HKSAR v. Liu Lau Chi

HCMA227/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 227 OF 2009

(ON APPEAL FROM STCC 469 OF 2009)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 15 July 2009

Date of Judgment : 28 July 2009

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J U D G M E N T

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1.The appellant was convicted after trial of two counts of ‘being the employer of a person not lawfully employable’ contrary to section 17I(1) of the Immigration Ordinance (Cap. 115) and was sentenced to a total of 5 months’ imprisonment. She appeals against the conviction.

The prosecution case

2.Quoting from the magistrate’s Statement of Findings :

“2.  The Prosecution’s case was unchallenged and admitted as evidence under S65C of the Criminal Procedure Ordinance. The admitted facts can be summarised as follows.

3.  On 27 November 2008 at about 18:22 hours, Immigration officers disguised as customers at City Hair Salon situated in Tai Po to make observation. During their observation, they noticed 2 females working in the shop who were subsequently known as Li Yinlin and Li Xiahua. These 2 females were mainlanders coming to Hong Kong as visitors on strength of Chinese Permits on the condition that they shall not take up any employment, whether paid or unpaid, or establish or join in any business.

4.  During about 32 minutes’ observation, Li Yinlin was seen tidying up the hair dressing equipment and folding up and placing an apron onto a rack. Later she was seen wearing a pair of gloves and spreading the hair-dying gel on the hair of a customer with a brush.

5.  On the other hand, Li Xiahua served one officer by washing her hair. She then used a broom to sweep the hair on the floor.

6.  Upon inquiry, both of them produced their Chinese Permits to the immigration officers for inspection. They were then arrested for Breach of Condition of Stay.

7.  At about 18:58 hours, the Defendant returned to the hair salon. She was the person responsible for recruitment of staff there, but not the registered proprietor. She was arrested for the offences in question. Later on the same day, she made a record of interview, voluntariness of which is not in dispute. The Prosecution produced it as a mixed statement. In the statement she admitted running the hair salon together with a man called Wong Yuen Kam. However she denied employing and knowledge of the two females working there.”

The defence case

3.Turning to the defence case, the magistrate stated :

“9. The Defendant elected to give evidence. She also called one witness.

10. The Defendant testified that the salon was set up by her and her husband in 2000. Prior to 2007, her husband sold his share to Mr. Wong Yuen Kam. She remained responsible for hiring staff and as a cashier.

11. She said the 2 females arrested by immigration officers were sisters. The husband of one of them was a former staff of the hair salon. As they frequently came to the salon, the Defendant became familiar with them. They were also friendly with a staff Miss Choi, DW2.

12. At the material time, she was not in the salon as she needed to attend to her duties as a mother. She was later on summonsed back to the shop. She did not know the 2 sisters had worked in the shop. She would not employ them as they did not have Hong Kong identity cards.

13. DW2, Miss Choi, testified that she had worked in the hair salon since 2004. She was responsible for washing hair of customers and casual work. She was friendly with the 2 sisters. On the material day, the elder sister called and said they would come to the shop. Later they came to the shop. The shop was busy at that time and the sisters were waiting for Miss Choi to go for dinner. The sisters therefore helped her out. Miss Choi produced some pictures taken with the elder sister.”

The magistrate’s findings

4.In the end, the magistrate did convict the appellant. What follows is the magistrate’s evaluation of the case :

“14. There are 2 simple issues in the case. First, whether the 2 sisters were employed in the shop. Secondly, if so, whether the Defendant was the employer.

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16. Having considered all the evidence and the submission of the defence counsel, I find the evidence of the Defendant and her witness unconvincing and unreasonable. I reject their evidence.

17. Their evidence was that the 2 sisters were only giving a helping hand. I found the evidence an affront to commonsense. The 2 sisters were seen, not only doing casual cleaning work, but also washing and dying hair for customers. I find it implausible that the 2 sisters, as friends of Miss Choi who was only employed to do the menial work, would help in this way in order that Miss Choi could finish work earlier. If Miss Choi could not manage the work, she should have asked for assistance from the Defendant.

18. The pictures produced by Miss Choi could prove no more than the sisters being her acquaintances. However they could be colleagues as well.

19. I found as the only reasonable and irresistible inference that the 2 sisters must have been employed to work in the shop. No doubt employment connotes employer and employee relationship. However I found that the 2 sisters would not have provided the services as observed if they were not working as employees in the shop.

20. The next issue is who was the employer. The Defendant was not present in the shop at the time of the offences. Though on record with the Business Registration Office, Mr. Wong Yuen Kam was the proprietor, the Defendant admitted in her Record of Interview and in court that she was also a partner of the shop and she was the only person responsible for recruiting staff. I found she was a partner of the shop responsible for recruitment of staff.

21. I found as the only reasonable and irresistible inference that the Defendant recruited and employed the 2 sisters to work in the shop. I also found, as she admitted she knew they were mainlanders, that the Defendant knew they were not lawfully employable.”

This appeal

5.Quite simply, counsel’s contention is that there was insufficient evidence to support the conviction. It is contended that the inferences drawn by the magistrate were based on speculation and suspicion and that even at its highest, the prosecution case fell short of proving knowledgeable involvement on the part of the appellant.

6.I disagree.

7.In my judgment, the magistrate was entitled to take the view that no one offering casual help to a friend whom they were waiting to take to dinner would go to the extend of doing the things that Li Yinlin and Li Xiahua were seen doing — or be permitted to do so.

8.Likewise, looking at the case in the round, I am of the view that the magistrate was entitled to conclude that being sole recruiter, the appellant was knowingly involved in the Li sisters’ employment with the shop — whether or not she was present at the material time.

9.These are the key issues that the magistrate had dealt with adequately. I am not disturbed by the fact that in his Statement of Findings, no distinction was made between the evidence of DW2 and the appellant, or that questionable remarks were allegedly made about such matters as the defence photographs (paragraph 18) and the possibility of asking the appellant for help if the shop was too busy (paragraph 17). As a matter of fact, I consider these remarks nothing more than commonsense observations that the magistrate could make.

10.I am aware of the case of The Queen v Ip Po Fai, HCMA1201 of 1995. I am not troubled by it. Every case has to be looked at on its own facts and it is my judgment that the conviction in this case was properly entered.

Determination

11.The appeal is dismissed.

Miss Fung Mei Ki, Mickey, SPP of Department of Justice, for HKSAR

Mr Ian Polson, instructed by Messrs Wong & Co., for the Appellant