Secretary for Justice v. Ho Mei Wa

CAAR3/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 3 OF 2003

(ON APPEAL FROM KCCC NO. 13377 OF 2003)

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CAAR4/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 4 OF 2003

(ON APPEAL FROM KCCC NO. 13469 OF 2003)

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Coram: Hon Ma CJHC, Stuart-Moore VP & Stock JA in Court

Dates of Hearing: 4 June 2004 and 26 August 2004

Date of Handing Down Judgment: 3 September 2004

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.These two applications come before us following leave granted to the Applicant (the Secretary for Justice) under section 81A of the Criminal Procedure Ordinance. Cap.221 to apply for the review of sentences imposed by Mr Colin Mackintosh, in two cases at Kowloon City Magistracy. They raise an important sentencing issue.

2.The relevant charges to which the sentences related were brought under section 17I(1) of the Immigration Ordinance, Cap.115 ("the IO") which states : -

"17I. Offence to be employer of a person who is not lawfully employable

(1) Any person who is the employer of an employee who is not lawfully employable commits an offence and is liable to a fine of $350,000 and to imprisonment for 3 years."

3.Statutory defences are set out section 17I(1A) and (2) : -

" (1A) It is a defence in proceedings for an offence under this section for the person charged to prove that all practicable steps were taken to determine whether the employee in respect of whom the offence is alleged to have been committed was lawfully employable and that it was reasonable to conclude that the employee was lawfully employable.

(2) It shall be a defence in proceedings for an offence under this section for the person charged to prove that the employee in respect of whom the offence is alleged to have been committed -

(a) had been absent from work continuously from the date when section 17H last came into operation until 72 hours before the date of the alleged offence; or

(b) is the holder of a Vietnamese refugee card, that at the time the contract of employment was entered into with the employee the Vietnamese refugee card held by the employee did not prohibit the employee from taking employment and that the person charged had no knowledge that the Vietnamese refugee card held by the employee was, after the contract of the employment was entered into, replaced by a new Vietnamese refugee card prohibiting the employee from taking employment."

4.The term "employee who is not lawfully employable" (whom we shall hereinafter refer to simply as a "prohibited person") must be understood in the context of the interpretation provisions of section 17G. Section 17G(1) defines "employee" as "any person who has entered into a contract of employment to be employed by any other person as an employee or apprentice". Section 17G(2) states : -

" (2) Without prejudice to any provision of this Ordinance relating to conditions of stay which may be imposed on any person, a person is lawfully employable for the purposes of this Part only if -

(a) he is the holder of an identity card and he has not breached any condition of stay (if any) imposed on him under this Ordinance;

(b) he is the holder of an official passport; or

(c) he is not required to be registered under the Registration of Persons Ordinance (Cap.177) and is the holder of -

(i) a valid travel document which is not endorsed with a condition of stay prohibiting him from taking employment;

(ii) (Repealed 31 of 1984 s.4)

(iii) a Vietnamese refugee card which does not prohibit him from taking employment;

(iv) a certificate of exemption; or

(v) any other document of a type approved by the [Chief Executive] by order published in the Gazette."

5.In the first case (CAAR3/2003), the Respondent (Ho Mei Wa) had pleaded guilty to a section 17I charge as well as to one of aiding and abetting a breach by a person of conditions of stay (contrary to section 89 of Criminal Procedure Ordinance and section 41 of and regulation 2 of the Immigration Regulations under the IO). She was sentenced to 2 months' imprisonment suspended for 2 years and a fine of $1,500 for the section 17I offence and 1 month's imprisonment also suspended for 2 years and a fine of $1,500 for the aiding and abetting offence.

6.In the second case (CAAR4/2002), the Respondent (Wu Ying Bor) also pleaded guilty to a charge under section 17I of the IO and was sentenced to 1 month's imprisonment suspended for 2 years and a fine of $1,500.

7.The Applicant sought a review before the Magistrate of the sentences for the section 17I offences in both cases (there was no review of the sentence imposed on Ho for the aiding and abetting offence). After hearing arguments in the review, the Magistrate, while stating that the standard sentence for the employment of a single unlawful worker ought to be an immediate custodial sentence of 3 months before plea (in circumstances which will be identified later in this judgment), nevertheless declined to disturb the sentences passed on the two Respondents.

