HKSAR v. Jesurajah Robinson and and Another

HCMA 848/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 848 OF 2012

(ON APPEAL FROM STCC 1557 OF 2012)

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REASONS FOR JUDGMENT

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Background

1.The 1^st applicant (A1) was found guilty after trial of “Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully”, contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance, Cap 115.  He was sentenced to 18 months’ imprisonment. 

2.The 2^nd applicant (A2) was found guilty after trial of “Breach of condition of stay”, contrary to section 41 of the said Immigration Ordinance and by virtue of Regulation 2 of the Immigration Regulations.  He was sentenced to 3 months’ imprisonment.

3.Both applicants appealed against their conviction and sentence.

4.I dismissed the appeal on 8 May 2015.

5.By a Notice of Motion dated 10 June 2015, the applicants apply under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 for a certificate to certify that points of law of great and general importance were involved in my decision.

6.After hearing counsel on 29 June 2015, I refused the application.  These are my reasons.

7.Section 32(2) and (3) of Cap 484 provides:

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.

(3) Where the Court of Appeal or the Court of First Instance declines to certify as mentioned in subsection (2), the Court may so certify and grant leave to appeal.”

8.Section 33(1) of Cap 484 provides that an application for leave to appeal to the Court of Final Appeal shall be made within 28 days from the date of the decision, ie from 8 May 2015.  

9.While Direction 3 of the Practice Direction 2.2 provides that an application for a certificate to the Court of First Instance that the decision involves a point of law of great and general importance should be made immediately after the judgment is given from which the appeal is to be brought, Direction 4 provides that the applicant should provide the court with a written statement of the point of law involved.

10.Mr Mark Sutherland, after the judgment was delivered on 8 May 2015, informed me orally that he wished to apply for a certificate, whereupon I informed him that the application had to be in writing.  Mr Sutherland was advised to provide a written copy to the respondent as well so that they could respond properly.

11.Apart from alleging in a letter dated 15 June 2015 that an attempt by the applicants’ solicitors to file the Notice of Motion was refused by the court filing clerk (without saying on what date the attempt was made), no reason was advanced (whether in the said letter or during oral submission by Mr Sutherland) why the application was only made on 10 June 2015, more than one month after my judgment.

12.Clearly this application was made out of time and without good reason for the delay being advanced.  Nevertheless, I dealt with the application on its merits.

The stated points of law

13.The points of law of great and general importance are stated as follows in the Notice:

“[References in square brackets are to the paragraph numbers in the decision dated 8 May 2015 by The Honourable [Mrs] Justice Judianna Barnes.]

1. In relation to the 1^st Appellant, what is the definition of ‘employment’ for the purposes of triggering the offence of ‘taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully’ contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance (Cap. 115 of the Laws of Hong Kong)? [Paragraphs 75 to 92]. (1^st point)

2. In relation to the 2^nd Appellant, is the charge under section 41 of the Immigration Ordinance (Cap. 41 of the Laws of Hong Kong) lawful, proper and/or valid in circumstances where the limit of stay of 30 days had expired at the time that the charge was brought? [Paragraphs 30 to 60]. (2^nd point)

3. In relation to the 2^nd Appellant, what is the definition of ‘employment’ for the purposes of triggering the offence of ‘breach of condition of stay contrary to section 41 of the Immigration Ordinance (Cap. 41 of the Laws of Hong Kong) and by virtue of Regulation 2 of the Immigration Regulations promulgated thereunder’? [Paragraphs 75 to 92].  (3^rd point)”

1^st and 3^rd points

14.The way the 1^st and 3^rd so-called points of law was framed, was, with respect, hard to follow.

15.In his written submission dated 24 June 2015, Mr Sutherland gave the following elaboration (after setting out the three points of law as stated in the Notice):

“6. The great and general importance of the above points of law arises in the context of the number of claimants of non-refoulement protection in Hong Kong. Please see ‘Legislative Council Panel on Welfare Services: Humanitarian Assistance for Non-refoulement Claimants’ [LC Paper No. CB(2) 1595/14-15(05)].

7. The rights of claimants of non-refoulement protection has also been the subject of a number of significant rulings by the Courts of Hong Kong. These include, inter alia, the following:

(i) Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 – the right to the ‘high standards of fairness’;

(ii) FB v Director of Immigration [2009] 2 HKLRD 346 – the right to ‘free legal representation’;

(iii) Ubamaka Edward Wilson v Secretary for Security [2012] 15 HKCFAR 743 – the right ‘not to be subjected to cruel, inhuman or other degrading treatment or punishment’;

(iv) C & Ors v Director of Immigration [2013] 16 HKCFAR 280; the right to an ‘independent assessment of refugee or persecution claims’; and

(v) GA v Director of Immigration [2014] 17 HKCFAR 60 – the right ‘to work’.

