was no finding on whether there was suspicious feature about the employee's recruitment to put the Appellant on enquiry. Attorney General v Lam Sik Cheung, HCMA No.700/1991."

27.The short answer to this is, again, the Magistrate had rejected the defence case. What remained was the record of interview in which the appellant admitted not to have checked Huang's identity card and therefore not fulfilled the law's minimum requirement. It was right that suspicious features had no place in the Magistrate's deliberation.

28.I should add that if suspicious features were relevant, the recent and colossal increase in number of mainland visitors in Hong Kong, their gradual convergence in style and speech with the local population, the low-skill and casual nature of the job advertised, and the perfunctory answers to all the questions asked in the interview, should all have put the appellant on the alert of Huang's status.

29.In conclusion, there is absolutely no merit in the appeal against conviction. It is dismissed.

The appeal against sentence

30.Only one ground has been filed :

"In all the circumstances of the case, the sentence imposed was manifestly excessive, wrong in principle when the Appellant was merely negligent in failing to adequately verify the identity of the said employee. Besides, there has not been any specific finding that the Appellant was acting dishonestly as opposed to carelessly.

In this case, the Appellant admitted complicity but sought to invoke the use of the statutory defence without untruthfulness. Moreover, the said employee was employed as a relief worker in a brief period employment during Chinese New Year in the absence of any exploitation."

31.Once again, counsel presupposes that the defence case was true. In fact, it was rejected. And though they were from one incident 10 years ago, the appellant had four similar previous convictions. The proper view may well be that the offence was not a result of "oversight".

32.In any event, the Magistrate was right that 15 months' imprisonment after trial is the established starting point for a section 17I(1) offence, at least where one employee and no exploitation was involved : R. v. Wong Mok Din [1994] 2 HKCLR 96; A.G. v. Wong Chung Lee [1996] 2 HKCLR 159. The Magistrate cannot be faulted for sentencing the appellant to nine months' imprisonment after taking into account her health, the effect that it would have on her stalls and the livelihood of her employees.

33.The appeal against sentence is dismissed.

Representation:

Miss Mary Sin, SADPP of the Department of Justice, for the Respondent

Ms Annie Lai, instructed by Messrs Lo, Wong & Tsui, for the Appellant