8.Before us on these reviews, Mr Darryl Saw, SC and Ms Polly Wan appeared for the Applicant. Mr Osmond Lam and Mr Francis Yip appeared for the two Respondents respectively, but following our indication at the first hearing of these reviews on 4 June 2004 (and this was Mr Saw's position as well) that whatever would be the outcome of the reviews, the sentences imposed by the Magistrate would not be disturbed, counsel asked to be excused. At the resumed hearing, Mr Michael Blanchflower, SC appeared as amicus curiae. We have taken into account not only the submissions, both written and oral, of Mr Saw and Mr Blanchflower, but also of Mr Lam and Mr Yip for the two Respondents.

Facts

CAAR3/2003 : HKSAR v Ho Mei Wa

9.Ho was at the time of the offence the owner of a poultry shop in Shamshuipo. The gist of the charges against her was that she employed two persons from the Mainland in the shop, both of whom were not lawfully employable in Hong Kong. The two persons (named Huang Chunyan and Zhang Bingchiu, the latter being Ho's younger brother) were both visitors from the Mainland who were prohibited from taking up any employment in Hong Kong as part of their conditions of stay. Huang was used as a stand-in waiter (relieving regular staff who had gone on leave) and was tidying up at the shop at the time of arrest. Zhang was serving customers at the time.

10.In the case of Huang, Ho failed to check her papers (meaning those papers going to her legal capacity to work in Hong Kong). For Zhang, Ho knew that he was a visitor who, by reason of the conditions of stay imposed on him, was prohibited from taking up employment.

11.Neither employee was an overstayer. Both can be treated as having been employed on a casual basis since their permission to remain in Hong Kong was for 14 days and there was no evidence to suggest how long they had been working before arrest or that their intention to Ho's knowledge was to remain in Hong Kong as overstayers. Their salary is not apparent from the brief facts of the case.

CAAR4/2003 : HKSAR v Wu Ying Bor

12.In this case, Wu was the subcontractor for some cleaning work to be carried out at a building on Conduit Road. He engaged a person from the Mainland (Li Dongsheng) as a worker at the premises at a daily wage of $200. Li was a visitor from the Mainland and had been granted permission to remain in Hong Kong for 30 days but was prohibited from taking up employment as part of his conditions of stay. Wu was aware that Li was a Mainland visitor. It was claimed that Li was also Wu's brother-in-law and the Magistrate sentenced him on this basis.

13.Li was also charged with breaching his conditions of stay. On his plea, he was convicted and sentenced to 21 days' imprisonment.

14.Like the employees in the other application, Li can also be considered as having been employed on a casual basis, there being no evidence of how long he had already been working before arrest nor of Wu's intentions in relation to the duration of the employment. He was, as stated above, paid on a daily basis.

The sentencing issue

15.The sentencing issue before us is this : what are the appropriate sentencing guidelines for the offence of employing a person or persons not lawfully employable (the offence under section 17I of the IO)? Given the controversy (which we will presently identify) that has surrounded this issue over the past 10 or more years, it is now important to make clear the position. The controversy arises from two decisions of this Court made in 1993 and 1996 : The Queen v Wong Mok-din, [1994] 2 HKCLR 96 and Attorney General v Wong Chung-lee, [1996] 2 HKCLR 159.

16.In Wong Mok-din, an illegal immigrant had been employed by the accused on his farm in the New Territories at a monthly wage of $3,000. The prohibited person had been checked for proof of identity but the accused was shown an old style ID card with a lapsed expiry date in the name of someone else. The accused checked only the photograph and the name on the card but not any other details as he claimed his eyesight was poor. He pleaded not guilty. The Magistrate accepted that his eyesight was poor but said that he had been "appallingly lax in his dealings with the illegal immigrant". A sentence of 1 year's imprisonment was imposed by him.

17.The heart of the decision of the Court of Appeal is contained in the following passage at 102(18)-(31) : -

" We are satisfied that 15 months after trial would be a proper starting point for an offence of this kind where one employee was involved, where there were no circumstances of exploitation and where it was established that the offender was aware that he was employing an unlawful immigrant or had acted recklessly in so doing.

This starting point should be increased in cases of multiple employment and where there is any element of exploitation.

The level of seriousness of cases falling within the suggested guideline of 15 months will vary according to the circumstances of each case.

