HKSAR v. Lip Fong Kin

HCMA926/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 926 OF 2007

(ON APPEAL FROM STCC 2939 OF 2007)

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BETWEEN

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Before : Deputy High Court Judge Line in Court

Date of Hearing : 6 November 2007

Date of Judgment : 6 November 2007

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J U D G M E N T

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1.This is an appeal against conviction for two offences of being the employer of a person not lawfully employable contrary to section 171(1) of the Immigration Ordinance.

2.The prosecution’s case below was that on 12 March of this year, 2007, the Appellant employed a woman called Song and a man called Tang, who were not lawfully employable, to work in a hair salon in Hung Hom, of which business the Appellant was registered as the sole proprietor.

3.Two Labour inspectors attended the premises on that day and both had their hair washed by Song.  Tang took the money for the service.  The inspectors were there for about half an hour before declaring their identity.  The Appellant was there throughout.  The premises were 100 square feet in dimension.

4.The Appellant gave evidence below, and the effect of what he was saying was that he was not their employer; and that Song and Tang were there because his partner and ex-wife, with whom he had fallen out and had had a dispute, insisted that they be there to look after her interests.

5.The case turned upon credibility.  If what the Appellant said is or may be right, then he would be not guilty.

6.The magistrate, in dealing with credibility, gave very clear reasons why he did not believe the Appellant’s story, and the Respondent relies on those matters in resisting this appeal today.

7.I am not going to deal with all the reasons the magistrate gave, because a mere selection of them speak cogently as to why the issue of credibility had to be resolved against the Appellant.

8.Let me take the issue of whether or not the Appellant was aware that Song had washed the hair of the inspectors over a period of 20 minutes within that 100 square feet without the Appellant being aware of it.  The idea that he did not know that was going on in that small space over that period of time in his business is simply not to be believed, and his explanation of being preoccupied with a customer in the corner, with loud music being on in the premises and the like, simply cannot begin to explain why he would not have been aware of what Song was doing.

9.Another matter that was, I am afraid, equally damning, was the fact that the account given in the record of interview, which was admitted without dispute, and the evidence given by the Appellant were substantially different.  In the record of interview he had said that he had known Song and Tang separately in the mainland many years ago; that they came to visit him in the hair salon, sometimes to sit, chit-chat with him, and watch television; that because he was busy, Song washed the hair of the Labour inspectors and Tang collected the money; that they were not staff and helped out because the Appellant was busy, but there was no monetary reward.  In his evidence, the explanation had shifted to the two being there at the insistence of his partner and ex-wife, and that their presence was imposed upon him in an atmosphere completely at odds with the social interaction and chit-chat that he had described to the police.  The Appellant was unable satisfactorily to explain the shift.

10.I will point out that at paragraph 37 of the statement of findings, the magistrate lists a number of matters there which damaged further the credibility of the Appellant, and comment that they were good points, well made, which I adopt.

11.The final matter I will mention in relation to credibility is this:  that there came a time when the female Labour inspector revealed her identity at a time when the police had arrived at the premises, and she told the court that at that moment, Tang went and sat in one of the barber’s chairs and that the Appellant then put a cape around his neck as if to commence a haircut, and that they both pretended that Tang was then legitimately a customer going to have a haircut.  There was no room for mistake, and the Appellant says that the evidence about him joining in that was a lie. 

12.He urges today, if I have understood him correctly, that he thought the request by Tang for a haircut at that stage was a legitimate one.  But leaving that aside, the damage done by that evidence - if it is correct, and given the other matters I have mentioned so far, I do find it to be good and credible evidence against him - the damage to him is obvious.

13.One unusual feature of the case which I will mention is this:  that the Appellant claimed below that he had actually complained to the police about the presence of these two-way permit holders upon his premises and wanted them removed, and specifically had in mind the dangers to him lest someone think they were working there for him.  He says he reported this to the police on 6 March.  The magistrate accordingly adjourned and allowed evidence in rebuttal.  A station sergeant was called.  He testified that the dispute was entirely one between him and his partner about business and money matters, and that there was no mention at all of anyone working unlawfully there, or any question of two-way permit holders being removed or staying on the premises.  The Appellant avers that that evidence was deliberately untruthful.

14.Given the overall circumstances, the magistrate found the sergeant to be a good and truthful witness and the Appellant’s account to be unreliable, and I come to the same conclusion, on the material before me.

15.It is thus that the credibility issue had to be resolved against the Appellant, and I accordingly dismiss his appeal against conviction.  The appeal against sentence was earlier abandoned.

Representations:

Mr Harish Melwaney, Senior Government Counsel of the Department of Justice, for the Respondent

Appellant Lip Fong Kin (聶方健) in person