8. In relation to the first point of law and the third point of law, reference is made to the following authorities:

(i) The Queen v Ip Po Fai [HCMA 1201/1995]

(ii) Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLRD 951

(iii) HKSAR v Chow Kin Cheung [2013] 1 HKC 246

(iv) HKSAR v Ferosh [FACC No. 2 of 2014]

9. In relation to the second point of law, reference is made to the authorities and legislation cited at the hearing of the underlying Appeal on 25 March 2015.

10. It is respectfully requested that a certificate is granted by the Honourable Court in relation to the first point of law, the second point of law and the third point of law.”

16.With respect, after reading the written submission and the authorities enclosed, one is none the wiser as to what points of law were involved in the 1^st and 3^rd points stated.  Merely listing out a number of authorities without identifying the relevant principles relied on was not of assistance to this Court.

17.It was only after hearing Mr Sutherland’s oral submission that one begins to appreciate what his arguments were.  In a nutshell, Mr Sutherland referred to the non-refoulement protection afforded to a large number of claimants, who at the same time were not allowed to work or be employed.  These claimants, he submitted, are in a limbo.  They did not know “what they can do and what they cannot do”.  The Court of Final Appeal had not laid down a clear definition of what amounts to employment.  There had only been cases saying what did not amount to employment.  As there are such a large number of such claimants here, the definition of employment for the purposes of triggering the two offences in the present case amount to points of law of great and general importance.

18.As submitted by Mr Andrew Li for the respondent in his written submission dated 26 June 2015, the applicants’ reference to non-refoulement protection in Hong Kong is misconceived.  They are torture claimants who have been granted recognizance pending the outcome of their torture claims.  As torture claimants, both applicants were prohibited from being employed in Hong Kong while their claims are pending.  It makes no difference whether they had entered Hong Kong illegally or legally but subsequently overstayed.

19.The only issue before me was whether their convictions were safe and supported by the evidence adduced.  On appeal, Mr Sutherland submitted that the circumstantial evidence was not sufficient to draw the only reasonable and irresistible inference that the two applicants were being employed.  As there is no single or simple test to decide on whether an employment relationship exists, I have dealt in detail with the evidence before the magistrate and came to the conclusion that on those evidence, the only irresistible inference to be drawn was that both applicants had taken up employment at the shop in question.

20.The fact that there is no single or simple test of what amounts to employment is illustrated in the Court of Final Appeal decision of Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156.  The Court of Final Appeal has this to say (at page 167):

 “18.    The modern approach to the question whether one person is another’s employee is therefore to examine all the features of their relationship against the background of the indicia developed in the abovementioned case-law with a view to deciding whether, as a matter of overall impression, the relationship is one of employment, …”

21.My decision only concerned with whether, on the evidence, both applicants were properly found guilty.  No points of law, let alone points of law of great and general importance arose out of my decision.

22.I refused to grant a certificate in relation to the 1^st and 3^rd points stated.  

2^nd point

23.As to the 2^nd point, again Mr Sutherland did not specify how any point of law of great and general importance arises out of my decision.  Simply saying (in his written submission, para 9) that “reference is made to the authorities and legislation cited at the hearing of the underlying Appeal on 25 March 2015” is most unhelpful.

24.I have summarised Mr Sutherland’s submission (advanced during the appeal hearing) in my judgment dated 8 May 2015 (para 32-38), Mr Sutherland’s submission for this application was to the effect that a point of law of great and general importance was involved in my decision (which did not accord with his submission and interpretation of the law).

25.I have already given full reasons in my judgment why I did not agree with Mr Sutherland’s submission (para 45-58).  There is nothing in the Immigration Ordinance, Cap 115 which suggests a condition of stay is dependent on, or attached to, a limit of stay.

26.In my view, Mr Sutherland’s submission on behalf of A2 for the present application was not reasonably arguable and did not amount to a point of law of great and general importance fit for certification.

27.I refused to grant a certificate in relation to the 2^nd point stated.

Conclusion

28.For these reasons, the application of both applicants was dismissed.

Mr Andrew Li Hay Chit, SPP of the Department of Justice, for the respondent

Mr Mark Richard Charlton Sutherland, instructed by David Ravenscroft & Co, assigned by the Director of Legal Aid, for both applicants