At one end of the range stands the offender who wilfully and knowingly or recklessly employs an unlawful immigrant. At the other end stands the offender who makes some, but not all, practicable inquiries and is genuinely unaware that he is employing an unlawful immigrant. Credit must as in all cases be given for a plea of guilty and some, but lesser, credit may be appropriate where an offender admits his complicity but seeks, without untruthfulness, to take advantage of the statutory defence."

18.The following points arise from this passage : -

(1) The factual situation to which the suggested guideline or starting point of 15 months after trial applied was where the relevant employment was of just one employee, no circumstances of exploitation and full knowledge on the part of the accused that he was employing a prohibited person (or recklessness in this regard).

(2) The 15-month starting point may be altered, whether upwards or downwards, by the circumstances of the case. Although express reference is made in the quoted passage to the state of knowledge of the employer, the degree and level of inquiries he has made and to whether a plea of guilty is offered, it must be implicit that the sentencing court is able to take all relevant circumstances into consideration.

(3) In applying the starting point of 15 months to the facts of that case, the Court of Appeal concluded that 8 months was the appropriate sentence. It took into account the efforts made by the accused to check the ID card of the employee. Though unsatisfactory, at least some effort was made and the failure to spot the ID card as having expired was due to the accused's poor eyesight. There was also the fact that the accused had admitted employing the prohibited person when questioned by the police and although he did not plead guilty (this was due to his running a section 17(2) defence), he was found to have been a truthful witness who had never sought to mislead the authorities, the police or the court.

19.In fixing the starting point of 15 months for the factual scenario set out in paragraph 17(1) above, the Court of Appeal was influenced by the following factors : -

(1) In 1990, section 17I had been amended to increase the then penalty from a maximum $50,000 fine and imprisonment for 1 year to the present position, namely, a maximum fine of $350,000 and imprisonment for 3 years. The Court held that this increase reflected the legislature's wish that a more serious view be taken of section 17I offence :- see 100(7)-(9).

(2) Reference was made to the case of The Queen v So Man-king, [1989] 1 HKLR 142, in which it was held by the Court of Appeal that a term of 15 months' imprisonment after plea was appropriate for most cases brought against illegal immigrants under section 38(1) of the IO. In So Man-king, the accused were all overstayers, who were working on construction sites. The Court of Appeal in Wong Mok-din cited with approval the words of Sir Derek Cons VP in The Queen v Law Chuen-fook, [1989] 1 HKLR 164 at 166 that :

"those who offer opportunities of employment to illegal immigrants must expect to receive sentences certainly not less than those imposed upon the immigrants themselves."

The relevant offence in Law Chuen-fook was the aiding and abetting of a person who had committed an offence under section 38(1)(b) of the IO. The aiding and abetting took the form of the employment of two illegal immigrants as casual workers on board a lighter. The Court of Appeal upheld the sentence of 12 months' imprisonment that had been imposed by the Magistrate.

20.It seems clear, as Mr Blanchflower submitted, that the said starting point of 15 months in Wong Mok-din corresponded to the starting point of 15 months imposed in So Man-king in relation to section 38(1) offences. One can deduce from this (and to the reference to Law Chuen-fook) that the Court of Appeal obviously saw a connection between section 17I offences and other offences involving similar factual scenarios. However, we make the following observations on the Court's approach in Wong Mok-din in fixing the starting point of 15 months :-

(1) While Law Chuen-fook was referred to for the proposition (with which we agree) that generally those who offer employment opportunities to prohibited persons can expect to receive sentences not less than those imposed on the prohibited persons themselves, it is odd that the starting point for section 17I offences should then be 15 months after trial whereas that for an illegal immigrant under a section 38(1) offence in a similar factual scenario should be, according to So Man-king, 15 months after a plea of guilty. This is all the more surprising when one considers that the penalties for a section 38(1) offence are less than those for a section 17I offence, in that the former imposes a level 4 fine while the latter has a maximum fine of $350,000. This may, however, perhaps be explained by the fact that a section 17I offence may also be committed by a corporate person. The maximum terms of imprisonment are the same.

(2) It can thus be seen that the fixing of a standard period of 15 months before trial was arrived at somewhat illogically and represented, as far as we can see, an arbitrary figure.

21.In Attorney General v Lau Chung-ming, [1993] 2 HKCLR 11, heard and decided at the same time as Wong Mok-din, the same Court of Appeal applied the said starting point of 15 months, reducing it to 10 months on account of the guilty plea. In that case, the prohibited person was a casual worker who had worked for a period of 17 days before he was caught.

22.In 1996, the Wong Mok-din guidelines were followed and reaffirmed by this Court in Wong Chung-lee. There, the main point before the Court of Appeal was whether for the purposes of sentencing for section 17I offences, there was any distinction between the hiring of illegal immigrants (that is, persons not lawfully present in Hong Kong : see section 38 of the IO) and the hiring of persons lawfully in Hong Kong, for example a tourist, but who could not be employed, this being a breach of their conditions of stay (see section 41 of the IO). The Court of Appeal held there was no distinction. On the facts of the case (involving workers in a factory), the Court was of the view that the proper starting point was at least 20 months. It took into account the following circumstances : - the commercial nature of the enterprise in which the prohibited person was employed, the number of prohibited persons involved (21) and some element of exploitation.

The ruling of the Magistrate

23.We have already set out in paragraphs 5 and 6 above the sentences that were passed by the Magistrate in the two applications before us. These sentences were maintained after the review before him.

24.The Magistrate gave a carefully reasoned Ruling in the two reviews before him. We have found the Reasons for Ruling to be of great assistance. The following points arise in the Ruling : -

(1) After referring to the two main Court of Appeal cases to which we have referred above (Wong Mok -din and Wong Chung -lee), the Magistrate remarked that the sentencing practice of the immigration court in Kowloon City had become "inconsistent, both internally, as between different magistrates, and when compared with sentencing at Kwun Tong". The inconsistency to which the Magistrate was alluding was that while some courts were imposing prison terms for section 17I offences, the majority of other magistrates were imposing either suspended terms or merely fines. We shall presently be referring to certain statistics provided to us by Mr Saw.

(2) The Magistrate said he embarked on a revision of all sentences for offences under section 17I and came to the conclusion that the appropriate tariff for this type of offence was 3 months immediate imprisonment after trial "for unlawful employment, where there are no aggravating features such as exploitation or multiple employment and where the employment cannot be shown to be on anything other than a casual basis". This was said to be in line with the sentencing tariff in Kwun Tong Magistracy.

(3) This new tariff was one that was arrived at after a Magistrates' conference and after consultation with Immigration Department prosecutors and the Duty Lawyer Scheme, both of whom of course possess much experience in the everyday handling of section 17I offences.

(4) It was accepted that the new tariff was one that went contrary to the guidelines established by Wong Mok-din and reaffirmed by Wong Chung-lee. However, as the Magistrate said rather poignantly, "As to the 15 months starting point derived from Wong Mok-din and Wong Chung-lee, which are now eight to ten years old, I have to say that no magistrate I know regards that as the current basis for sentence".

(5) It was also observed that even though for at least the past 2 1/2 years, magistrates had been imposing non-custodial sentences, no applications for review had taken place. This would appear to be true. The present applications for review are the first since Wong Chung-lee in relation to section 17I offences. Mr Saw did not seek to provide any explanation for this.

25.What the Magistrate regarded as the factual scenario to which the tariff of 3 months before trial applied, is important to bear in mind. This scenario shares the same features as those referred to by the Court of Appeal in Wong Mok-din (single employee, full knowledge or recklessness as to the employment of a prohibited person, no aggravating features) but emphasizes one point, namely, the employment of the prohibited person on a casual basis. This is an important feature which was not expressly identified or discussed in Wong Mok-din and it is not clear how far the Court of Appeal took it into account, although it appears that the employment of the prohibited person in that case was a casual one on the facts. We shall return to this aspect later.

26.Mr Saw helpfully provided the Court with relevant statistics in the form of 5 tables. We admitted these tables into evidence under section 83V(1)(a) of the Criminal Procedure Ordinance. They show the following features : -

(1) Since the early 1990's, the number of arrests of illegal immigrants has dropped considerably from a high of 37,517 in 1993 to just 3,809 in 2003. To be contrasted with this are the figures for Mainland visitors. With the relaxation of conditions previously restricting entry into Hong Kong, there are now substantial numbers of Mainland visitors to Hong Kong (using Chinese passports, Chinese travel permits or two-way permits). In 2000, there were 3,766,350 visitors. In the first half of this year alone, the figure is 5,610,340. It follows from this, as Mr Saw submitted, that there is certainly more opportunity for the employment of prohibited person from the Mainland (this being by far the largest category of illegal workers according to the statistics).

(2) The number of arrests of illegal workers who are Mainland visitors has increased since the mid-1990s from 2,341 in 1995 to 4,830 for 2003 and 2,335 for the first half of this year. So have the number of convictions for persons who have breached their conditions of stay (meaning unlawful employment in Hong Kong) : from 1,298 in 2001 to 2,757 in 2000 and 1,740 for the first half of this year. These figures exclude prostitutes. The Magistrate recognized the dramatic increase for 2003 as far as the work of the court was concerned but attributed this to increased enforcement by the authorities. This may only have been speculation on his part, but it is unnecessary to decide this point. The main point is that there is certainly an increase in the number of arrests and convictions of prohibited persons. This at least shows a greater awareness and concern for the problem of unlawful workers in Hong Kong.

(3) Of particular significance in the statistics before us, however, are the figures for the sentences that have been imposed by magistrates for offences under section 17I prosecuted by the Immigration Department. Here they show the following : -

(a) From 1996 to 2003, the sentences have largely comprised fines, suspended sentences, suspended sentences coupled with fines, and imprisonment. There have been other penalties imposed such as community service orders but these can be ignored. During these years, despite the guidelines laid down in Wong Mok-din and Wong Chung-lee, immediate terms of imprisonment have only been imposed on very few occasions. The percentage of immediate terms of imprisonment compared to the total sentences for convictions under section 17I have been, approximately, less than 2% for 1996, 9% for 1997, 8% for 1998 and 1999, 6% for 2000, 12% for 2001, 8% for 2002 and 30% for 2003. The range of these immediate custodial sentences was from a few days to 18 months.

(b) The majority of the sentences imposed over those years has comprised suspended sentences coupled with fines. In no case, however, was any suspended sentence imposed for a period in excess of 12 months.

(c) For the current year up to the end of June, out of 145 convictions under section 17I, there have been immediate terms of imprisonment (ranging from 14 days to 15 months) imposed in 95 cases. This is a dramatic increase but reflects the tariff sentence of 3 months before trial now being imposed by the Magistrates.

27.The statistics do not of course provide any details of the facts of the cases on which they are based but it can, we think, fairly be assumed that the factual situation referred to in Wong Mok-din and that identified by the Magistrate in his Reasons for Ruling, must have been the preponderant one in the statistics. What is then accordingly remarkable is that it would certainly appear to be the case that magistrates have simply not been following the guidelines laid down in Wong Mok-din, even when those guidelines were reaffirmed in Wong Chung-lee in 1996. The statistics in this regard support what the Magistrate said in his Reasons for Ruling that magistrates do not regard (and have for a long time not regarded) what was laid down in Wong Mok-din as being any longer appropriate. This refusal by magistrates collectively to follow guidelines laid down by the Court of Appeal is, in our view, quite unprecedented and in the context of our decision, significant. This is the controversy to which we have earlier referred.

What should now be the appropriate guidelines?

28.At the core of Mr Saw's submissions was simply the point that the magistrates, however much sympathy they may feel for offenders under section 17I, are bound to follow the sentencing guidelines laid down in Wong Mok-din. These guidelines, he added, remain relevant today, indeed all the more so given the greater opportunities afforded, owing to the increased number of Mainland visitors, for offences to be committed under section 17I. The Applicant is particularly concerned that the 'new' tariff of 3 months after trial which the Magistrate said should now be applicable for the factual scenario he mentioned, would not be a sufficient deterrent and, in reducing substantially the previous guideline sentence, "would send a wrong message".

29.In his submissions, Mr Blanchflower has provided the Court with much useful material and given a balanced view of the exercise we are asked to undertake. Foremost in his submissions is the consideration that while a court should be hesitant to depart from earlier decisions, it should do so where there exist compelling reasons. He referred us to R v G [2004] 1 AC 1034 for the proposition that where changes in the law are contemplated by a court altering the effect of its previous decisions (in that case the House of Lords was considering its previous decisions on recklessness in criminal law) regard could be had to one's sense of fairness and the views expressed by (and, we would assume, the experience of) other judges :- see 1055-56 (at paragraphs 33 and 34).

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.

31.We recognize that in laying down these guidelines for the factual situation just identified, we may well have departed from the sentencing guidelines stated in Wong Mok-din and Wong Chung-lee. Here, we would just make the following observations : -

(1) We have attached considerable weight to the collective views of the magistrates as stated above. With their experience of the many varied ways in which the offence under section 17I can be committed and the way they have regarded the Wong Mok-din guidelines as having been for a number of years, inappropriate, it is right for this Court to take into account their views. It is particularly striking that almost as soon as the Court of Appeal had reaffirmed the Wong Mok-din guidelines in 1996 in Wong Chung-lee, the magistrates did not follow them. When this unique set of circumstances is combined with the almost equally significant fact that the prosecuting authorities have not until these applications sought reviews of sentences, it is obvious that this Court had to revisit the matter.

(2) As discussed in paragraph 20 above, the 15 month guideline set out in Wong Mok-din contained odd features in the first place, which perhaps are not easy to rationalize. There is also the point that it is not entirely clear whether the Wong Mok-din guidelines were intended to apply to employments of a casual nature or whether they only applied to more fixed or long term employments. For these reasons as well, we felt it appropriate to revisit the matter and restate the position as clearly as possible.

(3) In the course of his submissions, Mr Saw warned that any lowering of the Wong Mok-din sentencing guidelines might send the wrong message to the community, potential offenders and to those persons coming in from abroad who may be tempted to seek employment when they had no right to. This initially caused us some concern but in the end, given that the Wong Mok-din guidelines have not been followed for a number of years and given that in the usual factual scenario set out above, an immediate custodial sentence will usually be called for, we think that the real message is that from now on, the Courts will be very much more vigilant than has been the case for a number of years. Further, to put the matter into proper perspective, what the guideline sentence indicates is the imposition of an immediate custodial sentence for a first time offender in relation to a crime that is not "truly criminal". In such a situation, to impose a very heavy immediate custodial sentence might be said by some to offend against one's sense of fairness.

(4) No doubt previous authorities applying the Wong Mok-din guideline sentence will have to be looked at afresh to see whether they remain useful as comparables. Of course, whether or not a case is useful as a sentencing comparable depends on whether the facts are similar (inasmuch as the full facts can be ascertained from the report of the case). Sometimes, a previous case can be utilized in this way, often it cannot. In the present discussion, in applying the present guidelines which we have laid down, while we think that the sentence thought appropriate in Wong Mok-din may have been a little on the high side (8 months after trial), there would appear to have been the aggravating feature in that case that the accused was intending to employ the prohibited person on a somewhat long term basis (as shown by the reference to the employee being paid $3,000 a month). The sentence thought appropriate for the accused in Lau Chung-ming (10 months after plea) was, again, a little on the high side, although the prohibited person worked for a period of 17 days before arrest. This was indicative of a long term employment. As for Wong Chung-lee, the sentence which the Court of Appeal thought right was at least 20 months (reduced to 13 months for the guilty plea), even though further reductions were made on account of certain special circumstances which need not concern us. The reason for the high starting point of 20 months was that a multiplicity of employees was involved and there was some element of exploitation. Even applying the guidelines we have set out, we think that a 20-month sentence would be appropriate on these facts. As we have earlier observed, the presence of aggravating features will in most cases substantially increase the guideline sentence.

Conclusion

32.For the reasons earlier mentioned, the sentences passed on the two particular Respondents before us remain as the Magistrate imposed.

33.However, we should perhaps just state our views on what would have been the appropriate sentences had the guidelines referred to above been applied : -

(1) In the case of Madam Ho Mei Wa, given her plea of guilty, a sentence of 3 months' imprisonment would have been appropriate. A multiple employment was involved.

(2) In the case of Wu Ying Bor, we would have imposed a sentence of 2 months' imprisonment on account of his guilty plea.

34.Lastly, we wish to say that although these applications for review are dismissed, this was because we felt it was unfair to subject these Respondents to any possible increase in sentence when they were chosen at random so as to enable the present review applications to be made. Indeed, the Applicant did not seek a different result. The bringing of the present applications for review by the Applicant was perfectly proper and, for the reasons given above, necessary.

Representation:

Mr D G Saw, SC, DDPP & Ms Wan Shuk Fong, Polly, SGC, of the Secretary for Justice for the Applicant

Mr Michael Blanchflower, SC appointed by the Court as Amicus Curiae